';■ #.>j #' THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES ' SCHOOL OF LAW International Copyright Edition. PRINCIPLES Law of Real Property, INTENDED AS A FIRST BOOK FOR \ THE USE OF STUDENTS IN CONVEYANCING BY THE LATE JOSHUA WILLIAMS. 'pt^e geuenteentt^ Edition RE-ARRANGED AND PARTLY RE-WRITTEN BY HIS SON, T. CYPRIAN WILLIAMS. WITH AMERICAN NOTES 13 y H slt'Il' y 13 . H 1:1 1 c li i n s , Professor of Law in Cornell University. LONDON : SWEET & MAXWELL, Limited. BOSTON : THE BOSTON BOOK COMPANY. 1894. T 1594- Entered, according to act of Congress, in the year eighteen hundred and ninety-two. By sweet & MAXWELL, Limited (of London, England), In the office of the Librarian of Congress, at Washington. Entered, according to act of Congress, in the year eighteen hundred and ninety-four, By SWEET & MAXWICLL, Limited, (of London, England), Tn the office of the Librarian of Congress, at Washington. 1i PREFACE TO THE AMERICAN EDITION. The editor of this edition has endeavored in his notes so to explain and supplement the English text as to make the woi-k a trustworthy guide to the American student and a convenient book of reference to the American practitioner. Atten- tion has been given both to adjudicated cases and important statutory changes. It is believed that the book, in its present form, contain^, upon the subjects treated, a fairly comprehensive statement of the law of to-day on both sides of the Atlantic, and shows, in addition, its historical development. The placing of the notes at the end of each chapter, with references on the margin of the English text, will probably commend itself to most readers. The plan has the advantage of pre- senting the American law in a compact form. 6481S7 iv PREFACE TO THE AMERICAN EDITION, The editor acknowledges his indebtedness to the excellent treatise of Mr. Stimson, on American Statute Law. The book has been freely used, and has proved an invaluable aid in the tracing of statutory changes in the diiterent states. H. B. H. Cornell University, Ithaca, N. Y., Sept. 7, 1894. PREFACE TO THE SEVENTEENTH EDITION. The present work is put fo7-\vard as tlie seventeenth edition of the late Mr. Joshua Wilhams's " Principles of the Law of Real Property " : but it is right to explain that it is to a large extent a new book. Since tlie late author's death in 1881 (a), three editions of the book have been prepared by the present editor; and in these the original text was, as far as possible, retained. It was felt, however, that the symmetry of the original work was impaired by the additions and alterations rendered necessary not only by the great changes in law and practice worked by the Conveyancing and Settled Land Acts, but also by the progress of historical learning. In preparing the edition now submitted to the profession the editor has ventured to work with a free hand, and to remodel the book after a design of his own. The subject is therefore pre- sented under an arrangement different from that pre- viously employed, and a very considerable propoi'tion of the text is new. At the same time the scheme now adopted is no more than a dev^elopment of the late (a) The first edition of " Williams edition prepared by the late author on Real Property" was published in himself, in 1880. 1845, and the thirteenth, the last VI PKEFACE TO THE SEVENTEENTH EDITION. author's plan, and much of what he wrote has been pre- served {b) And throughout the present edition the editor has endeavoured to harmonise tlie old matter and the new, so as to carry out, as far as possible, the late author's idea in projecting the original work, viz., to write a readable book, and one intelligible to a student without previous knowledge of the law. The editor must gratefully acknowledge the benefit his work has derived from the criticism of his friend Mr. F. W. Maitland, Downing Professor of the Laws of England at Cambridge, who was kind enough to read some portions of the book in manuscript. An entirely new index to the book, and to the cases, year-books and statutes cited, has been prepared by Mr. Kenneth F. Wood, of Lincoln's Inn, to whom the editor is also indebted for much efficient help in passing the work through the press. A few cases, decided since the text was in print, are referred to in the Addenda, by the aid of \vhich the work is brought down to the date given below. 7, Stone Buildings, Lincoln's Inn, 26th June, 1892. (J) The late author's Appendices are untouched. TABLE OF CONTENTS- PAGE. INDEX TO ENGLISH CASES CITED .... xiii INDEX TO AMERICAN CASES CITED .... xxxv ERRETA AND ADDENDA li IXTRODUCTORY CHAPTER. Of the Nature of Real Property or Estate and Chattels Real ......... 1 Section 1. — Of the Nature of Property and Ownership . . 1 Section 2. — Of Property in Land and Goods in English Law . 6 Section o. — Of Tenements and Chattels .... 15 Section 4. — Of Real and Personal Actions and Property . . 22 PART I. OF CORPOREAL HEREDITAMENTS 40 CHAPTER I. Of Free Tenure. ........ 43 Sectionl. — Of the Origin of Free Tenure ... 43 Section 2. — Of the Classification of Free Tenure . . .51 Sections. — Of Free Tenure in Modern Times ... 58 viii TABLE OF CONTENTS. CHAPTEE II. PAGE Op AN Estate in Fee Simple ,,,,,,, 70 CHAPTER III. Of an Estate Tail 100 CHAPTEE IV. Of an Estate for Life ....... 123 CHAPTEE V. Of Joint Tenants and Tenants in Common , . , . 164 CHAPTER VI. Of the Convevance of a Freeholding at Common Law , . 174 CHAPTER VII. Of an Equitable Estate in Land ..... 193 Section!. — Of Equity and the Court of Chancery . , , 193 Section 2. — Of Uses before the Statute of Uses . . . igg Section 3. — Of the Statute of Uses ..... 204 Section 4. — Of Trusts after the Statute of Uses . . . 207 CHAPTER VIII. Of a Modern Conveyance ....... 232 CHAPTER IX. Of the Descent of an Estate in Fee Simple . . . 254 CHAPTER X. Of a Will of Lands ........ 279 CHAPTER XL Of Creditors' Rights ....... 307 TABLE OF CONTENTS. IS. CHAPTER XII. PAGE Of Personal Capacity ........ 340 CHAPTER XIII. Of the Mutual Rights of Husband and Wife . . . 352 PART II. OF INCORPOREAL HEREDITAMENTS ..... 883 CHAPTER I. Of a Reversion and a Vested Remainder .... 385 CHAPTER II. Of a Contingent Remainder ....... 410 CHAPTER III. Of an Executory Interest ...... 433 CHAPTER IV. Of Remoteness of Limitation ...... 464 CHAPTER V. Of Hereditavients pureli' Incorporeal . . . <, 478 X TABLE OF CONTENTS. PART III. TAGE OF COPYHOLDS 509 CHAPTER I. Of Estates in Copyholds ....... 522 CHAPTER II. t>p TUE Alienation of CoprHOLos . . , , ^ a 541 PART I^^. OF PERSONAL INTERESTS IN REAL ESTATE . « 555 CHAPTER I. Of a Term of Years ........ 557 CHAPTER II. Op a Mortgage of Land ..... ^ • 595 PART V. OF TITLE '■>39 PART VI. OF THE PRESENT FORM OF A CONVEYANCE . . 678 TABLE OF CONTENTS. XI PAGE Appendix (A.) Fuhm op Le.^se axd Release .... 695 Appendix (B.) Remarks on the Case op Muggleion v. Barnttt . 703 Appendix (C.) Descent of Coparcener's Share . . . 709 Appendix (D.) Of the Husband's Right to Curtesy where nis Wife became Entitled by Descent . . 723 Appendix (E.) Rule against Perpetuity in Settlements by way OF Remainder ...... 734 Appendix (F.) Of the Right op Tenants of a Manor to Common ON THE Waste ...... ^38 Appendix (G.) Form of Surrender of and Admittance to Copyholds ....... "TGI GENERAL INDEX .... . . . <, 7C3 INDEX TO ENGLISH CASES CITED. PAGE 430, 473 V. . 553 . . 567 . 484 . . 390 . 672 . . 567 . 457 . . 554 . 183 Abbiss«. Burney . . Abernethy, Boddington Acklane, Norton v. . Ackroyd v. Suiitli . Acocks V. Phillips . Adams v. Gibney . Rowley v. V. Savage . Smith V. Adsetts V. Hives . Ailesbary Settled Estates, Be. 134 Ainslie v. Harcourt . . 580 Albany's case . . . . 454 Alberry, Scott v. . . .8 Alchorne v. Gomme . . . 611 Aldborough, Lord, v. Tyre . 659 Aldebiirgh, Clay v. . . . 195 Aldous V. Coruwell . . 147 Allan V. Backhouse . . . 5S0 AUcock V. Moorhouse . 392, 558 Allen V. Allen . 146, 341 Festing v. ... 419 Alston V. Atlay . . . 500 Ambrose, Hodgson and Wifely. 286 Ambler, Whitaker v. . 25, 28 Amcotts, Ingilby v. . . . 423 Amey, Doe v. ... 311 Amherst, Earl of, Duke of Leeds v. . . . .129 Anderson's case ' ■ ■ 326 Anderson v. Pignet . 372, 592 Anderton & Milner's Con- tract, Re . . . . 566 Andrew v. Motley . . . 284 Andrews v. Hulse . . 520 Anglo-Italian Bank v. Davies 329 Annesley, Tooker r. Anon., Cro. Eliz. 46 . 1 Vern. 318 V. Cooper Anson, Lord, Winter v. Anstev, Saward v. 576, 128 205 331 577 023 489 Anthony, Re Appleton V. Rowley {.\(V\.) 313, 316, 610 . 363 Apthorpe ». Apthorpe . . 89 Archbold «. Scully . . 643 Archer's case . . . . 412 Argenti & \Mllett, Re . . 650 Armitage, Earl of Cardigan v. 41 Armstrong, Tullett v. . 89, 360 Arnold, Cattley v. . . . 143 Arthur, Vyvyan v. . . 568 Ash V. Rogle . . . . 5S0 Ashberry, Harlock v. . . 619 AshburyRwav.i&c.Co.,Riche«. 347 Asher v. Whitlock . 215, 639 Ashtou V. Jones . . . 83 Astley V. Micklewait . . 430 Aston, Yates v. . . . 60L Atherstone, Nickells v. . 580 Atkinson v. Baker . . . 144 Champian v. . . 525 Atlay, Alston ii. ... 500 Att.-Gen. r. Lord Braybrooke 474 Casberd y. .' . . 325 v. Chambers . . 483 Charlton v. 453, 474 V. Edmunds . . 324 V. Floyer . 453, 474 V. Glyn . . .83 V. Hallett . . . 300 V. Hamilton . .170 v. Lord Middletou . 474 V. Morgan . . 85 V. Sefton. Earl of . 299 T. Sibthorpe . . 474 V. Sitwell . . 499 V. Smythe . . . 474 Attwood, Lloyd v. . . 627 Aubin V. Daly . . . . 28 Audland, Ward v. . . 174 Audley, Jee v 115 Auriol, Mills v. . . . 567 Austerberry v. Corporation of Oldham . . . 216, 494 Austin, Webb v. . 564, 611 Aveline v. Whisson . .185 Awdry, Cloves v. . . . 446 Avers, Fain v. . . . 662 Aylesford, Lord, v. Morris . 659 XIV INDEX TO ENGLISH CASES CITED. Aynsley v. Glover, Ayretj, Swaiu v. PAGE . 645 198, 561, 569 301, 129, 27, 556, B. Bacchus, Bedford v. Baclielour v. Gage . Backhouse, Allen v. , Eanoni v. Bacon v. Procter . Badham, Bailey v. Baggett v. Meux . Basrot v. Bagot . Bailey v. Badham . r. Ekins Keppel V. Bain i\ Forthergill Baiubridge, Hall v. Baird v. Fortune Baker, Be Atkinson v. p. Gosling . Reeves v. v. Sebright Smith -y. Thornborough v. V. White Bale, Franklin ski v. Ballard v. Tomlinsou Bam ford v. Creasy . Banks. Right d. Taylor Bannister, lie . Barber, Mackintosh v . Barclay, Hill v. Bargent v. Thompson Barker, Be Payne v. . Prescott V. . Barkshire v. Grubb Barlow v. Rhodes . «. Teal Wright V. Barnaby t. Greene Barnard v. Godscall . Langford v. Barnes, Edwards v. . V. Mawson . v. Robinsoa . Barnett, Muggleton v. 265, TO- Barningham & Bryant's Con- tract, Be .... Barrett v. Rolph . . . Barringtou, Be . . . V. Liddell . . Barrow v. Isaacs . . 569, V. Wadkin . . . .28. 448, 028 507 580 41 667 503 362 127 503 320 567 505 182 484 322 144 577 28 216 28 605 293 617 86 569 534 651 457 569 569 453 707 574 690 484 559 441 003 507 003 28 759 359 70S 051 577 129 467 570 347 Bartholomew, Drybutter v. . Bartle, Doe d. Nethercote v. . Barilett, Rose v. . 22, 28, Bassett, Upton v. . . . Bateman «. Hodgkin Bates v. Johnson . . . Baxter, Main waring v. . Matthews v. 343 Baynton v. Morgan . Beale ». Symonds . Beane, Ithell v. . . . Beardmau v. Wilson Bearpark v. Hutchinson Beaufort, D. of, v. Mayor, &c., of Swansea, t\ Phillips Beaumont v. Marquis of Sal- isbury ... . . Beavau v. Earl of Oxford -V. M'Donnell , . Bedford v. Bacchus D. of. Trustees of British Museum v. . . Beeiham, Be Beevor v. Luck Bell, Consett v. . . . Love V. . . . . Bellamy, Be .... and Metropolitan Board of Works, Be v. Sabine . Bembow, Herne v. Benham v. Keane . . , Bennet v. Bishop of Lincoln . v. Box Bennett w. Reeve . 739, Bennison v. Cartwright Benson -v. Chester Bentley, Poole v. . Berridge v. W'ard Berriugton, Price v. V. Scott . AGE 2V 546 574 85 467 627 112 344 567 218 27 576 491 483 311 576 311 343 628 216 023 632 128 41 578 Bestwick, Thorpe v. Beth ell, Vernon i\ . . . Betts V. Thompson Beverlev, Cuscoi the Provost of . ■ . Be wit, Whitfield ■;;. Bewley, Noel v. . . . Bickett V. Morris . Bingham v. Woodgate Birch V. Ellames . Bird V. Higginson Birkbeck, Cort v. . Birkenhead, &c., Rway Co.i-. Pilcher ..... Blackburn, &c.,BidingSoc.,i?e 665 331 565 316 501 331 742 646 748 562 482 344 115 283 604 481 403 127 427 482 526 627 560 759 341 48S INDEX TO ENGLISH CASES CITED. XV Blackburn, Harrisou'jJ. . Blackburn v. Stablt^s Blackmore, Mathew v. . . Blain, Heelis v. . . ■ Blake v. Blake Perin v. . . 288, Shrapuell v. Bligh v. Brent . . . Bliss V. Collins Dean of Ely v. . . Blissett, Chapman v. Blood, Creagh v. . . . Blunt, Griffith v. . Blythe, Westbrook v. . . Boddington v. Abernethy Boiingbroke, O'Rorke v. Bolton, Lord v. Tomlin Bolton, D. of, Countess of, Bri dgewater v. 6, 8, Bond Furness v. . 198. 215, - i\ Rosliug Bonh am, Farley v. Nevvcourt i\ . Bonifant v. Greenfield . . Bonomi v. Backhouse . Booth c. Smith Boothby, Tunstall r. . . Boraston's case Borman, Scarborough v. 89, Borrows v. Ellison Bosanquet, Williams v. Bourdillon v. Roche Bousfield, Doe d. Hobin- sonw . . . . . Bower v. Cooper . Bowker r. Burdekin . . Bowler, Matthew i\ Bowies', Lewis, case . . Bowser v. Colby . fl. MacLean . . . Bos, Bennet v. . Boycott, SSnow v. . (Add.) Brace v. Dss. of Marlborough, 809, Marsh v. . Brackenbury v. Giijbons Bradburn v. Foley . . . Bradford v. Brownjohn Bradley v. Peixoto . V. Riches . orandon v. Robinson 88, Brandreth, Lucas v. . 12 !, Branker, Cunliffe ''. , . Braybrooke,Lord,Att.-Geu. v. Brent, Bligh v. . . . Brett v. Clowser V. Cuni1)orl;uid . Bridge v. i'ates . . . AGE 205 418 601 205 280 399 617 29 572 643 430 580 465 575 553 659 560 28 561 561 370 605 457 41 493 90 413 361 641 567 665 523 215 182 623 129 390 523 331 587 627 567 419 581 580 o 628 360 213 419 478 29 484 567 167 Bridgewater, Css. of, v. D. of Bolton . . . 6, 8, Bridgewater. Welden v. Bridgmau, Sir Orlando, Case and ojnnion of . Briggs and Spicer, Re Brise, Mathew v. British Museum, Trustees of, D. of Bedford v. British Mut.,&c., Co. «. Smart. Broad v. Munton . Broadwater Estate, Re . . Brocklehurst, Wardie «. Broderick, Ex parte Brogden, Humphries v. Brograve v. Watts . Bromley, Hall «. Brooke v. Pearson Brookes, Millership v. . Broughton v. James Brown, Caldecott v. Church r. t. Rawlins Scratton u. Torre v. Willis V. Browne v. Browne Knierht v. . 565, Brownjohn, Bradford v. . . Brown low, Earl, Smith v. Pate r. . . . Brudenell v. Elwes . 112, Brummell v. Macpherson Brunswick, &c., Bldg. Soc, Haywood v. . . . Brunt, Dodkiu v. . . . Bryan & Barningham's Con- tract, Re . . - . Brydges v. Brydges . Buchanan, Fleming v. . Buckeridge v. Ingram . . Buck land v. Pocknell . V. Papillon Buckler's case Buckley, Earl of Stafford v. Freed v. . . . V. Howell . Budd, R. V Bugby, Crusoe d. Blencowe v. Bullock, Tomlinson v. . Bulwer Lytton's Will, Re Burdekin, Bowker v. . . Burdett v. Doe d. Spilsbury . Burges, Hare v. . V. Lamb Burges v. Wheate Burlington, Earl of. Doe d. Grubb V. .... 28 748 748 326 343 210 323 651 141 484 623 41 195 549 89 182 468 141 667 525 483 28 244 419 89 5-^0 481 748 470 570 494 220 65 1 225 439 29 623 505 417 28 652 452 533 565 314 141 182 441 ■579 129 218 524 XVI INDKX TO ENGLISH CASES CITED. r.VGE Burnivby's Settled Estates, Re ()~)8 Buruett v. Lynch . . . 567 Buniie, Abbiss c. . 430, 478 Burrell, Davis v. . . . 569 V. Dodd . . 524. 535 Biirroughes, Wright v. . . 391 Burt, Edwards v. . . . 659 V. Gray . . . . 570 Buslier, app. .Thompson, resp.,52G Bustard's case . . . . 671 Butcher, Daintree v. . . 280 Butler p Butler . . . 28 Nottingham, &c., Co. ». 653 Butterworth, lie . . . 32(5 Buttery e. Robinson . . 489 Butts, Troweri). . . . 418 Byas ;;. Byas . . . . 2r Bvrou's Settlement, Be . . 446 — Doe d. Wyatt v. . 390 Hall V. ... 481 C. Cadell V. Palmer . 113, 465, 734 Cage, Smithsoa v. . . 40 Cahill V. Cahill . . . 357 Caldecott v. Brown . .141 Caldwell v. Fellowes . . 168 Calmady v. Bo we . . . 483 Calvin's fntse . . . . 346 Campbell v. Holyland . . 614 V. Lucy . . . 283 Camrous, Moltf-u i\ . 343, 344 Candish, Wilkinsou v. . . 665 Canu, Ware v. . . .2 Canning v. Canning . . . 258 Capper, H. v. . . .29 Cardigan, Earl of, v. Armitage 41 V. Curzon-Howe . 137 Cardross's Settlement, Re . 445 Carleton v. Leighton . 75, 433 ("arr v. Lambert . . . 748 Carrick, Ralph v. . . . 468 Carter, Parker v. . . . 354 Cartwright, Re . . 128, 565 Bennison v. . , 645 Corser v. . . 296 Casberd v. Att.-Gen. . . 2U1 Casborne v. Scarfe . . 605 Catomore, Doe d. Tatum v. . 182 Cattley v. Arnold . . .143 Cattliug. Wills v. . . . 577 Chatl wick «. Turner . . 297 Challis, Rogers v. . . . 656 Cbamberlain, Cox ri. . . 446 Chambers, Att.-Gen v. . . 483 V. Kiii. Marcbant . . 28 Sparling V. . .29 Strode v. . . . 624 V. Taswell . . 561 Parmenter v. Webber . . 576 Parr ii. Lovegrove . . 653 Parratt, Doe d. Free.stoue t'. 358 Parsons, Zouch v. . . . 841 INDKX TO ENGLISH CASES CITED. PA6K Pascoe V, Pascoe . 5TG, 577 Pass, Deuuett l\ . . . id'd Passingham, (tpp., Plty,re.sp. 60, 526 Pate V. Bronlovv . . . 748 Patevson, (ireen V. . . .549 V. Mills . . . 71') Patuum V. Harlaud . . . 578 Patrick, Shedden u. . . ;J46 V. Simpson . . 64"3 Patterson, Foster v. . . 619 V. Huddart . . 8 Patiiiison. D. of Devonsliire y. 48"2 Pattisliui's case . . . 530 Pawson, Kerr v. . . . 549 Paxton, Cholmeley v. . . 129 Payne v. Barker . . . 607 V. Esdaile . . . 613 Peach. Doe d. Mansfield y. . 441 Peacock v. Eastland . . 117 Pearce v. Cheslyn . . . 562 ■ Lock u, . (Add.) 570 Pearse, Heasman v. . . 466 Pearsey, Doe d. Pring v. . . 483 Pearson, Brook v. . . 89 Elder v. . . . 578 Peck. Doe d. Flower v. . 571 Peddler u. Hunt . (Add.) 641 Pedley, Hasluck v. . . . 14:^ Peixoto, Bradley v. . .2 Peltou V. Harrison . . . 345 Penipertou, Wortham v. . 359 Pen fold, Doe d. Graliam v. . 639 Pennell, Neve v. . 628, 639 Penny, Holmes t'. . . 89 Penrliyn, Lord, Dawkius v. 108 Pepler, Taunton v. . . . 185 Peppercorn v. VVayman . 553 Perceval v. Perceval . 419, 427 Perigal, Myers v. . . . 39 Perrie, Price v. . . . 605 Perriu v. Blake . 288, 399 Perry v. Eames . . . 647 Perryman's case . , . 526 Pers, Eylet v Lane . . .'129 Pett, Doe d. Blight v. . . 58S Pettit, Hide v. . . . 36 Pettitt, Strattou v. . . . 501 Petty V. Styward . . . 634 Pheysey v. Vicary . . . 484 Phillipps, Freeman v. . . 759 Phillips, Acocks v. . . . 300 ■ — Cousins V. . . 394 D. of Beaufort v. . 311 V. Deakin . , . 473 Phillips V. Phillips . . 516 V. Smith . . . 127 Picken v. Matthews . . 4.66 Pickersgill v. Grey . Pidgeley v. Hawling Piguet, Anderson v. Pigot's case Pike V. Fitzgihbou 307, Wilmot V. Pilcher, Birkenhead, Ewav Co. V. . Pilling's Trusts, Ee. 219 Pimm V. Insall Pin eke. Shove V. Pion, North Shore Rway. Pitt V. Jackson V. Jones Pitty, r('*7:)., Passingham, Plant, James v. Plummer v. W'hiteley Pocknell, Bucklaud v. . Pollexfeu V. Moore . Pollock V. Stacy . Polyblank v. Hawkins Pomfret, Earl of, v. Windsor Selbv V. 372, 182, 361, &c. ,271,' Co.v. airp. Lord Poole V. Beutiey Doe d. Biddulph v. Pope, Re . M'Donnell v. V. Onslow Portal and Lamb, Re Porter, Fry v. V. Lopes 313, Portington's, Mary, case Portland, D. of, v. Hill Potter, Credland v. V. North Poultney v. Holmes Pound, Griffith v. Powell, Pritchard v. Prat V. Colt . Pratt, Judd v. . Preece v- Corrie . Prescott V. Barker Holmes v. . 741, 28', Price, Re . . . 345, V. Berringtou Crowe I'. Curtis i\ . . . V. Hall . .419, Harriuirton v. . . y. Perrie . V. Price . 323. V. Worwood Prickett. Steel v. . 483, Prince, Doe d. Starling v. Pritchard, Doe d. Griffith V. V. Powell .741, 'AGE 551 137 592 183 362 637 341 296 823 214 483 472 171 60 52(5 484 143 633 623 576 353 558 631 562 579 339 580 630 283 197 171 108 535 639 759 576 632 758 331 37 576 574 419 365 31-1 9(5 404 427 68;f 605 333 571 759 246 346 758 XXVUl INDEX TO ENGLISH CASES CITED. PAGE Pritcbard Shaw v. . . . 89 Procter, Bacon r. . . 4o7 V. Cooper . . . {)2S Prodgers v. Langliam . . y,") Protheroo, Damerell v. 037, 758 PiiffU, Harris V. . . . ;;28 ^ — lieatli V. . (il4, 620 P urn f rev, lie . . . o26 Piiu":, liav V. , . . . 446 Queen, The (see P.) Queen's College, Warrick i'. 481 04.") Queintou, case of Kite and . 544 R. R. V. Biuld — V. Capi^er — V. Cborley — V. Corbelt — r. — t\ Gee Ellis Estate of G. Hassell — r. — 1\ Joiliffe . . . . Lady of tlie Manor of Dallingbam Lord of the Manor of Oundle Mildmay, Dame Jane St. Jobu — V. Registrar for Middlesex. — V. Sniitb .... — r. Wilson . . . . — V. Yarborougb, Ld. . Raleigh, Vine v. . . . Rallisou, Weldou y. . . Ralph V. Car rick Ramsey -?'. Gilchrist (Add.). Raudfield v. Randfield Raun V. Hughes Ratcliffe, London & County Bankino: Co. r. . Rawe V. Chichester Rawley v. Holland Pawling, Pidgeley r. Rawlins. Brown i: Rawson, Moore v. Ray r. Puug Reade, Doe d. Reade v. Redburn v. Jervia Rf-dfern. Doe d. Hayne and His Majesty v. Redgrave, Wright v. 533 2i) 647 552 312 324 483 645 551 553 544 540 331 552 483 468 604 378 84 551 181 630 5S0 457 127 525 647 446 215 28 62 198 Reed, Lyon i\ . Rteve, Bennett v. Reeves v. Baker Heid V. Reid Remnont, Hunt v. Renals v. Cowlishaw Hendall. Dyke v. Reynolds v. Wright Hhodes, Barlow v. Howard v. i\ Whitehead P. 847, 739, 345. Rice, Rogers v. . (Add.) Richards v. Delbridge Ricliardson, Cottee v. v. Feary . . Glass V. — V. Horton . . V. Small wood Walker i\ . . Warwick v. liiche i\ Ashbury Rway Co. Riclies, Bradley v. liickett's Trusts, Be . . Ricketts, Newton v. Riddell v. Riddell . . . Rider i\ Wood . . 65, Ries, Doe d. Pearson t\ . . Rigby, Goodright d. Burton v. Right d. Taylor r. Banks d. Flower i\ Darby 570, Riley v. Garnett Rittson V. Stordy . Rivis V. Watson Roach V. Wadham Robertson, Dugdale r. . . V. Hartopp r. Norris Robey, Truelock v. Robin, Jones v. Robinson, Barnes r. P.raudon v. Buttery t\ Hallas V. Margarv V. 353, !, 89, 198, Roche, Bourdillon v Roe d. Earl of Berkeley v. Archbp. of York Doe d. Dixon r. d. Haldane l\ Harvey Jones V. ... d. Perry v. Jones . . d. Fox, Marston v. Rogers v. Challis . . . Ellis r. . . . V. Grazebrook Rogers v. Rice . (Add.) V. Tavlor Rosrle, Ash V. VGH 580 742 28 363 691 216 370 491 484 220 419 570 213 576 171 553 323 326 83 195 347 628 441 441 668 607 574 108 534 571 419 345 495 446 41 481 355 618 758 359 360 489 224 281 665 579 390 639 75 423 284 656 650 607 570 41 530 INDEX TO ENGLlSri CASES CITED. XX 1\ Rolland t\ Hart. . . 243, liollason V. Leon , Kolpb, Barrett v. Rolt V. Ilopkinsou Romilly v. James Rooper v. HarrisoQ . 499, Roper y. Cooiubes Hose D. Bartlett . 22, 28, Rosling, Bond v. lioss V. Ross .... Rosslyn's. Ee Lady, Trust . Rotlienhale v. WycUiugliaiu 8, Rous, Llewellyn v. . . . Rouse, Kiusinan ii. Rovvbotliam v. Wilson . . Rowe, Calmady v. Rowley v. Adatns . . . Appleton V. Royal Socy. of London & 'I'lionipson . . . . Russell, /;/ the goods of Hatten v. )'. M'Culloch Roail Purchase Moneys Ee . V. Russell . Taylor v. . . . Webb V. . AHE 628 561 577 630 433 691 656 574 561 2 468 201 143 619 41 483 567 362 349 284 134 6Ja '628 623 627 393 Rvlands v. Fletcher S. Sabine. Bellamy v. . . . 331 St. Albans, D. of, r. Skipwith 127 St. John, Stranks v. . . 656 St. Leonards, Lord, Sugden v. 283 St. Saiiveur, Sharp v. . . 347 Salisbury, Mq. of, Beaumont «. 576 Salkelk, Johnston c. . . 643 Salt V. Cooper . . 198, 329 M. Mq. of Northampton . 605 Siinbach v. Dal ton . . . 209 Sandaraaa, Clements y. . 92 Sanders v. Sanders . . . 640 Sanderson, Wright v. . . 280 Sands v. Thomi^son . . . 644 Sandys, Lady, Mq. of Down- shire I). . . . .129 Sartoris, D of Marlborough r. 134 Saunders, Hill ?•. . . . 564 Savage, Adams v. . . . 457 TiOcUyer v. . . 88 Saward v. Aiistey . . . 489 Sayers v. CoUyer . . .216 Scan '.an, He . . . . 343 Scarborough «. Borman . 89, 361 Scarborough, Earl of. Doe d. Lumley y. .... Scarfe, Casborne i\ . Scarisbrick v. Skehiiersdale Scholes V. Hargreaves Scoones v. Morrell Scott, Ee . V. Alberry . Berriugton v. Exton y. Doe d. Foster v. V. Morley . V. iSison Scratton t. Brown Scully, Archbold v. . Seaman v. Woods . Searle v. Cooke Seaton, Doe d. Strode d. Seaward y. V\illock . . 470, Sebright, Baker r. . 129, Sebright's Settled Estates.iie. Sefton, Earl of, A. G. v. ■ V. Court . Selby y. Pomfret . Selraes, Langford v. . 576, Sewell, Cole v. .421, 470, Shaftesbury, Css. of. Eyre v. Sharp V. St. Sauveur . . Sharpe, Clay y. . Shaw V. Johnson V. Pritchard Shedden v. Patrick . Sheffields, Nichols v. . Sheldon De Hourmelin v. Shelley's ca.te . . 398, Shephard, Ee . , , . Shirley v. Watts . Short, Trustees, &c., Co., v. . Shove V. Pinke Shrapnell y. Blake . . . Shum, Taylor y. . Shuttleworth y. Le Fleming. Sibthorpe. A.-G. v. . . . Sichel V. Moseuthal Siggers v. Evans . . . Simmons v. Norton Simpson, Doe d. Blesard v. . V. Dendy Patrick v. . . . Sims V. Thomas Sit well, A.-G. ». . . . Skelmersdale, Scarisbrick v. Skinner's Co. i\ Knipht . . Skipwith, D. of St. Albans v. Slater, Spencer v. . Sleeman.Doe d. Molesworth v. Small wood, Ricbardson v. 422 605 468 748 482 445 s 115 182 532 345 644 483 643 28 486 564 472 216 134 137 399 743 631 577 473 343 347 615 593 89 346 473 347 413 329 574 640 244 617 567 645 474 656 293 127 530 482 642 330 499 46S 570 127 325 759 326 XXX IXDEX TO EKGLISH CASES CITED. PAGE Smaridge, Doe d. Clarke v. . 5G0 ymart, Re . ■ ■ 519, 534 Britisli, &c., Co. v. . '62\i V. Morton . . .41 Smitli, lie. . . . 324, 570 Ackroyd v. . . . 484 T. Adams . . . 554 r. Baker . 27, 28 Bootli V. . . .498 V. Earl Brovvulow . .481 V. Cowell . . . 329 v. Darby . . . 41 — r. Death . . . 454 V. Glasscock . . . 551 Horlock V. . . 141 Howe v. . . . . 553 — — Joues V. . . 023, 030 King V. . . 325, 009 f. Matthews . . 359 Municipal, &c., Bldg. Socy. V. . 508, Oil Phillips «. . . .127 V. iSmith . . . 017 The King «. . . 331 V. Watts . . . 577 Wilcox y. , . . 474 Smithson v. Cage . . . 40 Smyth, jEx jMirte . . . 143 Smythe, A.-U. t). . . . 474 Snape, Gibbons v. . . 549 Snow V. Boycott . (Add.) 587 Snowdon Slate Quarries Co., Elias V 127 Sodor and Man, Bp. of, Vin- cent (■ 441 Somerset, D. of, v. France . 525 Southampton, Lord, v. Mq. of Hertford . . . .468 Sowerby, Doe d. Gutteridge v. 545 Spackman v. Timbrell . . 323 Sparke, Weeks v. . . .741 Sparling r. Parker . . . 29 Spateman. Mellor v. . 739, 742 Spencer's case . . 507, 072 Spencer v. Slater . . . 325 Spicer, Re Brigg & . . . 320 V. Martin . . .210 Spilsbury, Doe d. Burdett v. 441 Spyer v. Hyett . . . 554 Stables. Blackburn «. . .418 Stacv. Pollock V. . . . 576 StaJTord, Earl of, v. Buckley . 28 Stains, Hal ford v. . . . 407 Stanhope v. Haworth . . 390 Stanion. Doe d. Gray v. . 650 Stansfield v. Hobson . .619 Staple, Doe d. Hodsdeu v. . 215 Steel V. Prickett . . 482, 759 Stephens v. Stephens Stephenson, Cooper v. «. Hill Stepney Election Petition, i?d, Stevens, Re. . . . . Stevenson v. Lambard . Steward, Doe d. Shaw v. . . Stone, De Geer v. . Imperial Loan Co v. (Add.; Stordy, Rittson v. . Storie, Long v. . Siranks r. St. John Stratton v. Pettitt Strickland, Doe d. Payer '«. Stridcland Strode v. Parker . Stroyau i\ Knowles . Striidwick, Legg v. Sturgis V. Champneys - V. Morse . Styan, Ex parte Style V. Hearing Styward, Petty v. Sugden v. Lord St. Leonards. Sumpter i\ Cooper. . , Sutton,Charity,&c.,of Clergy- men T. V. Sutton . Swain v. Ayres . 198, 501, Swann, Horner v. . . . Swannell, Martin v. Swansea, Mayor, &c., of, D. of Beaufort v. . . . . Swansea. Mayor of .i'. Thomas. Swift V. Swift . . Swinbanks, Kv parte . Sydney, Comrs. for the City of, Lord V. . . . . . Sylvester, Thomas v. Symmons, Mackreth v, Symonds, Beale v. V. Leaker . . . T. Tabor v. Tabor Tailby v. Official Eeceiver Taltarum's case Tanner, Chapman v. - n. Ehvorthv Tarn v. Turner Taswell. Parker v. Tate V. Gosling Tatham v. Vernon, Taunton r. Pepler Taylor v. Cole . 504, 'AGE 405 004 524 o46 145 508 578 346 343 347 89 056 501 542 294 024 41 560 359 043 419 673 624 283 028 349 644 509 454 292 483 507 28 665 483 48() 023 218 647 556 75 105 623 580 511 561 216 213 185 574 INDEX TO ENGLISH CASES CITED. XXXI Taylor Doe d. Reed v. t). Haygartli Holder v. . 1). Meads . Rogers v. V. Russell . — V. Sbuiu Teal, Barlow v. Telford, Lowe t. Tempest v. Tempest Temple, Crump v. Tennent v. Welcli Terrell, Willcock v. Tbellusou V. Woodford 359 PAGE 175 318 672 801 41 637 567 559 511 383 561 356 90 465, 735 Thomas of VVevland's case 8, 78 199, 200 V. Lane . . .40 Sims V. ... 330 Swansea, Mayor of, i\ 567 V. Sylvester . . . 486 Thompson, Betts v. . . 481 resp. , Bushev, app. 536 Doe d.Ld Downe v. 1 1 • Dodd v. 489 534 38 644 569 576 i\ Hardinge V. Lawley . ■ — Sands to Thomson, Bargent v. Thorn y. Woollcomb Thornborough v. Baker 556, 605 Thorpe, Hatfield v. . . 383 V. Bestwick . . 383 Tidd V. Lister . . . 359 Tidy V. Mollett . . . 561 Tierney v. Wood . . . 817 Timbrell, Spackman v. . 333 Tiverton Market Act. In re . 165 Tofield, Doe d. Tofield v. . 544 Graves v. . . 487 Tollar, Wadmore v. . . 536 ToUemache v. Tollemache . 138 Tomkins v. Jones . .31 Tomlin, Lord Bolton v. . . 560 Tomlinsou, In the goods of . 383 Ballard v. . .86 ■ v. Bullock . . 314 Tooker r. Anueslev . . 138 Torre v. Brown . ' . 37, 88 Tovvnsend v. Charapernown . 654 Trefusis, Drake v. . .141 Treharue, Davis v. . . . 41 Tresider, Dunstan t\ . . 759 Trevor, Hobsou v . . . 75 T rower v. Butts . . .418 Trueman, Doe d. Bover i\ . 547 Truelock v. Robey . .618 Trumper, Mills ■«. . . . 143 Trustees, &c., Co. v. Shoit . 640 Trye, Lord Aldborougb Tuck, Edwards v. Talk V. Moxbay Tullett «. Armstrong . Tunstall v. Boothby Turner, Chad wick v. King V. Tarn v. V. Turner Turvin v. Newcoinb Tutton V. Darke Twigg's Estate, Re ( Twyne's cnse . Tynte. Re . . . Tyrrel's case Tyrringham's case U. PAGE y. . 6.39 . 468 . . 316 89, 3(30 . . 90 . 897 . . 534 504, 511 , . 38 . 468 . . 389 Add.) 360 . . 335 . 315 . . 307 748, 750 354 Underbill i\ Devereux Union Bank of Loudon d. In- gram, 634 r.Ivent. 637 Upjohn, Mainland v. . . 605 Upton V. Bassett . . .85 Welcome v. . . . 645 Urch v. Walker . . .393 Urlwiu, Law v. ... 588 V. Vanderplauk v. Kit Vane v. Vane . Vaughan, Viner v. Vernon v. Bethell Tatham v. 471 Vicary, Pheysey v. . Vickers v. Cowell Vigiires, How v. Vincent v. Bp. of Sodor and Man Vine V. Raleigh Viner v. Vaughan Viney v. Chaplin Vint V. Padget Vivian, Jenkin v. Vize, Wrixon v. . Vyvyan v. Arthur . W. Wadham, Roach v. Wadkin, BaiTow v. . Wadmore v. Tollar Wainewrlgbt v. Elwell 473 643 127 604 313 484 634 604 441 468 137 665 631 749 619 568 446 347 536 546 xxxu IXDKX TO ENGLISH CASES CITED. PAGE VVakeford, Wri2:lit v. . .441 Waldo /•■ Waldo . 128, 129 Wale V. Comrs. of Inland Re- venue . . ■ .536 Walker, Jle . . • • 5^2 Walker's case . . . 507 y. Milne . . . 29 ;-. Kichardson . 83 Urch V. . . . 293 Wheelwright r. . 134 Woodhouse c. 12S, 50") Wallis, Be ... . 605 Walsh V. Bp. of Lincoln . 501 V. Lonsdale 19S, 215. 501 . 174 . . 482 . 005 167 183 484 2 562 581 481 645 195 361 Ward c. Audland . Berridge r. . ■ . Jennings v. • Ken worthy v. Lord V. Lumley . Wardle v. Brocklehurst . Ware v. Canu Warman v. Faithful . . Warren, Hutton v. Warrick v. Queen's College . Warwick v. Richardson Waterhouse, Ilali c. Watkius, Doe d. Lord Brad- ford V. V. Nash . . . Watson, Kettle well v. Rivis t\ Watts, Brograve v, -" Jones ts. V. Kelson . Shirley ». Smith V. Wayman, Peppercorn » Webb v. Austiu V. Russell Webber, Doe d. Smith and Payne i\ Parraenter t. . . Weber, Fitch v. . Weeding, Mnchell v. Weeks «. Sparke . Welch, Haines v. Teuuent y. Welcome t. Upton . Weld, Graves r. . . 142, Welden ». Bridgwater Weldou ». R:illison Wellesley, Earl Cowley v. . i\ Wellesley Wells V. Gibbs . . . • '). Foster Westcomb, Davies v. West, Grose v. . . . 564, . 559 . . 182 628, 620 . . 495 . 195 . . 656 484, 690 . . 574 . 577 . 552 611 39o 639 576 340 290 741 142 350 645 558 748 604 127 129 311 S9 129 482 PACE West Ham, Overseers of, v. lies 7 West London, &c., Rway. Co., Cole V. ■ . . . West Mostyn, &c., Co., Mos- tyn V Westbrook v. Blythe Wethered v. Wethered . . Whalley. E.v parte Wheate, Burgess v. . . . Wheelwright r. Walker Whelpdale, Hadleston v. Whichelo, Doe d. Gregorv r. 259 605, 614 Whieldon Gordon v. Whiuney, Colonial Bank r. 6, Whipp, Northern Counties, &c., Co. V. . Whissou, Aveline v. Wliitaker v. Ambler . 25, Whitbred v. Jordan . . . Whitby i\ Mitchell 40 673 575 75 145 218 134 580 357 29 White, Baker v. Dixon V. Gould r. i\ Hi 11 acre . V. Lisle . V. White Whitehead, Rhodes v. Whiteley, Plummer v. Whitfield v. Bewit . Whitrock, Asher i\ Whitstable, The Freefi.sliers of, Gann v. , -. . 482 Whittaker, Doe d. Leach v . 545 Whitworth v. Gaugain . . 604 Wickens, Hampshire r. . 566 Wigglesworth c. Dallison . 581 Wight's Mortgage Trust, lie. 029 . 627 . . 185 25, 28 . . 623 112, 471, 474, 735 . . 293 . 41 . . 531 . 631 . . 758 . 580 . . 419 . 143 . . 127 215, 639 Wilcox V. Smith Wildiuan r. Wildman Wilkinson i\ Candlish Hugill V. V. Joberns 6, Willan, Chester r. . Willcock V. Terrell Willett & Argent i. Be Williams, Be r. Bosanquet Doe d. Davies v V. Games . ;■. Hay ward Jones v. Martyn v. Willis V. Brown Willock r. Noble . Wilcox, Seaward v. . 456 29 065 . . 619 . 171 . . 168 . 90 . . 650 . 422 . . 507 . 124 . . 171 . 577 . . 311 . 568 . . 244 . 339 470. 472 INDEX TO ENGLISH CASES CITED. XX.Mll Willoughby, Re V. Willoughby Willis V. Catling Wilmot V. Pike Wilson, Re Beaidmau v. Doe d. Perry c. V. Eden Graves 1). Harding v. V. I^age . The Queen v. Rowbotbam v. V. Wilson . Windsor, Lord, Earl of I'oiii- fret V. . . . . Winter ». Ld. Anson . . Wisbart v. "VVylie . Wood, Meeds v. . . . Kider v. . . Go, Tierney v. Woodford v. Cbarnley , Tbelluson v. 465, 128^ W^)odgate, Bingbaui v. W'oodbouse ». VValker , Woodroffe, Doe d. Dauiell ?;. Wood, ISeamau v. . Woolcombe, Tboru v. Woolf y. Hill Wordswortb, Nicloson r. 91, W'ortbam v. Pemberton . Wortbington v. Gimsoii Worwood, Price i\ . . . W.K.P. 'AGE 34G 590 577 627 296 576 534 574 625 4«4 759 552 41 467 558 623 482 8 607 217 174 735 526 565 266 28 576 129 293 359 484 571 Wrigbt t\ Barlow . 1). Burrougbes V. Kedgrave . Keynolds v. . V. Sanderson v. W akefoi d Wrigbtson v. Hudson . Wrixon V. Vize . . . Wycbingbaui, Eotbeubale ^^ Wylde, Re . . . . Wylie, Wisbart v. Wynne v. Griffitb . . . -AGE 441 391 198 491 280 441 629 619 18, 201 357 482 446 Yarborougb, Lord, Pex r. . 483 Yates r. Aston . . . 601 vouchee, Cooke, dem . 41 Bridge v. . . . 167 Yellowly v. Goner . . 565 York, Arcbbp. of, Roe d. Earl of Berkely v. . . . 579 Yorksbire Banking Co., Far- rand V. . . . . 627 Youle V. Jones . . . . 242 Z. Zoucbe, Lord, v. Dalbiac V. Parsons 537 341 TABLE OF AMERICAN CASES CITED. A. Abbott V. Boswortli Ackeriiian v. Hiiusicker Adams v. Beadle V. Briggs Iron Co V. Field . i". Storey V. City of Colioes V. Carreston Kimball v. Adair, Campbel! v. Aikeii V. Merrill . v. Smith Pugsley V. Albright, Battermau v. Aid rich, Haynes v. Alexandria Sav. Inst. Thomas Allen, Phillips v. Allen V. Carpenter v. Allison, Needham v. Ailing, Chatfield v. Aiwood V. Huckmau Ambee v. Weishaar Ames 0. Norman Amory c. Kannoffsk}' Anderson v. Cary 0. Anderson V. Logan Andrews v. Andrews Anthony v. Anthony Arden. Sterry v. Souverbye v. Arms, Deerfield v. Armstrong, Green v. Hoffman v. Arnold v. Waltz Asche V. Asclie Atchison v. Wheeler Atl. Ins. Co., Conrad r. Attorney-General r. Mer At water, Emmerson r. Auer V. Penn . Austin V. Sawyer V. Stanley PAGE . 378 . G-'jQ . 34 . 42 . 801 . 380 . 597 . 038 . 38 . 161 . 378 . 406 . 597 . 3-3 . 596 p. . 636 . 150 . 380 . 576 . 37 . 379 . 406 . 302 . 377 . 600 . 94 . 191 . 600 . 378 . 633 . 90 . 301 . 507 . 34 . 34 . 158 . 379 . 162 . 335 r. ()8 . 633 . 600 . 38 . 159 B. Babcock. Eawson v. Backenstoss v. Stahlers Badgley ^^ Brace Bagley, Dunn v. Bailey, Bingham «. Bailey Wells V. Daniels v. Bain, Great West. Ry. Baker's Appeal Baker v. Scott V. Haskell V. Stewart Esty V Haberman v. . Priitsman v. Balcheller, Bryan v. . Baldy, Beecher c. Bank of Mont. Co.'s Ay. Bank of Alexandria ton Banks, Clark v. Bank, Hitz v. Barlow v. Wainwright Barr v. Doe Barney v. Heerls . Barnes r. White Barrett v. Failing . Barnet's Appeal Barber v. Korabeck Barnum, Frazier v. . Barnes, Long v. Bartholick, Merritt v. Bass, Tillar v. Bates V. Hurd . Battleman v. AUbright Batchelder, Howe v. Banton v. Shorey . Baldy, Beecher v. T?"',ulle. Adams v. . Beal V. Warren Beard, Deeiing v. . Beaver, Dubois v. Beat tie, Danforth ;;. Beatty, Uaudall v. . teal . . Pat- PAGE . 595 . 32 . 381 . 600 . 350 . 230 . 506 . 35 V. 39 . 301 . 407 . 190 . 377 . 595 . 505 . 190 . 380 . 159 . 636 95, 96 152 375 598 600 158 161 380 98 156 98 377 638 159 230 32 33 35 159 34 96 161 34 337 304 XX XVI TABLE OF AMERICAN CASES CITED. PAGE Beaucliamp. McDiifE r. . . 377 Beechor v. Baldy . . . 159 Beers, Fyffe v. . . .1(51 Beecher, Scott v. . . . 507 Bell V. R. R Co. . . . 505 Bell, Dreatzes v. . . . 337 Benliiuu v. Potter . . . 505 Beufey ». Congdon , . . 5!)6 Benue'tt, Valletta v. . . G37 Benson, Lomau v. . . . .16 Lorman v. . . 503 Bennett, Parker v. . . . 507 Berltes v. Nunuu . . . 377 Berkard, Huttou c. . . . 4(52 Bettis.McAffer v. . . . 157 Biggs V. Brown . . . 151 Bigelow, Cleaves v. . . 151 Bingham v. Bailey . . . 350 Birch ?). Linton . . . 350 Bird, Packer v. . . . 506 Bishop V. Dotv . .406 r. Bishop . . . 38 Corry v. . . .37 ■ — — • Hamilton v. . . . 377 Bissell, McMillan v. . . 633 Bixby, Griffin v. . . . 34 McLary v. . . . 157 Blackstone Bank v. Davis. 94, 97 Blackwell, dcm ex dem., Blackwell, v. . . .94 Blake, Cushing v. . . . 376 Bloom V. Welsh . . . 32 Blue y. Blue . . . . 156 Blum V. Carter . . . 159 Bohm 1). Dunphy . . . 507 Bohannan v. Combs . . 379 Boiuley, Ocean Beach Asso- 634 ciation v. . . . . 381 Bolles v. Duff . . . 634 Crane v. ... 239 Bolton, Rich v. . . . 595 Bonnett, (iraff v. . . . 99 Bonner, Rodgers v. . . 334 Boos y. Evviiig . . . - 635 Bostwick, Crregg v. . . . 160 Boswell «. Goodwin . . 635 Bosworth, Abbott «. . . . 378 Bostwick '0. Search . . .34 Bourassa, Bouchard v. . . 156 Bouchard v. Bourassa . .156 Bouslaugh, Hileman v. . . 407 Bovee v. Hinde ... . 191 Bowker t;. Collins . • . 159 Bowers v. Bowers . . . 35 Bowman, Rifener v. . . ■ 191 Bowers, Towne v. . . 151 Eoyce, Nelson's Heirs, v. . 638 BoVle V. Shulmau .... 162 Bragg, Brown's Admrs. , v Bradner r. Faulkner Brackett i\ (Joddard . Brandon v. Robinson . Brant, Dricks v. Brayton, Price v. Brady, tStewai't v. . Bradford, Tillinghast v. Breeding v. Davis Breese, Can v. Breakie, Saunders v. . Brewer, Vandatta v. Briggs V. Briggs Briukmeyer v. Brownelier Brinkmau v. Jones Briggs Iron Co., Adams Bridgford v. Riddell Bridges, Farrar v. Brown v. Bronson Brooks V. Evetts . . Brown v. Brown . ». Kayser . Brown's Admr. v. Bragu Brown v. Stewart V. Briggs Bronson, Brown v. Brownelier, Brinkmeyer r Brown v. Keller V. Brown v. Pierce V. Williams V. Williamson Bromhall v. Ferris Brock, Brobst v. Brown, Cook v. Brocklebank, f>avis ; Brown, Lawrence v. McDowell V. Miner v. McKee «. Brobst V. Brock Brown, Mum ford v. Robinson v. Sillovvay v. Wyman v. Bruce, Bradgley v. Wei more v. Bryan o. Batcheller Buckman v. Outwatei Buck V. Pick well Buhl v. Kenyon Bullard, Dunlap v. Bull V. Qriswold Burnett v. Wright Bunker v. Locke . v. Pavnc , Burch, Thornton i\ Burns v. Cooper PAGE . 599 . ;i3 . 34 . 97 . 151 . 84 . 94 . 07 . 375 . 338 . 149 . 599 . 634 . 635 . 638 . 42 338 . 191 . 381 . 407 . 476 . 597 . 599 . 637 . 151 . 881 . 635 . 153 . 190 . 335 . 379 . 98 . 99 . 637 . 189 . 150 . 3S0 . 94 . 377 . 379 . 637 . 600 . 336 . 158 . 96 . 381 . 97 . 380 . 87 . 35 . 600 . 599 . 34 . 633 . 159 . 156 . 157 . 406 TABLE OF AMERICAN CASES CITED. X.NXVU PAGE Buruside v. Marcus , . 39 Burns v. Clement . , . 505 Burk. Fitcli v. . . . 35 Burke, McOermont v. . . 633 Burk, Sellen v. . . . 334 Bunnan, Sears v. ... 335 Buscliman, Hoffman v. . 161 Bushnell, Herskell v. . . 406 Butler V. Huestis . . 407 Buttlar V. Rosenblath . . 377 Byars v. Speucer . . . 191 Cabeen v. Mulligan . . 161 Cadman, Walen v. . . . 158 Cain e. McGuire . . .34 Caig, Shirras v. . . . 636 Caldwell v. Fulton . . 42 Calvert v. Rice . . . 149 Calhoun v. McLendon . . 158 Campbell v. Foster . . . 99 V. Adair . .161 V. Murphy . . . 381 V. Race . . . 505 Camp, Woodward v. . , 191 Canal Appraisers, People v. . 50(3 Capen, Monk v. ... 157 Carolina National Bank v. Lera 157 Carpenter v. Roe . . . 338 Carr v. Breese . . .338 Carson v. Fuhs . . . . 376 Caruthers v. Humphrey . 63S Cary, Anderson v. . . . 94 Carpenter. Allen v. . . 596 Carter, Blum v. . . .159 Carpenter, Clatlin v. . . 35 Carson, Harris v. , . . 152 Carpenter, Hoag v. . . 600 ■, Lanning v. . . 335 Carroll, McSavish ». . . 507 Castro V. lilies . ... 334 Case V. Phelps . . . 338 Castle, Park v. . . . . 597 Cathcart v. Robinson . . 96 Cent. Nat. Bank of Troy, Mc- Rea « 39 Chapman, Deere v. . . ■ 156 Chase «. Wingate . . .37 Charaberlin v. Donahue . 505 Chamberlain v. Thompson . 637 Chatfield, Ailing v. . . . 379 Chace, Mercior u. , . .157 Chapman, .Mather v. . . 501 Chambers, Shaw v. . . 229 Cheek, Masterson v. . . . 191 Chicago & N. W. R. R. Co. v. The Borough of Ft. Howard 38 Chisholm ;;. (ieorgia . . 68 V. Chisholm's Ex., 157 Chicago Storage Co. Sexton «. 599 Champ's Heirs, Collins v. . 229 Christy v. Dyar . . .159 City of Cohoes, Adams v. . 638 Clafiin v. Carjienter . . 35 Clark V. Harvey . . . 151 r. Banks . . , 153 r. Clark . ... 376 Glenn v. . . . 378 Curr V. . . . . 596 Clemence v. Steere . . 149 Cleaver v. Bigelow . . . 117 Clement v. Barns . . . 5' 15 Clinton Cloth Co. v. Gardner 597 Clifton, Jones v. . . . 338 Clough. Dartmouth College ■?). 598 Clute, Mohawk & Hudson R. R. Co. V 33 Coates, Uranu v. . . . 230 Coe V. Hobby . . .600 , Neal V. . . IGO, 161 Coffin, Conner v. . . .36 Colling V. Champ's Keirs . 229 Colvin V. VVarford . . . 304 Cole V. Tyler . . .338 Collins V. Foley . . . 476 Coleman v. Mabberly . . 600 Collins, Bowker y . , . 159 Colfax, Del on v. . . .151 Coleman, Farris v. . . . 378 Col dough, McLure v. . .191 Cole, Marbury d . . . 377 Colvin, McDaniels v. , . 636 Collins, Underbill v. . . 600 , Ventress v . . 157 Coman v. Thompson . . 33 Comstock ??, Smith . .191 Com. of Dakota Co., Gard- ner V. . . . . . 597 Conard v. Atl. Ins. Co. . . 335 Concord Co. v. Robertson . 506 Conger v. Duryee . . . 599 Conner v. Coffin . . .36 Conklin v. Parsons . . . 38 Foster . . .156 Conger V. Lowe . . . 407 Congdou, Benfey v. . . 596 Coughlan, Perkins v. . . 239 Converse, Plimpton v. . . 507 Connelly v. Spring's Co. . 94 Cook. Summers v. . . . 35 V. Whiting . . . 34 Cool V. Lumber . . . 35 Cook's Lessee v. Kellett . 96 XXXVlll TABLE OF AMERICAN CASES CITED. PAr.E Cools v. Cook loO Coo])er V. Cooper Coolidge V. Wolls 138 l.-)9 Cook V. Browu 189 V. Wiucbes'er 303 Ward V. 636 Cooper V. Cooper Coombs, Bohaunan v. . 376 379 Cooper, Barnes «. Corry ». Bishop Corse V. Stafford 381 37 335 Corintli v. Emery Corriston, Adams v. 377 638 Cornell, Fisher v. 139 Corwin, Middlebrook v. . 37 Carmichael, McMauus r. .")06 Craig V. Dale . Crane v. Bolles 151 229 Craig V. Van Bebber 350 V. Summers . 599 Craft, Philadelphia Bauk v Craig, Thompson v. Creighton, Green v. . 97 334 33 330 Crockett v. Crockett 149 Crocker v. Mann 507 Crosby, French «. 380 Cromwell, Potter v. 39 Crosall 1). Siiererd 121 Cruikshank v. Home for the Friendless 305 Cunningham, Lyon v. 595 Cushiug V. Blake . 376 Cutting V. Cutting . 463 D. Dacres, Parker v. . . 634 Daenicke, 'A'eisbrod v. . . 15(5 Dalton V. Dal ton . .150 Dalgleish v. Grondy . . 507 Dalzell V. Lynch . . .600 Dale, Craig v. . . . . 151 Dame v. Dame . . .38 Daniels v. Bailey . . . 35 V. Pond . . .37 Danforth v. Beattie . . . 337 V. Smith . . . 380 Daniels, Ellison v. . . . 637 Dartmouth College v. dough 598 Darling, Hurd v. . . . 406 Darracott, McKildoe v. . . 5'.)9 Daugherty v. Daugherty . 379 Davis V. Gillman . . . 149 V. Brocklebank . . 151 Moody Co. V. Kelley. . 161 Davidson v. Myer.s . . 334 Davis V. Dudley . . . 350 11. Thompson Blackfetone Bank v. 94, Breeding v. Enyeart r. Davenport, Potts v. . Davis, Pickens v. . Williams v. V. McFarlaue Dayton v. Van Doozer Dearing v. Thomas De Berard, Pelan v. . Deere v. Chapman Deering v. Beard Deerfield v. Arms . Dei V. Habel Delow V. Colfax . Delaplaiue «. Ry. Co. De Lancy v. Ganong Demopolis, ^^'ebb v. Dennett v. Hopkinson . Den, ex dem. Blackwell Blackwell Dennett v. Denneti . 15l), Dent V. Ferguson . Den V. Drake . Denniston, Peck v. Denuison, Van Rensselaer Derriug, Gardiner v. Despond v. VVal bridge Deshon, Patten v. . Deschaumes. Smith v. Dettman, Hecht v. Deville, Guillory v. . Deviar, Williams v. De Wolf 'V. Lawson . Dicely, Stultz v. . Dircks v. Brant Dixon V. Niccolls . Diver v. Diver . Draub, Kessler v. Dodds V. Dodds Dodge V. Kinzy V. Williams . Thomas v Doebler's Appeal Doe V. Tunnell Barr v. Dolan, Lancaster v. Dongal V. Fryer Donaldson v. Lamprey Dongrey v. Topi^ing Donahue v. McNichol Donkersley v. Levy . Donovan v. Donovan Donthit, Reed r. Donhue, Chamberlin o. Dorr V. Levering Doty, Bishop v. 596 97 375 600 161 304 338 34 33 158 156 156 161 507 159 151 506 599 505 33 94 123 338 597 505 as 149 633 598 157 33 156 595 477 151 151 406 377 158 159 377 477 158 408 637 600 95 94 163 380 476 600 635 191 595 476 406 TABLE OF AMERICAN CASES CITED. XXXIX PAGE Dougherty v. Jack , . . 96 Duuglas, Haiiiiuoii v. . . 597 Doughtv, Stewart v. . ■ 33 Dow, Fiagg V. . . . 60(J Doyle V. Sleeper . . . 95 , Strong i). . . .37 Dodge, Thomas «. - . . . 158 Dorris, Williams r. . . 159 Drake v. Wells . . . 35 V. Wigle . . .149 , Den V. . . . . 597 Drentzer «. Bell . . . 337 Drucker v. Roseusteln . . 1(51 Dubois V. Beaver . . .31 Dudley, Davis v. . . . 350 Duff, Bolles V. . . . 634 Duran V. Rothermel . . 596 Dunne i\ Trustees . . 595 Dunlap V. Bullard . . . 599 Dunn V. Bagly . . 600 Duuphy, Bohm v. . . . 507 Dunbar, Lillie v. . . 35 Duryee, Conger ;'. . . . 599 Durvall, Store v. . . . 189 Dutton r. Warsc' aner . 638 Dyett, North Aniercan C al Co. « 377 Dyson v. Shely . . .159 E. Eagle, Robinson r. . . 377 Eaiues v. Germainia Tarn Verien .... 334 Earls V. Mc Alpine . . . 94 East Omaha Land Co., Jeff- erie v. . . . . . 506 Eastman, Keeler v, . . 149 East River Bank,Talmadge v. 97 Easter, Hamberger r. . . 305 Eaton, Nicholls Assignee v. . 97 Eckman v. Scott . . . 161 Effinger v. Hall . . . 229 Ellis V. Secor . , . . 228 V. Paige . . . 596 Ellison V. Daniels . . . 637 Elliott, Pope V. . . . 98 Ellison, Smithiick v. . . 37 Ellington, Sanders v. . . 37(! Ellison V. Wetherbee . . 36 Ellsworth. Webster y. . . 376 Elmendorf «. Lock wood . . 379 Elston V. liobinson . . 159 El well, Randall v. . . . 38 Ely V. Ely . . . .191 Emerson v. Atwater . . 633 Emary, Corinth v. . . 377 Enycart v. Davis Erickson v. Paterson Esty V. Baker . Estes V. Wilcox . Evans v. Lobdale V. Evans Everhardt, Sims v. Everett, Van Doren v. . Everman, Witczinski v. Evetts, Brooks v. . Ewer V. Hobbs Ewing, Corinth v. Eyrick ?. Hetrick Farling, Barrett v. Farrar v. Bridges Farmer's Loan & Trust Co St. Jo. etc. R. R. Co. Farris v. Coleman Farr v. Nicbols Faulkner, Bradner, v. Fayerweather, Gleason Fensche, Kluender v. Ferguson v. Tweedy Ferris, Bromhall i\ . Ferguson, Dent v. Fernandez, Fitzgerald v Fergtison, Marshall v. Fetters y. Humphreys Fey, Joose r. Field. Anderson v. Finny, Garnhart v. Fink" Scott v. . Fisher v. Taylor . V. Cornell V. Forbes . V. Shropshire Miles t. Fitch V. Burk . Fitzgerald v. Fernandez Fitch, Graff v. . Flagg V. Dow Fletcher v. Heming . V. Phelps Flemming i). Galbraith Flinchum, McCanles v. Flood V. Pragoff Flynn, Moore v. Hemphill v. . Fobes, FisluT v. Fogg V. Fogg . Foley, Collins v. Ford )i. Ford Forster v. Hall Forwood v. Forwood PAGE . 600 . 33 . 595 . 229 . 375 . 379 . 350 . 151 . 636 . 407 . 637 . 377 . 98 380 191 38 378 636 33 94 229 376 99 338 157 34 507 377 301 599 304 98 159 229 635 172 35 157 34 600 37 506 381 338 301 161 597 229 160 476 229 230 378 xl TABLE OF AMERICAN CASES CITED. PAGE Ford, Myers i\ . . .158 Forbs, Palmer ». . . . 88 Fosters. Kobiuson . .152 V. Walton . . . 96 Camj>bell v. . .99 Coukliu V. . , . 156 While V. . . .35 Fowler, Wood v. . . . 36 Fox V. Mover . . . 338 Frazier y. Baruum . . . 98 Freeman v. McLennan . . 33 French ». Freeman . . . 37 V. Lord . . . 379 Freeland v. Mandeville . . 379 French v. Crosby . . .380 Freeman i\ Headley . . 595 Freeman, French v. . . 229 French, McDermott v. . . 377 Wilkins «. . . 637 Fritz V. Turner . . . 302 Frink, Harris v. . . . 595 Martin v. . . . 228 Fries, Porch v. . . . 375 Frost, Hunter u. . . . 597 Fryer, Dongal v. . . .94 Frye v. Partridge . . . 230 Fuhs, Carson v. . . . 376 Fuller i\ iMason . . . 149 Fulton, Caldwell v. . .42 Fuller, Spear v. . . . 599 Whittlesey v. . . 376 Fyffe V. Beers . ... 161 Gallagher i\ Shipley . .37 i\ Payne . .156 Galbraith Fleming v. . . 381 Ganong, Delancy «. . . . 599 Gardiner v. Derriug . . 149 Garner v. Jones . . . 377 Gardner v. Gardner . . 377 v. Com. of Dakota Co. 597 Garnhart v. Finney . . 599 Gardner, Clinton Cloth Co. v. 597 (larrison, Grogan v. . . 378 George v. Cox . . . . 507 Georgia, Chisholm v. . .68 George, Eicon v. . . . 161 Gephart, Lynn r. . . 378 Germania Turn Verien, Fames v. . . ■ • 334 Giebner, Kile v. . . ■ 600 Giles y. Simonds . . . 35 Gilbert v. Peteler . . 97 Giles V. Miller . . . 157 Gilmore i\ Gilmore . . 376 PAGE Gilliam, Davis v. . . . 149 Gillender, Lovett v. . .94 Gilmore, M c C u 1 1 o u g li ' s Heirs v. . . . . 94 Gilson, Proctor v. . . 3? Ginheimer, Titus v. . . 38 (iirard's Ex'rs, Vidal v. . 351 Gleason v. Fayerweatber . . 94 Glenn v. Clark . . . 378 Goodnovv v. Lumber . . 350 Goodrich v. Jones . .38 Goodard, Brackett v. . . 34 Goodwin, Boswell v. . . 635 Goree, Walthall v. . . . 376 Gray, Haddock v. . . 377 Wing V. . . . . 376 Graham, Triplett v. . . 338 Grant, Proprietors of Church in Brattle Square v. . . 476 Graham, Hirth v. . . 35 y. Graham . .378 Grand Rapids v. Powers . 506 Granger v. Averv . . . 507 Graff V. Fitch " . . .34 Grandona v. Loodal . . 34 GrafE v. Bnnnett ... 99 Green v. Armstrong . . 34, 35 Great Western li'y Co. v. fain 39 Green i\ Creighton . . . 97 Greenwood v. Maddox . . 157 Gregg r. Bostwick . . . 160 Greenland v. Waddell . . 229 Greene v. Creighton . . 230 Green v. Green . . . 350 Greve, Luntz v. . . . 375 Green, Marshall v. . . 34 Griffin v. Bixby . . . 34 V. Nichols, Shephard &Co 158 Griffith V. Griffith . . . 377 Griffin v. Griffin . . .635 Griswold, Bull v. . . . 34 Griffiths, Norcross v. . . 506 Grogan v. Garrison . . . 378 Grandy, Dalgleish v. . . 507 Guillory v. Deville . . . 156 Guoley, Johnson v. . . 599 Gustavous, Koplitz v. . . 596 H. Haberman v. Baker . . 505 Habel, Dei v 159 Hackett y. Reynolds . . 635 Hadlock y. Gray . . . 377 Hagaman, Hokamp v. . . 380 TABLE OF AMERICAN OASES CITED. xli Hall 0. Tufts . Hallett B. Tliompsou . Hall V. Myers . «. McUuff Etiiuger v. Foster v. Providence Bank v Hale, RiglitseJl v. Haley, Warreu v. Hamilton v. McDonnell Hamberger v. Easter Hauiiltoa v. Bishop Haiumou v. Douglas Harris v. Carson . Harriuian v. Queen . Harwell -v. Lively Harrar v. Walluer Harris v. Frink Harvey, Clark v. Harriman, Queen's lusura Co. V. Hargons, Taylor o. Harnistad, VVallace v. Haskell, Baker «. . Hasceig, Tripp v. . Haskius, Oriental Bank v Hathaway v. Payne . Hatfield v. Sneden Hathaway, Jackson v. Hawley v. Northampton Hawes v. Nicholas . Hawley v. James . Hawes, Palmer v. Haynes i\ Aid rich Headley, Freeman v. Hecht V. Dettman . Hemphill v. Flynn . — — V. Ross . Heming, Fletcher v. Henshow b. Wells Herskell v. Bushnell Herbert v. Laralle Herrell v. Sizeland Herudon, Little v. Hess, Welcome v. Hesse v. Maun Hewett, Teaff v. Hetrick, Eyrick v. Hewett 0. Kankin Hibben v. Soyer . Hicon V. George Higgins V Kusterer Thomas v. Hill®. Hill . Hills V. Miller . Hileman r. Bonslaug Hildf'brar.d, Wood v Hinchcliff v. Shea 97, 476 'AGE 94 99 597 6:J5 229 230 597 507 877 35 334 877 597 152 159 304 377 595 151 159 162 68 190 Si 337 lfS9 376 505 121 304 378 160 596 595 33 597 637 37 63T 406 505 595 191 600 335 39 98 157 337 161 36 407 91 97 407 191 379 Hiude, Boree v. Hirth V. Crraiiam . Hitz y. Bank Hoag V. Carpenter Hobby, Coe v. . Hobbs, Ewer v. Hobby, Rockwell v. Hodge ®. Sloan Hodges V. Ins. Co. . Hoffman v. Armstrouf; V. Buschmau Hoffert V. Miller . Hoffman v. Stigers . Hog an V. Manners Hoisiugton, Warner v. Hokamp v. Hagamau Holdship V. Patterson Hoi brook v. Mc(-'leary — — ■ Kingsley v. Holden v. Shattuck Holmes v. Seeley Home for the Friend 1 Cruikshank v. Hooper y. Wilson . Sherbun v Hopkinson, Dennett v. . Horn v. Tufts . V. Keteltas . Horst, Reiff v. . Horton, Tripp v. . Hoskins, Maynard v. Hoskinson, Sayers v- Hough, Robson v. Howe V. Batchelder Howel V. Schenck Howard v. Robinson Howlet, Killmore /•. Howell, Smith /-. . Wright fl. . Hoyle v. PaUsburgh &c. Hubbell V. Warreu . Hubbard, Stilwell v. . Hudual V. Wilder . Hudelson. Kenley 7;. Hudson, Larned v. . Huey V. Huey Huestis, Butler v. Huff, Singleton v. Humphrey, Caruthers r. Huntington v. Parkhurst Hunter v. Frost Hunsicker, Ackerman r. Hurd V. Darling Bates V. llutchins V. King . Ilutton V. Birkard Hyde, Owen v. PAGE . 191 . 85 . 375 . 600 . 600 . 637 . 635 . 230 . 633 . 34 . 161 . 350 . 376 . 160 . 406 . 380 . 98 . 305 33, 35 . 305 . 505 337 637 336 33 157 633 379 39 229 149 161 35 151 637 35 879 337 38 97 191 93 161 595 191 407 157 637 596 597 636 406 230 34 462 150 xlii TABLE OF AMERICAN CASES CITED. PAGE Ice Co. v. ShortdU . . . 506 Illinois, III. Cent. R. R. v. . 505, 500 111. Cent. R. R. v. Illinois . 505, 506 lilies, Castro c. . . . 334 Ind. School Dist. of West Point V. Werner . . . 335 Ingram's Guardian, Laudou y. 94 In re Conway . . . . 301 Nelson . . .30:3 estate of John Sinip.son. 123 Hynes . . . 350 Cottrell . . . . 302 Booth . . . .301 Ins. Co. , Hodges v. . . . 633 0. Stevens . . 505 Iowa, Nebraska v. . . 506 Jack, Dougherty v. . . 96 Stover V. ... 506 Jackson v. Hathaway . . 505 V. Phillips , . 476 v. Vauzaudt . . 12 . James, Hawley v. . . . 378 V. Marvin . . 304 Janretch v. Proctor . . 94 Jaques v. Meth. Episc. Ch'h. 377 Jarvais v. Moe . ..156 Jefferie v. E. Omaha Land Co. 506 Jenuess, Walworth i\ . . 406 Jewell '0. Warner . . 122 Jewett v. Smith . . . 149 Johnson r. Johnson . 595, 149 v. Richardson . . 156 r. Gurley . . 599 McLaughlin v. . 38 Norris v. . . 98 Parsons v. . . 507 Jones V. Jones . . . 191 „. Clifton . . . 338 V. Brinkman . . 638 Goodrich v. . . . 38 Garner v. . . . 377 Lewis n. . . . 37 Sherburne . . .151 Jooss v. Fey . . . . 377 Joyce, J. I. Case Co. v. . 157 J. I. Case Co. v. Joyce . .157 June v. Purcell . . . 506 K. Kanoffskv, Amory v. . . GOO Keefe, Stuckey v. . . . 121 Keeler u. P^astman Kehr v. Smith . Keller, Brown v. . Kell et al. Cook's Lessee Kelly, Davis Aloody v. Kent's Commentaries. Kenly v. Hudelsou . Kent V. Waite Kenyon, Buhl v. Kennelly, Wallace v. . Kepple's Appeal Kerr v. Clark Kessler v. Draub Ketchel, Horn v. . Killmcre v. Howlett Kile V. Gubner Kimball v. Satlerly . V. Adams Kimbrel «. Willis Kingsiey v. Holbrook King V. Miller . King V. Lawson Kinzy, Dodge y. King, Hutcliins v. Kinney, Morgan v. Kitteridge v. Woods Klenk v. Knoble Kleppuer v. Laverty Klines. Kline . Perry v Kluender v. Fenske Knapp, Martin v. . Knoble, Klink . Konvalinka v. Schlegee Koplitz V. Gustavus Kusterer, Higerius v. Kutter V. Smith Ladd V. Smith Ladue v. Ry. Co. Laird v. Scott . Lakin v. Lakin Lamprey, Donaldson v. Landon v. Ingram's Guar Lancaster, Neely v. V. Dolan . . 149 . . 338 . 156 V. . 96 . 161 68, 97 . 161 . 507 . 600 . 600 . 94 . 596 . 158 . 633 . 35 . 601 . 33 . 38 . 158 35 . 149 . 595 . 377 . 34 . 335 . 36 . 160 . 407 . 378 . 131 329 149, 150 . 160 . 379 . 596 '. 600 33, 635, dian Lang V. Smith Lanning v. Carpenter Land Co. v. Lippencott Langley, Marker v. . V. Ross . Lanahan v. Lawton . Larned v. Hudson Larabee, Withers v. Lassell v. Reed Lauirhran v. Smith , 595, 600 636 96 380 162 94 375 96 191 335 506 634 599 636 5!)5 596 37 596 TABLE OF AMERICAN CASES CITED. xliii La very v. Pursell Lavalle, Herbert Laverty, Kleppner v. Lawsoo, King v. Lawti'D, Laoahan v. Lawsou, Devvolf v Lawrence -v. Brown Lawrence's Estate Lawler, Spader v. Lazenby, Marsh v. Lee V. Payne V. Miller . Leitch V. Wells Leland, Warren «. Lester, Power v. . Levy, Donkersley v. Nichols V. Lewis, Owens y. . V. Simon V. Jones V. McNatt Lewis' Appeal Lillie y. Dunbar Lindsay v. \\'inona Lingiufelter v. Linginf Linton v. Birch Lippeucott, Land Co Lipp, McCray v. Little ■i\ Herudon Littlefield v. Paul . Smith V: Livingston v. Ten Broec Lively, Harwell v. Livingston, Parsons v. Lobdale, Evans v. Lock wood f. Lock wood Locke, Bunker v. . Lockwood, Elmendorf v Locke ('. Kowell . Logan c. Anderson . ]jOiig /•. Barnes Long Island R. R. Co. Long, Walker v. . Loodal, Grandona v. . Lormon v. Benson Lord. French v. Lovett V. Gilleuder . liovelace v. Webb Loveriug, Dorr i\ Lovington, St. Clair v. Low V. Tibbets Lowe, Conger v. . Lozo B. Sutherland . Lozear, Shields v. Ludly, Woodbury v. Lunibe.' Co., Cool v. Ijumijer, Goodnow «. Luniz c. Greve 34 ter 508 50G, PAGE . 38 . 505 . 407 . 595 . G3C . 477 . 380 . 476 . 038 . 158 . 5!i8 . 1.59 . 339 . 36 , 638 . 600 99 35 338 37 36 377 35 33 304 350 506 408 191 380 596 505 304 1.58 3:5 596 1)9 379 161 600 377 599 375 34 36 379 . 94 . 636 . 476 . 506 . 505 . 407 . 157 . 6.57 . 11)2 . 35 . 350 . 375 PAGE Lyle i: Richards , 121 Lynn i . Gephart . 378 Lynch V. Dalzell 600 Lynch Trustees of Co umbia Collt ge . . . 97, 230 Lyon V . Cunningham 595 M. Mabee, Titus v. . . . 38 Mabberly, Coleman v. . . 600 MacDonnell, Hamilton v. . . 35 Mackason's Appeal . . 99 Madigan v. McCarthy . . '68 Maddock, Thurston 'e. . . 157 Maddos, Greenwood o . . 157 Magnolia v. Marshlield . 506 Mahlman, Toomaus c. . . 159 Mann. Crocker v. . . 507 Mandeville, Freeland v. . . 379 Manners, Hogau c. . . 160 Mann, Hf'sse v. . . . 335 Mandeville i\ Parker . . 302 Mauiilebaum v. McDowell . 94 Maples V. Mil Ion . . .34 Marshal v. Green . . . 34 Martin y. Knapp . . . 151 Marsh v. Lazenby . . . 158 V. Marsh . . .304 Marshall v. Ferguson . . 34 Marbury v. Cole . . . 377 Markey v. Laugley . . . 634 Marshall, Magnolia c. . . 506 Marion, Long v. . . . 375 Marsh, Trimm v. . . . 638 Marcus, Burnside v. . '. 39 Marvin, James v. . . . 3((4 Martin v. Frink . . . 228 iMason v. Mason . . . 379 Masterson v. Clieek . . . 191 Mather v. Chapman . . 505 Matthews v. Tobeues . . 600 Maynard v. Hoskins . . 229 Mayor, etc. v. Williams . . 98 McAffee v. Bettis . .1.57 McAllister, Tobey y. . . 035 McAlpine, Earls v. . . 94 McClure y. Col dough . .191 McCleary, Hoi brook v. . 305 McCuUough's Heirs v. Gil- more . . . . . 94 McClure's .Appeal , . 229 McCunly v. S.-.i\ . . . . 302 McCauless v. Fliiichmaa . 338 .McCaskill v. Mcl'ormac . . 375 McCray v. Lipp . . . 408 McCarthy, Madigan v. , . 38 xliv TABLE OF AMERICAN CASES CITED. McConnan, McCaskill v. McUuff V. BeaucUaiup McDeriiiott p. Fn-uch . McDonald v. WVeks McDowell V. Brown McDowell, MaucU'lbaum v. McDennott v. Burks McDaniels v. Colviii McDoiigal, Peuuybt-'cker o. McDuff. Hall V. McFarlaue, Davis r. McFarland v. WasbiDgloa McfJee V. McGee . McGiunis, Voorliees v. McGuire, Caiu v. . Mclloaiue v. Smith . McKee n. Wilcox . V. Browu McKildoe v. Darracott McLaagblin i\ Johnson McLary v. Bixby . McLendou, ("alboun v. McLennan, Freeman c. McMasters v. Negley McManus v. Carniichael McMillan v. Bissell . V. Rjchards McNatt, Lewis v. McNechol. Donahue v. McHea ». Cent. Nat. Bank McTavish v. Carroll Mebane v. Mebaue . Mercier v. Chase . Merrell, Aiken v. Merrill, Olson v. . , Pollard V. . , \\ ilkinson v. Merritt v. Bartholick Mercer, L. B., Attor (T^n. v. Methodist Epis. Church Jaques i\ Meyer v. iNIeyer Meyers, Hall v. Middlebrook v. Corwin . Miles V. Miles . . . 149, V. Fisher Miller, Lee v. . . . . Smith V. ... Giles V. . . ■ Hills V. . Hoffert V. . Kino; i\ . . . Millon, Maples v. . Miner v. Browu Moe, Jar%'ais r. . . . l')'i. Mnftatt V. Tultle . Mohawk & Hudson ilaihoad Co. V. Clute . . . . •AGE i 375 [ 377 377 ! 39 1 94 94 633 63 i! 38 63oi 34! 161 I 378 39 34 97' 150 379 599 38 157 158 33 376 506 633 638 30 476 39 , 507 97 157 , 378 , 506 , 377 158 638 68 , 377 , 157 . 597 , 37 150 17-2 159 599 157 97 350 149 34 377 102 229 Monk V. Capen Moore v. Fiyun V. Page -Smith V. To bey v. ■ Titmau v. Moran v. Pittsburgh K. K Morgan v. Kinney Weed V. . Moroney's Appeal Morse v. Slasou — — V. Thorsell Morss, Kitcbmyer o. Moyer, Fox v. Mulry v. Norton Mulligan, Cabeeu v. Mullen V. ^^'ilson Mumford v. Brown Munson, Tryon v. Murphy, Campbell t Savage v. V S. C. & P. R. Myers r. Ford . Davidson v. Pratt V. . Kobinson v. PAGE . 157 . 161 . 338 . 97 . 97 . 161 Co. 633 . 335 . 595 635 191 378 38 338 506 161 338 600 637 381 338 33 158 334 338 191 Co. 160, Nason, Fuller v. . Neal V. Coe. . Neall, McCurdy v. Nebraska r. Iowa . . . . Neelly v. Lancaster Needbam v. Allison . Negley, McMasters v. . Negus, Schermerhorn v . . Nelson's Heirs ■;;. Boyce Nellis, Newman v. . . . Newton v. Beales Newman v. Nellis Nicholls, assignee, v. Eaton, Nichols V. Levy Nicholas v. Purczell Nichols ;\ Nichols Niccolls V. Dixon Nichols, Farr v. Griffin v. Nicholas, Hawes v. Nichols, Webster v. Nightingale. Parker v. Norris v. Johnston North American Coal Dyett North cut V. Whipp N')rcross v. Griffitlis Norman i\ Ames . 149 161 302 506 375 37 376 94 636 507 191 507 97 99 159 378 406 636 158 304 599 97 98 377 379 50(5 377 TABLE OF AMERICAN CASES CITED. PAGE Northaniptoii, Hawley v. 121, 476 Norton, Mulry o. . . 506 Numan, Beriles v. . . . 377 0. Ocean Beach Ass'iiy. Briuley, Olcott, National Bauk v. Olsoa V. Merrill . Oriental Bauk v. Haskius O'Rorke v. Hmitli . . Orr V. Sboaft Orth. Tolle v. . . . Gsboru. Toll Bridge v. . Outwater, Ruckmau v. Overman v. Saiser Oviatt, Todd v. Owens v. Lewis Owen V. Hyde . Packer v. Bird Padelford v. Padelford Page, Moore v. Paige, Ellis v. . Painter v. Steffeu . Palmer v. Forbes ■ V. Hawes . Palms V. Palms Parbam c. Thompson . Parker v. Nightingale Parsons V. Liviugscone . V. Johnson . Parker v. Bennett Park V. Castle . Parker v. Dacres . Parsons, Couklin v. . Partridge, Frye v. Parkhurst. Huntington v. Parker, Mandeville v. Strickland v. Parke, Vaux v. Pattison's Appeal . Paterson v. Suell Patten v. Deshon . Patton, Bank of Alex; dria v. . . . Patterson, Ericksou v. ■ , Hold ship V. Pate. Richardson i\ . Paul. Littlefield o. Payne, (ial lager v. , Hathaway v. ■ , Lee V. . Paytou, Streeter v. 381 229 506 337 507 160 597 32 37 39 376 3S0 150 506 148 338 596 161 38 150 477 o3 97 158 507 507 597 634 38 230 596 302 39 98 33 191 598 96 3;'. 98 35i) 38') 156 189 598 336 p Peabody Heights Co. r. Sadt- ler Peatt, Tyler v. Peck V. Dennistou Pelan v. De Berard Penuybecker v. McDoagal . Penn, Auer v. Pennimau, Van j^leusselaer o. Penfield, Wallace c. . . People's Ice Co. v. Steamer Excelsior . . . . People V. Tibbetts . People's Ice Co. v. The Excel- sior . . . . . People V. Canal Appraisers . Perry •«. Cliue . . . . v. Dill rand . Perkins v. Coughlau . . Peteler, Gilbert v. Phelps V. Rooney . . . V. Case Fletcher v. Philadelphia Bank > Phillips V. Phillips Jackson r. Robertson v . Craft Phinney, Thatcher Phillips V. Allen Welsh V. Pickens v. Davis . Pickett, Price v. Pickwell, Buck v. Pierce v. Pieice V. Robinson Brown v. Piercy, Purner v. . Piukerton v. Tuuliu Pittsburgh, etc. li. R. Co., Moran v. .... Plattsbargh, etc. R. R. Co., Hoyle «. Pleasants, Woodruff v Plimtou V. Cover se Plumer v. Plumer . Pollard V. Merrill . ■ V. Slaughter . Pond, Daniels v. . Pope -y. Elliot . Poquette, Bunker v. Porcli V. Fries . Potts V. Davenport Potter V. Crotuell . . . Benbani v. Pottmeyer, State v. . . . Power V. Lester . . 637, Powers, Grand Rapids <'. Povv(dl V. Rich . . . Pratt V. Myers \GE 505 229 505 J 56 38 600 GOO 338 36 505 506 506 121 161 229 97 159 338 506 334 507 476 38 337 1.50 637 304 152 35 378 63:i 505 36 158 633 38 476 507 36 377 379 37 98 156 375 161 39 505 H6 638 507 33 338 xlvi TAULE OF AMERICAN CASES CITED. PAGE Pray v. Stebbins . . . 377 Pragoff, Flood r. . . . 301 Prestou V. Kyau . . . 83 Price V. Pickett . . . 152 V. IJoayton . . . 34 Pritts V. Ritcbey . . . 378 Price V. Price . ... 380 Proctor V. Gilson . . .37 Prout v. Wiley . . . 3")0 Proctor, Jauretcb v. . . 1)4 Proprietors of Cburcli in Brat- tle Square v. Graut . . 476 Provideuce Bauk v. Hall . 597 Prutsmau v. Baker . . . 190 Prudeu, Scbiffer v. . . 380 Pugsley V. Aikiu . . . 597 Purner i\ Piercy . . .38 Purcell, June v. . . . 506 Purcell. Lavery v. . . 38 Purczell, Nicbolas v. . . 159 Pynchou v. Stearus . . 148 Q. Queen Ins. Co., Harriman v. 159 Race, Campbell r. KadclifF.Van Kensselaer '■ Railway Co. /'. Ramsey Ramsey. Railway Co. v. Randall v. Beatty ,;. Eli well Rankin v. Hewitt Rawson v. Babcock Reckhow v. Scbanck Redman's Adm., Siceloff Reed v. Doutbit Reeder v. Sayre . Reed, Larsell v. V. Reed Reis, Walsb v. Reif V. Reif Reilly v. Ringland . Reitz V. Reitz . ReifE v. Horst Reske V. Reske Reynolds, Hackett v. Richardson v. Pate V. Wyman Rich V. Bolton Richards, Barron v. Rice, Calvert v. Ricliardsou, Johnson v. Richards, Syle v. 597 505 505 506 506 304 38 157 595 595 407 191 150 37 595 157 151 151 329 379 160 635 350 379 595 97 149 156 121 Richards. JIcMillan «. Rich, Powell V. Ritldell, Bridge ford v. Rifener v. Bowman Riggs V. Sterling v. Riggs Rightsell v. llale Ringland, Reilly v. Riiclimeyer i\ Mooss Ritchey, Pritts v. Robertson v. Phillips Concord Co. Robsoa 21. Haugh Robie V. Smith Robinson v. Swearingeu V. Myers — v. Brown . D- Eagle V. Brandon Cathcart v. Elstou V. Foster v. Howard v. Pierce «. Rochester, Smith v. Roc Well V. Hobby Rodgers v. Bonner Roe, Carpenter v. Rogers v. Rogers V. Snow Roony, Phelps v. Rorabeck, Barber v. R(jsenblath, Buttlar v. Rosenstein. Drncker c. Hosell, Terry v. . . . Ross, Laugley v. . Rose, Sampson v. . . . Ross, Hemijhill v. Rothermel, Dumn v. Rowan's Creditors v. Rowan's Heirs . . . . Rowell. Lock v. , . . R. R. Co., Bell V. Ruckman v. Outwater Alwood V. Russell, Wilson v. . . . Russum v. Wanser Ryan, Prestou v. . . . Ry. Co., Ladue v. . 035, Delaplaine x. Tracey ». S. Sadtler, Peabody Heights v. Safford, Williams v. Samson i). Rose AGE 638 3;; 336 191 156 302 507 151 38 378 38 506 161 59) 161 191 336 377 97 96 159 152 637 633 506 635 334 338 191 599 159 156 377 161 637 599 152 637 596 98 161 505 37 406 636 633 33 636 506 507 505 505 152 TABLE OF A^IERICAN CASES CITED. xlvii rphy Sanders k. Ellington Sapp V. WrigUtuiau Sasser, Overman v. Sailely, Kimball v. Saunders v. Breakie Savage c. Murpny Sawyer, Austin v. Sayers v. Hoskius . Say V. Stoddard Sayer, Keader (;. . . 59 Schermerhora v Negus Schiffer v. Prndeu Schuyler f. Smith Schenck, Howell v. Schlegee, Kouvaliuka c Schooumaker, Osborne D. & Co. V. Schauk, Reckhow v. Schack, Witthaus v. Schmalsle, Vaughn v. Scott V. Fink V. Beecher V. Mewhirter. Baker v. Eckmau v. Laird v. S C. & P. R. Co.. M Scruggs, Wilson v. Sears v. Burnham . •«. Smitli . Search, Bostvvick v. Secor, Ellis v. . Seeds, Barney v. Seely, Holmes v. Wood c. Sellers v. Burk Seun, Carolina Nat. Bank ;\ Sergeant v. Steinberger 17-i Sexton V. Wheaton V. Chicago Storage Co Seymore, Slocnm v. Shanklaud's Appeal. Shaw V. Chambers Shattuck, Holdeu v . Sherburne v. Jones Sherman v. Willett . Sherrid v. Southwick Shed V. Slied Shererd, Croxall v. Slieley, Dyson ■« Shea, Hinchcliff v. Sheppard, Ward o . Shelds V. Lozear . Shipley. Gallaizher v. Shirras v. Craig niioaft, Orr ». . Shoemak<'r v. Walker Shorey, Banton v. PAGE . 151 . 884 . 39 . 33 . 149 . 3::;« . 34 . 149 . 595 r, 151 . 94 . 380 . 597 . 151 . 379 .' 161 . 595 . 379 . 334 . 304 . 597 . 635 . 407 . 161 . 96 '. 33 . 600 . 335 . 635 . 34 . 328 . 158 . 505 . 380 . 334 . 157 !, 376 . 337 599 35 98 129 505 151 33 157 189 121 159 379 149 637 37 636 160 37^ 35 Estate Shorthall, Ice Co. v Washiugtoj Ict Shropshire, Fisher v Shreck, Stetz v. Shurbun v. Hooper Shulmun, Boyle v. Siceloff 0. Prudeu Silloway v. Brown Singleton v. Huff . Simpson v. In re John Simon v. Walker . Sims V Evei-liardt . Simonds, Giles v. . Lewis -v. Sizeland, Herrell y. Skinner v. Wilder . Slasou, Moore o. Slatter, Owen v. Slaughter, Pollard v. Sleeper, Doyle v. Slocum V. Seymour Sloan, Hodge «. Smithrick v. Ellison Smiley v. Wright V. Van Winkle Smith V. Moore V. Jewett . '0. Deschaumes V. Howell I). Rochester . D. Littlelield . /). Miller . Aikin v. Danfortli v. ComstDck y. . Hutter « Kehr v. — Lang V. . Laughran . Ladd V. Mcllvaine v. O'Rorke v. Robie V. Schuyler v. Sears v. Van Rensselaer v. Wheeler v. Willis V. . Suell, Patterson v. . Snow, Rodgers v. Snyder, Stanley v. Southwick, Sherrid v. Soyer, Hibben v Spader fl Lawler Spear v. Fuller Spencer, Byars v. Spear, Stile v. of 337. 506 36 635 377 336 162 380 158 157 122 157 350 34 338 595 34 191 380 379 95 35 230 37 380 599 97 149 157 379 503 576 599 406 380 181 60:) 333 191 59.) 600 97 507 595 597 635 68 379 335 191 599 158 157 337 6:J6 599 101 93 xl Vlll TABLK OF AMERICAN CASES CITED. PAGE Spitzmiller, Talamo «. . 596 Spiuola, Wheeler c. ... 506 S;)rings Co., Couelly v. . 94 Sprigg, Warner v. . . . 407 HtM c. Wilbur . . . ;^8 State V. Pottraeyer . . . 36 Stafford V. Woods . .156 Stanley v. Snyder . 837, 158 Austin V. . . 159 Staliler's Admr., Backen- stoss V. . . . .32 Stafford, Corse v. . . . 835 Stamps, Thvveal v -.88 St. Andrew's CliurcU, Thatcher v. . . . 190 St. Clair v. Loviugton . . 508 Stewart v. Doughty . . 83 V. Bratly . . . 94 Sterry v. Arden . . .95 Stewart v- Stewart . . .191 Stelz V. Shreck . , . 377 Steel V. Steel .... 877 Stewart v. L. I. R. R. Co. 598, 599 Baker t). . . .377 Brown v. . . . 637 Steere, Clemence v. . . 149 Steamer Excelsior, People's Ice Co. V. . . . .86 Stearns, Pynchon v. . . 148 Steffen, Painter ». . . 161 Stebbins Pray v. . ■ . 377 Stevens Ins. Co. v. . . 505 Steinberger, Sergeant v. . . 376 Sterling, Riggs ®. . . . 158 Stigers, Hoffman v. . . . 376 Stillwell V. Hubbard . . 191 Still «. Spear . . . . 98 St. Jo., etc. Railway Co., Farmers' Loan and Trust Co. V 88 Stover v. Jack . . . . 506 Story, Adams v. . . . 380 Stout v. Stout . . . . 476 Stone, Wager v. . . . 688 Stoddard. Say v. . . . 595 Stone V. Duvall . . . 190 Strickland v. Parker . . 89 Strong «. Doyle . . .37 Streeter v. Payton . . . 8:)6 Stulz V. Dicily . . .151 Stuckey v. Keefe . . . 377 Summers v. Conk . . . 85 Craig «. . . . 599 Sutherland, Lozo ». . . 157 Sut'den. Hatfield v. . . . 376 Swearinger, Robinson B. . 161 Sweeney v. Warren. . . 463 T. r Taft V. Taft . . . . Tallmadgevj. East River Bank Talamo v. Spitzmiller Tapp, Whitehead v. Tarrant y^ Swain . . . Tatro V. Tatro Taylor v. Taylor V. Hargons Fisher v. 304, 378, Teaff V. He wet t . . . Ten Broeck v. Livingston Terry v. Rosell . . . . Thayer v. Wellington . Thatcher v. St. Andrew's Church . . . . . Thatcher, Trustees of Colum- bia College V. . Thatcher v. Phinney The Excelsior, People's Ice Co. » The Borough of Ft. Howard, Chicago &N.W. R.R. Co. v. Thompson n. Craig . Thornton v. Burch Thorn, \\'illiama v. . . . V. Thorn Thomas v. Dodge V. Higgins Savings Bank v Thompson, Coman v. Chamberlain v. Thomas, Dearing v. Thompson, Davis v. . Thompson, Hallett v. Thorsell, Morse v. Thompson, Parham v. Thorne, Williams v. Thurber v. Townsend Thurston v. Haddocks Thweat v. Stamps . Tibbetts, People v. Low V. 97, Tifft «. Horton Tillinghast v. Bradford Tillar v. Bass Titus V. Mabee V. Ginheiner Titman v. Moore Tobey «. Moore Tobey v. McAllister . Tobener, Matthews v. . Todd V. Oviatt . Toll Bridge v. Osborne Tolle V. Orth . Tong V. Marion .\GE 189 97 596 158 157 380 380 162 98 39 505 687 305 189 97 337 506 38 151 99 157 158 407 636 32 687 158 596 99 378 33 99 875 157 38 505 505 30 97 159 38 38 161 97 685 600 876 32 597 375 TABLE OF AMERICAN CASES CITED. xlix Toomans v. Malilmans . . Topping, Dougrey v. Towne i'. Bowers Townsend, Thurber v. . Tracy v. Ky. Co. . . . Tripp V. Hasceig . Triplett v. (iraliaiii . . . Triram v. Marsh . Trustees, Webl) v. . . . ('oluinbia College v. Thatcher . . . . Dunne v. . . . Columbia College v. Lynch . . .97, Trvon r. Munson . . . Tufts, Hall V. Tufts, Hoon » . Tumlin, Pinkerton v. Tunnell, Doe v. Turner, Fritz v. Tuttle. Moffatt, v. . Tweed}^ Ferguson v. Tyler v. Peatt . Tyler, Cole v. •AGE 159 380 151 375 507 33 838 638 376 97 595 230 637 94 157 158 035 302 229 37(; 229 338 Underbill v. Collins . . 600 TJnion Ry. Co, Whitney v. . 97 Uraun v. Coates . . . 23J V. Valletta v. Bennett . . 637 Van Rensselaer v. Denuison . 68 V. Smith . . 68 ■ ■ i\ Radcliff . 505 V. Penniman. 600 Van Doren v. Everitt . .151 Van Hanswych v. Wiese . 302 Vanatta v. Brewer . . . 599 Vanbebber, Craig v. . . 350 Vandoozer, Dayton v. . . 33 Van Zaiidt, Jackson v. . . 121 Van Winkle, Smiley v. . . 599 Vaux V. Parke . . .98 Vaughn v. Schmalsle . . 834 Vidal V. Girard's Ex. . , 351 Vftorhees v. McGinnis . . 39 W. Wadsworth v. Williams . 337 Waddell, Greenland v. . . 229 Wager v. Stone . . . 6S8 Wainwright, Barlow v. VVaite. Kent v. Wallace v. Harmstadt Walsh V. Reis Walker v. \\alker . Wallace v. Penfield Walsh V. Young W'alker v. Long Walthall «. Gorie Walworth ■;;. Jenness Wallace v. Kennedy Waltz, Arnold v. . Walbridge, Despond v. Walton, Foster v. Wallner, Harrer v. . Walker, Simon «. Shoemaker v. Wanser, Russum v. Warren v. Leland V. Halev Warner v. Sprigg Ward v. Cook Warren, Hubbell v. . Warner, .Jewell c. Warren, Sweeney v. Warford, Calvin v. Warwick i\ Warwick Warschaner, Dutton v. Ward, West v. . V. Sheppard Warner v. Hoisington Ward, Cook v. Washington Ice Co.y. Shnrtall Washington, McFarlaud VVatry, Witman v. . Webb V. Trustees Webster v. Ellsworth Webb V. Deneopolis Webster v. Nichols . 'W^ebb, Lovelace v. W^eeks, McDonald v. Weed v. Morgan . Weisbrod v. Daenicke Weishaar, Ambre v. Welcome v. Hesse Welsh r. Philips . Bloom V. Wells, Coolidge v. Drake v. Henshaw v. Leitch V. Wellington, Thayer r. . Wells V. Bailey Wentworth v. Wentworth . Werner, Ind. School Dist. of West Point v. . . . West V. W'ard . . . . Wetherbee v. Ellison . •AGE 597 507 68 157 302 338 350 375 376 406 600 158 633 96 377 157 378 633 36 377 407 36 97 122 , 463 304 301 638 157 149 400 636 36 161 600 376 376 505 599 636 39 595 156 302 600 637 32 159 35 637 339 305 506 378 335 157 36 TABLE OF AMERICAN CASES CITED. Wetmore v. Bruce . Wetliered, Williams v Whaleu c. Cadman . Wheeler v. Smith v. Spinola . Atchinson v. . Wheaton, Sexton v. White V. Foster Whitney v. Union R'y Co \Miitehead v. 'I'app Whittlesey v. Fuller White, Barues v. . Whiting, Cook v. Whitmarsh v. Cutting . Whipp, Korthcut v. Wiese, Van liausvvyck v. Wigle, Diake v. Wiglitraan, Sapp v. Yiickle V. Williams t. Thorn Wilkinson v. Wilkinson Williams v. Wethered Wilkinson d. Merrill Williams v. Darris Willis v. Smith Williams, Wardsworth Wilson V. Scruggs Williams D. Davis . c. SaiTord . V. Deviar Williamson, Brown v. Williams, Brown v. Dodge V. W'ilcox, Estes v. W^ilder, Hudnal v. Wilson, Hooper v. Willis, Kirabrel v. Wilcox, McKee v. Wilson, Mullen v. PAGE . 97 . 157 . 158 . 379 . 506 . 162 . 337 . 35 . 97 . 158 . 376 . 161 . 34 . 157 . 379 . 302 . 149 . 334 . 334 . 99 . 149 . 157 . 158 . 159 . 335 . 337 . 600 . 338 . 505 . 595 . 98 . 379 . 477 . 229 . 96 . 637 . 158 . 156 . 338 PAGE Wiley, Front i\ ... 350 W'illett, Sherman v. . . 33 Wilbur, Stall v. ... 33 Williams, Mayor, etc. v. . 96 Wilkins v. French . . . 637 Wilson V. Russell . . 636 Wilder, Skinner v. . . . 34 Wing 1). Cray . . .38 Wineland's Appeal . . . 301 Wiugate, Chase c. . . 37 Winchester, Cook v. . . 302 Winona & St. Peter K. K. Co., Lindsay v. Whitman v. Watry . Witczinski v. Everman Witthaus V. Shack . Withers v. Larrabee W^ood V. Fowler . Woodbury v. Sudly . Woodward v. Camp Wood «. Hildebrand V. Wood V. Seeley WoodrufE «. Pleasants Woods, Kitteridge v. Stafford v. . Wright i\ Howell Burnett y. Smiley r. Wyman r. Brown Richardson v. Y. Yackle v. Wight man Young V. Young Walsh V. , 33 . 600 , 636 . 379 595, 596 . 36 . 162 . 191 . 191 . 377 . 380 . 476 . 36 . 156 . 337 . 633 . 380 . 96 . 379 . 334 228, 378 . 350 ERRATA, Pnge 28, note (j) . .For -'Yeai IJook 4 Edw. 17. 83," r^ad "Year Jiook L'l Echv. IV. 83."' " 83, note («) . . . For " \-J, Sin. fc-1," read " 12 Sim. 84." " 138, note ((/) . .For "stat. 50 & 51 Vict. c. 50," read "stat. 50 & 51 Vict. c. 30." " 141, note (s) . . .For "stat. 52 & 53 Vict. c. 50," read "stat. 50 & 51 Vict. c. 30." " 171, note («) . . For "stat. S7 & 33 Vict. c. 83, s. 5," read " stat. 31 & 32 Vict. c. 40, s. 5." '• 6'''3. note I a) . . .For "Winter v. Lord Hanson" read " Winter v. Lord Anson." ADDENDA. Page GO, note (p) . Add "The extinguishment of any quit-rent or other maiioiial incident niav now be compelled bv lord or tenant ufidcr stat. 50 & 51 Yict". c. 73, s. 6." " 84, note (^) . . . Add "It appears that voluntary conruvances to a charity cannot be avoided under this Act, liammy v. Gilchrist, 8 Times L. R. 594." " lis, line 15 . . Add a reference to lie DuJce of Marlborough' s Blenheim Estates, 8 Times L. R. 582. " 133, note (7), and page 120, line 10 & note (17). Add a reference to stat. 52 & 53 Vict. c. 30. " 134, note (0) . . . Re Marquis of Ailesbury' s Settled Estates is now reportecl in ].. R. 1892, 1 Ch. 50C. " 243, line 24 . . After the word re{fistration add a note : — "By stat. 48 & "49 Vict. c. 2(5, s. 3, a caveat in favour of any person may be registered with respect to any lands in Yorkshire by any poi-son claiming to be entitled to any interest therein ; and if, while the caveat remains in force, an assurance of the lands from the giver of the caveat to tiio other, his representatives or assigns, be duly registered, such assur- ance shall have priority as though it had been registered on the date of registration of the caveat." w.R.p. e iU ADDENDA. I'uge 260, notes U/), (A) . Add a reference to He Twiffg's Edate, 1892, 1 Ch. 579. " 313, note (ff) . . I Add a reference to He Anthony, 1S92, 1 Cli. " 317, note (ij . S 450. •■ 342, note (re) . . . Add a reference to Be G (an in/ant), ■ 1892, 1 Ch. 292. " 343, note (e) . . Add a reference to Imperial Loan Co., Limd. V. Stone, 1892, 1 Q. B. 599. " 364, . . . . Since the text of this page was in print, it has been decided that a husband shall have curtesy of land, which is his wife's separate property under the Married Women's Fropei-ty Act, 1882 ; Hope v. no2)e, Stirling, J.,"8 Times L. R. 504. " 570 lines 4 to 8 . .Amend the sentence as follows: — -"And where the lessor is proceeding to enforce uch a right of re-entry, the Court is authorized, on the application of the lessee, to grant relief against the forfei- ture incurred, if, &c." And after the word re-entry, add a note : — " But not after the lessor has actiially recovered possession in execution of a judgment in his favour obtained in an action brought to enforce such a right; Kocfers v. Elce, C. A., 8 Times L. R. 511. See Lock v. Pearee, W. N. 1892. p. 82." ■ " 587 note (?) . . . Add a reference to Snoiv v. Boycott, W. N. 1892, p. 89. " 610 note (s) . .Adda reference to He Anthony, 1891, ' Ch. 450. " 628 note (c) . . . Add a reference to the note above directed to be added to page 197. line 24. •< g42 note ^fi . . Add a reference to Pedder v. Hunt. 18 vi. B. D. 565. PRINCIPLES LAW OF REAL PROPERTY. INTRODUCTORY CHAPTER. OF THE NATURE OF REAL PROPERTY OR ESTATE AND CHATTELS REAL. Section I. Of the nature of Property and Ownership. It is probable that many of those, who open tliis book, have heard of a distinction made in law between real and personal property. They are perhaps aware that the law of real property has to do with the ownership of land ; and it is very unlikely that they have formed no opinions on the subject of the laws of property. Popular notions of law often contain an element of truth : but they are rarely exact. The student of real property law will, therefore, do well to begin by con- sidering the exact meaning of one or two terms, with the common use of which he is doubtless farailisir. In the first place, what is meant by the word property? The common conception of property may perhaps be said to bo this; that a man's ])roperty is what is his own to do what he hkes witli. It is W.R.P. b 2 INTRODUCTORY CHAPTER. generally understood that those tilings are a man's Ownership, property, which are the object of oionernh'ij) on his part. AVhat then is ownership? Without pretending to formulate a definition, we may venture to a^sert that ownership chiefly imports the right of exclusive enjoy- ment of some thing (a). The owner in ])ossession of a thing has the right to exclude all others from the ]X)ssession or enjoyment of it; and if he he wrongfully deprived of what he owns, he has the right to recover possession of it from any person. This right to main- tain or recover possession of a thing as against all others may, I think, be said to be the essential part of owner- ship. As regards its other incidents, ownership may be absolute or else limited or restricted. Thus absolute Incidents of ownership would seem to include the right of free^ as ''wuershi ^^^ as exclusive, enjoyujent ; by which I mean the right of using, altering or destroying the thing owned at the owner's pleasure, so only that he do not violate any other person's right to sccurit}' of person and property. But those, who have rights of exclusive, though restricted, en- joyment, are nevertheless commonly termed owners (i). Another incident of absolute ownership is free power of disposition, that is, the right of the owner to transfer as he will the whole or any part of his rights over the thing owned. And in modern times free power of disposition is generally incident to and indeed insepar- able from any ownership (c). But the student will find that in earlier times those were regarded as owners, whose right to maintain or recover possession was secured by law, though their power of disposition was limited {d). Again, it is essential to absolute owner- (a) See 2 Austin's Jurispru- dence, 817, 4th ed. (i) English landlords, who are teniints for hfe, are commonly called landowners, notwithstand- ing that they may be restrained from laying their land waste, or pulling down their houses. (c) Litt. s 360; Co. Litt. 223 a; Bradley v. Pnxoto, 3 Ves. juu. 324; Ross V. Koss, 1 J. & W. 154; Ware v. Cann, 10 B. & C. 433. {d) Glanville, lib. 1, c. 5, 7; lib. vii. c. 1, 5; lib. xii., xiii.; OF THE NATURE OF REAL ESTATE. ship that it should be of indeterminate duration ; no limit of time must be set beyond which the enjoyment of the thing owned shall not endure. So that any right of user or enjoyment limited to endure for any period of life or years cannot amount to absolute ownership, which is interminable. And any right of exclusiye enjoj^ment of a thing, for whatever period, which is derived out of the ownership of another (e), seems to fall short of absolute ownership. But the term owners is commonly used to include those, who have right of exclusive enjoyment of anything for a limited tiine, as well as absolute owners (/"). Thus the word owner- ship is used by lawyers sometimes in the strict sense of absolute ownership, sometimes in a looser sense to express a right of exclusive enjoyment, which, though possibly Licking some of the incidents of absolute ownership, includes at least the right to maintain or recover possession of some thing as against all others. Having gained some notion of the legal sense of ownership, let us see what meaning is attached in law to the term property. This word is mainly used by Property, lawyers in three different senses : — (1) As denoting the right of ownership. For instance, if a man lend his goods to a friend, it is said that the property in the goods remains in the lender. We also %^^Q2^oi property in land. (2) As denoting the object of a right of ownership. Thus, it may be said that certain goods are Bract, fo. 3 a, 8 b, 10 b, 31, 102, 112 hold land of another and his heirs, b, 113 a, 160 a, 195 b, 20t), 263, so that, on failure of the heirs of 208, 434 b, 435 a; Britton, liv. 2, the former, the latter or his suc- ch. 16, s. 2; Mirror, ch. 2, s. 25; cessors in title will have the light Litt. ss. 9, 10; Co. Litt. 17 a, to resume possession of the land. 266 a. ( /■) English landlords, who are («) As where one holds land on mostly tenants for life only, are lease from another for a term, say, commonly called landowners : see of a thousand years, on the expira- stats. 6 & 7 Will. IV. c. 71, s. lion of which the lessor's succes- 12; 8 & 9 Vict. c. 18, ss. 3, 79, sors in title will have the right to 84, 127; 27 & 23 Vict. c. 114, s. resume possession of the land; 8; 33 & 34 Vict. c. 56; 34 k 85 or where one man and his heirs Vict. c. 84; 40 & 41 Vict. c. 31. B 2 4. INTRODUCTORY CHAPTER. the iwoperty of a certain man ; or, speaking of land, that the ])roperty of one man adjoins tlie pr^oper'ty of another ; or that property may consist either of immove- able things, as land, or of moveable things, as coined money. (3) As denoting valuable things — things, which can be turned into money or assessed at a money value; in other words, rights which may be exchanged for the ownership of money {g). It is in this last sense iXvAi i\\Q wov A property &QQn\& to be used when a man speaks of all his property, or of his real as opposed to his personal property {h). Property then may mean either (1) ownership, or (2) the objects or an object of ownership, or (3) valuable things, according to the ctni- Things text. Now tilings, according to a classification imported corporeal or . -r-i i • i i incorporeal, froui Roman into Jl,ng]ish law, are eitlier corporeal or incorporeal. Corporeal things are tangible objects, as land or gold : incorporeal things are those which are intangible, such as legal relations and rights, including legal obligations and rights of action (i). And property, as meaning valuable things, includes incorporeal as well as cca-poreal things. That is to say, property consists of two kinds of things: — (1) tangible things in their owner's possession ; (2) valuable rights of vai-ious kinds unaccompanied with the possession of anything corpo- real. Or, if it be ])ref erred to treat property as an ao-o-reo-ate of riirhts, the same classification may be pro- pounded in this way: — Property consists (1) of rights ,ff) See Lord Mansfield, Ilogan object of rights, to the rights V. Jackson, Cowp. 299, 307; themselves; see Austin's Juris- Savigny, System des hentigen prudence, 371, 804, 4th ed. The rOmisehen Rechts, vol. i., s. 53, student of any legal system, how- pp 33g 340. ever, must take it as he finds it. (h) See Poe d. Wall v. Lang- It is idle for him to find fault lands, 14 East, 370; Doe d. with ideas, which have obtained Morgan v. Morgan, 6 B. & C. actual currency therein, and which 512. ■ he is therefore bouud to accept as (i) Bract, fo. 10 b. In modern "legal tender." If any such times tins classification of things, ideas conflict with his sense of as corporeal or incorporeal, has what ought to be, he should look been subjected to adverse criti- for explanation to the history of cism, on the ground that it law. opposes things, considered as the OF THE NATURE OF REAL ESTATE. of ownership in tangible things clothed with possession; (2) of bare rights or mere rights ; rights unaccompanied with possession, which are nevertheless valuable. But it is more in accordance with the treatment of the sub- ject which has obtained in our haw (k), as well as with common usage, to classify property as consisting of corporeal things, as land or moveable goods, or of incorporeal things, mere rights regarded objectively as a source of profit. Ev^eryone understands that the land and moveable goods, which a man possesses as owner, are part of his property : but he may have other valuable things besides the land and goods in his possession. It is probably within the reader's knowledge that a man may have land let to yearly tenants, or may be entitled to land on the death of some tenant for life. In either case he has a mere right (l), without the possession of anything corporeal; for the land is in the possession of the yearly tenants or life tenant. But his right to the land, subject to the yearly or life tenancy, is a valuable thing, and is for that reason part of hispropert}'. Again, one need be no law'yer to know tliat a man's property may also include rights of way, of pasture for cattle, or of fisliing or shooting over other's land. Everyone reckons debts due to himself as part of his property; and at the present day stocks and shares are forms of property which are familiar to many. All these things, however, are mere rights, unaccompanied with the possession of anything corporeal. Some, as we have eeen, are rights over land, of which others are in possession as owners. A debt is nothing more than the right to sue another for money due {?n). What is generally spoken of as a sum of Government stock is properly the right to receive from Government perpetual annuities redeemable on payment of a certain sum, for (yfc) See Co. Litt. 121 b. 374 b. Co. Litt. 369 a. (0 See Bracton, fo. 3 a, 7 b, 31, (?«) Principles of the Law of 39 a, IGO a, 20G b, 264 a, 434 b; Personal Property, 11, 13th ed. INTRODUCTORY CHAPTER. example, £100 for every £2 15s. of annuity (n). A share in a joint-stock company, regarded as a source of emolument, is a right to receive a certain share of the profits of the company (o). All these different rights are however valuable ; they may be turned into money and their worth can be assessed in money. Being vahiable things, they are reckoned as property. But in including such incorporeal things in property, no heed is paid to the nature of the rights of wliich they consist ; they are simply regarded objectively as sources of profit. Section II. Of Property in Land and Goods in English Law. Distinction in English law between property in lauds and property in No absolute ownership of land. Estate in fee simple. Having thus examined the meaning of ownership ?i.\\d property^ our next step towards apprehending the nature of real pi-operty will be to advert to the distinc- tion drawn in English law between property in land and property in moveable goods. It is this : — An English subject may enjoy the absolute ownership of goods, but not of land {p). The law does not recognize absolute ownership of land, unless in the hands of the Crown ; and the greatest interest in land, which a subject can have, is an estate in fee simple () The possession of froehold temps, mts biens come boe/s oit liind wiis therefore rej^ardeil as a vacue pult estre marir/e" ;' Fitz. sulficient pledge for good be- Abr. Villenage, pi. 22. haviour; Bract, fo. 124 b. 12 INTRODUCTORY CHAPTER. property in goods arises from the physical difference between land and moveable goods, and from the superior importance of land at the time when the common law was in the making. To re-state in words more indicative of its origin the distinction, tliat one may be the absolute owner of goods but can at most hold an estate in fee in land : — By English law moveable goods are the object of absolute ownership : but land is tlie object of tenure,! that is, feudal tenure. Tenure may perhaps be defined] as the relation between feudal lord and tenant of land. Establish- The princi])le of the feudal tenure of land was de- feudai tenure, finitely established in our law after the Norman Conquest. It is well known that, after the battle of Hastings, the lands of those who opposed tlie Conqueror were treated as forfeited, and were granted by him to liis own followers; while those of the Englif-h who sub- mitted to him, redeemed their Ian Is, surrendering them and receiving them agdn from his hands (^). In con- sequence of the revolts against William's authority, which took place in the first ten years of his reign, further forfeitures were incurred ; so that, by a gradual process of confiscation and new grant, Normans were largely substituted for English, as the chief landowners over the whole kingdom (r). Now according to the construction placed by King William and his ofiicers of justice upon the grants or regrants of land made by the king, whether to his own followers or to the former owners, the lands were not bestowed as absolute gifts : but were granted on the conditions of what is known as the feudal system of landholding {s). The feudal system of landholding (j) Freeman, Norm. Conquest, iv. 18—22, 24, V. 22; Stubbs, Const. Hist. § t)5. (?•) Stubbs, Const. Hist. § 95; Freeman, Norm. Conquest, iv-. 49, 56, 127, 128, 163, 296. («) On the continent of Europe the feudal system of landholding seems to have come to maturity in the course of the tenth century. It is thought partly to have originated iu the grants of land made by the OF THE NATURE OF REAL ESTATE. 13 That is to saj, the grantees were regarded as holding the lands of the king as lord on the obligation of fidelity and servdce to him, in which it' they failed, the lands would be forfeited and the king might resume them as his own {t). The service required of the grantees would in general be militaiy service ; that is, each would be bound to provide the king with a certain nuinber of armed horsemen or knights, as part of the feudal host {u). Upon this system were lands lield of Frank kings of the three preceding centuries to their kinsmen and followers upon the grantees' undertaking to continue faithful. The estates so gianted are known as benefices. Other elements of feudalism Benefices, are found in the practice of commendation — that is, of men submitting Commenda.- themselves to some powerful neighbour as their lord and thereby tion. gaining protection in return for faithful service, — and in the grants made by kings to powerful subjects of liberty of jurisdiction over the inhabitants of particular districts with immunity from the royal jurisdiction. The maiu features of the feudal system of tenures v,'ere (1) the principle that all land is held, either mediately or immediately, of the king; (2) the union of the relation of lord and man with that of landlord and tenant, whereby the personal service due from the vassal to his superior became the condition of his holding land granted to him by his lord ; and (3^ the jurisdiction of the lord over his tenants. The personal relation of lord and man was known to English law before the Norman Conquest. And it appears that English institutions were in other respects tending towards feudalism at the time of the conquest. But the introduction into English law of the feudal principle that all land is hold of the Crown, and of the tenure of land b}' military service, seems to have been the immediate result of the Conquest and of William's dealings with the land. Although William introduced feudal tenure into England it should be noted that his policy was opposed to the introduction of feudal goL-ern- fnent. At the assembly held at Salisbury in 10S6 he caused all his subjects, whosoever men they were, to swear fealty to him as their supreme lord. Hence arose an important difference between the English law of feudal tenure and that prevailing on the con- tinent. The continental tenant owed fealty to his immediate lord only, and might well be summoned to go with his lord to war against the lord's superior, on pain of forfeiture, if he failed to comply. The English tenant did homage to his lord, saving his alleguuice to the king; and did not forfeit his holding if he stood by the king against his lord. See Stubbs, Const. Hist. §§ 93—97; Freeman, Norm. Conq. iv. 694; Hallam, Middle Ages, i. 174, 175, and note; Glanv. ix. 1 ; Bract, fo. 80 a, 81 b ; Litt. ss. 88, 89. {t) Stubbs, Const. Hist. § 95. was retained, and used by the Freeman, Norm. Conq. iv. 27, Norman kings, in addition to the V. 5, 23, 24. feudal host; see Stubbs, Const. (w) Before the Conquest land- Hist. §§ 30, 48, 50, 75, 97, 133, owners were subject to the obliga- vol. i. pp. 76, 105, 117, 189, 268, tion of service in the fyrd, or 432 ; Stubbs, Select Charters, 153, national militia. The fyrd was 2ud ed. Dot abolished at the Conquest, but ^^ INTRODUCTORY CHAPTER. the Conqueror in Normandy by the great men \vho joined him in the expedition against Harold {v). And this system, it appears, was directly introduced into England by "William I., at whose will the amount of knight-service due from the feudal tenants of the crown was determined (?^). And not only was tenure by military service the condition of holding lands, which the king had granted to laymen, but the lands, which he had bestowed upon the bishops and abbots, as his feudal tenants, were also subjected to the obligation of providing detinitc numbers of knights (x). The law of military tenure, having been thus applied to the im- mediate tenants of the crown, spread quickly down- wards ; for the king's tenants, in order to provide permanently for knights to perform their service due to the crown, made gifts of land to their followers, as under-tenants, on condition of like military service as was required of themselves (fj). And so speedily was the law of feudal tenure incorporated in the law of the land, that among the grievances to be redressed by the charter issued at the accession of Henry I., we find abuse during the late king's reign of the forms of feudal tenure, with respect to the lanrls not only of the king'? immediate tenants, but also of their under-tenants (2). Under the influence of the king's court, of which judges were first appointed to sit permanently in Henry II.'s reign (a), the laws of tenure were further developed and reduced to uniformity; and all forms of land-owning, whether derived from the feudal grants (v) Round, English Historical bishops and abbots appears to Review, vi., 441; Stubbs, Const. have been fixed by William in Hist. § 92. 1070; Round, Eng. "Hist. Review, (w) This point is, I think, vii. 14. made good by Mr. Round in his (>/) Round, Eng. Hist. Review, articles on the introduction of vii. 15, 19. knight service into England in (s) Stubbs, Select Charters, 100, the English Historical Review, 2nd ed.; Round, Eng. Hist. Re- vi, 417 and 625, vii. 11. view, vi. 417. (x) The amount of knight ser- (a) Ante, p. 8. vice to be required from the OF THE NATURE OF REAL ESTATE. 35 of King "William and his tenants, or from Saxon usage which had survived the Conquest, were forced to tit the principle of feudal tenure. The law of tenure, liowever, was applied only to land. Chattels were not treated as fit objects of feudal tenure. The transient nature of goods and the uses to which they are commonly put, are opposed to any such arrangement. They were looked upon as objects of property simply. William I. took plenty of moveable wealth from his conquered subjects : but we do not hear that he granted any of it out to be held of him feudally, though we are told that he be- stowed some of it as absolute gifts (b). So that, while a free man's land was subject to the interest which his feudal landlord had therein, his chattels were, as we shall see, property peculiarly his own, of which he could dispose at will (c) Section III. Of Tenements and Chattels. Land then is the object of tenure. He who has land, is said to hold it rather than to own it {d). And in early times after the Conquest a parcel of land in any person's occupation, with its appurtenant rights in the way of common pasture or otherwise, was especially known as a tenement ; a term then used generally in Tenement the mere sense of a holding of land without any re- ference to the nature of the tenant's interest therein ( 1 • , 'r • n , note 2, p. 3-i. lieir to the land ot whicli Ins father died possessed. And the heir mif^ht bj' action at law recover the very- land which descended to him as his inheritance, if the lord of the fee or any intruder wrongfully kept him out of possession (u). By the common law, moreover, free- holds of inheritance were not generally devisable by will ; they were alienable only by formal delivery of the po session thereof in the tenant's lifetime (a?). The succession to a holding in villenage after the tenant's death was not a matter in any way regulated by law. It might be customary' for a son or other relation of the tenant to succeed him as heir (y) : but the customary heir could not appeal to the king's courts against any infringement of his customary right (2). The interest of a tenant of land for a term of years was reckoned amongst his chattels after his death (a). Now the law of succession to chattels was based on principles entirely different from those which governed the descent of a fee. A man's chattels, as the objects of absolute dominion on his part, were after his death applicable first in pay- ment of his debts. Of any surplus which remained he had the power of disposing of a reasonable part (b) by will ; and the execution of such a will was committed by law to those persons whom the testator had appointed for the purpose, and who were called his executors (c). AtExecuujr. {u) Glanville, lib. 7, cap. 3; (h) One third, if he had a wife lib. 13, cap, 2, 3; Bract, fo. 62 b, and child; one half, if he had 252 et gen. wife or child ; otherwise the (x) Glanville, lib. Y, c. 1, 5 ; whole; Bract, fo. 60 b, 61 a. In Bract, fo. 39 b, 49 a. process of time, however, a man's (y) See Select Pleas in Manorial widow and children lost their Courts, Selden Society, vol. li., indefeasible rights to a share of 8, 13, .34, 37, 39, 123, 166, 173; his chattels, and anyone, though Vinogradoflf, Villainage in Eng- a husband and father, may now ]and,"l56, 159, 162, 172, 246. bequeath the whole of his chattels (z) See Bract, fo. 263, 271 a, to whomsoever he will ; see 272 a; Britton, hv. 8, ch." 15, Principles of the Law of Personal § 2. Property, p 417 rf. seq., 13th ed. (a) Bract, fo. 407 b; and see (c) Glanville, lib. 7, cap. 5—8 fo. 131 a. Bract, fo. 60, 61. c 2 20 INTRODUCTORY CHAPTER. tirst it does not appear that a man's execntois siiccceded to niore than the residue of his chattels left after pay- ment of his debts, liis heir being liable to pay his debts and his chattels applicable to that purpose in the ban Is of bis heir (r/). But afterwards the payment of their testator's debts fell into ihe executors' bands as well as the distribution of the surplus of his chattels (d), and the whole of a testator's chattels devolved upon bis executors. The ecclesiastical courts had jurisdiclit'ii over suits relating to the validity or execution of a will {/). And if a man died intestate, the adrainistri- tion of his goods was committed to the church (g), and performed, after the statute 31 Edw. III. c. 11, by an administrator deputed by the ordinary (h) from among the next friends of the deceased. So that the chattels of one who died intestate devolved on his administrator in the same manner as a testator's chattels passed to his executor. The interest of a tenant for a term of years was considered as his chattel, and therefore devisable by will ('/). And, though it seems that in early times a man's heir might succeed to land given for a term of years to him and his heirs (k), yet ultimately tlie law of succession to a term was assimilated to that of other chattels; and it was settled that the interest of a deceased tenant for years should pass to bis executor or administrator, according as he died testate or intes- ((f) See Assize of Northampton, (A) /. «., "a bishop or any other C.4; Stubbs, Select Charters, 1.^1, th:it hath ordinary jurisdiction in 2nd ed.; Glanv., lib. 7, c. 5— S ; causes ecclesiastical;" Co. Litt. Bract, fo. 60, (U ; Selden, Titles ;tner>can 1 . 1 1 , . . , note 3, p. 32. tion, winch the ecclesiastical courts had previously attempted to secure (/<), Freeholdings of land tlicn, or fi'ee tenements, were the only kind of property in land whicli was fully recognized and protected by the early common law. The word tenement thus acquired, besides its genci-al meaning of a holding of land, a special sense in which it was used to denote a free tenement only (fin). And the words "lands" or "lands and tenements" were constantly used as referring to freehold lands only (o). So that property in the times of the early common law was classified as consisting of immoveable things, as tene- ments (meaning free tenements), on the one hand, and moveable things, as chattels, on the other {p). As anything which may descend to the lieir is in English law called a hereditament (g), lands and tenements were Hereditament, also known as hereditaments. And the expression " lands, tenements and hereditaments" was long and is (i) Bro. Abr. Chattels, pi. 6; Charta of John, art. 4, 5, 9, 32; Litt. s. 740 ; Co. Litt. 4i) b. Stubbs, Select Charters, 297 et (m) Stat. 22 & 23 Car. II. c. 10, seq., 2nd ed.; stats. 13 Edw. I. c. explained bv 29 Car. II. c. 3, s. 25; 18 : 18 Edw. I. c. 1 ; 26 Edw. III. 1 Jac. II. c". 17, s. 7. St. 5. c. 2; 34 Edw. III. c. 12. («) See 1 Sir T. Raym. 497— (p) Glanville, lib. 10, c. 6; 499; 2 Black. Comm. 515. stat. 12 Edw. I. c. 8, 10. {nn) Magna Charta of John, art. (q) Co. Litt. (! a; Tomkins v. 34; Stubbs, Select Charters, 301, Jones, 22 Q. B. D. 599. This 2nd ed.; stats. 6 Edw. I. c. word seems hardly to have come 11, 12; 13 Edw. I. c. 1, 3, 4, into use before the reifju of Edw. 6, 10, 32, 41 ; Co. Litt. 6 a. IV.; see stats. 39 Henry VI. c. (0) Charter of Liberties of 1; 1 Edw. IV. c. 1, ss. 4— 0, 10, Henry I., art. 2, 4; Stubljs, 14. I have not found any earlier Select Charters. 100, 101, 2nd ed.; instance of its use iu the statute Glanville, lib. 7, c. 1, 17; Magna book. 22 INTRODUCTORY CHAPTER. Meaning of word real in law. still used in legal dt)cuments to describe property in land, as distinguished from goods and chattels or moveable ]->roperty. But as by early law freehold ings were the only true property in land, when a man spoke of his lands, tenements, or hereditaments, it was intended, primd fiXoie, that he referred to his free- holds only {r). Section IV. Of Real and Personal Actions and Property. To recapitulate the points of contrast between land and moveable goods or chattels in early law : — Land was the object of feudal tenure. The largest property "which a subject could hold in land was a fee, which must inevitably descend to his heir if he died possessed thereof. The only true property in land was free- hold, for free tenements only were specifically recover- able, the law regarding the possession of a tenant in villenage as enjoyed at the will of his landlord, and that of a termor as matter of contract rather than of property. Chattels were the object of absolute ownership. They might be disposed of by will, and would go to the executor or administrator, not the heir. But they were not specifically recoverable, because one who wrongfully detained chattels, might absolve himself by payment of their value in money. The fact, that originally freeholds were the only ]iroperty specifically recoverable, is the reason why they came to be called real things. lor the word real in English law is used (?•) Year Book, 9 Henry VII. 25; Bro. Abr. Done, 41 ; Bio. Abr. Grantes, 87; Bhepp. Touch. 91, 92; lionev. JJarthtt, Cro. Car. 292; Chapman v. IJart, 1 Ves. 271 ; Thompson v. Lawley, 2 Bos. & P. 303; 1 Jarm. Wills, 663, 664, 667, et seq., 4th ed.; stat. 7 Will. IV. &1 Vict. c. 26, s. 26. OF THE NATURE OF REAL ESTATE. 23 not in its common sense, in which it is opposed to sham, or imaginary, or ideal, but priocipally to convey the notion of the capabihty of speciiic restitution. The terms real and personal were first applied to ^^^' ^°ox\?i\ and personal, estate instead of by tne old terms lands, tenements, and heredit'iments and goods and chattels {Tc), only thino-s inheritable as well as specifically recoverable, only real hereditaments, in fact, were classed as real JJ^^^^Jfg';^'^'" estate; and chattels, whether real or personal, were considered as personal estate rather on the ground of their passing to the executor than with reference to the question, how far they were specifically recover- able {f). It does not appear that the expressions 7'eal Book. 21 Edw. IV. 83. pi. 38; Tenures, fo. 2 b; LHt ss. 281 Co. Litt. 198 a, 288 b. It does 819-324, 365; 1 KoUe Abr not appear that the term things Executor ("H. \) . It is worthy of personal was so used as to include note that chattels real were things chattels real; see Wentworth's specifically recoverable; see Co. Office of an Executor (ed. 1641), Litt. 43 b. l'J9 b; Bac. Abr. Tab. I. eh. 4, 10, pp. 64, 70, Guardian (T); ante, p. 17. 130—132; Cro. Car. 293. (k) See ante, pp. 21, 22 ((,) Ante, p. 16. H) See Cro. Car fi2; i ('h Ca (h) Pee Litt. s. 500: Co. Litt. 16; Davis v. Gibbs 0729), 8 20a; 5 Rep. 105 b. P. W. 26, 28; Whitaker v. (i) Co. Litt. 118 b; see Old ^mSi^ (1758), 1 Eden, 151, 152. 26 INTRODUCTORY CHAPTER. and personal estate came into common use much earlier than the reign of Charles II. (m). By that time great changes had occurred both in the character of the national wealth and in our land laws. The develop- ment of modern commerce and modern capital had commenced. Payment for services was no longer made in terms of land, bnt in money. Tenure, the relation between feudal landlord and tenant, while remaining in form, had greatly diminished in real importance ; tlie freeholders of land had, in fact, secured all the advantages of absolute ownership, except the form. By an Act passed at the restoration of King Charles II. military tenures had been finally abolished {n) ; a measure which relieved freeholders from all the oppressive incidents of feudal tenure, and reduced to a miiiimum the interests of lords in their freeholding tenants' lands. The same Act, too, extended to land- owners generally the full liberty of disposing of their fees by will, a privilege before enjoyed only by the more favoured classes among them (c); though free power of alienation iriter vivos had been much earlier obtained {oo). And while a freehold in fee had come to be well nigh equivalent to absolute property, other forms of property in land, besides freehold, had acquired (m) Mention is found of per- estate of the party in contempt; sonal estate and also of real estate see Bide v. Pettit (1(567), 1 Ch. Ca. in reports of cases decided in PI; Brown's Tutor in Chancery Chancery in the time of Charles I.; (1688), pp. 341, 361; Praxis see 1 Ch. Rep. 15, 25, 42. 71, 73, Alma; Curiae Cancellariae (1694), 82; Cro. Car. 62. In Charles II. 's 89—91. reigu the terms real and personal (n) Stat. 12 Car. II. c. 24. eftate were in common use in wills (»'•) Tenants of fees held in and iu the Court of Chancery; jjavelkind, or iu burgage where see 1 Ch. Ca. 16, 91; 1 Vein. 3, there was a custom to devise the 15, 23, 30, 36, 134, 216, 271. land; and tenants in socage by By the commission of sequestra- stats. 32 Hen. VIII. c. 1, and tion, which was part of the pro- 34 & 35 Hen. VIII. c. 5, which cess then issued against persons also empowered tenants by who acted in contempt of the knight's service to dispose of orders of the Court of Chancery, two thirds of their fees. See the sequestrators were authorized ante, p. 19; &nd post, ch. x. to take and keep in sequestra- (oo) By stat. 18 Edw. I. c. 1, tion all the real and personal OF THE NATURE OF REAL ESTATE. 27 full recognition and protection in law. Tenure in villenage, as such, had become extinct, but had given rise to the customary tenure known as copyhold. And Copyhold, the riglit of the copyholder to maintain or recover possession of his holding as against all others had become enforceable by the law of the land (2^). As we have seen (/>/•), the leaseholder had acquired a similar right. So that copyhold and leasehold in- terests in land had come to bo true property in land as well as freeholds. When, therefore, men began to speak of all their valuable rights as their estate (y), and to classify their estate as real or personal, property was no longer contained in the simple forms, which had rendered possible the early classification of immove- able tenements and moveable chattels [r). And ques- tions arose, on which side of the line the newer forms of property should be ranged. The term 7'eal estate Real estate, seems to have been considered as referring primarily to freeholds ; yet it was thought to be an apt word to describe copyholds also, where an intention to include them could be inferred (s). For copyholds are lands ^»»erfc«M note 4t w, 3^, transmissible to heirs ; since the copyholder maj^ by custom recognized in law have an estate inheritable by his customary heir, as the freeholder may have an estate inheritable by his heir at common law. By modern statutes, copyholds have been further assimi- lated to freeholds as regards the incidents of owner- ship {t)\ and they are now plainly held to be included {•p) Seepo.< Part III. (i!) By stat. 55 Geo. Ill, c. 192, {■pp") See ante, p. 18. copyholds were made devisable (ly) See a/i4H, Ambl. 274; Judd liabili'ty, which had previously V. Pratt (isOS), 15 Ves. 390; attached to them only in the case Chunk V. Mundy (18081, ih. 390; of his bankruptcy; stat. 13 Eliz Torre v. Brown (1854), 5 H. L. C. c. 7, 8. 2. 555, 571. 28 INTRODUCTORY CHAI^TER. in real property or estate {fi). Leaseliolds, however, though said to be chattels real as being derived out of real estate, were not permitted to rise beyond their chattel origin and to rank as real estate (y) ; devoU-irig upon the executor, not the heir, the}' fell into the class Ameijcan ^f personal cstatc (x). note o, p. 3a. r ^ ' In modern times then, a man's property or estate (meaning his valuable things (y) ) is classitied as real or personal. Things specilicallj recoverable, which go to the heir, or real hereditaments, are real estate. Pergonal estate comprises all chattels, which go to the executor (s), be they chattels real, that is, chattel interests in land, or chsitteh p€rso7ial, namely moveable goods and other things, for the withholding of which damages only are recoverable. It may be noted that personal estate, as well as real, now includes many forms of property which were unknown to the eai'ly law, such as stock in the public funds and shares in joint stock companies. These modern forms of property were in most cases created or sanctioned by Act of Parliament, and it was (u) Doe d. Clarhe v. Lvdlam Lawley (1800), 2 B. & P. 303; (1831), 7 Bing. 275; Edwards v. Prescott v. Barker (1874), L. R. Barnes (183n), 2 Bing. N. C. 9 Ch. 174, lyO. But at first a 252 ; littves v. Baker (1854), lease seems to have been con- 18 Beav. 372, 382; Torre v. sidered a real thing i-ather than a Brown (1855), 5 H. L. C. 555, personal thing; Rose v. Barthtt 574; Seaman v. Woods (1857), (7 Car. I.), Cro. Car. 292, 293. 24 Beav. 372. (y) Ante, pp. 4, 5. Personal (*' Holt, C. J., Countess of {z) It may be mentioned that hi^ri^Hit-impnt Bridgewater v. Duke of Bolton there is such a thing as a personal (Hil. 2 Anne). 6 Mod. "lOG, 107; hereditament, a thing recoverable Hardwiclie, C., Smitli v. Baker in the personalty, but going to the (1737), 1 Atk. 385, SS6: Whitaker heir, not the executor; of which V. Ambler (I75S), 1 Eden, 151; an annuity granted to a man and Parker v. Marchant (1643), 5 his heirs, and not charged on any Man. & Gr. 498; 2 Y. & C C. C. land, is an instance. Such things 279; Turner v. Tamer (18o2\ are held to be included in personal, 21 L. J. Ch. 843; Swift y^ Swift not real, estate. See Year Bool^-. (1859), 1 De G. F. & J. 11)0.173; 4 Edw. IV. 83, pi. 38; Bad of Butler ^ . Butler (1884), 28 Ch. J). Stafford v. Buckle?/, 2 Ves. 171; 66. Aiiliin V. Dali/, 4 E. & A. f9; {x) Lea V. Hale (1662-3), 1 Bedhurn v. j'ervis, 3 Beav. 450, Ch. Ca. 16 ; Davis v. Gihhs 461. (1729), 3 P. W. 26 ; TJiompson v. OF THE xVATURE OP REAL ESTATE. 29 generally declared that they should be considered as personal estate, and should go to the executors or ad- ministrators, not the heirs, of the parties entitled to them (a). The true nature of goverameiit stock as a mere fj,'fes'(f?,'n(t I'ight of action in the personalty has also been judicially '^^'^'- ^--^^ declared {b). By later decisions, a share in a joint stock company has been ascertained to bo a right of the same kind (c), a mere riglit to share in the profits of the comjvany, and not to be an interest in land, though the company be landholders (i/). It lias been previously mentioned that things are in English as in Roman law distinguished as corporeal or incorporeal (e). in our law this classification is particu- larly applied to hereditaments. Corporeal hereditaments, the land in the freeholder's possession, are contrasted with Heredita- , , T . , ments, cor- mcorporeal hereditaments, mere rights to or over land, poreai or in. which is in another's possession (/). For example, a ^°^^ light to enjoy land in fee upon the determination of the interest of another, who is in possession thereof for his life or for a term of years, is a mere right regarded in law as an incorporeal thing (g). So is the (a) See stats. 8 & 9 Will. III. c. v. MUne (1849), 11 Beav. 507; 20, s. 33, as to stock in the Bank Jj'//er$ v. Perigal (1852), 2 De G. of England; 9 & 10 Will. III. M. & G. 599, (520, 621; Edwards c. 44, s. 71, as to shares in the v. Hall (1855), C De G. M. & G. East India Company; 1 Geo. I. 74 ; Entwlstle v. Davis (1867), L. St. 2, c. 19, s. 9, as to Government R. 4 Eq. 272. But shares in the annuities; 8 & 9 Vict. c. 16, s. 7; New River and in one or two more 25 & 26 Vict. c. 89, s. 22. of the older companies are real {b) Dundas v Daten^ n790), estate, see Dryhutter v. liartholo- I Ves. jun. 196, 19S ; Wiidmnii mew (\72i), 2 'P. W. 127; liucke- V. Wildman (1803), 9 Ves. 174, ridge \. Ingram (1795), 2 Ves. jun. 177 ; R. V. Capver (1817), 5 Price, 652. 217, 2i;3, 264. " (<-) Ante, p. 4. (c) Humble v. Mitchell (1839). (/) Bract, fo. 52, 220 b, 221; II A. & E. 205 ; Colonial Bank Britten, liv. 2, ch. 2, §1. V. T\7>.innei/ (1885). 30 Ch, I). (g) Bract, fo. 3 a, 7 b, 31, 39 a, 261, 286, 11 App. Gas. 426, 439, 160 a, 264 b; Brittou, iiv. 2, ch. 446, 447. 2, § 1, ch. 9, §§ 1, 5; Fleta, fo. {d) Bligh v. Brent (1836), 2 Y. 201 ; l.itt. ss. 444, 445, 459, 466, & C. 268, 294 ; Sparling v. Par- 532, 533, 567—575, 606—618. ker (1846), 9 Beav. 4'-0 ; Walker 30 INTRODUCTORY CHAPTER. rii^ht to enjoy in fee land, of which another is wrong- fully in possession (A). Other instances of incorporeal hereditaments are a rii^ht of common of pasture, which is tlie right, enjoyed in common with others, to de- pasture cattle on another's land ; a right of way over another's land ; a rent granted to a man and his heirs to issue out of another's land ; and an advowson, which is the perpetual right of presentation to an ecclesiasti- cal benefice (i). The contrast is hetween the estate of one, who is possessed of the land, the tangible thing, and that of a man who has the mere right, the intangible thing, without possession of anything tangible (k). The distinction between corporeal and incorporeal hereditaments was emphasised by a differ- ence in the mode of alienation. The former were at Feoffment, common law alienable "by feoff meiit, that is, by gift of re\sin ^'^^'^^ a fee or feudal estate, coupled with livery of seisin^ or formal deiiveiy of possession {I). And such rights over others' land as appertained to a holding of land were transferred with it by delivery of the possession of the holding. Thus a ligh*". of way or of common enjoyed in respect of any land, or an advowson enjoyed in right of the possession of a manor would pass, without express mention, by delivery of possession of the land or manor. But if it were desired to alienate any incorporeal here- ditament alone, apart from the possession of any land, as such things are inaipablo of delivery, other means of transfer had to be employed {m). The most obvious of these was writing ; which accordingly came to be neces- sary to the transfer of incorporeal hereditaments by (h) Bract, fo. 2G2 b, 40i b; Bract, fo. 39 b ; Britton, lir. 2, Litt. s. 466, 521, 531, 534 ; Co. ch. 2, § 10; Litt. ss. 56, C'J, 70 ; Litt. 869 a. Co. Litt. 9 a, 48 a. U) Bract, fo. 62 b, 53 a, 222; (m) See Bract, fo. 52 b— 55 b, Britton, liv. 2, ch. 3, § 13, ch. 102,222 a; Britton, liv. 2, ch. 8, 10. § 4, ch. 10, § 15; Litt. ss. 183. ^ {h) See ante, p. 5. 184; Co. Litt. 121 b. \l) Glanville, lib. 7, c. 1; OP THE NATURE OF KEAL ESTATE. 3J themseJves (n). While therefore corporeal heredita- ments were long transferable by mere delivery of pos- session without any written words, the proper mode of disposing of incorporeal hereditaments alone, according to the common law, was by delivery of a sealed (o) writing or deed of grant. Hence, ci)rpore;U heredita- ments were said to lie in livery (that is, delivery), in- corporeal in grant {p). We may note that such incor- poreal hereditaments as a right of common or of way, a rent or an advowson, were specifically recoverable by the common law {q). and were therefore included in the realty as well as corporeal hereditaments (/•). We have now seen that property in land is not all Real and ohattel-rea' real property, but is either real or chattel real ; and property. " that copyholds as well as freeholds are now included in real property ; while leaseholds are the most im])ortant chattels real. But to enjoy the highest and most bene- ficial form of landowning known to the law, one must have a freehold in fee (.31 ; Skinner v. Wilder, 38 Vt. 115. But the party whose land is thus incumbered has the right to cut off the roots and branches of the tree at the division line. This right is recognized in the opinion of Skinner V. Wilder, cited supra. See, also, Grandona v. Lovdal, 70 Cal. 161. Trees standing upon a dividing line belong to the neighboring proprietors as tenants in common. Griffn v. Bixby, 12 N. II. 454. Sale of growing trees. — It is a question of interest and of no little diffi- cult}^, on account of the confusion in the holdings in different states, as to whether or not growing trees and other fructus naturales may for the pur- poses of sale separate from a sale of the land on which they grow, be treated as chattels. If they are sold under an agreement that provides that they are to be severed from the realty by the vendor or the vendee and taken away without delay, some courts would treat the sale as a sale of goods and as subject to the seventeenth section of the statute of frauds. See Coin v. McGuire, 13 B. Monroe (Ky.), 340; Marshall v. Green, L. R., 1 C. P. D. 35; but see Livery v. Pursell, L. R., 39 Ch. Div. 508, 515. See, also, Bostwick V. Leach, 3 Day (Conn.), 476, 484. The theory of courts so holding seems OF THE NATUKE OF REAL ESTATE. 35 to be that the trees are substantially severed from the realty at the time of the sale, as according to the terms of the contract, they are to be removed without delay, and hence will receive no further benefit from the soil. In some states, notably in ilassachusetts and Maine, contracts for the sale of growing trees are held to be executory contracts for the sale of chattels, as the trees shall be thereafter severed from the realty, the vendee having a license to enter on the h\nd for tlie purpose of removing the timber. See Claflin V. Carpenter, 4 Mete. 533; Giles v. Simonds, 15 Gray, 441; While v. Foster, 102 Mass. 375, 378; Bauton v. Shorey, 11 Me. 48. But the license to enter may be revoked at any time by the vendor, so far as it has to do with trees that are not yet cut, although it is irrevocable so far as it is executed. See authorities last cited. And such license is revoked by an absolute deed of the land. Brake v. Wells, 11 Allen, 141. In some states it is held that a sale of growing or standing timber is the sale of an interest in land, whether the time for its removal be fixed and in the im- mediate future or indefinite. KingsJey v. Ilolhrook, 45 N. H. 313; Howe v. Batchelder, 49 N. H. 204; Hirth v. Graham, 33 N. E. Rep. (Ohio) 90. In Kingsley Y. ITolbrooh, 45 N. H. 313, 319, the court, through Sargent, J., says: " Standing trees must be regarded as part and parcel of the land in which they are rooted and from which they draw their support, and upon the death of the ancestor they pass to the heir, as a part of the inheritance, and not to the executor, as emblements or as chattels. Neither can they be levied upon and sold on execution, as chattels, while standing. This being the case when the statute of frauds was passed, it has since been properly held, we think, that a sale of growing trees, with a right at any future time, whether fixed or indefinite, to enter upon the land and remove them, does convey an interest in land." The courts of most of the Ameri- can states hold expressly that a sale of growing or standing timber is a con- tract concerning an interest in land. See Green v. Armstrong, 1 Denio, 550; Killmore v. Jlowlett, 48 K Y. 569; Bmh v. Pickicell, 27 Vt. 157; 8lo- cumy. Seymour, 36 N. J. L. 138; C>ol v. L'tmber Go., 87 Ind. 531; Owens v. Lewis, 46 Ind. 488; Bowers v. Bowers, 95 Pa. St. 477; Daniels v. Bailey, 43 Wis. 566 and cases cited on p. 570; Lillie v. Dunbar, 63 Wis. 198. See, also, Summers v. Cooh, 28 Grant's Ch. 179. But it is also held that where, according to the terms of the contract, the title to standing timber is to pass only after severance, the interest disposed of is not a part of the realty. Killmore v. Howlett, 48 X. Y. 569; Slocum v. Seymour, 36 N". J. L. 138; Fitch V. Burk, 38 Vt. 683, 687, 688. See, also, to same eflEect, Hamilton v. MacDonell, U. C, Q. B., O. S. 720. An examination of the cases cited will disclose that the American courts quite generally hold that a contract of sale that contemplates the leaving of growing or standing trees in their natural condition in the soil for a period of time eitiier definite or uncertain, is a contract concerning an interest in the realty, and should be in writing. d2 36 INTRODUCTORY CHAPTER. Oroicing trees severed in law. — It should be noted tliut growing trees may be severed in law from the land, and become personalty, without an ac- tual sev^erance. Thus, if the owner of the fee by a valid deed or convey- ance sells tlie trees to a third person, or if, in selling the land, he m ikes a valid reservation of the trees, tliere is a severance in law of the trees; they thereafter become cliattels. See Warren v. Leland, 2 Barb. 613, 618. The lioldings of ditlereut courts upon this subject of the sale of growing trees and oI\\qy fruetuci naturales show a great variety of judicial opinion, and any attempt to harmonize the cases is out of the question. •Sale of the product of trees. — It is held that the sale of the product of a tree that requires periodical expense, industry and attention, whether it be in a state of maturity or not at the time of the transaction, is not a sale of an interest in or concerning land. See Pitrner v. Piercy, 40 Md. 213; s. c, 17 Am. Rep. 591, and see note, p. 595; Lewis v. McNatt, 65 K C. G3. Ice part of realty or personalty ? — Ice for certain purposes is regarded as a part of the realty over which it is formed. The property in ice upon a private fresh-water stream or upon a pond is in the owner of the soil below. Stilts V. Pottniei/er, 33 Ind. 4U2; Washington Ice Co. v. Sfioi'tall, 101 111. 46. But any sale by itself of ice already formed, wiiether it is in or out of the water at the time, is a sale of personalty. Higgins v. Kusterer, 41 Mich. 318. Ice on navigable streams. — • Ice formed upon a stream in which the tide does not ebb and flow, but which is in fact navigable, and along which, under tlie laws of the state, the title of the ripiriau owner is limited to the banlc, belongs to the person who iirst approi)riate3 it. The riparian proprietor has no title to it l)y virtus of his riparian ownership. WjoI v. Fjwler, 23 Kan. 682. But in some of the states the right of navigation in a fresh- water navigable stream, although paramount, is not exclusive, and a ripa- rian proprietor, having title to tlie lanl under the stream, miy U33 it and the stream for any purpose that do 33 not interfere with the p.ibllc right of navigation. Hence, a person owning land on sucli a stream may enclose ice upon the stream opposite his land, and thus save it for his own use and profit, provided he does not thereby interfere with the right of navigation, or with the proper use of the stream by other people. See Lormon v. Bm- x)/i. 8 Mich. 18; The People" s Ice C>. v. T.h Steamr " Eccelsi'>r,'" Ai Mich. 229. When manure part of realty and ichen personalty . — As between vendor and vendee, manure tliat has been made in the ordinary course of husbandry and is upon the premises at the time of tlie sale and conveyance, is regarded as a part of the realty, and, unless reserved, will pass under the deed. Its particu- lar location upon the premises is a matter of no importance. It may be in the fields in heaps or spread about, or it may be in tlie yards about the barns and outbuildings, or undercover. It passes as an incident and appurtenance to the land. Kitteridge v. Woods, 3 N. H. 503 ; Plumer v. Plumer, 30 N. H. 558 ; Conner v. Coffin, 22 N. H. 538; Wetherbee v. Ellison, 19 Vt. 379. OF THE NATURE OF EEAL ESTATE. 37 This general rule is applicable to the case of an outgoing mortgagor. Wlien vacating the premises after condition broken, he has no right to remove or sell tlie manure that has been made upon the farm in the usual course of husbandry. It passes as a part of the realty to the one who takes title under the mortgage. Ch'ise v. Wingate, 68 Me. 301; s. c, 28 Am. Rep. 30, and see note on subject, pp. 39, 40. As between landlord and tenant, in the absence of express stipulations in the lease in regard to the matter, manure made upon the farm in the ordinary course of husl>andry, during the occupation of the tenant, belongs to the landlord, as it has become a part of the realty. The tenant, therefore, has no right to take it away or to sell it. Daniels v. Pond^ 21 Pick. 367; Mklllebrook v. Coricin, 11 Wend. 169. And in Lnsnell v. Reed, 6 Me. 223, this is held to be the law even thougli the manure has been made by the tenant's own cattle and from his own fodder. See, also, Lewh v. Jones, 17 Pa. St. 263. In North Carolina, however, it is held that manure made while a tenant is in the occupation of land belongs to the tenant, and may be taken away by him, but that he must exercise this privilege before giving up possession of the land. Smithwick v. Ellison, 3 Iredell's Law, 326 ; but as to last proposition, see Fletcher v. Uerrlng, 113 Mass. 382. Where land is used out of the ordinary course of husbandry, manure made thereon does not ordinarily become a part thereof. See Needhain v. Allison, 24 N". H. 355. Thus, if a barn is rented for the purpose of keeping stock therein and not in connec- tion with the farm on which it is situated, and the stock kept is fed with the hay of the tenant, the manure made will be personalty and may be re- moved or sold by the tenant. Qji-r// v. Bishop, 48 N. H. 146. See, also, GaWigherv. Shipley, 24 Md. 418. And in Proctor y. Gilion, 49 N. H. 62, It was held that manure in a stable cellar, made by the horses of the owner of the stable, who was a teamster, did not pass under a conveyance cf the premises which consisted of a lot of land on which were a house and stable, a small piece of the lot not being covered by the buildings. For the same reason manure made in a livery-stable does not become a part of the realty. If a party has gathered manure on his farm into piles in pursuance of an agree- ment in regard to its sale as personalty, this would amount to a severance, and the manure would not pass under a conveyance, of the realty made subse- quently. French v. Freeman, 43 Vt. 93. See, also Strong v. Doyle, 110 Mass. 92. The law of New Jersey in regard to property in manure is diffarent from that of most if not of all of the other states. It is tiiere held that manure in the yard and about the outbuildings, whether in heaps or scattered around, is personal property, and that it will not pass under a deed of the land, but that when manure is spread upon the land and thus appropriated for fertilizing purposes, it becomes a part of the freehold. Ruchman v. O'ltimter, 28 N. J. L. 581. Property annexed to or fitted for use upon realty. — Property that is person- 38 INTKODUCrORY CHAPTER. alty ia form and in nature may, by being annexed to or fitted for use upon tlio realty, become a part thereof, and tliis may be the case, even though the property is temporarily separated from its accustomed place upon the realty. Thus, fencing material becomes a part of the realty when attached thereto in the form of a fence {Kimhall v. Adams, 52 Wis. 534), and its char- acter is not changed by a temporary severance. McLaughlin v. Johnson, 4G 111. 163; Goodrich y. Jones, 2 Hill, 142. Indeed, if such material were hauled upon land by the owner with the intention on his part of using it ia the building of a fence, it would, according to some authorities, become a part of the realty and pass under a conveyance thereof, even before its actual use. Palmer v. Forbes, 23 111. 301 ; ConkUn v. Parsons, 1 Cliand. (Wis.) 240. But see Thweat v. St/cmps, G7 Ala. 96; Robertson v. Phillips, 3 Greene (Iowa), 220. A portable fence, resting wholly on the surface, and in no manner annexed to the freeliold, is personalty. Penny- becker v. McDougal, 48 Cal. IGO. Hop-polcs tliat are necessarily used in cultivating the crop are a part of the realty, even though temporarily sepa- rated therefrom. Bishop v. Bishop, 11 N. Y. 123. But where hop-poles are put upon a farm by a tenant for his own use and witii the intention of removing tiiem, they remain personalty, and the tenant has the rigiit to remove them, both as between himself and his landlord and liimself and his landlord's grantee. Wing v. Oray, 36 Vt. 261. When buildings part of realty and when personalty. — A building that is permanently attached to the soil becomes a part of the realty. And this is so, even where the building is erected upon the land of another, if there is no agreement tliat it shall be regarded as personal property. Ritchniyer v. Morss, 3 Keyes (N. Y.), 349 ; Madigan v. McCarthy, 108 Mass. 376. But where a building is erected upon the land of another by jiermission and upon an ao-reement or understanding that it may be removed at the pleasure of tiie builder, it does not become a part of the realty; it continues to be personalty and the property of the person who erected it. Dame v. Dame, 38 X. H. 429. Rolling stock of railways personalty or realty. — There is considerable con- flict in the authorities as to whether the rolling stock of a railway should be considered as personalty or as a part of the realty. It is held to be per- sonalty in Randall v. Elwell, 52 N. Y. 521; s. c, 11 Am. Rep. 747; IloyJe V. Plattsburgh, etc., R. R. Co., 54 N. Y. 314, while in Palmer v. Forbes, 23 111. 301; Titus v. Mabee, 25 111. 257; Titus v. Giiiheimer. 27 111. 462; Farmers' Loan (& Trust Co. v. St. Jo. etc., Rdlway Co., 3 Dill. (C. C.) 412, it is held to be realty. In Wisconsin it is provided by statute that the rolling stock of any railroad corporation used in connectitm with its road shall be a fixture. 1 Wis. Ann. Stat. (Sanborn & Berryman), § 183S. But it is held in Chicago cfe North-western Railway Co. v. The Borough of Ft. Howard, 21 Wis. 45, that the statute is for the purpose of enabling suoh corporations the more readily to give valid liens and mortgages upon their OF THE NATURE OF REAL ESTATE. 39 property, and that it " does not contemplate that in respect to all the legal remedies of parties a cur or locomotive should be treated as real estate." And the court concludes that rolling stock is liable to seizure and sale for delinquent taxes as personal property. la several of the States it is provided in the constitution that the rolling stock of railways shall be personal property. The constitutions of Illinois. Missouri, Nebraska and Texas will be found to contain such a provision. Fixtures. — Articles wliich may assume the character of realty or of per- sonalty according to the circumstances in which they are placed, belong to the class known as fixtures. Owing to the various uses given to the term fixtures by text-writers and in adjudicated cases, one finds it impos- sible to formulate a definition that is consistent with all tlie authorities. And further it is impossible to formulate rules by whicli every case can be satisfactorily solved. '"It is not to be disguised," says Kent, ./., in Strick- land V. Parker, 54 lie. 263, "that there is an almost bewildering diflftreuce and uncertainty in the various authorities, English and American, on this subject of fixtures, and on the question of what passes by a transfer of the realty. One thing is quite clear in the midst of the darkness, and that is, tliat no general rule applicable to all cases and to all relations of the parties can be extracted from the authorities." But notwithstanding the difficulties suggested, there are a few fundamental propositions that the student should keep in mind and that will serve as material aids to him in solving ques- tions that he may encounter in this department of the law. And, first, it is substantially correct to say that a fixture is an article which was a chat- tel, but which, througli its situation and connection with the realtj', and tlie circumstances of the case, has, for the time being, lost its character as per- sonalty and become accessory to the land and parcel of it. To become a fixture, the chattel must be actually or constructively annexed to the realty, or it must be fitted for use thereon, and it must be annexed to or placed upon the realty with the intention on the part of the person making the annexation or bringing it upon tlie realty, of thereby making a permanent accession to the freehold. See Teaffv. Hewitt., 1 Ohio St. 511. Tlie ques- tion of intention is one of prime importance in all cases regarding fixtures. What the intention was in making the annexation, may be inferred from the nature of the article affixed, the relation and situation of the party mak- ing the annexation, the structure, and the mode of annexation and the pur- pose or use for which the annexation was made. See Teuff v. Ueicitt, 1 Ohio St. 511, 529, 530. And see generally as to the tests for determining what are fixtures, Voorhees v. McOinnis, 48 N. Y. 278; Potter v. Cromivell, 40 N. Y. 287; McRea v. Central Nat. Bank of Troy, G6 N. Y. 489; Tifft v. Hbrfon, 53 N. Y. 377; note to Overman v. Sasser, Lawyers' Rpts. Ann.. Rook 10, 722; McDonald v. Weekn, 8 Grant's Cli. (U. C.) 207; Orent Western RaiU way Co. V. Bain, 15 U. C. C. P. 207; Burnside v. Marcus, 17 U. C. C. P. 430, PART I. OF CORPOREAL HEREDITAMENTS. Terms of the law. A messuage. renement. Before proceeding to consider the estates which tnay be held in corporeal hereditaments or landed property, it is desirable that the legal terms made use of to designate such property should be understood ; for the nomenclature of the law differs in some respects from that which is ordinarily employed. Thus a house is by lawyers generally called a messuage / and the term messuage was formerly considered as of more extensive import than the word house (a). But such a distinc- tion is not now to be relied on {b). Both the term messuage and house will comprise adjoinmg outbuild- ings, the orchard, and curtilage, or court-3'ard, and, according to the better opinion, these terms will include the garden also (c). The word tenement is often used in law, as in ordinary language, to signify a liouse : it is indeed the regular synonyme which follows the term messuage y a liouse being usually described in deeds as "all that messuage or tenement." But the more com- prehensive meaning of the word tenement, to which we have before adverted (95'; Stroyan v. Knowles, 6 H. & ri) 2 Bliicls:. Comm. 18. N. 454; Smith v. Darhy, L. li., (k) 1 Jarman on Wills, 777, 7 Q. B. 716; Davis v. Treharne, 4tli ed. 6 App. Cas. 430; Dixon v. While, (I) Earl or Cardigan v. Armi- 8 App. Cas. 833; Love v. Bell, 9 tage, 2 Barn'. & Cress. 197, 211. App. Cas. 286. (m) Humphries v. Brogden, 12 («) Co. Litt. 48 b ; Shep. Q. B. 739; Smart v. Morton, 5 Touch. 206. See 12 Q. B.757. E. & B. 30; Rogers v. Taylor, (o) Doe d. Biddulph v . Meakin, 2 H. & N. 828; Eowbotham v. 1 East, 456; 1 Jarmau on Wills, Witson, 8 E. & B. 123, affirmed 778, 4th ed. 42 OF CORPOREAL HEREDITAMENTS. preinises^^'' meaning in consideration of the facts before mentioned ; and property is seldom spoken of as premises, nnless a description of it is contained in some prior part of the deed. Most of the words used in the description of property have liowever no s[)ecial technical meaning, but are construed according to their nsnal sense (j?) ; and, as to suc!i words as have a technical import more comj^rehensive than their ordi- nary meaning, it is very seldom that snch extensive iniport io alone relied on : but the meaning of the j)artics is generally explained by the additional use of ordinary M-ords. (^) As farm, meadow, pasture, &c. ; Shep. Touch. 93, 94. AMEraCAN NOTES. ' Double owxEUsnip. — Where there are mines in land, "^-e frequently find a double ownership, one party having a title to the mines and another to the surface. The respective interests may l)e absolute estates in fee or of a lower grade. Sue Adams v. Brings Iron Co., 7 Cush. 361 ; Caldwell v. Fulton, 31 Pa. St. 475, 483. CHAPTER I. OF FREE TENURE. Section I. Of the Origin of Free Tenure. A Freeholder, who is possessed of land for an estate in fee simple {a) is said to be seised thereof in liis demesne as of fee (/>). For to be seised of a thing is to be possessed thereof, the word neisin meaning Se-.aio. possession ; and land in the freeholder's own occupation is said to be in his demesne (6'). The words seised and seisin were originally nsed to describe any kind of possession, whetlier of land or chattels, or even of a mere right (f/'i. But afterwards they came to be nsed ^merifm, , ^ ^ , totes land 3, in a limited sense, to express the possession of a free pi>- ^s, 09. holding, that possession which alone was recoverable in a real action {e). Kow the estate of the fi-echolder seised of land in his deniesne as of fee may be con sidered in two aspects : first, as regards the lord of whom he holds his land ; secondly, as regards all other persons. (a) See a«<*!, p. 6. hold tenants: though they can (6) Bract, fo. 255 b; Litt. s. now obtain complete legal protec- 10. tion of their own interests; see (c) Bract, fo. 263 a; Co. Litt. ante, pp. 17, 18, 27; Vinogradoff, 17 a. As the early law did not Villainage in England, 223. recognise the possession of a (d) See Slaitland, Seisin of termor, or a tenant in villenage, Chattels, Law Quarterly Review, land occupied by one or the other Vol. L p. 324 : Bract, fo. 206, was considered in law to remain 252 a, 204 a; Litt. ss. 10, 183, in the freeholder's demesne. So 217, 233, 541, 567; Co. Litt. that to this day the freeholder is 369 b. seised in his demesne of the land le) Litt. s. 324; Co, Litt. 17 a, occupied by his leasehold or copy- 200 b ; see ante, pp. 16, 23. 41 OF CORPOREAL HEREDITAMENTS. It is proposed first to discuss the relation between tlie freeholder and his lord, or the free tenure {f) of land. For, althoui:h in modern legal practice the relation of lord and freeholdiiig tenant is rarely brought into the light, yet the law of tenure determined the form of our present land law. And so long as the form of tenure remains, it is of the first importance that the student should understand the Drinciples which determined its rules. I'rincipie of It has beoH already mentioned that the first principle trodiiced by c)f feudal teuuro, that all land is held of the crown, was iiiiam . pi actically introduced into English law by William the Conqueror [g), whose grants were construed as conferring a new title to the laud {Ji). Tlie grants or regrants of great landed estates made by him to his own followers or to the former owners were interpreted by the royal officers of justice to confer upon the grantees an estate held feudally of the king ; so that they became the Tenants m king's tenants in capites that is, liis immediate tenants. cajnte. r^j^^ estates SO Conferred appear to have been estates of inheritance, passing as of right to the heirs of deceased grantees. For the hereditary character of a fief (^) had been recognized on the Continent before the Norman Conquest {k) ; so that to the Normans an estate held feudally would be essentially a hereditary estate. And at the very beginning of Henry I.'s reign we find fees established as estates of inheritance in England {I). Origin of The present incidents of free tenure owe their ex- free tTnur*^. istence to the dealings with free holdings of land, (/) Ante, p. 12. warranty by confirmation . (g) Ante, pp. 12—14. {i) Ante, p. 18. (A) Bracton says (fo. 389 b) {k) Stubbs, Const. Hist. § 93, that the king is not bound to vol. 1. p. 2.54, 2nd ed. warrant the gift of his predecessors [l) See the Charter of Liberties who reigned before the Conquest, issued by Henry I. at his corona- for he is not their heir, unless he tion ; Stubbs, Select Charters, 100, should have bound himself to lOl, 2nd ed. OF FREE TENURE. 45 which tooK place between the reign of William the Conqueror and that of Edward I. The relation of feudal landlord and tenant seems to have been essen- tially restrictive of alienation on the tenant's part: but in England the right of a tenant in fee to alienate his holding without his lord's consent was gradually estab- liched {7n). The steps by which this was accomplished will be described in the next chapter. It is sutticient to say here that it aj)pears that, as a matter of fact, alienation by feudal tenants must have begun soon after the Conquest {n) ; and it is certain that before the close of the period referred to alienation had extensively prevailed (o). During this time, however, the aliena- tion of land was rarely accomplished by a transfer of all the owner's rights therein, such as we are accustomed to at the present day, but was usually effected by sub- Subinfeuda- infeudation ; that is, b}^ the grant of a fee to the grantee and his heirs to be held by them as tenants of the grantor and his heirs. Upon the subinfeudation of a holding the grantor and his heirs remained the tenants of their own superior lord, and a new tenui'c (79) was created between the grantor and the grantee, the former becoming a mesne lord {q) between his new tenant and his own superior lord (r). The relation of feudal landlord and tenant thus entered into was one of mutual obligation. The lord was mainly bound to warrant his tenant's title to the lands bestowed, and to give him lands of equal value if he was ejected by any one who showed a superior title {s). The tenant was (m) See Bract, p. 45 b, 46 b, ( p)^, § 9. (Boldon Book), 505; Domesday (i) IS Edw. I. c. 1. of St. Paul's, 122 €<««^. {k) \ Watk. Cop. 15; ante, (/) And in most cases to have p. 4fi, n. (u). beea held by knight service ; see W. K. r. E 50 OF CORPOREAL HEREDITAMENTS. Liber sociU' mannus. eastern counties (Z), but by the time of Edward I. is ascertained to have extended to the Midland counties (m); and which seems to have steadily increased and spread. This was the holding of the liber sochemannus or Uher tenens, the free man, who held his land by lixed agric-ultural services or money rent, and was subject to the jurisdiction of the lord's court [n). As this class of llheri tenentes increased, ihafree holdings which were not manors, but merely parcels of land held of a manor, increased in number and importance. In the course of time the freeholders became the most Court baron, prominent class of tenants of a manor, and the Court haron^ the lord's court, wherein the freeholders were both suitors and judges, was regarded as an inseparable Socage tenure, incident of every manor (o). The tenure of the liber sochemannus became known as tenure in socage, of which we shall have more to say further on {p). In addition to agricultural estates and the holdings thereon, we find in Domesday a third species of free holding^ namely, houses in cities or boroughs, held by the burgenses^ or burgesses, generally at money rents. The law relating to this class of holding was determined by tlie custom of each particular borough {q). The tenure of houses in ancient boroughs was afterwards known as tenure in burgage {r) ; and the customs were often Houses in borouijhs. Tenure ia burgage. (I) Leicester, Lincoln, Norfolk, Northampton, Nottingham, and Suffolk; see the abstract of popu- lation given by Sir H. Ellis, In- troduction to "Domesday, vol. ii. pp. 419 et seq.; Seebohm, English Village Community, 8(5. (m) See the Hundred Rolls, 7 Edw. I. (survey of Bedford, Bucks, Cambridge, Hunts, and Oxon). (n) Nichols, History of Leices- ter, Introd. vol. i. p. xlvi. (o) See Co. Litt. 58 a; Kitchen on Courts Leet, vi 6—8, 105 —115; 2 Ulack. Comm. 90; 3 Black. Comm. 33; Maitland, Sel- den Society, vol. ii. Ixi. et seq. ; Vinogradofi, Villainage in Eng- land, 337—390. (p) See Glanville, lib. vii. c. -3; Bracton, fo. 77 b; Britton, lib. iii. c. 2, §§7—12; Litt. ss. 117— 119. (q) See Domesday, vol. i. pp. 1 (Dover), 100 (Exeter), 154 (Ox- ford), 189 (Cambridge), 262 (Chester), 280 (Nottingham and Derby), 336 (Lincoln) ; vol. ii. p. 104 "r Colchester); Stubbs, Select Charters, 87—91, 110—112. (r) Glanville, lib. xii. c. 3 Bracton, fo. 273 a; Britton, lib. lit. 0. 2, § 10; Litt. ss. 162—171. OF FEEE TENURE. 51 highly advantageous to the holders. By the time of Edward I. there appears in records such a multiplication of mesne lordships, over burgage tenements as well as manors, and such an increase of freeholding tenants of manors, as clearly shows the large extent to which subinfeudation had prevailed (s). Section IL Of the Classification of Free Tenures. After King Henry II. had appointed permanent judges of the King's Court (?!), and a special remedy in that court had been provided lor all persons wrongfully deprived of the possession of their land (w), the various kinds of holding above described were submitted to the test of a general judge -made law, and a classification of ciassificatica in Til mi r. 1. • of tenures. tenures was gradually accomplished. The first distmc- tion made was between free tenure and tenure in villenage, which was regarded as base or servile tenure; the freeholder only being accorded and the tenant in villenage denied the remedy given in the King's Court for recovering possession of land unjustly seized {x). Free tenures again were either lay, or else spiritual or classification ecclesiastical (y). Lay tenures were mainly of two tenures. kinds: knight's service and socage. Of spiritual tenures we need only raowiKow frankalmoign [z). The incidents of tenure b}" knight's service, which incidents of tenure bj knight's (s) See the survey of the coun- {x\ Bract, fo. 7, 26, 207 a, service, ties of Bedford, Buckingham, Cam- 20S b; ante, p. 17; see Vinogra- bridge, Huntingdon and Oxford, doflf, Villainage in England, 81 — made in the seventh year of Edw. 83. I. Rot. Hund. ii. 321 «<««^. {y) Glanville, xiii., 23, 25; {t) Ante, p. 0. n. (f). Bract, fo. 207 a, 286; Co. Litt. (u) Viz. the assise of novel 95 a. disseisin; Glanville, iiii., 32 et (a) See Litt. s. 137. e2 52 OF CORPOREAL HEREDITAMENTS, was the most liononrable species of free tenure, were these : — First, the tenant was bound to discharge the obUgation of military service annexed to his liolding. The feudal obligation of military service was a royal service due to the king from his immediate military tenants (a); and the tenant by knight's service of a mesne lord would generally bo bound to perform this royal service and to acquit his lord therefrom to an extent proportionate to the value of his holding (5). In and after the reign of Henry II. this feudal obliga- tion of personal military service was generally commuted Scutage or f^j. j^ money payment called scutas^e or escuaj^e (o). and escuage. ^ i •/ o o \ /? assessed first by the Crown and afterwards by the authority of Parliament (d). But scutage and the feudal obligation of militar\' service became obsolete after the reign of Ricliard II., if not earlier (e). The Aids. military tenant was, moreover, at first expected and afterwards obliged to render to his lord pecuniary aids, to i-ansom his person, if taken prisoner, to help him in the expense of miking his son a knight, and in providing a portion for his eldest daughter on her Homage. marriage (/]. On entering upon his estate, the tenant was bound to do homage to his lord, kneeling to him and professing to become liis man ; ho was also bound Fealty. to take an oath of fealty to him {(/). An heir of full age (a) See Stubbs, Const. Hist. hj Henrj^ II. ; mention of scutage §§ 96, 133, 162, 238; Madox, is" found in a charter of Henry I.; Hist. Exch. i. G20 ; Round, Eug- and the principle must have existed lish Historical Review, vi. 433. from the beginning of military (b) Bract, fo. 3() ; Round, Eng- tenure; Round, Eng. Hist. Re- lish Historical Review, vii. 11, 12, \iew, \i. (J29 et seq. 15, 19. («) 2 Stubbs, Const. Hist. S 275, (c) Scutagium (in French es- p. 521, 2nd ed.; Co. Litt. 72 b. cuage) meaning originally ser- (/') Glanv. ix. 8 ; Bract, fo, mtium scuti, sevv'xce of the shield. 36 b; Magna Carta Joh., art. 12, Dialogus de Scaccario I. ix. ; 14, 15 ; Stubbs, Select Charters, Stubbs, Select Charters, 201, 2ud 298, 299, 2nd ed. ; the amount to ed. ; Litt. s. 95 ; Madox, Hist. be taken as aids pour /aire fiU Exch. 1. 619. chevalier et pour fitle viarier were {d) Stubbs, Const. Hist. 2 161, fixed by stats. 3 Edw. L c. 36 & 162; Madox, Hist. Exch. ch. 25 Edw. III. st. 5, c. 11. jsvi. It appears, however, that {g) Saving always his allegiance ecutage was not first introduced to the king; Glanville, ix. 1; OF FREE TENURE. 53 was required to pay a fine called a relief, on succeeding Relief, to his ancestor's estate (A). If the heir were under age the lord had, under the name of wardship, the Wardship custody of the body and lands of the heir, without account of the profits, till the age uf twenty -one in males and sixteen in females (i). In addition to this, the )ord possessed the right of marriage (mariiagiuin), Marriage, or of disposing of Iiis infant wards in matrimony {k). And if a male heir refused a suitable match, he was to forfeit a sum of money equal to the value of the marriage; that is, what the suitor was willing to pay down to the lord as the price of marrying his ward ; and double the market value was to bo forfeited if a male ward presumed to marry without his lord's consent (J). If a female heir refused the match tendered by her lord, he might hold her lands until she attained twenty- one, and further until he had taken the value of the marriage {m). The king's tenants in capite were, moreover, subject to many burdens and restraints, from which the tenants of other lords were exempt (n). Again, every lord who had two or more free tenants, had a right to compel tiieni to do suit of court ; that is. Suit of court, duly to attain and to aid in transacting the business of the lord's court, or court baron (6*), wherein his free- Court baron, holders were judges as well as suitors {p). Lastly, on Bracton, fo. 77 b— 80; Litt. ss. 3 Edw. I. c. 22; Litt. s. 110. 85—94; ante, p. 13, n. (y/i) Stat. 3 Edw. I. c. 22; Co. (A) Glanv. ix. 4; Bract, fo. Litt. 7 'J a. 84; Litt. 6. 112. (») As for aa heir of full age to (i) Glanv. vii. 9 — 12; Bract. pay a whole year's profits oq fo. SO; Fleta, fo. 4; Litt. s. 103. succeeding to his ancestor's estate A wardship, or the interest of a for 2»'^nier seisin; for an infant lord ill the body and lands of his heir to sue out his livery on coming ward, was regarded as a chattel of age, that is, to pay iialf a year':* saleable and devisable by will, and profits for taking possession ; in- was afterwards classed as a chattel voluntary knighthood in certain real; Bract, fo. 87 a; Fleta, fo. cases; and fines for alienation; (i; Britton. liv. 3, ch. 2, § 2; see Co. Litt. 77 a, 87 a, n. (1); 2 Y. B. 32 Edw. I. ISO; Co. Litt. Black. Coram. 00—72. So a, 11 H b. (0) /. e. Curia Baronis, the {k) Glanv. vii. 12; Bract. lord's court. 80 b— 91 b ; Fleta, fo*. 9 ; Britton, (p) For an account of the juris- liv. 3, ch. 2. diction of the lord's court, see (0 Stats. 20 lien. IIL c. 6, 7 ; Maitlaud, Select I'leas from 54 OF CORPOREAL HEREDITAMENTS, Escheat failure of the tenant's heirs, liis lord had the right to have the lands again as his escheat ; that is, as falling in to the lord, who or whose predecessors had granted the fee {q) now brought to an end for want of heirs. Tlie tenant's heirs iniglit fail either from natural causes Attainder. or bj reason of his or their attainder, or corruption of the blood so as to lose its inheritable quality. This was the legal consequence of judgment of death or out- lawiy (r) for treason or felony, and of abjuring the realm {s\ Escheat upon attainder was, however, subject to the right of the Crown to hold for a year and a day, and to waste the attainted person's lands — a right usually compounded for {t). And the lands of one attainted for high treason were forfeited absolutely to the Crown, and did not escheat to the lord of the fee Qii). 6i and serjeanty. Littleton. Tenure Dy grand serjeanty was reckoned equivalent to knight's service, being subject to the same burden of the lord's right of wardship and marriage. Accord- ing to Bracton, to hold by grand serjeanty was to hold lands of the king or some other lord by rendering to the king, as royal service, some special service, other than knight's service or scutage, pertaining to the king or the defence of the realm and valued at five pounds or more (a?). But in Littleton's day {y), grand serjeanty Manorial Courts (Selden Society, Vol. II.), lutrod. xxxviii. et seq.; Vinogradoff, Villainage in Eng- land, Essay II., ch. v. {q) Ante, p. 45, 46. (r) A criminal who flies from justice may by due process be outlawed, or put out of the pro- tection of the law; Bract, fo. 124 etseg.; 4 Black. Comm. S19. (s) Criminals, who took sanc- tuary, had the alternative of coming out to stand their trial, or of confessing their crime and abjuring and leaving the realm; Bract, fo. 135. Privilege of sanctuary was finally abolished by Stat. 21 Jac. I. c. 28, s. 1. (t) Glanv. vii. 17; Bract, fo. 23, 129, 180; Brilton, liv. 1, ch. 6, § 3 : Co. Litt. 13 a, 92 b, 390 b, 391 a; 4 Black. Comm. 3S0; Bac. Abr. Forfeiture, Out- lawry (D). (u) Stat. 25 Edw, III, st. 5, c. 2;'3Inst. 18. (x) Bracton instances finding the king a man or several men armed, horse or foot, for his armv; Bract, fo. 35 b— 37 a, 87 b ; Fle'ta, fo. 5; see Britton, liv. 3, ch. 2, §6 and the note thereto in Mr. Nichols's edition. {y) Littleton was a judge in tae OF FREE TENURE. 55 was limited to cases where a man held lands of the king by such services as he ought to do in his own person to the king, as to carry the king's banner, or to be his marshall, or to carry his sword before him at his coronation, or to do other like ser,vices (s). Free socage appears to have been originally the Socage tenure, name of the tenure of the liberi socltenianni («), a class of laiidholdei's whose existence dates from before the Norman Conquest, but wiio were, as wc have seen, rarely found at the time of the Domesday beyond the range of the north-eastern counties (J). The socheinanni appear to have been so-called because they were sub- ject to their lord's soke (Anglo-Saxon, sog) that is, ^'oc. his right or liberty of jurisdiction (c) : but as early as Bracton's time this derivation of the term was over- looked, and the origin of the word socage was referred to the French word soc^ a ploughshare (^), sokemen being generally engaged in cultivating the land {e). L'lherl sochemaiinl seem to have been free men holding their lands by yielding rent in money and rendering services, which were generally of an agricultural nature, but fixed in amount and far less onerous than the labour services of the villani {/). In course of time reign of Edvviinl IV. and wrote et seq., 2nd ed. ; 2 Black. Coram, a treatise on Tenures, whicii is a 80. As to the meaning of soc, book of autiioiity. see Maithtnd, Select Pleas in (z) Litt. s. 153. Manorial Courts, Selden Society, (a) So called chiefly to distin- Vol. II. xxii. giiish them from the villani (d) l)u Cange, Gloss. siib- hOchfmanni on the ancient de- verb. Socagiura, Soccus, 2; Litt. mesne of the Crown; see /)0«<, s. 119. p. 57 n. {k); Vinogradoff, Villain- {e) Bract. 77 b. age in England, IHU ttseq. (f) Thus a sokeman might have (h) Ante, p. 50. There are several to jslough for his lord three times a instances in Domesday of land year and do a few days' extra work having been held in King Ed- at harvest time, where a villan ward's time by sochemaimi, which would have to work three days a was not so held at the time of week for his lord. See Domesdayi. the survey, especially in Bedford- 171i a (services of householder in shire; see" Domesday, i. 11 a, 13 Hereford); Liber Niger Fetro- b, 14 b, 132 b, 134, 140 b, 141, burgensis (circa A. 1>. 1125) pub- 100, 191, 20',;— 218. lished as an appendi.x to the Chro- (c) SoiBuer on Gavelkind, 130 nicon Petrobuigeuse (CauiUeu So- 5G OF CORPOREAL HEREDITAMENTS. these services wore generally commiited for money payments {g). And the class of freeholders, who held parcels of land from the lord of a manor at rent in money or fixed agricultural services, appears to have steadily spread and ijicreased {h). So that by the time of El ward I., the free tenants of a manor, holding their land in socage, often at a money rent, had become prominent members of the agricultural community (^); whilst the vlUaal of that period, of whose tenure the servile conditions are often especially noted in records, occupied an inferior position (/t). Besides the services incident to tenui-e in free socage, the tenant was bound to take an oath of fealty to his lord; sometimes, indeed, he owed no other service than fealty (^), but homa'jfc, the invariable incident of military tenure, was rarely i-equired of him {m). The statutory aids jpour fille Tnarier and pour faire Jils chevalier were incumbent on tenants in socage as well as by knight's service {n). In all cases of annual rent, the relief ])aid on succession by the heir of tenant in socage was fixed at one yeur's rent (o). Suit of court and escheat were incident to socage as to military tenure (o). The main difference between the two forms of tenure was in the Wardship and ii^attcrs qf Wardship and mai-riage, which, in the case of an infant heir of a tenant in socage, devolved, not upon his lord, but on his nearest relation to whom the Incidents of socage. Fealty. Aids. Relief. marriage in socage, ciety), pp. 157—166, 172, 173, where compare the services of the sochemanm with those of the vil- lani; Glanville, vii. 1, 3, 9, 11; Bract, fo. 35 b, 77 b, 85 b, 207 a, 209 a ; Britton, liv. 3, ch. 2, H S, 7; Rot. Hund. ii. 470, 475, 484, 501, 591, 608, 656, 677, 752, 846, 871 ; Vinogradoff, Villainage in England, lti6 it seq., 303 et seq. (g) Litt. s. 119. {h) See Nasse, Agricultural Community of the ^Middle Ages (Englisli translation), 32 — 36; Seebolim, English Milage Com- luuuily, 86 and note. (i) As to the freeholding tenants of the manor of the thirteenth century, see Vinogradoff, Villain- age in England, Essay I. ch. lii. Essay II. ch. iv., also i)p. 303— 312, 387 et seq., 406—408, 452. {k) See Nasse, 34—40; Rot. Eund. ii. 321, 334, 338, 623. (I) Bract, fo. 84 b; Litt. ss. 117, 118. 130, 131. {m) Bract, fo. 77 b. 84 a ; see Vinogradotf, Villainage in Eng- land, 454. (ft) Ante, p. 52, n. (/). (0) Glanville, ix. 4; Bract, fo. 85 b, 86 a; Litt. ss. 126—128. OF FREE TENURE. inheritance could not descend, and who was strictly accountable for the profits {p). As time went on, the term socage was applied as a general name for all tenures, where the tenant held of his lord by certain service for all manner of services, so that the service were not knight's service {q). Socage tenure thus came to comprise several forms of tenure in which the services were not originally of tlie nature of sokeman-service, but which were distinguished by certaintv of service and freedom from the lord's ri^ht of wardship and marriage; as in the case of those, whose tenure had by agreement with their lords been changed out of knight's service to certain rent (r), or of those, who held by petty scrjeanty {s). Originally, to Petty hold by petty scrjeanty seems to have been to hold ^'^'■■'^'*°'J^* lands, whether of the king or of some other lord, either by some royal service of small value, as find- ing the king a man and horse with bag and buckle for any necessity touching his army, or else by some petty service to be rendered to the tenant's immediate lord, as riding with him, holding his court, carrying his writs within certain bounds, feeding his hounds, or finding him bows and arrows (7). But in Littleton's time, tenure by petty serjeanty seems only to have survived in cases where a man held lands of the king by yielding him yearly a bow, or a sword, or a pair of gilt spurs, or other such small things belonging to war (w). So too, tenure in burgage {x) was said to be but tenure in socage {y). Thus tenure in socage, though {p) Glanville, vii. 11; Bract, fo. (t) Bract, fo. 35 b, 87 b; Fleta, 87 0, '.'1 a, Fleta, fo. 5; Britton, fo. 5; see Britton, liv. 3, cli. 2, § Iiv. 3, ch. 2, § 5; Litt. ss. 123 — (i, and note thereto, ed. Nichols; 125. Yii)Oi;radoft", Villainage in Eng- iq) Bract, fo. 37 a; Fleta, fo. iaud,''Essay II. ch. iv. 191I: Litt. ss. 117, 119; Vinogru- (m) Litt. ss. 159, 101; Co. Litt. doff, Villainage in England, 190. 108 a. (r) See Bract, fo. 86 a, 87 b; (x) Ante, p. 50. Britton, liv. 3, cli. 2, §§ 5 8. {y) Litt. s. 162. (8) Fleta, fo. 2U4. 58 OF CORPOREAL HEREDITAMENTS. of humbler origin than the military tennrcs, camu to be reo^arded as a far more benetieial formoflandownino;. Tenure in Tenure in frankalmoign arose before the statutes of frankalmoign. , ., . . , ,. . » , , . hdward i. prohibitmg the alienation or land into mort- Mortmiiiu main (a), when a man gave land to an abbot or prior and his convent, or to a dean and chapter, or other ecclesiastical corporation to be held by thein and their successors in pure and perpetual alms or in frank- almoigii ih). And they who held in frankalmoign were bound of riglit (c) before God to make prayers and other Divine services for the souls of their grantor and his heirs. And they did neither homag(% nor fealty nor any other service to tlieir lord ; because their Divine service was reckoned ijetter for tiie lord than any doing of fealty ; and because the words in f rank- almoign excluded the lord from having any earthly or temporal service done for him {d). As a corporation never dies, no relief could become payable, and there was no chance of escheat (e). Section III. Of Free Tenure in Modern Times. As time w^ent on, miny of the incidents, both of military and other tenures, ceased to have any practical (a) Stats. 7 Edw. I. c. 1; twelfth and thirteenth centuries, 18 Edw. I. c. 1; from which see Maitland, Lavv Quarterly Re- it appears that lands given to view, vii. 354. an ecclesiastical or other corpora- (c) /. e. by ecclesiastical law, tion weie said to come into the which provided a remedy for \\\itt. M. 43; in opposition to Bac. s. 265: Robinson on Gavelkind, Abr. De.scent (U), citing Co. Litt. 52, 94(64, 119, 3rd ed.) 140 a. \l) Uobinsoa on Gavelkind, 44 (/?) Post, ch. xii. C4 OF CORPOREAL HEREDITAMENTS. of liis estate by feoffment (y), the ancient mode of con- veyance already' alluded to (r). There was also no escheat of gavelkind lands upon judgment of death (,v) for felony (t) ; and some other peculiarities of lets importance belong to this tenure {u). The custom of gavelkind is undoubtedly of great antiquity (x), and its existence seems to be owing to the preservation in Kent of the old English law with regard to sokeinen's land {ij). It is still held in high esteem by the in- habitants, so that whilst some lands in the county, having been originally held by knights' service, are not within the custom (3), and others have been disgavelled, or freed from, the custom, by various Acts of Parlia- ment (a), any attempt entirely to extinguish the pecu- liarities of this tenure has uniformly been resisted (b). There arc a few places, in other parts of the kingdom, where the course of descent follows the custom of gavelkind (c) ; but it may be doubted whether the tenure of gavelkind, with all its accompanying pecu- (q) Hob. Gav. 193, 194, 217, 21S (24S, 249, 270, 279, 3rd ed.); 2 Black. Coniin. 84; Sandys, Con- suetudines Kancite, li!5 et se.q.; see Stat. 8 & 9 Vict. c. 106, s. 3. (r) Ante, p. 30. is) Otherwise in case of outlawry for felony or abjuration of the realm; see ante, p. 54. {t) Rob. Gav. 22(i (288 it seq., Srd ed.). The custom did not extend to give exemption from forfeiture on high treason. (u) The husband is tenant by the curtesy of a moiety only of his deceased wife's land, until he marries again, whether there were issue born alive or not; the widow also is dowable of a moiety instead of a third and during widowhood and chastity only; estates in fee simple were devisable by will, be- fore the statute was passed em- powering the devise of such estates; and some other ancient privileges, now obsolete, were attached to this tenure. See Robinson on Gavelkind, passim; 3rd Report of Real Property Commissioners, p. 9. (x) See Bracton's Note-book, cases 9, 66G, li;44, 1769; Cou- suetudines Kancite, 1 Statutes of the Realm, 223. (y) Somner on Gavelkind, 61 et seq. 2nd ed.; Rob. Gav. 20— 31 (24—38, Srd ed.); Elton, Tenures of Kent, 50 — 53; Viuo- gradoff. Villainage in England, 205 et seq., 247. (z) Rob. Gav. 46 (57, 3rd ed.). (a) See Rob. Gav. 75 (94, 3rd ed.). (b) An express saving of the custom of gavelkind is inserted in the Act for the commutation of certain manorial rights, &c. Stat. 4 & 5 Vict. c. 35, s. 80. (c^ Kitchen on Courts, 200; Co. Litt. 140 a. OF FREE TENURE. (I5 liarities, is to be found elsewhere than in the county of Kent (rZ), Tenure subject to the custom of borougli-Enghsh Boronsh- owes its origin to the old law of tenure in burgage {e). "^' '* ' It prevails in several cities and ancient boroughs, and districts adjoiniiig to them ; the tenure is socage, but, according to the custom, the estate descends to the l/oungeat son in exclusion of all the other children {f). The custom does not in general extend to collateral relations ; but by special custom it ma^-, so as to admit the .youngest hrother, instead of the eldest {g). The tenure of ancient demesne exists in those manors, Ancieat d&. and in those only, which were in ti)e demesne (h) of the ™^®'^®- Crown in the reigns of Edward the Confessor and William tlie Conqueror, and in Domesday Book are denominated Terrce Regis Edwardi,ov Tcrroi Regis (i). The socage tenants of these manors possessed cci'tain immunities, the chief of which was that all actions concerning the title to their land must be brought in their lord's court (k). Before the year 1833, certain judicial proceedings in the form of real actions (/) were (d) SeeBac. Abr. tit. Gavelkind villani socTiemanni. a privileged (B)3. class of tenants in villanage on the (e) Ante, p. 50; see Vinogra- ancient demesne of the Crown, doff, Villainage in England, 1S5. whose possession was protected, {/) Litt. s. Iflo; 2 Black. Comm. not in the King's Court, but bj- a 83. Estates tail, as well as in fee special writ issued by the king and simple, descend according to this directed to his bailiff of the manor, custom; Rob. Gav. 94 (120, 3rd See Bracton, fo. 7, 26, 200, 328 b ; ed.). Fleta, fo. 4; Britton, liv. 3, eh. (g) Comvns' Digest, tit. Bo- 2, § 11; F. N. B. 11 F. M., 12 H, rough-Engfish ; Watk. Descents, 13 D, 14; 4 Tnst. 269; Com. Dig. 89 (94, 4th ed.). See Rider v. Ancient Demesne ; 2 Black. Comm. MoW, 1 K. & J. 644. 99; 3rd Report of Real J'roperty (h) That is, manors, of which Commissioners, p. 12; Vinogra- tlie lordship had not been granted doff, Villainage in England, Essay out by the Crown; and in which I. ch. iii. the tenants held directly of the il) These were fine», necessary Crown as lord of the manor. to convey the estates of married (i) 2 Scriv. Cop. 687. women, and recovtj-ies used to bar ih) These socage tenants hold- estates tail; see post, ch. iii. iug in ancient demesne appear to and xiii. have been the successors of the w. K. r. r C^Q OF CORPOREAL HEREDITAMENTS. necessai'}' to effect the conveyance of laiul in particular cases; and these proceedin^i^s could only take pliee, as to lands in ancient demesne, in the lord's court. As the nature of the tenure was not always known, much inconvenience frequently arose from the proceedings being taken in the usu.-il Cuurt of Common Pleas at Westminster, and these mistakes gave to the tenure a prominence in practice which it would not otherwise have possessed. In consequence of the suhstitution in the year 1S33 of a simple deed for the judicial pro- ceedings referred to, such mistakes have since been impossible (/;?). And owing to changes of ]n'ocedure made in the year 1852 (/?), actions for the recovery of land held in ancient demesne may now be brought in the ordinary courts of law without the possibility, which previously existed (o), of the defendants objecting to the tribunal (p). So that this kind of socage tenure now possesses but little practical importance. So much then for the lay tenure of free and common socage, with its incidents and varieties. xVs we have Frankal- seou (q), the spiritual tenure of frankalmoign was ex- "'°'^''- pressly excepted from the statute 12 Car. 11. c. 24, by wliich the other ancient tenures were destroyed. It is still subsisting, distinguished in modern as in ancient times by its immunity from temporal services, even from the obligation to do fealty (r), and is the tenure by which the lands of the church are for the most part held (s). inctosure of In connection with the progress from ancient to common lands. (m) By Stat. 3 & 4 Will. IV. c. 4th ed. 74, the Act for the Abolition of (p) See Cole on Ejectment, 132, Fines and Recoveries; by ss. 4 — 133. 6, the mistakes above alluded to (q) Ante, p. 59. were corrected as far as possible. (r) See ante, p. 58. (/i,) By Stat. 15 & 16 Vict. c. (*) 3rd Report of Real Property 7fi, ss. 168 et seq. Commissioners, p. 7. (o) Adams on Ejectment, 229, OF FREE TENURE. 67 modern tenure and ownership, we may here notice, besides the diminution of the lord's interest, another change, which has also greatly helped to bring about the approximation to absolute ownership of the right of a freeholder in fee. That is, the abolition of the common field system of cultiv^ation. This was generally effected all over England by private Acts of Parlia- ment, passed chiefly between 1760 and 1845 (<), for the inclosure of the common fields of particular manors and villages. By these Acts tlie common lands were set out or redistributed so as to allot to the various landowners separate holdings, lying more or less to- gether, in place of and proportionate in size to their former scattered strips (?«). The consequence of this was an enormous gain in the direction of free enjoy- ment (x). Strips of land in a common field were subject to the customary mode of cultivation prevailing in the village community, and to the common rights of pasture, when lying fallow {y). But the inclosure of common lands gave to each landowner a holding, which he might cultivate as he would, and which was dis- charged from his neighbours' rights of common. (t) Seebohm. English Village (x) Ante, p. 2. Community, 14, 15. (y) Seebohm, English Village (u) See Williams on Commons, Community, 11, 12, 450; Vino- 77 — 79, 246 et seq.; Seebohm, Eng. gradoff. Villainage in England, Vill. Comm. 13, 14; Scrutton, 230, 259 et seq., 398— 4 b, 27 a, 207 a; Black. Cotum. ch. vii.— ix. OF AN ESTATE IN FEE SIMPLE. 71 whose possessioQ is in every way secure, and who frequently holds for a term exceedin<^ the ordinary duration of human life, should not have an estate of freehold. The reason is that the old law would never recognize the ]Jossession of termors as the possession of a fi'eeliolding, or ever allow them to use the freeholder''s remedies for dispossession. And though leasehold interests in land afterwards came to be an important species of property in land, yet they were protected by special remedies, and so came to be classed apart from freeholds (c). Let us here notice that the essential quality of Freeholders ownership belongs equally to all freehold estates. For maintaia or every freeholder, whether in fee simple, fee tail, for life po*ssession. or otherwise, has the right to maintain or recover possession of his land as against all the world (d). While he nnnains in possession he may exclude all others from his land (e) ; and if he be wrongfully ejected, he may recover possession of his land by peace- able (/') entry or by action {(/). And these rights have been secured to freeholders from the earliest days of our common law {/i). (c) See ante, p. 17. (d) Ante, pp. 2, 1(5. (e) 3 Black. Comm. ch. xii. ; Bac. Abr. Trespass (C. F. , (/ ) Forcible entry is prohibited by stats. 5 Ric. II. st. 1, c. 7 (c. b in Uuft'head) ; 15 Ric. II. c. 2. (g) The real and mixed actions given by the commou law to free- holders were abolished in 1833. But for more than two centuiies previously it had been usual to try the title to freehold land in the action of ejectment. This was properly the leaseholder's lemedy for dispossession : but it was ex- tended to freeholds by means of the fiction of a lease, which the defendant was by rule of Couit prevented from disputing. In ls52 the old proceedings in eject- ment, including the fiction of a Action of lease, were abolished, and a ejectment, simpler form of action was sub- stituted, enabling any person, whether freeholder, copyholder, or leaseholder, to recover directly the possession of land, if entitled thereto. Since the Judicature Acts began in 1875, this action has been termed an action for the Action for th« lecoveiv of land. See ante, pp. 16, recovery of 17, 23 ; "3 Black. Comm. 2U0— 20, XXI. (r. 21), XLII. (r. 5j, XLVII., and App.x. A. pt. III., s. 4, C. s. 7, 11. No. 8. (h) See ante, pp. 16, 17. -2 OF CORPOREAL HEREDITAMENTS. Estate in fee Of freehold estates, let US takc first an estate in fee simple. simple ; that is, an estate given to a man and his heirs siniplv and without restriction (i), and inheritable therefore by his blood-relations, collateral as well as lineal, according to tlie legal rules of the descent of a fee (_/). Such an estate is, as we have seen (k), the most absolute property which a subject can have in land. It possesses, indeed, all the incidents of absolute ownership, except the form (I). For tenant in fee simple may freely dispose of his land in his lifetime or bv his will, and that either for his whole estate or for any part thereof, as for a term of years. His laud may be taken to satisfy his debts either in his lifetime or after his death. And he has the right of free enjoy- ment (m) to the fullest extent to which it is consistent with the security of his neighbours' persons and pro- perty. It must not be supposed, however, that all these advantages have always been attached to the possession of fee. On the contrary, they were won step by step, and at widely different periods. It is a con- stant disadvantage to any one attempting to expound real property law, that so many matters, apparently simple, cannot be rightly explained without referring to the history of law and to times long gone by. But for this very reason, real property law affords a peculiarly instructive exercise for the student. From no other branch of the law is he likely to gain such a thorough conviction of the futility of attempting to reason about law upon instinct, witliout knowing how the law became what it is. Fee simple Let US examine first the fee-simple tenant's right of o'f"aUemiti'on alienation in his lifetime. It appears from Domesday Ume^ ''^^' that before the Norman Conquest there w^ere certainl}' (i) Bract, fo. 17 a; Litt. s. 1. (k) Ante, p. 6. ij) These are given iu cli. ix., (l) See ante, pp. 2, 3. 2)ost. (in) Ante, p. 2, OF AX ESTATE IN FEE SIMPLE. some free landowners who could dispose of their land as they wonld (n). But the system of feudal tenure, which came to be the general condition of holding land freely after the Conquest, was essentially restrictive of alienation. For the grant of a fee to a man and his heirs was not originally construed as conferring upon tlie grantej the whole property in the land bestowed. On the contrary, he was regarded rather as taking only a right to enjoy the land himself so long as he lived ; while his heir, who was by the grantor's bounty appointed to succeed to a simihr right, was considered as acquiring thereby a substantial intei-est in the land {o). The lord himself, too, retained valuable rights over the land ; for the services reserved on the grant of a fee were a charge upon the land, and if they fell into arrear, he had the remedy of distress by seizing the Distress, tenant's chattels, which were upon the land (jj). The lord also had, as we have seen (q), the right to repossess the laud, as liis escheat, on failure of the tenant's heirs. In subinfeudation, or the grant of a fee to be held of himself (/•), the tenant found means of disposing of his land without actual^ breaking the feudal tie between his lord and himself; but it seems that at first he could not, even by subinfeudation, give his grantee a valid title to the land without the confirmation both of his heir and of his lord (s). But as a general English law (n) Those, of whom it is re- (o) Butler's note (vi. 5) to Co. corded that they could give or Litt. 191 a; Hallam, Middle sell their lands without their lord's Ages, i. 159 — 183; Palgrave, Eug- licence, or as they would, or could lish Commonwealth, vol. i. pp. go where they would with their 509 et seq. ; vol. ii. pp. ccxci, et laud; see, for example, Domesday ««'(/•/ Ulan v. vii. 1; Stubbs, 30 b, 31, 34, 127, 130, 210. It is Const. Hist. §§ 93— 96. worthy of note that in places, where {p) Glan v. ix. 8; Bract, fo. 156 a, the old English customs were best 217; Britton, liv. 1, ch. 28, §§ preserved, we find customs alleged 13 — 15; liv. 3, ch. 4, §§ 10, 23. for freemen to sell their lauds as (j) Ante, p. 54. they will; see customs of New- (/■) Ante, p. 45. castle-on-Tyne, Stubbs, Select (a) This may be inferred from Charters, 112, 2nd ed. ; Consue- the existence of numerous early tudines Katicise, 1 Statutes of the charters of confirmation both by Realm, 223. heir and lord. The heir, however. 7i OF CORPOREAL HEREDITAMENTS. of tenures grew up under the influence of regular decisions of the kings court, these restrictions on alienation were gradually relaxed. Progress of right of alienation as aijainst heir. Frank- marriage Inroad was first made upon the interest of the heir. For we learn from Glanville {t) that in Henry the Second's reign any freeholder might give ?i\\'Ay part of his land at will, either with his daughter in marriage, or in remuneration of service, or to a religious place in alms {;u) ; and his heirs were bound to warrant {v) gifts so reasonably made {x). At the same time a larger right of alienation was enjoyed over lands which a man had acquired by purchase than over those, of which he had become possessed by inheritance ; but even in the case of purchased lands a tenant in fee could not by alienation entirely disinherit an heir sprung of his own body, though he might defeat the expectation of his collateral heirs {y). The allowing of such gifts as the above forms an important step in the progress of the right of alienation. For, when lands were given to a daughter on her marriage, the daughter and her husband, or the donees in frank-marriage, as they were called, held the laiuls granted to them and the heirs of their two bodies free from all manner of service to the donor or his heirs (an oath of fealty (s) excepted), until the fourth degree of consanguinity from the donor was passed {a) ; and the grantors of usually confirms after the grantor's 419, death' on his succession to the Cartu lordship created by the subinfeu- Rolls dation ; and such a confirmation 159; may be no nmre than a formal 389 a acknowledirnii'nt of the feudal he. {t) Doubtless in many cases the object ((/) of getting the heir's conlirmaiion {v) was to make valid a gift of land (x) made by the ancestor without (y) delivery of possession. See Madox, (s) Formuiare Anglicanum, Nns. 69 — (a) 120, 285, 293, 295, 316, 319, 415, fo. 21 460, 464, 512, 525, 547 : lary of the Abbev of Ramsey, ed. i. 135, 139, 147, 154, Glanv. vii. 1; Bract, fo. Lib. vii. c. 1. See ante, pp. 14, 45, 46, 58. See ante, p. 45. Glanville, vii. 2. Glanville, vii. 1 Ante, pp. 52, 56. Glanville, vii. 18, Bract. ; Litt. ss. 17, 19, 20. OF AN ESTATE IN FEE SIMPLE. 75 lands in frankalmoign were, as we have seen (b), for ever free from every kind of temporal service. So that in these cases little or nothing remained for the heir of the grantor. Nor was the heir always much better off if his ancestor granted part of his laud in return for services. For though the services reserved on the grant might in some cases be a fair equivalent for the gift of the land, in otiiers the main consideration for the gift was the payment of a sum of ready money to the grantor as a fine, and the services reserved were of little or no value and only intended to preserve an acknowledgment of the tenure (c). The current of decision, however, had set in favour of the right of alienation ; and in Henry the Third's reign the son wholly disinherited by his father's alienation was denied any remedy at law {d). Bracton, writing in the same reign lays down {e) that, in the case of a gift of land to a man and his heirs, the donee acquires the land by gift, and his heir after him takes it by succession ; but acquires nothing therein by the gift made to his an- cestor. In other words, on the grant of a fee simple, the heir takes nothing by purchase (f), i\ term ex- Purchase. tended to any cause of acquisition of land by a man's own agreement and not bv descent (a) ; he obtains only Hen's . r • 1 ~ 11 Lxpectaucy. the expectation oi mlieritance, and iias no estate or interest in the land (A). And this remains law to this day. So that ever since Bracton's time, a gift to a man (b) Ante, n. 58. & bare possibility not assignable at (c) See Madox, Form. Angl., law; Ld. Kenvon, C J., Jones v. No3. 299, 300, 302—305, 311, 312, Moe, 3 T. R.,' 88, 93; Carleton v. 313, 317, 320—323, 32fi, 327, 329, Leirihton, 3 Mer. 667. Hut it 330, 331, 460, 468, 472, 473, 609, seems that an heir may make a 518; Rot. Hund. ii. 361 — 390, as contract dealing with his ex- to the tenure of and title to pectancy, and may be compelled houses in Cambridge. to perform it specifically in equit}-; id) Bracton's ISote Book, case Hohson v. Trevor, 2 P. W. 191 ; 1054. Wethered v. Wtthered, 2 Sim. fe) Fo. 17 a. 183; lie Clarke, 35 Ch. D. 109, If) Fleta, fo.l85; Britton, liv. 36 Ch. D. 34S ; Tailby v. Official 2, ch. 5, § 1. Keceiver, 13 App. Cases, 52a, 52S> (). Uut it appears that at first a tenant, who had no heirs, could not alien so as to bar his lord's claim to have the lands after his death as an escheat (q). As the advantages of a free j)Ower of dis- position became apparent, a new form of grant was introduced with the object of bestowing the |)Owor of alienation, notwithstanding want of heii's of the donee. The lands were given, not merely to the tenant and liis heirs, but to him and his heirs, or to lohomsoever he might wish to gioe or assign the land, or with other words expressly conferring on the tenant the power of alienation (r). If the tenant under such a gift assigned his land to another in fee, the latter and his heirs had been previously considered neces- 29 b, 30 a, 92 b, 134 a, 381 b, sary to enable the tenant to make 390 a, 412 b; Fleta, fo. 178, 189, a valid gift of his land {ante, p. 191; Britton, liv. 2, ch . 3, §5, 63); and so, I think, does the ch. 4, §2, ch. 6, §1, ch. Ifi, § fact that, if a grant of land were 3; liv. 3, ch. 4, § 2. made in fee with a prohibition of (r) It appears that attempts, alienation, the prohibition was which nearly succeeded, were considered valid in Bractou's time ■ made to gain the power of aliena- fo. 46, 47, 2*13 b. tion by will by taking grants to (n) Fo. 81 a. the grantee and his heirs or to (0) Co. Litt. 43 a. whomsoever he migiit give or \p) Bract, fo. 37 b; Fleta, fo. devise the land; Bract, fo. 49a, 179 ; Britton, iiv. 2, ch. 4, § 2. 381 b, 412 b. {q) Bract, fo. 11 b, 12 b, 20 a. -§ OF CORPOREAL HEREDITAMENTS. the riglit to hold tlie land, on failure of the foriner's lieh's, as tenants of the former's lord, who was by his original gift bound to warrant quiet possession to the assigns as well as the heirs of his donee {s). A power of alienation was thus bestowed, which postponed indefinitely the lord's right of escheat. And even when lands had bee:i given to a tenant and his heirs only, his power of granting over the land, with full liberty of alienation for so long as his heirs should exist, made it increasingly difficult for his lord to secure the benefit of an escheat [t). In addition to this, it appears that earlj' in the reign of Edward I. a further encroachment on the lord's interests was sanctioned by judicial opinion ; for it seems then to have been considered that alienation in fee by a tenant holding to him and his heirs would deprive the lord of his escheat on failure of the tenant's heirs (?^). The barons of the time of Edward I. («) Bract, fo. 17 b, 20 a, S7 b, 3S1 b; Bracton's Note Book, case 1289; Fleta, fo. 197. pjjj (t) It is probable that the practice of conveying lands by fine worked adversely to the lord's interests. A fine was an agreement of compromise made by leave of the court between the parties originally to a genuine but afterwards to a fictitious action, whereby the lands in question were acknowledged to be the right of one of them ; and it was enrolled among the records of the court. Aline was so called because, having the effect of a judgment in a writ of right, the highest form of real action, it put an end, not only to the matter in dispute, but also to all claims to the land not made, when Bractoa wrote, at the time of the Fine and iif\e, but in the reign of Edward I., within a year and a day afterwards. non-claim Parties having rights to land, of which they were not in possession, were thus liable to be barred of their lights by a fine levied (as it was said) by the tenant in possession, and non-claim on their part within due time unless they were under some disability. See Glanv. lib. viii. ; Bract, fo. 435 b et seq. ; Fleta. fo. 443; stat. 18 Edw. I. st. 4; Thomas of WeijlandJs case, Kot. Pari. i. Cd ; Plowd. 357; 2 Black. Comm. 348 et seq. ; Cruise on Fines, ch. i. viii. An idea of the early prevalence of fines may be gained from an article by Mr. F. W. Maitlaud, Law Quarterly Review, vol. vi. p. 22. (w) I think that this may be next chapter; see also Mirror, inferred from the preamble of stat. Abuses of the Common Law, § 50, 18 Edw. I. c. 1, and from the & ch. v. sect. 5. We may note doctrine which appears by the that it was settled in Bracton's preamble of stat. 13 Edw. I. c. 1, time that if a tenant's heirs failed to have been established as to the by his attainder for felony, his alienation of conditional fees ; see alienation in fee before committing OF AN ESTATE IX FEE SIMPLE. accordingly, perceiving that, by the continual subin- feudations of their tenants, their privileges as superior lords were being gradually taken away, procured the enactment in their favour of the before-mentioned statute of Quia Emptores (x). As vre have seen, this statute recognized the right of every free tenant in fee simple to sell his land or part thereof at will ; but prohibited the practice of subinfeudation by providing: that, on the alienation of land to be held in fee simple, the alienee should hold th land of the same immediate lord and by the same services as the alienor held it before. The Act further provided that, on the aliena- tion in fee simple of part of a tenement, the alienee should hold it of the alienor's lord immediately, and should be charged witii an amount of service to him proportionate to the extent of his purchase. The statute of Quia Emjptores is still in force. Its effect has been to secure to every tenant in fee the right to substitute another in his place, as to the whole or part of his land, to hold as long as the new tenant's heirs may last, independently of the existence of any heirs of the former tenant : and that whether the land were originally given to the former tenant and his heirs only, or to him, his heirs and assigns {if). This statute did not extend to those who held of the king as tenants in capite, who were kept in restraint for some time longer. Free liberty of alienation was, however, subsequently acquired by them (a); and the right of disposing of an estate in fee simple by act the felony could not be avoided Britton, liv. 2, cb. 3, § 5, ch. 44, either by his lord or the king; § 2, ch. (5, § 1, ch. Iti, § 3; both Bract, fo. 23, 2'J b, 30, 130 a; see of which treatises are of the time also Thomas of Wiyland' s case, of Edw. I. and mention the Rot. Pari. i. CG. statute. But eventually the law {x) 18 Edw. I. c. 1; ante, was so settled; see Litt. ss. 1, p. 46. 406. {y) Apparently the Act was not (a) See ante, pp. 40, n. {u), .^3, •mmediately understood to have n. («). this effect; see Fleta, fo. 18'J, 191; so OF CORPOREAL HEREDITAMENTS. American inter VIVOS, is iiow tliG undisDuted priviles^e of every note 1, p. 94. ,. ^ I r & J tenant of such an estate. Partial As a tenant in fee simple may alienate liis whole alienation by ' '' <• • mi i tenant in fee. estate, SO he may dispose ot any part of it. Thns he may freely o;rant to others estates fur life or in tail, American fffaiit leases of his lands for any nnniber of years, and note V, p. 94.^ ■{ r charge on them the payment of any sum of money by way of mortgage or otherwise; and every such jiartial alienation will hold good against his heir and his lord, as well as the grant of his whole estate. The nature of the interests so created will be explained in subse- quent chapters. Alienation by The power of alienating lands by will was not generally obtained till a much later date than that of the statute of Quia Einptores. It lias been mentioned that freeholds were not devisable by will at common law (J), in consequence of the rule laid down after the establishment of the law of feudal tenure, that delivery of possession in the tenant's lifetime was necessary to comjjlete any gift of a free holding of land ('c). In certain places however freehold lands were devisable by will by virtue of a special custom. Thus tenants in fee simple of gavelkind lands (ri), and of lands held in burgage {e) in the City of London, and some other ancient cities and boroughs, enjoyed the privilege of devising their lands (/"). In process of time a method of devising lands by will was covertly adopted by means of conveyances to other parties, to such uses as the (J) Ante, p. 19. It appears, those which had been successful however, that before tlic Norman in maintaining their ancient Conquest it was lawful in England customs. to dispose of lands by vvill; see (c) Glanv. vii. 1, 5; Bract. Kemble, Codex Diplomaticus,. fo. 38 b, 39 b, 270 a. Introd. vol. i. pp. cviii. — cxii. [d) Ante, p. 64. Aid it is notev/orthy that the («) Ante, p. 50. places, where lands were devisable (,/) Bract, fo, 49 a, 272 a, 409 b, after the Conquest, were precisely 410; Litt, ss. 167 — 169. OF AX ESTATE IX FEE SIMPLE. g^ person conveying should appoint by his will {g). This indirect mode of devising hmds was intentionally re- strained by the o|)eration of a statute, passed in the reign of King Henry VI 1 1, {h), known by the name of the Statute of Uses, to wliicli we shall hereafter have occasion to make frecpient reference. But only live years after the pasr-ing of this statute, lands were ex- pressly rendered devisable by will. This great change in the law was effected by statutes of the 32nd and 34th of Henry VIII. (/), wliicii empowered tenants in fee simple to devise all their lands holden in socage, but two-thirds only ot" those holden by knights' service. So that it was not until the year 1645, wlien all military tenures were turned into socage {k) that the right of devising freeholds by will became complete and uni- versal. At present, every tenant in fee simple i\\\\-v American . .... ^ •' note 3, 2t. 91. enjoys the right of alienating his lands by will under the Wills Act oflSai (/). Blackstone's explanation of an estate in fee simple is that a tenant in fee simple holds to hira and his heirs for ever, generally, absolutely and simply, without mentioning what heirs, but referring that to his own pleasure, or the disposition of the law (m). But the idea of nominating an heir to succeed to the inheritance has no place in the English law, however it might have obtained in the Koman Jurisprudence. The heir is The heir is always appointed by the law, the maxiin being Sohis^f^''}''^''^^^ Deus hceredemfacerejyotest, non Iiomo {n) ; and all other persons, whom a tenant in fee simple may please to appoint as his successors, are not his heij's but his {&) Perk. ss. 528, 537. c. 27, s. 3. (A) Stat. 27 Uen. VIII, c. 10. (7?0 2 Bluck. Coram. 104. See {t) Stats. .32 Hen. VIII, c. 1, however 3 Black. Comm. 224, 34 & 35 Hen. VIII. c. 5; Co. where the correct account is Litt. Ill b, n. (1). given. (k) Ante, p. f^9. (,>) i Reeve's Hist. Eng. Law, (^Stat. 7 Will. IV. & 1 Vict. 105; Co. Litt. 191 a, n. (1), vi. 3. W. R. P. G 82 OF CORPOREAL HEREDITAMENTS. Assigns. assig7is. Thus, a purchaser from him in his lifetime, and a devisee under his will, are alike assigns in law, claiming in opposition to, and in exclusion of, the heir who would otherwise have become entitled {o). right^"°°* *° There are certain exceptions to the general power of alienation. disposition noM' incident to the ownership of lands. Some of these arise from the personal incapacity of tlie tenant, an instance of which has been noticed in the case of an infant, or person, under the age of twenty- one years {j>). As the incidents of every estate in land may be affected by the personal incapacity of the tenant, the modifications made ihereby will be ex- plained in a subsequent part of the book. In the meantime, all that is said respecting a tenant of land, whatever his estate, must be understood as applying to the ordinary Englishman of full age and sound mind. Other exceptions to the power of alienating land arise in respect of the objects for which the disposition is made. Thus the alienation of land to or for the benefit Alienation of a Corporation (^) into mortmain (/■), otherwise than main. uudcr the authority of a royal licence or a statute, is a cause of forfeitui-e to the lord of the fee ; or if he fail to enter within a year, to his superior lord ; and in default of entry thereon by any mesne lord, to the Crown (»'). The penalty of forfeiture was originally im- posed on the alienation of land into mortmain in order to prevent the gift of land to religious houses, whereby the king and the other lords were deprived of the services and fruits of tenure {t). And it was formerly (o) Hogan v. Jackson, Cowp. {r) See ante, p. 68, n. (a). 305; Co. Litt. 191 a, u. (1), vi. (,<() Stut. 51 & 52 Vict. c. 42, s. 10. 1, replacing stats. 7 Edw. I. st. 2, ip) Ante, p. 63. & 1') Hie. 11. c. 5. Any superior (ff) A corporation is an artificial lord must enter within six montlis person, enjoying by fiction of law after his inferior's right of entry the capacity "of holding property, has expired. and immortal existence ; see (t) See ante, p. 58. post, eh. xii. OF AN ESTATE IN FEE SIMPLE. S3 nccGPsarj, in order to conrej land into mortmain witli- ont incurring forfeiture, to have the licence not only of the Crown but also of the lord of the fee and every other mesne lord (7^). But in modern times the rights of mesne lords having become comparatively trifling [x), the licence of the Crown alono has been rendered by Parliament sufficient for the purpose {(/). So that at the present day, if a corporation be authorized to hold lands by royal licence or by statute, it will be no cause of forfeiture to convey lands to it. Again, the Alienation of alienation of land for charitable purposes is placed I^harifabie under severe restrictions, which were first imposed by P"''P°*^s- an Act of George II., commonly called the Mortmain Act (a), and now repealed and replaced by the Mort- main and Charitable Uses Act, 18S8 (b). Under this Act, every assurance of any hereditaments, of any tenure (c), for any charitable uses, is void (d), unless made in accordance with the requirements of the Act (e). (y) 2 Black. Comm. 269; Shel- ford on ^Mortmain, 35. ix) See ante, pp. 60, 62, 70. 42, Will. 42; (y) Stat. 61 & 52 Vict. s. 2, replacing stat. 7 taken till his claim be satisfied out of the profits, and being enabled of late years to obtain a sale of the property and payment out of the pro- ceeds [d). A man has been liable to be divesteJ of his freeholds upon hunkraptcy ever since a statute of Henry VIII. {e) first instituted bankruptcy proceedings ; the gist of which, as the reader is probably aw;ire, is the surrender of all a debtor's pr. >pertv for his creditors' beneHt. And now, when a man is adjudged bankrupt, all his property becomes divisible amongst his creditors, and vests at once in a trustee for them if). By tlie common law, as settled in Edward the First's reign, the heir of a tenant in fee simple was liable, to the extent of the land descended to him, to satisfy those debts, with the payment of which the late tenant had by special contract (that is, by sealed writing {y) ), expressly charged his heir. And this liability was extended by an Act of William and Mary {h) to a devisee. Also, when testamentary alienation was permitted (/), fee simple estates were liable to debts charged thereon by tiie tenant's will. But it was not until the year 1833 that they were subjected to debts of the deceased tenant made without so binding his heir. Since then, however, fee simple estates, whether devised by will or allowed to descend to the heir, have been liable to the payment of all their late OM'ner's debt-!, ineluding his ordinary debts incurred without sealed writing, which are called fa) Stat. 13 Edw. I. c. 18. («") Stat. 34 & 35 Hen. VIII. (J) Stat. 1 & 2 Vict. c. 110, s. c. 4. 11. (/) Stat. 46 & 47 Vict. c. 52, (c) See ante, p. 23, note (x) s. ••'0. thereto. (- is the heiress presumptive of her father : if he were now to die, she would at once be his heir ; but she is not certain of being heir, lor her father miy have a sou, who would supplant her, and become heir apparent during the father's lifetime, and his heir after hii or pension of the bankrupt may 10 Sim. 542; Willcock v. Terrell, be ordered to be paid to the trus- 3 Ex. D. 8'i3, 334. But see stats. tee for division amongst the 28 & 2'J Vict. c. 73. ss. 4, 5; 44 creditors; stat. 46 & 47 Vict. c. & 43 Vict. c. 58, s. 141; Lucas v. 52 s 53; Ex parte Huggins, 21 HarrU, 18 Q. IJ. D. 127; Crowe Cli D. 85. V. Price, 22 Q. B. D. 429. (x) M'), an estate of inheritance held bj^ military tenure descended first to the former tenant's eldest or only son ; whilst an inheritance held in socage was divisible aniongst all the sons, or passed to the eldest or youngest son, according to the course of descent dictated by ancient custom. In default of sons, all the daughters succeeded in equal shares. If the late tenant had left no children, the descendants of children (c) were the next heirs. In default of lineal descendants, the brothers and sisters came in ; and if they were dead, their children ; then the uncles and (z) NicolKon V. Wordsworth, 2 20 (4th ed. 34) Swanst. 31)5, 372. (b) Ante, p. 14. (a) Watkins oa Descents, 25, (c) Glanv. lib. vii. c. 3. 92 OF CORPOREAL HEREDITAMKNTS. their children ; and then the aunts and their children; males being always preferred to females (d). Subse- quently, about the time of Henry III. {e\ the old Saxon rule, which divided the inheritance eiiually amongst all males of the same degree, and which had hitherto prevailed as to all lands not actually the subjects of feudal tenure (/), gave place to the feudal law introduced by the Normans, of descent to the eldest son or eldest brother; though among females the estate was still equally divided, as it is at present. And, about the same time, all descendants {71 infinitum of any peison who would have been heir if living, were allowed to inherit by right of representation. Thus, if the eldest son died in the lifetime of his father, and left issue, that issue, though a grandson or granddaughter onlv, was to be preferred in inheritance before any younger son {g). The father, moreover, or any other lineal ancestor, was never allowed to succeed as heir to liis son or other descendant ; neither were kindred of the half-blood admitted to inherit {h). The rules of descent, thus gradually fixed, long remained unaltered. J.ord Hale, in whose time the}' had continued the same for above 400 years, was the Hrst to reduce them to a series of canons (T) ; which was afterwards admirably explained and illustrated by Blackstone, in his well- known Commentaries; nor was any alteration made till the enactment of the Act for the amendment of the law of inheritance {k), a. d. 1833. By this Act, amongst other important alterations, the father is heir to his son, supposing the latter to leave no issue ; and all lineal {d) 1 Reeves's Hist. Eng. Law, /f?) 1 Reeves's Hist. 310. 43. ('/') 2 Hlack. Comm. c. 14. (e) 1 Reeve's Hist. 310; 2 (i) Hale's Hist. Com. Law, Black. Comm. 215; Co. Litt. 191 a, 6th ed., p. 318 ft sea. note (1), vi. 4. (h Stat. 3 & 4 Will. IV. c. 106, (/) Clements v. Sandaman, 1 amended by stat. 22 & 23 Vict. P. Wms. 64; 2 Lord Raymond, c. 35, ss. 19, 20. 1024.- 1 Scriv. Cop. 53. OF AN ESTATE IN FEE SIMPLE. 93 ancestors are rendered capable of being lieirs {I) ; relations of the half-blood are also admitted to succeed, though only on failure of relations in the same degree of the whole blood {m). The Act has, moreover, settled a doubtful point in the law of descent to distant heirs. The rules of descent, as modified by this Act, will be found at large in the ninth chapter. (0 Stat. 3 & 4 Will. IV. c. 106, s. 6. (m) Sect. 8. 94 OF CORPOREAL IIEKEDITAMENT8. AMERICAN NOTES. iRESTRArNTS tTPON ALIENATION. — Any condition in a deed or will that imposes a general restraint upon alienation is void. Hall v. Tuffts, 18 Pick. 455; BIncktstone Bank v. Davis, 21 Pick. 42; Oleason v. Fay er weather, 4 Gray, 348; Schermerhorn v. Negus, 1 Den. 448; Lovettv. Oillender, 35 N. Y. 617; Kepple's Appeal, 53 Pa. St. 211; McDoicell v. Broion, 21 Mo. 57. But a condition in partial restraint of alienation, it is held by some authori- ties will he sustained, if it is reasonable. Thus, a condition not to alienate to particular persons, it has been suggested, may be supported. See Coioell V. Springs Co., 100 U. S. 55, 57; Jauretche v. Proctor, 48 Pa. St. 4G6, 472; but a condition not to alienate except to particular persons has been held void. -M' CullougTi's Heirs v. Gilmore, 11 Pa. St. 370; Anderson v. Cary, 36 Ohio St. 506. But sue Den, exdem. Blachwell, v. Blackwell, 15 N. J. Law, 386. A restriction as to time of sale was lield good in the following cases: Stewart v. Brady, 3 Bush (Ky.). 633; Hill v. Hill, 4 Barb. (N. Y.) 419; Lmdon v. Ingram's Guardian, 23 Ind. 360; Dougal v. Fryer, 2 Mo. 40. Blake, V. C, in Earh v. McAlpine, 27 Grant's Ch. (Out.) 131, 164, says that it is "reasonably clear on the authorities that a condition not to alien 1o a particular person or for a particular time is good." But the Supreme Court of Michigan takes a different view. In the case of Mandlehaum v. Mc- Dohell, 29 Mich. 78, speaking througli Mr. Justice Christiancy, the Court says: " We are entirely satisfied there has never been a time since the statute Quia Emptores when a restriction in a conveyance of a vested right in fee- simple, in possession or remainder, against selling for a particular period of time, was valid by the common law. And wo tiiink it wouli be unwise and injurious to admit into the law the principle contended for by the de- fendants' counsel, that such restrictions should be held valid if imposed only for a reasonable time. It is safe to say that every estate depending upon such a question would, by the very fact of such a question existing, lose a large sliare of its market value. Who can say whether the time is reasonable until the question has been settled in the court of last resort ; and upon what standard of certainty can the court decide it ? Or, depend- ing as it must upon all the peculiar facts and circumstances of each particur lar case, is the question to be submitted to a jury ? The only safe rule of decision is to hold, as I understand the common law for ages to have been, that a condition or restriction wliicli would suspend all power of alienation for a single day, is inconsistent witli the estate granted, unreasonable and void." ' Restrictions as to leasing agricultural lands. — In several states there are constitutional restrictions as to the leasing of agricultural lands. See note, post, part IV, chap. I. ' Alienation by will. — The tenant in fee-simple in the United States enjoys the right of alienating his lands by will. In tiie different states there are statutes prescribing how wills should be made and executed. See note, post^ chap. X. OF Aff ESTATE IN" FEB SIMPLE. 95 ■• ReSTRICTIOXS A3 TO DEVISES AXD BEQUEST3 TO CHAniTIES.— Statutory restrictions and regulations in regard to devises and bequests to cliarities are to be found in many of the states. Thus, in N'ew York it is provided tliat "no person having a husband, wife, child or parent, shall by his or her last will and testament, devise or bequeath to any benevolent, chari- table, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one-half, and not more)." N. Y. R. 8. (8th ed.) 25")0; L. ISTO, c. 3G0. In Ohio a devise or bequest made to charitable, religious, or educational purposes by a testator leaving issue or adopted children or their issue is void, unless the will were executed at least one year before the testator's death. See R. S. of Ohio (1890), § 5915. And in Californiii there is a statutory restriction on the power to devise or be- queath property to charitable uses, in that the devise or bequest must be by a will duly executed at least thirty days before the decease of the testator, and such devises or bequests cannot collectively exceed one-third of the estate of the testator leaving legal heirs. In Pennsylvania no real or personal estate can "be bequeathed, devised or conveyed to any body politic, or to any person, in trust for religious or charitable uses, except the same be done by djed or will attested by two credible and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor.'" Brightly's Purdon's Digest, Wills, § 23. ^ Voluntary coxveyatstces and subsequent paRCHvsEHS. — The doctrine of the text is based upon the tlieory that tlie subs?qu;nt transfer for value raises a conclusive presumption of fraud in the voluntary convovance. But this doctrine, although formerly followe 1 in a few courts in this country (see, for example, statement in the dissenting opinion of Judge Nicholas, in Doi/le v. Sleeper, 1 Dana (-vy.), 531; St^rri/ v. Arden, 1 Johns. Ch. 331, 269, 37U), is not in accordance with the general current of American decision, which is undoubtedly to the effect that a voluntary convey- ance is not void as against a subsequent purchaser with notice of it. Tlic American doctrine is well staged in Bjrcl v. Wcrren, 3 G-ray, 417, 4jG. The court, speaking through Thomas, J., says: "The true construc- tion of the statute, we think, is that conveyances are not avoided merely because they are voluntary, but because they are fraudulent; that a voluntary gift of real estate is valid as against subsequent pur- chasers and all other persons, unless it was fraudulent at the time of its execution; that a subsequent conveyance for a valuable consideration is evidence, but by no means conclusive evidence, of fraud in t!i ; first volun- tary conveyance; and that a voluntary gift, mile when the grautor is not indebted, in good faitli, and without intent to defrai I fatir3 creditors or subseq lent purcliasers, is g)od as agiinst a su')sequ)nt purchaser for valu- able consideration with notice. Such, we underst in 1, to be the construe- 96 OF CORPOJiEAL HEREDITAMENTS. tion practicauy adopted in this commonwealth, and which is, to use the M'ords of Cliiincellor Kent, 'the better American doctrine.' " In this case t!ie student will find a comprehensive analy-is of the statute and a full c msidcration of tlie subject. La Grand, the trial judge in tlie case of Mayor, etc., v, Williams, G Md. 233, whose opinion in the case was affirmed by the Court of Appeals, says: "The just rule then, as it exists in this country, is as follows: That a voluntary conveyance, without fraud, is not ^er se void, as against a subsequent purchaser for value; that the statute does not denounce such conveyances as voluntary, but only such of tliem as are fraudulent and covinous; and, therefore, if the subsequent purchaser has knowledge of the existence of such deed, his deed cannot take pre- cedence of the voluntary one, if the latter be lona fide.'''' See, also, Lan- casterv. Dolan, 1 Rawle (Pa.), 231; Foster v. Walton, 5 Watts (Pa.), 378; Dougherty v. Jack, Ibid. 456 ; Cathcart v. Robinson, 5 Peters, 2G3, 279, 280 ; Bank of Alexandria v. Patton, 1 Robinson (Va.), 499, 539. But where a sale is made without notice to the purchaser, of a prior vol- untary convej'ance, the voluntary conveyance is deemed j:>ri??ia/«cie fraudu- lent, and the burden is thrown upon those claiming under the voluntary settlement of proving that it was made l)onafide. See Cathcart v. Robinson, 5 Peters, 263, 230; Uudnal v. Wilder, 4 McCord (3. C), 294, 305. It is held in the following cases that in the absence of actual fraud the con- structive notice furnished by the recording of a voluntary deed is sufficient to bind subsequent purchasers. Cooke's Lessee v. Kellet al., 13 Md. 4G9, 492; Beat V. Warren, 2 Gray, 447, 450; Laird v. Scott, 5 Heisk. (Tenn.), 314, 347. If a voluntary conveyance is actually fraudulent, it will be held to be void as against a subsequent purchaser for value, whether he has purchased with or without notice. It is so held in Wyman v. Brown, 50 Me. 139, 148; Laird v. Scott, 5 Heisk. (Tenn.) 314, 346, 347. ® Voluntary conveyances and creditors. — See note upon this subject, post, chap. XI. ''Restrictions as to use of land. — There may be covenants or condi- tions in a deed that restrict the manner in which the property can be used; or such covenants may be the result of an independent agreement between neighboring proprietors. In a word, equitable easements may be imposed upon land, and its use be thereby restricted. If, for instance, land is divided up by the owner into several lots and sold, and in every deed there is inserted a restriction as to the use of the land, or as to the character of the buildings to be erected and maintained thereon, this restriction will be held to be for the mutual benefit of the several owners, and will be enforced in equity at the suit of any one of them. It is well settled, also, that ad- joining land-owners may by grant impose mutual and corresponding restric- tions upon the lands i^elonging to each, in order to secure uniformity in buildings upon the respective premises, or to confine the use of the lands to cer- OF AN ESTATE IN FEE SIMPLE. 97 tiiin purposes. And a court of equity will compel the observance of such cove- nants. See the following illustruli ve cases : Ililh v. Miller, 3 Paige's Ch. 254 ; Barrow v. Richardx, 8 Paige's Ch. 351 ; Gilbert v. Peteler, 38 N. Y. 165; Trustees of Columbia College v. Lynch, 70 N. Y. 440; Same v. Thacher, 87 N. Y. 311 ; Wetmore v. Bruce, 118 JN'. Y. 319, 322; Whitney v. Union Railway Compamj, 11 Gray, 35?; Parker v. Niglitingale, G Allen, 341; ITubhell v. Warren, 8 Allen, 173; Tobcy v. Moore, 130 Mass. 448; Green v. Creighton, 7 R. I. 1. In Tallmadge v. ^as< /Jtue/- i?r6?iZ;, 2G N. Y. 105, it is h^ Id that a parol con- tract by the owner of land with the purchasers of different parcels in re- gard to the occupation of the land, would affect the remaining parcels with an eijuity which would require them to be occupied in accordance with the general plaa as it was explained to the purciiasers. And this equity -would be binding upon a subsequent purchaser witii notice of the fact, even though nothing be said about it iu the deed of conveyance. 8 Lands liable for debts op owker. — It is a general rule in the United States that lands are liable for the debts of a deceased owner whether due by matter of record, specialty, or simple contract. And this has probably been the general rule even from colonial times. See 4 Kent's Conuuentaries, *419, *420. ^ Kestriction upon involuntary alienation attached to gift. — Tiie English doctrine upon this subject, as set forth in Brandon v. Robin- son, 18 Ves. 429, has been quite generally followed in t!ie United States. See ILillctt Y. Thominon, 5 Paige's Ch. 583; Blackstone Baiik y. Davis, 21 Pick. 42; Tillinghast Y. Bradford, 5 R. I. 205; Mebane v. Mebane, 4 Ired. Eq. (X. C.) 131; Smith y. Moore, 37 Ala. 327; 3IcIlmineY. Smilh, 42 Mo. 45. But the doctrine apparently is not recognized to its fullest extent by the Supreme Court of the United States, and this is the case also iu several of the state courts. See Nichols, Assignee, v. Eaton, 91 U. S. 71G. In the course of his opinion in this. case, Mr. Justice Miller says: " We do not see, as implied in the remark of Lord Eldon " (in Brandon v. Robinson, 18 Ves. 433, "If property is given to a man for his life, the donor cannot take away the incidents of a life estate ") "that the power of alienation is a nec- essary incident to a life estate in real property, or that the rents and profits of real property and the interest and dividends of personal property may not be enjoyed by an individual without liability for his debts being at- tached as a necessary incident to such enjoyment. Tiiis doctrine is one which the English Chancery Court has ingrafted upon the common law for the benefit of creditors, and is comparatively of modern origin. We con- cede that there are limitations which public policy or general statutes im- pose upon all dispositions of property, such as those designed to prevent ■perpetuities and accumulations of real estate in corporations and ecclesias- tical bodies. We al'jo admit that there is a just and sound policy pecu- liarly appropriate to the jurisdiction of courts of equity to protect crcdi- W K. P. II 9S OF CORPOREAL HEREDITAMENTS, tors against frauds upon their rights, whether they be actual or constructive frauds. But the doctrine that the owner of property, in the free exercise of his will in disposing of it, cannot so dispose of it, Ijut that tlie object of his bounty, who parts with nothing in return, must liold it subject to the debts due his creditors, tliough that may soon deprive liim of all tbe benefits sought to be conferred by the testator's affection or generosity, i3 one which we are not prepared to announce as the doctrine of this court. If the doctrine is to be sustained at all, it must rest exclusively on the rights of creditors. Whatever may be the extent of those rights in England, the policy of the states of this Union, as expressed by their statutes and the decisions of their courts, has not been carried so far in that direction." After arguing that the limitation in a will against the involuntary aliena- tion of the property devised or bequeathed is not unfair or unjust to the creditor any more than are the exemption statutes of the different states, as all persons have constructive notice of the limitation through the record of the will, Justice Miller continues: "Nor do we see any reason, in the recognized nature and tenure of property and its transfer by will, why a testator who gives, who gives without any pecuniary return, who gets noth- ing of property value from the donee, may not attach to that gift the inci- dent of continued use, of uninterrupted benefit of the gift, during the life of the donee. Why a parent, or one who loves another, and wishes to use his own property in securing the object of his affection, as far as property can do it, from the ills of life, the vicissitudes of fortune, and even his own improvidence, or incapacity for self-protection, should not be per- mitted to do so, is not readily perceived." The foregoing clearly indicates the attitude of tiie Supreme Court in regard to this question, though what was said upon it was not necessary to a decision of the case. It is held in Pennsylvania that property may by express stipulation be so limited to a donee as to be out of the reach of creditors, and that this re- sult may be accomplished without any provision for a limitation over in case of an attempted involuntary alienation. Fisher v. Taylor, 2 Rawle (Pa.), 33 ; Vnux V. Parke, 7 W. & S. (Pa.) 19 ; Norris v. Jonhston, 5 Pa. St. 287, 288, 289; El/rick v. Ildrick, 13 Pa. St. 487, 491; BtrneWs Appeal, 40 Pa. St. 393^ 399-402; Shanhland's Appeal, 47 Pa. St. 113; Roldshlj) v. Patterson, 7 Watts (Pa.), 517; Broicn v. Williamson, 30 Pa. St. 3:58; Still v. Sjtear, 45 Pa. St. 108. The following cases are in lino with the holding of the United States Supreme Court and the Supreme Court of Pennsylvania: Pope v. Elliott, 8 B. Monroe (Ky.), 50; Powan's Creditors v. Rowan's Heirs, 2 Duvall (Ky.), 412; Frazier v. Barnum, 4 C. E. Green (IST. J.), 31G. In New York this subject is to some extent regulated by statute. The Re- vised Statutes (1st edition), vol. II, pp. 173, 174, § 38, provided for the filing of a bill in chancery, upon the return of an execution unsatisfied in whole or in part, to reach property held in trust for the debtor, " except where such OF AN ESTATE IN FEE SIMPLE. 99 trust has been created by, or the fund so held in trust has proceeded from some person other than the defendant himself." There is some conflict in the cases as to the meaning and effect of this exception, but it must prob- ably be regarded as settled that the exception should be construed in connec- tion with sections 57 and 63 of R. S., vol. 1, pp. 729, 730. The first of these sections provides that where a trust has been created for the receivino- of the rents and profits of lauds, tlie surplus of such rents and profits, beyond the sum necessary for the education and support of the person for whose bene- fit the trust is created, siiall be liable in equity to the claims of creditors ; the second provides that a person beneficially interested in a trust for the receipt of the rents and profits of lands, cannot assign or in any manner dis- pose of his interest. It has been held that the exception in section 38 was intended to protect the beneficial interest of the cestui que trust only to the extent of a fair support out of the trust property, as the section should be construed in connection with section 57. It has been held also that the riglit of the creditor to maintain an action to reach surplus income from trust prop- erty beyond what is necessary for the suitable support and maintenance of the cestui que trust and those dependent upon him, exists as well where the trust estate is personal property as where it is realty. Section 38 of the Revised Statutes iias been repealed, but the exception referred to has beem re-enacted in the Code of Civil Procedure, §§ 1879, 2463. In support of the foregoing suggestions, see HtMett v. Thompson, 5 Paige's Ch. 583 ; Bromhallv. Ferris, UN. Y. 41; Graff v. Bmiiett, 31 N". Y. 9; Williams v. Tlwrn, 70 X. Y. 270. C'tmpbell v. F.Mer, 35 X. Y. 361, whicli is not alto- gether in accord with the otlier decisions cited as to the effect of the stat- utory exception hereinbefore referred to, is limited and distinguished in the case of Williams v. Thorn. "^ Gifts CONFINED TO PERIOD OF PERSONAL ENJOYMENT. — The doctrine of the text that the settlement upon a person of property or tiie income thereof, upon condition that all rights under the provision shall cease upon the insolvency or bankruptcy of the beneficiary, is generally recog- nized in this country, as will appear from an examination of cases herein- before cited and the following: 2 Story's Equity Jurisprudence, § 974a; 2 Pomeroy's Equity Jurisprudence, § 989; Nichols v. Levy, 5 Wall. 433. >' Claims of creditors not defeated by trusts for grantor. — The doctrine that a person cannot convey his property upon trusts for himself, free from the claims of his creditors, either prior or subsequent, is gen- erally recognized in the United States. This will be apparent from a reading of the cases cited supra under 9 and 10. See, also, Mackaso7i'8 Ap- peal, 42 Pa. St. 330. '^ Heir apparent and heir presumptive. — The doctrine of the text as to the heir apparent and the heir presumptive is of no practical importance in the United States. The distinction cannot exist under our systems of descent. H 2 100 OF CORPOREAL HEREDITAMENTS. CHAPTER III. OF AN ESTATE TAIL. Estate tdl. A merican note 1, p, ISl. General or special. Male or female. Having considered the incidents of the greatest estate of freehold, that in fee simple (the most absolute property in land which a subject may enjoy) (a), let us proceed to examine the lesser estates of freehold. Of these we shall first notice an estate tail, or an estate given to a man and the heirs of his hody. This is such an estate as will, if left to itself, descend, on the decease of the iirst owner, to all his lawful issue, — children, grand-children, and more remote descendants, so long as his posterity endures, — in a regular order and course of descent from one to another: and, on the other hand, if the first owner should die without issue, his estate, if left alone, will then determine. An estate tail may be either general^ that is, to the heirs of his body generally and without restriction, in which case the estate will be descendible to every one of his lawful posterity in due course ; or special, when it is restrained to certain heirs of his body, and does not go to all of them in general ; thus, if an estate be given to a man and the heirs of his body by a particular wife; here none can inherit but such as are his issue by the wife specified. Estates tail may be also in tail male, or in tail female ; an estate in tail male cannot descend to any but males, and male descendants of males; and cannot, consequently, belong to any one who does not bear the surname of his ancestor from whom he in- herited: so an estate in tail female can only descend to (a) Ante, p. 6, OF AN ESTATE TAIL. 101 females, and female descendants of females (a). Special estates tail, confined to the issue by a particular wife, are not now common : the most usual kinds of estates tail now given are estates in tail general, and in tail male. Tail female scarcely ever occurs. The owner of an estate tail is called a donee in tail. Donee in tail, and the person who has given him the estate tail is called the donor. And here it may be remarked, that such correlative words as donor and donee., lessor and lessee, and many others of a like termination, are used in law to distinguish the person from whom an act pro- ceeds, from the person for or towards whom it is done. The owner of an estate tail is also called a tenant ^n Tenant in tail, for he holds his land of some lord, as much as ^^^ ' a tenant in fee simple (h), only for a less estate. But a tenant in tail in possession of land now largel}' enjoys the advantages of ownership ; and, as we shall see, it has long been in his power to bar the entail, and thus convert his estate into an estate in fee simple. To explain the nature of an estate tail and its incidents we must refer briefly to its history. The reader has been so far made acquainted with the Collateral course of descent of a fee {e) as to be aware that, as might inherit early as the time of Henry II., if the tenant of a fee ^ ^^' left no issue, his collateral lelations were admitted to succeed as his heirs {d). So that an estate, which had been granted to a man and his heirs, descended, on his death, not only to his offspring, but also, in default of offspring, to his other relations in a defined order of succession. Hence if it were wished to confine the inheritance to the offspring of the donee, it became necessary to limit the estate expressly to him and the (a) Litt. ss. 13, 14, 15, 16, 21 ; {c\ Ante, p. 18. 2 Black. Comra. 113, 114. {d) Ante, p. 91. lh\ Aiitii^ nn. 6. 7. 44—49. Black. Comra. 113, 114. (fi) Ante, pp. 6, 7, 44-49. 103 ^F CORPOREAL HEREDITAMENTS. To the donee heii's of Ms hoclj (- l'J3- (/};) 2 Black. Comm. 360. (o) Co. Litt. 'J b; Cruise on \l) Ante, p. 105. '' • -- (to) 2 Black Comm. 360 ; 108 OF CORPOREAL UEREDITAMENTS, progress of events tended only to make that certain which at first was questionable; and proceedings on the principle of those above related, under the name Common of suttbring common recoveries, maintained their ground and lonjr continued in common use as the undoubted privilege of every tenant in tail. The right to suffer a common recovery was considered as the inseparable incident of an estate tail, and every attenipt to restrain this right was held void {oo). Complex, however, as the proceedings above related may appear, the ordi- nary forms of a common recovery in later times were more complicated still; for it was found expedient not to bring the collusive action against the tenant in tail himself, but that he should come in as one vouched to warranty (jy). The lands were, therefore, in the first place conveyed, by a deed called the recovery deed, to a person against whom the action was to be brought, Tenant to the and who was Called the tenant to the proecipe or writ {:ainst the tenant Demandant, to t\\Q prcecipc by another person, called the demandant ; the tenant in tail was then vouched to warranty b}' the tenant to the prcecipe. The tenant in tail, on being vouclied, then vouched to warranty in the same way the crier of the Court, who was called the common vouchee. The demandant then ci-aved leave to imparl or confer with the last vouchee in private, which was granted by the Court; and the vouchee, having thus got out of Court, did not return ; inconsequence of which judgment was given {oo) Mart/ Fortington's case, 10 it was sufficient if the conveyance Rep. 3i5 ; Co. Litt. ii24 a, 379 b. n. to the tenant to the prajcipe ap- (li; Fearne on Contingent Re- peai'ed to be executed before the inaiuders, 260; 2 Black. Comm. end of the term in which the re- 116; Dawkins v. Lord Penrkyn, covery was suffered ; 1 Prest. Con. tf Ch. D. 31S; 4App. Cas. 51. 61 et seq.; Goodright d. Burton (p) See Cruise on Recoveries, v. Righy, 5 T. Rep. 177. Reco- 2i^etf:eq. veries, being in form judicial (y) By stat. 14 Geo. II. c. 20, proceedings, could only be sutt'ered commonly called Mr. Pigott's Act, in term tune. OP AN ESTATE TAIL. IQf) in the manner before mentioned, on which a regular writ was dii'ected to the sheriff to put the demandant into possession (r). The proceedings, as may be supposed, necessarily passed through numerous hands, so that mistakes were not unfreqnently made, and great ex- pense was always incurred (s). To remedy this evil, an Act of Parliament {t) was accordingly passed in the year 1833, on the recommendation of the commissioners on the law of real property. This Act, which in the Recoveries . ^ e . 1.11 iMip- • • abolished. Wisdom or its design, and the skill oi its execution, is quite a model of legislative reform, abolished the whole of the cumbrous and suspicious-looking machinery of common recoveries. It has substituted in their place a simple deed, executed by the tenant in tail and in- rolled, formerly in the Court of Chancery, and now in the Central Office of the Supreme Court (u): by such a deed, a tenant in tail in possession is now enabled to dispose of the lands entailed for an estate in fee simple; thus at once defeating the claims of his issue, and of all persons having any estates in remainder or reversion. A common recovery was not, in later times, the only way in which an estate tail might be barred. There was another assurance as effectual in defeating the claim of the issue, though it was inoperative as to the remainders and reversion. This was a fine. The nature of a tine and its effect in barring all claims to the land ^ fine, not made within a year and a day afterwards has been previously explained {x). If a tine were levied of (/•) Cruise on Recoveries, ch. 1, (w) The inrolment must be with- p. 12. in six calendar months after the (s) See 1st Report of Real Pro- execution; sect. 41. See sect. 74; perty Commissioners, 25. stats. 36 & 37 Vict. c. 66, ss. Itt, (t) "An Act for the abolition of 77; 42 and 43 Vict. c. 78; Rules fines and recoveries, and for the of the Supreme Court, 1883, Ord. substitution of more simple modes LXI. r. 9, of assurance." Stat. 3&4Will. (x) Ante, pp. 78, n. (t), lOS, IV. c. 74, drawn by Mr. Brodie ; n. {p). 1 Hayes's Conveyancing, 155. 110 OF CORPOREAL HEREDITAMENTS. tious. entailed lands, the rights of the issiie and of those to whom the reversion belonged, were expressly saved by the statute De Donis {y) froni l^eing barred under tlie old doctrine of non-claim. The power of barring future claims was taken from tines in the reign of Edward III. {£) ; but it was again restored, witii an extension however of the time of claim to five years, by statutes of Richard III. (a) and Henry YII. {!)) ; by which statutes also provision was made for the open proclamation of all fines several times in Court, during rrociama- wliich proclamation all pleas were to cease ; and in order that a fine might operate as a bar after non- claim for five years, it was necessary that it should be levied with proclamations (c). A judicial construction of the statute of Henry YII. {d), quite apart, as it should seem, from its real intention («), gave to a fine b}' a tenant in tail the force of a bar to his issue after non-claim by them for five years after the fine; and this construction was confirmed by a statute of the reign of Henry VIIF., wliich made the bar immediate (/'). Since this time the efi'ect of fines in barring an entail, so far as the Finps issue were concerned, remained unquestioned till their abolition ; which took place at the same time, and by the same Act of Parliament {g), as the abolition of common recoveries. A deed inrolled in the Central (y) Stat. 13Ed\v. I. c. 1. been levied with proclamations, {z) Stat. 34Ed\v. 111. c. 16, a and shall have the force and effect curious specimen of the concise- of fines with proclamations. ness of ancient Acts of Parliament. ( & 37 Vict. c. HO, 20. ss. 16, 77; 42 & 43 Vict. c. 7-^ ; (n) See First Keport of Real Rules of the Supreme Ci)urt, 1883, Property Comaiissioners, p. 32. Ord. LXI. r. 0. W.R.P. 1 114 OF CORPOREAL HEREDITAMENTS. The issue mav be barred ■without pro- tector's consent. Base fee. Estate tail in possession. Life estate under prior deed or will. reversion cannot be barred (p). In ordinary cases the protector is the first tenant for Hfe under the settlement, in analogy to the old law (q) ; bnt a power is given by the Act, to any person entailing lands, to appoint, in the place of the tenant for life, any number of person?, not exceeding three, to be together proteetoi' of the settlement during the continuance of tiie preceding estates (r) ; and, in such a case, the consent of such persons onl}^ need be obtained in order to effect a C'lmplete bar to the estate tail, and the remainders and reversion. The protector is under no restraint in giving or withholding his consent, but is left entirely tohisown discretion (s). If he should refuse to consent, the tenant in tail may still bar his own issue ; as he might have done before the Act by levying a tine; but he cannot bar estates in remainder or reversion. The consequence of such a limited bar is, that the tenant acquires a dis- posable estate in the land for so long as lie has any issue or descendants living, and no longer; that is, so lone: as the estate tail would have lasted had no bar been placed on it. This is called a base fee. But, when his issue fail, the persons having estates in remainder or reversion become entitled. When the estate tail is in possession, tli^t is, when there is no previous estate fur life or otherwise, there can very seldom be any ])rotector (i), and the tenant in tail may, at any time bv deed duly inrolletl, bar the entail, remainders and reversion, at his own pleasure. And where a previous estate for life exists, it does not confer the office of protector, unless it be created by the same settlement which created the estate tail ; so that a tenant in tail in remainder expectant on an estate for life, created by some prior deed or will, may bar the entail, remainders (p) Stat. 3& 4 Win. IV. c. 74, s. 34, 35. (6 and 1S77 (s), empowered the Court to authorise a sale of any timber, not being ornamental timber, growing on any settled estates. And now by the Settled Land Act, 1SS2 (a), where a (») Dashwood V. ATaffniac, 1891, 3 Cb. 306 (Lindley aiid Bowen, L.-JJ., affiimiug Chitt}', J., dins. Kav, L.-J.) (g) The Statute of Gloucester, 6 Edw. I. c. 5 ; 2 Black. Com . 2S3; Co. Litt. 218 b, u. ('J). (?■) By Stat. 3 & 4 Will. IV. c. 27,' s. 36. (s) 2 Wms. Sannd. 252, n. (7); 3 Steph. Comm. 532, 6th ed. 44:i, 11th ed. (t) See Seton on Decrees, 185, 190, 1250, 1265, 4th ed. {a) Ji'e Cartw right, 41 Ch. D. 532 ; see the cases there cited. (j) WooJlwtise V. Walker, 5 Q. B. D. 404; Dashwood \- . Mug- niac, 1891. 3 Ch. 306, 339. (y) Tooker v. Annesley, 5 Sim. 235; Waldo v. Waldo, 7 Sim. 261 ; 12 Sim. 107 ; ToUemache v. Tollemuche, 1 Hare, 456; Consett V. Bell, 1 You. and Coll. New cases, 569 ; Gerd v. Harrison, Johnson, 517 ; Jlonywood v. Jluny- wooJ, L.R., IS Eq. 306; Lowndes V. Norton, 6 Ch. D. 139. See Williams's Convevaucing Stats., 337. (5) Stats. 19 & 20 Vict. c. 120, s. 11 ; 40 & 41 Vict. c. IS, s. 16. (a) Stat. 45 & 46 Vict. c. 38, s. 35, suh-s. 1; see Williams's Cofu- voyauciug Statutes, 337. OF AN ESTATE FOR LIFE. 129 tenant for life is impeachable for waste in respect of timber, and there is on the settled land timber ripe and fit for cntting, the tenant for life, on obtaining the con- sent of the trnstees of tlic settlement or an order of the Conrt, may cut and sell that timber, or any part thereof. In such a case, tliree fourth parts of the net proceeds of the sale must be set aside and applied as capital money arisino; under that Act, and the other fourth part i»ioricnn •^ " ' ^ note 4, p. will go as rents and profits {b). -'^o. If, however, the estate is given to the tenant bv a Without written instrument [c) expressly declaring ins estate to of waste, be viithout impeachinent of waste, he is allowed to cut timber in a husbandlikc manner for his own benefit, to open mines, and commit other acts of waste with im- punity {d)\ but so that he do not pull down or deface the family mansion, or fell timber planted or left standing for ornament, or commit other injuries of the like nature ; all of which are termed eqxdtaljle waste ; Equitable for the Court of Chancery, administering equity, re- strained such proceedings {e). And now by a provision of the Judicature Act of 1873, which united the old superior courts of law and equity {/), a tenant for life without impeachment of waste has no legal right to commit equitable waste, unless an intention to confer such a right expressly appears by the instrument creating his estate {g). (I) Sect. 33, sub-s. 2; see sects. Ves. 107 ; Burges t. Lamh, 16 2 (9), 21 ; Williams's Conveyauc- \^es. 183 ; Dai/ v. Merry, 16 Ves. ing Statutes, 292, 825, 337. " 375 a ; Welledeij v. WeUenUTj, 6 (c) i^owmaw's case, 9 Rep. 10 b. Sim. 407; Dulce of Leeds v. £aj'l ((/) Lewis Bowles' ca.^e, 11 Rep. Amherst, 2 Phil. *117 ; Morris v. 82 b; 2 Black. Comm. 283 ; i?(/rf/(=s Morris, 15 Sim. 505; 3 De G. & V. Lamb, 16 Ves. 185; CViolme'lei/ J. 323; Micklethiimit v. Mickle- V. Paxton, 3 Bing. 211; 10 B. & thiuait, 1 De G. & J. 504; Baker C. 56-1; Davies v. Wescomb, 2 ^ . Sehright,lZ C\\. Ti.'i':'^. Sim. 425; Wool/v.imi, 2 Swanst. (/) Stats. 36 & 37 Vict. c. 66; 149; Waldo v. Waldo, 12 Sim. 37 & 38 Vict. c. 83. As to equity 107 ; Be Barrington, 33 Ch. D. and the Court of Chancery, see 523. post, ch. vii. (4lFonb. Eq. 33 n. ; Marquis (g) Stat. 36 & 37 Vict. c. 66, s. o/ Doivnshire v. Lady Sandys, 6 25, sub-s. (3). W. K. P. T 130 OF CORPOREAL HEREDITAMENTS. Right of alienation of tenant for life. Powers of tenant for life. A tenant for life may grant over the land he holds for so long as he shall live : but he could not by the common law make any lawful disposition to endure for a longer period (A). And his common law right of alienation is still all that he can exercise for his own exclusive profit. But at the present day a tenant for life has large powers of disposing of the land he holds, for the benefit of those entitled thereto after his death, as well as himself. Powers are means of conveying land independently of the right of alienation incident to the estate in the land. Under the modern system of settling land on one for life, and then on his sons successively in tail {i), no valid disposition of the land could be made by virtue of the estates so created, except for the father's lifetime, until a son attained twenty-one ; when he could join in barring the en- tail (Jc). This was obviously inconvenient ; and it there- fore became usual to give to the tenant for life under a settlement powers of leasing the settled land for certain terms on specified conditions ; and leases granted under such powers remained good after his death, for the benefit of his successors under the settlement. It was also usual for scttlen)ents to contain powers enabling trustees to sell the settled lands and convey them to purchasers ; and with the purchase money to buy other lands to be made subject to the settlement. The exact operation of these powers will be explained in a subse- quent part of the book {I). For the present it will be enough to say that the devices of modern conveyancers had made it possible for a tenant in fee simple, not (mly to grant his land to another in fee simple, or for any less estate (m), with the rights of alienation incident to the estate conferred, but also to give to others independent {Ti) Bract, fo. 11 b, 13 b, 31S a, S23 b, 3-24: a; Litt. ss. 415, 416, 609—011; Co. Litt. 251 b. {i) Ante, pp. 116, 126. (/!-) Ante, p. 111. \l) Post, part li. ch. iii. l',n) Ante, pp. 72, 90. OF AN ESTATE FOR LIFE. 131 powers of disposition over his land, eqviivalent to tlie disposing power of a tenant in fee simple. Such powers Powers of are known as powers of appointment. They could only arise, in the case of settled land, by express provision of the parties making the settlement (n), who having the whole fee simple to dispose of, were in a position to create powers over as well as estates in the land. But now, the Settled Land Act, 1882 (o) gives to every tenant for life in possession of land under a settlement, large powers of leasing and also a power of selling or exchano-ino; the settled land. Since these extensive American statutory powers have been conferred on a tenant for tso. life, it has been no longer usual to insert in settlements the old express powers of appointment, which were formerly used to effect the same objects. Statutory DOwers resemble expi'ess powers in affording means of conveying the settled land, independently of the right of alienation incident to any estate therein. But their operation does not rest on the same conveying device ; as they derive their effect from the supi'eme authority of the statute, which enables the tenant for life lawfully to convey away what, in fact, is not his own. in) Powers of leasing appear to see s. 2, sub-ss. 1, 5. The Settled Settled date from the beginning of the Estates Act, 1877 (stat. 40 & 41 Estates Acts modern system of settlement; and Yict. c. 181, which replaced an of 1856 and the practice of inserting a. power Act of 1856, empowers tenants 1877. of sale in settlements seems for life under settlements made to have grown up during the after the 1st of November, 185(5, eighteenth century; see Butler's to make ordinary leases for twenty- note (v. 4, 6) to Co. Litt. 290 b; one years in England, and thirty- Bridgman's Precedents in Con- five in Ireland, of any part of their veyancing (3rd ed. A. D. 1609), settled estates, except the prin- pp. 130, 143, 171, 332; Lilley's cipal mansion-honse and lands Practical Conveyancer (1710), p. usually occupied therewith, at 568; 2 Horsman's Conveyancing the best rent without fine. Agri- (1744), pp. 217, 475; 3 Wood's cultural, mining, building and Conveyancing (3rd ed. by Powell, other leases, and sales of settled 1793), p. 641 ; 7 Barton's Con- estates may also be made under vevancmg (3rd ed. 1824), p. 248; the same Act on application to the 3 Davidson's Prec. Conv. (3rd ed. Chancery Division of the Court, 1873J, pp. 263—269, 479, 556. whatever be the date of the settle- Co) Stat. 45 & 46 Vict. c. 38: inent. 132 0^ CORPOREAL HEREUTTAMENTS. Scheme of the The scheme of the Settled Land Act, 18S2 (/?), is to Act!'i8S2.*"'^ entrust the tenant for hfe with wide powers of disposi- tion exercisable by liini for the benefit of all parties entitled under the settlement {q), but to impose such conditions on the exercise of these powers as shall pre- vent his dealing with the land for his own profit at the expense of his successor's interests. In particular the Act does not permit him to receive any capital money arising under the Act, but directs its payment to trus- tees of the settlement for the purposes of the Act (?•), or into court (s). Thus the Act empowers {t) a tenant for life to lease the settled land for any purpose what- ever, whether involving waste {u) or not, for any term not exceeding (i.) in case of a building lease, ninety-nine years; (ii.) in case of a mining lease, sixty years; (iii.) in case of any other lease, twenty-one years in England or Wales (x) and thirty -five years in Ireland {y). But the principal mansion-house (if any) on any settled land, and the pleasure grounds and park and lands (if any) usually occupied therewith cannot be leased under this Act without the consent of the trustees of the settlement or an order of the Court : though this restriction does not apply where a house is usually occupied as a farmhouse, or where the site of any house and the pleasure grounds and park and lands (if any) usually occupied therewith do not to- gether exceed twenty-five acres in extent (?-). Every lease intended to take effect under this Act must be made strictly in accordance with the conditions ira- Noticeto posed by the Act. Thus a tenant for life intending to make a lease under this Act, must in general give due (p) Stat. 45 & 46 Vict. c. 89. (m) Ante, p. 127. {q) Sect. 53. {x) See s. 1, sub-s. 3; Williams's (r) See sects. 2 (sub-s. 8), 38, Cenveyancinor Statutes, 291, 299. 39; Stat. 53 & 5-i Vict. c. 69, s. 16. Uj) Sect. 65, sub-s. 10. («) Stat. 45 & 46 Vict. c. 38, (z) Stat. 53 & 54 Vict. c. 69, s. 8. 22. 10, replacing 45 & 46 Vict. c. 38, (t) Sect, 6. s. 15. trustees. OF AN ESTATE FOR LIFE. I33 notice of his intention to each of the trustees of the settlement and their solicitor, if known to the tenant for life {a). And every lease made under this Act must be by deed (J), and be made to take effect in possession not later than twelve months after its date (c) ; it mnst also reserve the best rent that can reasonably be obtained, regard being had to any fine taken, and to any money laid out or to be laid out for the benefit of the settled land, and generally to the circumstances of the case {cl)\ and must in other re- spects conform with the requirements of the statute {e). But a lease for a term not exceeding twenty-one years at the best rent that can be reasonably obtained without fine, and whereby the lessee is not exempted from punishment for waste, may be made by a tenant for life without giving any notice to the trustees; such a lease may, moreover, be made by writing under hand only, in cases v/here the term does not extend beyond three years from the date of the writing (_/). Building and mining leases are subject to additional special regulations {g). A fine received on the grant of a lease ^i^es on under any power conferred by this Act must be applied as capital money arising under this Act {h). Under a mining lease made under this Act, whether the mines Rent on Til 1 J 1 • 1 mining lease. or minerals leased are already opened or in work or not, unless a contrary intention is expressed in the settlement, part of the rent must be set aside and applied as capital money arising under this Act ; namely, (a) Stat. 45 & 46 Vict. c. 3S, days at the outside; and a counter- s. 45; Williams's Conveyancing part of every lease must be exe- Statutes, 344 — 347. See now stat. cuted; sect. 7, sub-ss. 3, 4. 47 & 48 Vict. c. 18, s. 5. (/) Stat. 53 k 54 Vict. c. 69, (b) Ante, p. 31. s. 7. (c) Stat. 45 & 40 Vict. c. 38, s. (g) Stats. 45 & 46 Vict. c. 38, 7, sub-s. 1. ss. 8—10; 53 & 64 Vict. c. 69, {(i) Sect. 7, sub-s. 2. ss, 8, 9. See Williams's Con- («) Every lease must contain a veyaucing Statutes, 303 — 306. covenant for payment of rent, and Ih) Stat. 47 and 48 Vict. c. 18, a condition of re-entry on non- s. 4. See Williams's Conveyanc- paymeut of rent withiu thirty ing Statutes, 292, 302, 325. 134 OF CORPOREAL HEREDITAMENTS. where the tenant for life is impeachable for waste in respect of minerals, three fourth parts of the rent, and otherwise one fourth part thereof; and in every such case the residue of the rent will go as rents and profits (i). Powers additional to or larger than the powers conferred by this Act may be given to the tenant for life by the deed under which he holds (k) ; and settlements often contain some relaxation of the restrictions imposed by the Act {I). Any lease made by a tenant for life otherwise than in accordance with the conditions of the Act will be vuid as agaiu&t his successors (?«.), though good for his own life. Tenant for The Act also empowers a tenant for life to sell or of^saie aud exchange the whole or any part of the settled land (n). exchange. j^^jj. (jv^r^Qi^jj i]^q game restriction is imposed on a sale as on a lease by the tenant for life of the principal mansion-house and lands usually occupied there- with {o). And due notice of intention to sell must be given to the trustees and their solicitor, as in the case of a lease [p). Every sale or exchange must be made at the best price or consideration that can reasonably be obtained (g). The proceeds of any sale made under the Act and any money agreed to be paid for equality of (i) Rtat. 45 & 46 Vict. c. 38. s. 12 & 13 Vict. c. 26, s. 2; 13 & 14 11. See anie, pp. 127—129 ; Wil- Vict, c, 17. See stat. 45 & 46 liams's Conve^'ancing Statutes, Vict. c. 38, s. 12; Williams's 807— 30t>. Conveyancing Statutes, 309. (k) See sect. 57. (n) Stat. 45 & 46 Vict. c. 38, ll) £. ff., as to the necessity of s. 3. See Wheelwriglit v. Walker, giving notice to the trustees, or of 23 Ch. D. 752; Ke Chaytor' s setting aside part of the rent on Settled Estate Act, 25 Ch. D. 651. making a mining lease, see Wil- (o) Ante, p. 132; see He Sn- liams's Conveyancing Statutes, bright' s Settleil Estates, 33 Ch. 1). SOB, 345—347, 506, 526. _ 429; Be Marquis of AUesbury' s (m) See Davies v. Daviex, 38 Settled Estates, 8 Times L. R. 157. Ch. D. 499, decided on the Settled {p) Ante, p. 132; see I>uke nf Estates Act, 1877. A lease made Marlborouah v. Sartoris, 32 Ch. bona fide in intended exercise of D. 616; Hatten'v. Russell, 38 Ch. the statutory power may, how- D. 334. ever, be good as a contract to (q) Stat. 45 & 46 Vict. c. 38, grant a lease, and so be binding s. 4. on the lessor's successors ; stats. OF AX ESTATE FOR LIFE. 135 any exchange effected under the Act must be paid, not to the tenant for Hfe, but to the trustees of the settle- ment or into Court, at his Option; and will then be applicable by the trustees according to his direction, or under the direction of the Court, in any of the au- thorized modes of einj^loyment of capital money arising under the Act (/'). These are stated in the note (s). (r) Stat. 45 & 46 Vict. c. 38, s. 22. (a) (ritiit. 45 ct 4ij Vict. c. 3S, s. 21). Capital money ari.sing under Application of this act, subject to payineut of claims properly payable thereout, and to capital money application thereof for any special authorized object for which the same arising under was raised, shall, when received, be invested or otherwise apphed the Settled wholly in one, or partly in one, and partly in another or others of Land Act, the following modes (namely): 1882, (i.) In investment on Government securities, or on other securities on vvhich the trustees of the settlement are by the settlement or by law (see stat. 52 & 53 Vict. c. 32) authorized to invest trust money of the settlement, or on the security of the bonds, mortgages, or deljen- turus, or in the purchase of the debenture stock of any railway company in Great Britain and Ireland incorporated by special Act of I'arliament, and having for ten years next before the date of investment paid a dividend on its ordinary stock or shares, with power to vary the investment in or for any other such securities : (ii ) 111 discharge, purchase or redemption of incumbrances affecting the inheritance of the settled land, or other the whole estate the subject of the settlement, or of laud tax, rent charge in lieu of tithe, crown runt, chief rent, or quit rent, charged on or payable out of the settled land : (iii.) In payment for any improvement authorized by this Act (see stats. 46 & 47 Vict. c. Gl, s. 29 ; 50 & 51 Vict. c. 30. He lord Egmonts Settled Estates, 45 Ch. D. 395) : (iv.) In payment for equality of exchange or partition of settled land : (v.) In purchase of the seignory of any part of the settled land, being freehold land, or ni purchase of the fee simple of any part of the settled land, being copyhohl or customary land: (vi.) In purchase of the reversion or freehold in fee of any part of the settled laud, being leasehold laud held for years, or life, or years determinable on life : (vii.) In purchase of land in fee simple, or of copyhold or customary laud, or of leasehold land held for sixty years or more unexpired at the time of purchase, subject or not to any exception or reservation of or in respect of mines or minerals therein or of or in respect of rights or powers relative to the working of mines or minerals therein, or ia other land : (viii.) In purchase, either in fee simple, or for a term of sixty years or more, of mines and minerals convenient to be held or worked with the settled land, or of any easement, right or privilege convenient to be held with the settled land for mining or other puri)osos : (ix.) In payment to any person becoming absolutely entitled or empowered to give an absolute discharge (see stat. 53 k 54 Vict. c. 60; 8. 14). (x.) In payment of costs, charges and expenses of or incidental to -^^Q OF CORPOREAL HEREDITAMENTS. Thev chiefly include investment in authorized securities, dihchai'ge of incumbrances affecting the whole estate in the settled land {i), payment for authorized improve- ments, and purchase of other lands to be made subject to the settlement. Any investment must be in the names or under the control of the trustees {u). Capital monej^ arising under the Act is, while uninvested or invested in money securities, made subject to the settle- ment as effectually as if it were land, and will go to the persons to whom the land, from which it arises, would have gone for the same estates and interests as they would have had in the land; the income of invested capital being paid to the persons who would have been entitled to the income of the land (x). Tenant for For the purposo of carrying into effect the powers of l!f^conv°rv^-'^ leasing, sale and other powers given by the Settled uuce(t/). Land Act, the tenant for life is empowered to convey the settled laud by deed for all the estate, which is the subject of the settlement, or for any less estate, as may be required {s). Such a deed will pass the land con- veyed, discharged from the settlement, under \vhich the the exercise of any of the powers, or the execution of any of the pro- visions of this Act: (xi.) lu any other mode in which money produced by the exeicise of a power of sale in the settlement is applicable thereunder. The Court may also order that the costs of legal proceedings taken for the protection of settled land be paid out of capital money raised by sale of part of the lands in settlement ; A'e Eari De La Warr's Estates, It) Cli. D. 587 ; stat. 45 & 46 Vict. c. 38, ss. Sri, 47. (t) Bystat. 53 & 54 Vict. c. Gil, empowered tenants for life under s. 11, a tenant for life has power to wills to convey, under the direction raise money on mortgage of the of the Court of Chancery, the vhole settled land for the purpose of dis- estate in their lands if a sale or charging an incumbrance thereon, mortgage thereof were directed not beiiig an annual sum payable for payment of the debts of the during a life or lives, or during a testator. These powers are now terra of years absolute or deter- generally superseded by stats. 13 minable. & 14 Vict. c. 60, s. 29; 15 & Iri («) Stat. 45 & 46 Vict. c. 38, s. Vict. c. 55, s. 1. 22, sub-s. 2. (?) See stats. 45 & 4fi Vict. c. SS, (x) Sect. 22, sub ss. 5, 6. s. 20, sub-s. 1 ; 53 & 54 Vict. c. H9, iy) Stats. 11 Geo. IV. & 1 Will. s. H. Williams's Conveyancing IV. c. 47 s. 12; and 2& 3 Vict. c. GO, Statutes, 321, 322. OF AN ESTATE FOR LIFE. I37 tenant for life holds, and from all estates and interests snbsisting or to arise thereunder : but will not displace or defeat (i.) any estates, interests or charges having 2jr ior it (/ to the settlement; (ii.) any other estates, in- terests or charges which have been conveyed or created for securing money actually raised at the date of the deed; or (iii.) any leases or grants made or agreed upon for vakie in money or its worth, before the date of tlic deed, by the tenant for life, or by any of his prede- cessors in title, or by any trnstees for him or them, nnder the settlement or under any statutory power, or being otherwise binding on the successors in title of the tenant for life ('?). Settlements are often made on one for life and others after him of land, which is sub- ject to prior mortgages or rent-charges. It will be seen that such interests in the land cannot be defeated by a sale under the Act ; nor other mortgages to secure money actually raised, including mortgages by the tenant for life of his life estate (J); nor leases granted under express or statutory powers. And if it be de- sired to sell the land freed from such interests, it will generally be necessary for the persons entitled thereto to concur in the sale. The powers of a tenant for life under the Settled Statutory J, , . , \ y c • , 1 1 powers cannot iand Act are not capable oi assignment or release, do be assigned. not pass to his assignee by operation of law or other- wise, and remain exercisable by him notwithstanding any assignment of his estate (c). But this is without prejudice to the rights of any assignee for value of the whole or any part of his estate ; which cannot generally be affected without the assignee's consent {d). A con- (a) Sect. 20, sub-s. 2; see Wil- 338, 41 Ch. D. 375. liams's Conveyancing Statutes, (c) Stat. 45 & -lij Vict. c. 38, s. 321. 323—325. 50, sub-s. 1. (j) See Jie Sebnghfs Settled {d) Sect. h(), sub-ss. 3, 4. Un- Estates, 33Ch. D. 429, 438: Cai-. less the assignee is actually in digan v. Carzon-Ilo'wti, 40 Ch. D. possession, his consent is not re- 138 OF CORPOREAL HEREDITAMENTS. tract by a tenant for life not to exercise any of his powers under the Act is void {e). And any provision in a settlement attempting to forbid a tenant for life to exercise any power under the Act is void (_/'). For further information respecting this very important statute, which must necessarily be studied by every intending practitioner, the reader is referred to the text of the Act itself, and to the notes thereto contained in the editor's " Conveyancing Statutes." The Act has been amended by Acts of 18S4, 1887 and 1890 ig). Improvement of settled land. By several Acts of Parliament of the present reign (A), and especially by the Improvement of Land Act, 1SG4 (/), facilities have been given fur borrowing money to be spent in making improvements on settled land by way of drainage and in a variety of other ways (k), and to be repaid with interest by equal instalments extending over a iixed term of years and charged as a rentcharge upon the inheritance of the land. The instalments are payable by a tenant for life during his lifetime ; and he is bound to maintain the improvements made (l). By quisite to the making by the tenant for life of leases under the Railways or Act at the best rent without fine. Canals. t Residence. t Reservoirs and Water supply. («) Sect. 60, sub-s. 2. (/■) Sect. 51. (g) Stats. 47 & 43 Vict. c. IS; 50 & 51 Vict. c. 50 ; and 53 & 54 Vict. c. G9. (A) Stats. 8&9Vict. c. 56, re- placing 3 & 4 Vict. c. 55 ; 9 & 10 Vict. c. 101, amended by 10 & 11 Vict. c. 11, 11 & 12 Vict. c. 119, 13 & 14 Vict. c. 81, and 19 & 20 Vict. c. 9, 12 & 13 Vict. c. 100. amended by 19 & 20 Vict. c. 9 and repealed by 27 & 23 Vict. c. 114. (i) Stat, 27 & 2S Vict. c. 114. (/t) By Stat. 45 & 46 Vict. c. S8, s. 30, the Act of 1864 is extended so as to comprise all improvements authorized by the Settled Land Act, 1882; see below, p. 121, n. (g). Settled lands may be charged under the Act of 1864 (ss. 78 et seq.) with the repayment of money subscribed for tiie construction of railways or canals* on or near to them and likely to benefit them. Stats. S3 & 34 Vict. c. 56, and 34 & 35 Vict. c. 84, added to the list of improvements authorized by the Act of 1864 the erection, comple- tion, or improvement of a mansion house suitable to the estate, as a resideuce+ for its owner, provided that the sum charged f(jr such pur- poses should not be more than two years' net rental of the whole estate. Stat. 40 & 41 Vict. c. 31 added the erection of reservoirs^ and other permanent works for the supply of water, and empowered subscriptions for the construction of waterworks by a water com- pany to be charged on settled lands. (l) Stats. 8 & 9 Vict. c. 56, ss. 10, 11; 9 & 10 Vict. c. 101, ss. 38, OF AN ESTATE FOR LIFE. 139 the Land Charges Registration and Searches Act, Registration 1S8S (j/i), rentcharges created under the Acts mentioned charges. on or after the 1st of January, 1889 (n), are void as against a purchaser for value of the land charged, or any interest therein, unless duly registered at the office of Land Registry. And after the expiration of one year from the first assignment made by act {7ite?' vivos after that date of a rentcharge previously created, the person entitled thereto shall not be able to recover the same as against a purchaser for vahie of the land charged, or any interest therein, unless the charge be duly registered in the same place before the completion of the purchase (p). In addition to the facilities so given for raising money improvements , . r , ^ • ^ under the to pay for the improvement oi land, capital money Settled Land arising from the sale of settled land or otherwise "^ » ^ -• under the Settled Land Act, 1SS2 {p), may now be applied at the instance of the tenant for life in pay- ment for any improvement authorized by that Act (q) I 39; 12 & 13 Vict. c. 100, ss. 21, 395. 26; 27 & 28 Vict. c. 114, ss. GU, (m) Stat. 51 & 52 Vict. c. 51, 72. Capital money arising; under s. 12. the Settled Land "Act, 18s2, may («) See sects. 2, 4. now be applied in redeeming such (o) Sect. 13. rent charges, when created in {p) Stat. 45 & 46 Vict. c. 38, s. respect of an improvement an- 21 (iii.); a/de, p. 135; see Wil- thorized by that Act; stat. 50 & hams' s Conveyancing Statutes, 51 Vict. c. 30, s. 1; A'e Lord 292. £ymonfs Settled Eatates, 45 Ch. D. (q> (Sect. 25). Improvements authorized by this Act are the making or ?.xecution on or in connection with, and for the benefit of settled land, of any of the following works, or of any works for any of the following purposes, and any operation incident to or necessary or proper in the execution of any of those works, or necessary or proper for carrying into effect any of those purposes, or for securing the full benefit of any of those works or purposes (namely): (i.) Drainage, including the straightening, widening or deepening of drains, streams and watercourses: (ii.) Irrigation; warping: (iii.) Drains, pipes and machinery for supply and distribution of sewage as manure: (iv.) Embanking or weiring from a river or lake, or from the sea, or a tidal water: uo OF CORPOREAL HEREDITAMENTS. Tenant for life But ill order to obtain this, the tenant for life is ^scheme?' required, before the work is done, to submit to the trustees or the Court a scheme for the execution of the improvement shewing the proposed expenditure (V.) Groynes; sea walls, defences against water: (vi.) Inclosing; straightenini; of fences; re-division of fields: (vii.) Reclamation; dry warping: (viii.) Farm roads; private roads; roads or streets in villages or towns: (ix.) Clearing; trenching; planting: (X.) Cottages for labourers, farm servants, and artisans, employed on the settled land or not; and (by stat. 4S & 4'J Vict. c. 72, s. 11) any dwellings available for the working classes, the building of which in the opinion of the Court is not injurious to the estate. See stat. 53 & 54 Vict. c. O'j, s. 18. (xi.) Farmhouses, offices and outbuildings, and other places for farm purposes: (xii.) Saw mills, scutch mills, and other mills, water wheels, engine- houses, and kilns, which will increase the value of the settled land for agricultural purposes, or as woodland or otherwise: (xiii.) Reservoirs, tanks, conduits, watercourses, pipes, wells, ponds, shafts, dams, weirs, sluices, and other works and machinery for supply and distribution of water, for agricultural, manufacturing, or other purposes, or for domestic or other consumption: (siv.) Tramways; railways; canals; docks: (XV.) Jetties, piers, and landing places on rivers, lakes, the sea, or tidal waters, facilitating transport of persons and of agricuUural stock and produce, and of manure and other things required for agricultural purposes, and of minerals and of things required for mining purposes: (xvi.) Markets and market places: (xvii ) Streets, roads, paths, squares, gardens or other open spaces for the use, gratuitously or on payment, of the public or of individuals, or for dedication to the public, tlie same beins necessary or proper in connection with the conversion of land into building land: (xviii.) Sewers, drains, watercourses, pipe making, fencing, paving, brick making, tile making, and other works necessary or proper in connection with any of the objects aforesaid: (xix.) Trial pits for mines, and other preliminary woiks necessary or proper in connection with development of mines: (XX.) Reconstruction, enlargement or improvement of any of those works. Bv stat. 53 & 54 Vict. c. 69, s. 13, improvements authorized by the Actof 1882 shall include : (i.) Bridges: (li.) Making any additions to or alterations in buildings reasonably necessary or proper to enable the same to bo let : (iii.) Erection of buildings in substitution for buildings within an urban sanitary district taken by a local or other public authoritj', or for buildings taken under compulsory powers, but so that no more money be expended than the amount received for the buildings taken and tVie site thereof: (iv.) The rebuilding of the principal mansion house on the settled lard : provided that the sum to he so applied shall not exceed one half of the annual rental of the settled land. OF AN ESTATE FOR LIFE. m thereon {?'). And a certificate of the Board of Agricul- ture, or of an engineer or surveyor approved by them, certifying that the work has been properly done and the amount properly payable by the trustees in respect thereof, or else an order of the Court is required before any capital money can be applied in payment for the improvement (s). But the Court may, in any case where it appears proper, make an order directing capital money to be applied in payment for any authorized improvement, notwithstanding that a scheme was not submitted, as required, before the execution of the improvement (t). The tenant for life is required to maintain improvements executed under the Act (w) ; and is protected from impeachment of waste (x) in respect of any stone, clay, sand, or other substance properly gotten, or timber properly cut for the pur])ose of making or maintaining any such improvement {y). * Under the same Act (3) a tenant for life may join or concur with any other pei'son interested in exe- cuting any improvement authorized by the Act, or in contributing to the cost thereof. In all other other im- respects, improvements which a tenant for life may ^™^^'"*^"'^' wish to make must be paid for out of his own pocket {a). Where land is given to a widow during her widow- Determinable hood, or to a man until he shall become bankrupt (Jj),~ (r) Stat. 43 & 46 Vict. c. 38, s. 27. s. 26, 8ub-s. 1; Be IJotchkin's (a) Nairn, v. Marjoribanks, 3 Settled Estates, 35 Cli. D. 41; see Russ. 582; Hibhert v. Coohe, 1 lie lialwer LyttorC s Will, 38 Ch. Sim. & Stu. 552; Caldecott v. D. 20. Broicn, 2 Hare, 144; Horlock v . (s) Sect. 26, 8ub-S3. 2, 3; stat. Smith, 17 Beav. 572; Dmine v. 52 kbZ Vict. c. 50. Dunne, 7 De Gex, M. & G. 207 ; it) Stat. 53 & 54 Vict. c. 69, s. Dent v. Di:nt, 30 Beav. 363; Be 13. Leigh's Estate, L. R. 6 Ch. 887; (7i) Stat. 45 & 46 Vict. c. 38, s. Drake v. Trefmis, L. R., 10 Ch. 28. 364; he Broadwater Estate, 33 (X) Ante, p. 127. W. R. 738. Xy) Sect. -ri. (b) Ante, p. 28. (a) Stat. 45 & 46 Vict, c. 38, 242 ^^ CORPOREAL HEREDITAMKNTS. or for any other definite period of tinie of uncertain duration, a freehold estate is conferred, as in the case of a gift for life (c). Such estates are regarded in law as determinable life estates {d) ; and their incidents are generally the same as tliose of ordinary life estates. A difference may occur in the right to take the emble- E-nbiements. ments, that is, the right of a tenant to reap the crop that he has sown, though he die or his estate terminate intfrican bcfore liarvcst (e). Thus, if a tenant for life die Ijefore note O, pp. ^ i-,i i5i. harvest, his executors will be entitled to the emble- ments, whether his estate were absolute or determin- able ; and his assignee or undertenant will have the same right. But if the estate should determine by the tenant's own act, as by the marriage of a widow holding during her widowhood, the tenant would have no right to emblements ; though the undertenant being no party • to the cesser of the estate, would still be entitled in the same manner as on the expiration of the estate by Tenants at death (/). With rcspcct to tenants at rack-rent {g), it is now provided that where the lease or tenancy of any farm or lands held by such a tenant shall determine by the death or cesser of the estate of any landlord entitled for his life, or any other uncertain interest, instead of claims to emblements, the tenant shall continue to hold and occupy such farm or lands until the expiration of the then current year of his tenancy, paying a proportionate rent to the succeeding owner {h). Apportion- By the common law, if lands were let reserving rent periodically, as on the usual quarter-days, nothing M'as (c) Ante, p. 70. (f) Co. Litt. 55 b; 2 Black. {d) Co. Litt. 42 a; 2 Black. Comm. 122—124; see Graves v. Comm. 121. >Fe^(/, 5 B. & Ad. 105. (e) See 1 Wms. Exors. pt. ii. {(j) Ante, p. ]17, n. lo). bk. ii. cb. ii. § ii., pp. 715 et !(iyable (/). Hence in old times if a tenant for life had let the lands reserving rent quarterly or half-yearly, and died between two rent days, no rent was due from the under-tenant to anybody from the last i-ent day till the time of the decease of the tenant for life. But in the reign of King George II. a remedy for a proportionate part of the rent, according to the time such tenant for life lived, was given by Act of Parliament to his executors or administrators iji). Formerly, also, Avhcn a tenant for life had a power of leasing (Z), and let the lauds accordingly, i-eserving rent periodically, his executors had no right to a proportion of the rent, in the event of his decease between two quarter days ; and, as rent is not due till midnight of the day on which it is made payable, if the tenant for life had died even on the quarter-day, but before midnight, his executors lost ' the quarter's rent, which went to the person next entitled {rri). But by a modern Act of Parliament (w) the executors and administrators of any tenant for life who had granted a lease since the IGth of June, 1834, Americnn the date of the Act, might claim an apportionment of the '^y. rent from the person next entitled, when it should be- come due. This Act, however, did not apply unless the demise were made by an instrument in writing {p). But the Apportionment Act, 1870 (/>>), now provides (<^), Apportion^ that after the passing of that Act, which took place on i87o. the 1st of August, 1870, all rents and other periodical (t) Co. Litt. 292 b; 3 Rep. & S. 470; Plummer' v. WliUeley, 128. Johnson, 585; Llewellyn v. Rous, (/:) Stat. 11 Geo. II. c. 19 s. L. R. 2 Eq. 27; 35 Beav. 591. 15, explained by stat. 4 & 5 (o) See Cattley v. Arnold, 5 Jur., Will. IV. c. 22, s. ]. See Ex, N. S. 361; 7 W. Rep. 245; 1 ■partt Srnytk, 1 Swanst. 337, and J. & H. 651 ; Mills v. Trumper, taa learned editor's note. L. R. 4 Ch. 320. (l) See a/i<«, p. 130. (/)) Stat. 33 & 34 Vict. c. 35; (m) Norris v. Harrison, 2 Mad. Ilasluck v. Fedley, L. R. 19 Eq. 268. 271; Constable v. Constable, 11 («) Stat. 4 & 5 Will. IV. c. 22, Ch. I). tiSl. 8.2; Lock V. De liurgh, ^\)q (i. (), the abov^e enactments were both ^^^^;^^^ replaced by more comprehensive provisions to the same "5^^. *' •'^' effect. When one person has an estate for the life of another, Oe-stm que vie it is evidently his interest that the cestui que vie, or he [!]-dlred to be for whose life the estate is holden, should live as long P™'^"'^'^'^' as possible; and, in the event of his decease, a tempta- tion might occur to a fraudulent owner to conceal his death. In order to prevent any such fraud, it is pro- vided, by an Act of Parliament passed in the reign of Queen Anne (c), that any pei'son having any claim in remainder, reversion or expectancy, may, upon affidavit ' (z) The statute of Frauds, 29 Ex parte Grant, 6 Vcs. 512; Ex Car. II. c. 3, s. 12. parte Whalley, 4 Fais.s. 5fil ; L'e (a) Stat. 14 Geo. II. c. 20, s. 9; Isaac, 4 Myl. & Crai";, 11 ; lie see Co. Litt. 41 b, n. (n^ Lingen, 12 Sim. 104; Re C'Iosdc//, (b) Stat. 1 Will. IV. & 1 Vict. 2Sin. &G. 4(); A'e Dennis, 7 Jur., c. 26, ss. 3, 6. N. S. 230; J^e Owen, 10 Cli. D. (c) Stat. 6 Anne, c. 18. See 1G'> ; lie Stevens, Z\ Ch. l>. ZW. W. R. P. ^ ^^Q OF CORPOREAL HEREDITAMENTS. that he hath cause to believe tliat tlie ce^stul que vie ia dead, and tliat his death is concealed, obtained an order from the Lord Chancellor for the production of the cestui que vie in the method prescribed by the Act; and if such order be not complied with, then the cestui que vie shall be taken to be dead, and any person claiming any interest in remainder, or rever^ion, or otherwise, may enter accordingl3^ The Act, moreover, pro- vides (<:?), that any person having any estate j9ur mitre Tie, who after the determination of such estate, shall continue in possession of any lands, without the ex- press consent of the persons next entitled, shall be adjudged a trespasser, and may be proceeded against accordingly. Quasi entail. If an Q^i^tQ puv autre vie should be given to a person and the heirs of his body, a quasi entail, as it is called, will be created, and the estate will descend, during its continuance, in the same manner as an ordinary estate tail. But the owner of such an estate in possession may bar his issue, and all remainders, by an ordinary deed of conveyance (<^), without any inrolment under the statute for the abolition of fines and recoveries. If the estate tail be in remainder expectant on an estate for life, the concurrence of the tenant for life is necessary to enable the tenant in tail to defeat the subsequent remainders {/). Persons I^ ^^ important to notice that all the powers of a iiaving the tenant for lite under the Settled Land Act, 1882 {q\ are powers or a t ^v /^ tenant for life jjy that Act (A) cxprcssly Conferred on each of the under the -^^ . , i • . . • Settled Land following pcrsous, wlicu his cstato Or mterest is m Act, 1882. possession : — (d) Stat. 6 Anne, c. 18, s. 5. Champion, 3 De Gex, M. & G. («) Fearne, Gout. Rem. 495 et 202. sea. {g) Ante, pp. 182—138. if) AUeii V. Allen, 2 Dru. & (h) Stat. 45 &. 46 Vict. c. 38, War. 3u7, 324, 332; Edwards v. 8. 58, sub-s. 1 (iv., v., vi., ix.). OF AN ESTATE FOR LIFE. 147 (a) A tenant for years determiDable on life, not holding merely under a lease at a rent; (b) A tenant for the life of another, not holdino-'repant^wr ^ ' ' o autre me. merely under a lease at a rent ; (c) A tenant for his own or any other life, or for years determinable on life, whose estate is liable to cease or be defeated in any event during that life(^), or is subject to a trust for accumulation of income. In addition to estates for life expressly created by the acts of the parties, there are certain life interests, created by construction and operation of law, possessed by husbands and wives in each other's land. These interests will be spoken of in a future chapter. There are also certain other life estates held by persons subject to peculiar laws; such as the life estates held by beneficed clergymen. These estates are exceptions from the general law ; and a discussion of them, in an elementary work like the present, would tend rather to confuse the student than to aid him in his arrasp Qf^mei-ican o 1 note if, on those general principles, which it should be his first ^statf^"^ object to comprehend. issies. (i) See ante, pp. 88, 141, 142. k2 148 OF CORPOREAL HEREDITAMENTS. AMERICAN NOTES. ' Use of word "heirs.'' — The coramon-law rule given ia the text has been changed by statute in most of the states. It has been very generally provided that the word hei7's or its equivalent is not necessary to create or convey an estate in fee, and that every grant or devise of real estate passes the whole interest of the grantor or testator, unless the intent to con- vey a less interest appears in express terms, or is necessarily implied. Such a provision will be found in the statute laws of New York, Illinois, Michi- gan, Wisconsin, Iowa, Minnesota, Kansas, Nebraska, Virginia, West Vir- ginia, Kentucky, Texas, California, Dakota and several other states. See 1 R. S. of N. Y. 748, § 1 (8th ed. 24G1, § 1); R. S. of 111. (Cothran's ed., 1889), chap. 30, §13; Howell's Ann. Stat. Mich., §§ 5730, 5786; Ann. Stat, of Wis. (1889), §§ 2306, 2378; McClain's Ann. Code of Iowa, §§ 3100, 3101; G. S. of Minn., chap. 40, § 4 (Kelly, 1891, § 4113); G. S. Kans. (1889) 1109, 7358; C. S. of Neb. (1893), chap. 73, §§ 49, 50; chap. 23, § 124; Code of Va. (1887), §2430; Code of W. Va. (1891), chap. 71, § 8; G. S. of Ky. (Bullitt & Feland. 1888), chap. 63, § 7; 1 Sayles' Texas Civil Stat., art. 551 ; Cal. Civil Code, §§ 1072, 1329; C. L. of Dakota (1887), § 3241. It will be noticed that in the United States the statutes very generally dispense with the necessity of using words of limitation, not only in case of a devise, but also in case of a conveyance, by deed, of the fee. Legis- lation has not changed the common law to this extent, however, in all the states. ^ Right TO estovers — Waste. — Tlie common-law I'ight to estovers is recognized in the United States. Indeed, tlie rules by which the exercise of this right is controlled and limited aie more liberally interpreted here than in England. This liberality is due to a difference in the condition of the two countries. Our territory is extended, is in many sections sjoarsely settled, and is as yet to a large degree undeveloped. The land must be cleared and fenced, shelter must be provided for man and beast, and the fuel necessary for domestic purposes must be had. The necessities of the situation are such and the growth of timber is, comparatively speaking, so abundant that good husbandry, as generally understood in the country, seems to require a generous interpretation of the rules governing estovers. Wdste — English and American doctrine. — In England there are certain trees, known as timber trees, which cannot, under any circumstances, be cut by the tenant for use as firewood. Oak-trees are thus protected. But in this country it is not necessarily waste to cut such trees for use as fuel. See Padeiford v. Padelford, 7 Pick. 153. If the inheritance is not preju- diced, the act cannot be deemed waste. Pi/achon v. Stearns, 11 Mete. 304, 311. "The ancient doctrine of waste," says Wilde, J., in the case last cited, "if universally adopted in this country would greatly impede the l)rogres3 of improvement, without any compensating benefit. To be bene- OF AN ESTATE FOR LIFE. 149 ficial, tlierefore, the rules of law must be accommodated to the situation of the country and tlie course of affairs here." See Wurd v. Sheppard, 2 Hay- ward (N. C), 461; s. c, a Am. Dec. 625. To convert meadow land into pasture land would be regarded as waste under the English rules, but it would not be so regarded in the United States, unless it should appear that the change would be detrimental to the inheritance. See Clemence v. Steere, 1 R. I. 272; s. c, 53 Am. Dec. G21; Crockett v. Crockett, 2 Ohio St. 181. It has been held in many states that it is not waste for tiie life tenant to cut down wood or timber so as to tit the land for cultivation or pasture, if he does not thereby damage or diminisii the value of the inheritance and acts in conformity with the rales of good husbandry. Wilhlnson v. Wilkin- son, 59 Wis. 557 and cases. It is so held in Canada. See Saunders v, Breakie, 5 Ont. R. G03; Drake v. Wigle, 21 U. C, C. P. 405. When timber is cut for the purpose of clearing the land for cultivation, or when dead or decaying trees are removed for tlie purpose of giving the trees that are alive a better opportunity for development, and this is done in accordance with a judicious course of husbandry, the tenant is not guilty of waste, even though the trees so cut are sold or consumed off the farm. Keeler v, Eastman, 11 Vt. 293; Davis v. Gilliam, 5 Ired. Eq. (X. C.) 308. See, also, Bayers Y. Hoskinson, 110 Pa. St. 473; King v. Miller, 99 N. C. 583; s. c, 6 S. E. Rep. 660. The scarcity of timber upon an estate is not a reason for depriving the life tenant of its use in repairing buildings and fences on the premises ; but under such circumstances the tenant sliould exercise care in the use of the timber. Calvert v. Rice (Ky.), 16 S. W. Rep. 351. The right to reasonable estovers includes, under some circumstances, estovers for tlie servant of the tenant, even though tiie servant is living in a separate house. Gardiner v. Derring, 1 Paige's Ch. 573; Smith v. Jevett, 40 N. H. 530; Miles V. Miles, 32 N. H. 147. Restrictions upon right to estovers. — The cases cited thus far in this note tend to show tlie liberality of our courts in regard to the rights of the tenant to estovers. It should be remembered, however, that he should always exercise those rights in such a way that no permanent injury to the inheritance may result. There are certain limitations that must be observed. Thus the tenant in cutting timber for the purposes of fuel or repairs must appropriate only such as he needs for present use, and he should cut only such as is fit for the use contemplated. Whatever is cut must be used by him on the premises and not elsewhere. Fuller v. Wason, 7 N. H. 341, A tenant cannot sell trees in order thereby to pay the expense of cutting and conveying to his house tiie wood which he is entitled to as fuel. If a sale of trees can be made by a tenant for one purpose, it can be made for another, and so all restraint in the matter of estovers might be removed. This the law will not permit. Johnson v. Johnson, 18 N. H. 594. This line of reason- 150 OF COKPOKEAL HEREDITAMKNT8. iug undoubtedly prompted the holding that a life tenant cannot cut and sell wood or timber for the purpose of raising money to pay for repairs upon the premises, however necessary or indispensable the repairs may be. {Dennett v. Dennett, 43 N. U. 499), and, further, that the tenant cannot cut timber and exchange it for firewood. Padelford v. Padelford, 7 Pick. 153. A tenant may elect to supply himself with firewood from other sources tiian the estate which he occupies. If he does so, he thereby waives all claim for any supply for the time being from the jiremises. He cannot under such circumstances, therefore, cut and sell trees that he might have used for firewood. See Phillips v. Aden, 7 Allen, 115. Where a village property and a farm were set off to a widow as her dower, it was held that she liad no right to wood from the latter for use upon the former. Cooh v. Gooh, 11 Gray, 123. See, also, Miles v. Allies, 32 N. H. 147. But it was held in Otcen v. Hyde, 6 Yerg. (Tenn.) 334, that a dowress may, without being guilty of waste, cut down timber on one lot of the dower estate for use in making fences upon another lot of the same estate, and that she may do this, too, although the reversion in the two lots may be in different per- sons. See, also, Dalton v. Dalton, 7 Ired. Eq. (N. C.) 107. Questions regarding estovers solved by reference to surrounding conditions. — It will be clearly apparent from an examination of tiie cases that all ques- tions connected with the right to estovers must, in the United States, from the very nature of things, be solved largely by reference to the conditions surrounding the parties, and that it is impossible to lay down rules that can be universally applied. What is clearly waste in the old and thickly settled portions of the country could not, in many cases, with reason or propriety, be so regarded in the newer and partially developed portions. And what was not waste at one time, may, in the same place, on account of changed conditions, be waste at another. What in that part of the country where the controversy arises, do the rules of good husbandry at the time require ? This must in every case be the important question. s Remedies for waste in United States. — In the United States the old remedies for waste are practically obsolete. In several of the states an action on the case in the nature of waste is the usual remedy for waste already committed ; in others a special remedy is provided by statute. For the restraining of threatened waste and the stopping of waste already begun, an effective remedy is found in the injunction. In nearly all tlie states, the remedies are, to a greater or less extent, regulated by statute. ■* These statutes are, of course, of local application only. 'This legislation is probably peculiar to England. It is believed that nothino- similar is to be found in the United States or Canada. OF AN ESTATE FOR LIFE. 151 BRIGHT TO EMBLEMENTS IN UNITED States. — The right to emblements is the right which a tenant, or in case of the tenant's death, his proper legal representative, has to take away, after the tenancy has ended, such annual products of the soil as have come from his own care and labor. The crops which may be taken are those only which are annually renewed. Therefore, clover or other grasses that endure for more than one year can- not be taken; nor can the fruits of trees growing upon the land, even though they have been planted by the tenant. An exception is generally recognized in the case of trees planted by a nursery-man for the purpose of sale simply. Such trees may be considered as emblements. Hops, also, may be removed by the tenant as emblements. Though grown on perma- nent roots, they require annual training and culture. Sec 1 Wash, on Real Property (5th cd.), 139. In this country emblements include the straw that supports tlie grain. See Craig v. Dale, 1 Watts & S. (Pa.) 509; s. c, 37 Am. Dec. 477. The right to emblements is only given to tenants whose estates are unccrtaia iu duration^ As a rule, therefore, it attaches as an incident only to tenancies for life, at will and from year to year. The ex- ecutors or administrators of a deceased tenant, where the right to emble- ments exists, may exercise it. It is said that the right rests partly upon the idea of compensation, but that its chief basis is to be found in the notion that by the giving of the right husbandry is encouraged. The foregoing propositions are elementary, and are generally recognized in tlie United States. See Clarh v. Harvey, 54 Pa. St. 142, Reiff\. Reiff, 64 Pa. St. 134; Reilly y. Ringland, 39 Iowa, 106; Martin v. Knapp, 57 Iowa, 336; Sherburne v. Jones, 30 Me. 70; Thornton v. Burch, 20 Ga. 791; Davis V. Brocklehanl; 9 N. H. 73; Toicnev. Bowers, 81 Mo. 491; Debow v. Culfax, 10 N. J. Law, 128 (151). Estate must be uncertain — special custom. — As stated above, in order that the tenant may be entitled to emblements, his estate must be uncertain as to its duration. Hence, a tenant for years cannot, as a rule, claim emble- ments. He knows when his interest is to end, and if he plants a crop which he cannot, in the ordinary course of events, harvest before that time, he does so with his eyes open, and he must suffer tlie consequences. Whit- marsh V. Cutting, 10 Johns. 360; Reader v. Sayre, 70 N. Y. 180; Sanders v. Ellington, 77 N. C. 255, 258; Dircks v. Brant, 56 Md. 500. But on ac- count of a special custom prevailing in some parts of the country, a tenant is permitted to re-enter and cut and harvest the crop that he has sown or planted. StuHz v. Dicely, 5 Binn. (Pa.) 285; Biggs v. Brown, 2 Serg. & R. (Pa.) 14; Van Doren v. Eoeritt, 5 N. J. L. 460; Howell v. Schenck, 24 N. J. L. 89. In the last case it is held that the rule does not apply to spring crops, sucli as oats, for example, where the tenancy expires at the usual termination of the agricultural year, unless they have been sown by consent 153 OF CORPOREAL HEREDITAMENTS. cf tl)e landlord. Foster v. Hohinson, 6 Ohio St. 90; Clark v. Banls, 6 Houst. (Del.) 584. But see, contra, Harris v. Carson, 7 Leigh (V:i.), 632; s. c, 30 Am. Dec. 510. Fitting ground gives no right to emhlements. — The right to emblements does not obtain until the seed is sown. The fitting of tlie ground for the seed does not give tiie right. Hence, if a tenant at will is ousted after he has ploughed and manured the laud, he must lose his labor, altiiough, if he had put in tiie seed before his tenancy was ended, he would have been entitled to the emblements. Price v. Pickett, 21 Ala. 741. In Virginia, however, this doctrine is changed by statute, and the tenant, who would have been entitled to emblements if the ground had been sown, can claim and collect a reasonable compensation for liis labor spent in the preparation for the crop. See Code of Va. (1887), § 2808. The law of emblements has been considerably changed by statute in this state (see §§ 280G-2809, in- clusive), and the same is true of West Virginia and one or two other southern states. See Code of W. Va. 711, 712, §§ 1-3, inclusive. Estate terminated hy default. — One whose estate is terminated by his own default is not entitled to emblements, neither would his tenant be, wlio, with full knowledge of the facts, takes the land after the default and dur- ing the pendency of an action for possession by the owner of the reversion. An undertenant, however, is not prejudiced in regard to his riglit to em- blements by the acts of a lessee when the default does not happen until after the underlease has been made, and the undertenant is in no way con- Inccted with it. A sublessee is frequently entitled to emblements when thel [original lessee would not be. See Samson v. Ease, 65 N. Y. 411. I ' Apportionment of rent. — In the following, and ^irol^ably in other states also, it is provided by statute that when a life tenant who has de- mised lands sliall die, his executors or administrators may recover from the undertenant the proportion of the rent due at his death. See Public Statutes of Mass., chap. 121, § 8; 1 R. S. of New York, 747, § 23 (3th ed., pp. 2458, 2459); Revision of N. J., 570, § 2; Briglitly's Purdon's Digest (Pa.), 518, § 57; Indiana Statutes (1894), § 7104 (5223); Wisconsin Ann. Statutes (Sanborn & Berryman), § 2193; Ann. Code of Iowa (McClainl, §3186; Code of Va. (1887), §2809; General Statutes of Ky. (UuUitt & Feland, 1888), chap. 39, § 30; R. S. of Mo. (1889), § 6359; Ann. Code of Miss. (1892), § 2543 (1328). The English Apportionment Act, 1870, referred to in the text, has been re-enacted in Ontario. See R. S. of Ontario (1887), chap. 143, §§ 1-6, and similar legislation has been had in a few of our states. See, for example, Laws of New York (1875), chap. 542 ; R. S. of N. Y. (8th ed.), pp. 25G3, 2564; Code of Va. (1887), § 2810; Code of W. Va. (1891), 713, 713, §§ 1-4. OF AN ESTATE FOR LIFE. 158 ^ Estate pur autre vie. — In the United States there has also been legishition upon this subject. For example, it is provided by statute in New York tliat an estate lor tlie life of another, whether limited to heirs or otherwise, shall be deemed a freeliold only during the life of the grantee or devisee, but after his death it shall be deemed a cliattel real. See 1 R. S. of N. Y. 722, § 6 (8th ed., p. 2431, § G). There is a similar statute in Michigan and probably in other states. See 3 Howell's Ann. Statutes (Mich.), § 5522. In Massachusetts, on the other hand, this interest de- scends like estates in fee. Public Statutes of Mass. (1882), chap. 125, § 1. This is the case also in Ontario and in Nova Scotia. See 1 R. S. of Ontario (1887), chap. 108, § 31; R. S. of Nova Scotia, cliap. 90. § 1. ^ The homestead estate. — The description of the life estate and its incidents, as given in the text, should, for the benefit of the American stu- dent, be supplemented by a brief consideration of tlie liomestead estate, which is one of great importance in this country. It is of statutory origin, and exists at the present time in nearly all of the states. Its incidents are such that it is usually treated as a life estate, and it may properly be de- scribed in this connection. Statute provisions differ as to details. — Tlie statute provisions of the different states upon this subject vary considerably as to details, and the interpretation put upon them by the courts is by no means harmonious. There are, however, certain features in common. All tliat can be attempted here is a general outline of the ordinary and usual characteristics of tlie estate. What is the homestead estate ? — In a general way the homestead estate may be said to be an interest in land, usually a life interest, that is by statute made exempt from sale under execution or other process. The policy that prompted the creation of this estate was to secure to the house- holder and his family a home beyond the reach of creditors, and thereby to save him and those dependent upon him from becoming public burdens. The constitutions of several of the states have provisions concerning the homestead exemption. Extent and value erf homestead. — The extent and value of the prop- erty that may be claimed as exempt varies in the different states. To illustrate : In California the homestead consists of the dwelling-house in which the claimant resides and the land on which it is situated, selected as provided by law, the limit as to value being $5,000 if the selection is made by tlie head of a family and $1,000 if made by any other person. Civ. Code Cal., §§ 1237, 12G0. By the constitution of Florida the home- stead exemption extends to one hundred and sixty acres of land, or half an acre within any incorporated city or town, owned by the head of a 154 OF COEPOEEAL HEREDITAMKNTS. family residing in the state. Const, of Fla. (1868), Art. X, § 1. Tlie ex- emption in Illinois extends to the farm or lot of land and the buildinj^s thereon, owned or rightly possessed by lease or otherwise, and occupied as a residence, $1,000 being the value limit. R. S. of 111. (1889), chap. 52, § 1. An exemption to the amount of $600 in either real or personal prop- erty is provided for in Indiana. 1 Ind. Statutes (1894:, Barns' ed.), § 715 (70o). In Iowa the homestead embraces the house used as a home by the owner, or, if he have two, the one which he may elect, and one or more lots or tracts of land, with the buildings thereon and other appurtenances, not to exceed, however, if within a town plat, one-half acre in extent, and if not within such plat, forty acres. But in no case can the homestead embrace different lots or tracts unless they are con- tiguous, or unless they are habitually and in good faith used as a part thereof. The value limit is $500. It is also provided that a shop or other building situated on the homestead property and really used by the owner in the prosecution of his business, and not exceeding $300 in value, may be deemed appurtenant to Ihe homestead. 1 McClain's Ann. Code of Iowa, §§ 3169-3 1 73. In Kansas the constitution and statutes provide for a homestead of one hundred and sixty acres of farming hxnd, or of one acre within the limits of an incorporated town or city, together with all improvements on the same, if occupied as a residence by llie family of the owner. Const, of Kan., Art. XV, § 9; 1 General Statutes (1889) (3996), chap. 38, § 1. In Kentucky the exemption extends to "so much land, including the dwelling-house and appurtenances owned by the debtor, as shall not exceed in value $1,000." General Statutes of ■ Ky. (Bullitt & Feland, 1888), chap. 38, Art. XIII, § 9. The exemption in Maine is of a lot of land and dwelling-house and the out-buildings thereon, not exceeding $500 in value. K. S. of Me. (1883), chap. 81. In Massachusetts an exemption is provided for "to the extent in value of $800, in the farm or lot of land and buildings thereon, owned or rightly possessed by lease or otherwise and occupied by " the householder having a family, as a residence. Public Stat'.ites of Ma-;s. (1883), chap. 123, § 1. In Michigan the homestead exeraj)tioa extends to forty acres of land and the dwelling-house thereon and the appurtenances, if not included in any town plat, city or village, or, instead of this, it may be any lot in any city, village or recorded town plat, or such parts of lots as shall be equal thereto, and the dwelling-house thereon and the appurtenances. The homestead, in either case, cannot exceed in v;due $1,500. Const, of Mich., Art. XVI, § 2; 3 Howell's Ann. Statutes (Mich.), § 7731. In Minnesota the amount of land exempted cannot exceed eighty acres, if in an agricultural district, or one lot if within the platted por- tion of any incorporated town, city or village having over five thousand OF AN ESTATE FOR LIFE. 155 inhabitants, or one-half acre if the number of inhabitants is less than five thousand. The exemption also includes the dwelling-house on the land and its appurtenances. Kelly's Statutes of Minn. (1891), § 3941. In Miss- issippi tlie quantity of land exempted in the country is one hundred and sixty acres, while the exemjition in cities, towns and villages extends to the land and buildings owned and occupied as a residence by the house- holder having a family. The value limit in either case is $3,000. Ann. Code of Miss. (1892), §§ 1970, 1971. In Missouri the exemption includes the dwelling-liouse and appurtenances and in the country not more than one hundred and sixty acres of land, the value limit i)eiug $1,500. In a city of forty thousand people or more, the exemption includes not more than eighteen square rods of ground, the value limit being $3,000; in a city of ten thousand and less than forty thousand, thirty square rods of ground, and in a city or incorporated town or village of less than ten thousand, five acres of ground. lu the last two cases the value limit is 11,500. 2 R. S. of Mo. (1889), § 5435. In Nebraska the exemption is lim- ited to the dwelling-house and its appurtenances and the land on which it is situated, not exceeding one hundred and sixty acres, provided it is in tlie country, or a quantity of contiguous land not exceeding two lots within any incorporated city or village. The limit as to value is $2,000. Compiled Statutes of Nebraska (1893), chap. 30, § 1. Tlie homestead exemption in New Hampshire is of an estate or interest worth $500. Public Statutes of N. H. (1891), chap. 138, § 1. The New Jersey statute exempts a lot and the buildings thereon of the value of $1,000. Revision of N. J. (1877), p. 1055. In New York the exemption is of a lot of land, with one or more buildings thereon, not exceeding in value $1,000. N. Y. Code Civ. Pro., § 1397. In Ohio "a family homestead not exceeding §1,000 in value" is exempt; and the right extends to lessees and owners of buildings standing on another's land. R. S. of Ohio (Giauque, 1890), §§ 5435, 5436. The con- stitution of Texas provides that "the homestead, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon; the homestead in a city, town or village shall consist of lot, or lots, not to exceed in value $5,000, at the time of their designation as the homestead, without refer- ence to the value of any improvements thereon." Const, of 1876, Art. XVI, § 51. A homestead consisting of a dwelling-house, out-buildings, and the land used in connection therewith, not exceeding |500 in value, is exempt in Vermont. Rev. Laws of Vt. (1880), § 1894. The Wisconsin statute fixes the limit of the homestead exemption at forty acres, if the land is used for agricultural purposes, or, if it is in a city or village, at one-quarter of an acre, and the dwelling-house thereon and its appurtenances. There is no provision as to ralue. 2 Ann. Stat, of Wis. (1889), § 3983. 156 OF CORPOREAL HEREDITAMENTS. Homestead acts ns a rule UhernUy construed. — It is upparent from the fore- going tliat the most of the states have shown a good degree of liberality io their homestead exemption laws. The general policy seems to have been to secure to the debtor and his family more than a mere shelter. Indeed, xmder some of the provisions, it is quite possible for them to live in com- parative luxury, and still be beyond the reach of creditors. In a few of the states, on the other hand, the exemption is meager. In some, the pro- visions are strictly construed, as being in derogation of the common law. See Guillory v. BevUle, 21 La. Ann. 686; OaUigar v. Payne, 34 La. Ann. 1057. But generally the homestead acts have been construed liberally. See, for example, Barber v. Boraheck, 36 Mich. 399; Bouchard v. Bowassa, 57 Mich. 8; Biggs v. Sterling, 60 Mich. 643; Deere v. Cha.pman, 25 111. 610 (498); Weisbrod v. Daeniche, 36 Wis. 73: Jarvais v. Moe, 38 Wis. 440, 446. ISIauy other cases might be cited under this head, but that a liberal con- struction of the homestead statutes is the general rule, will sufficiently ai>pear from an examination of the cases given herein in support of other propositions. Mature of ownership claimant mzist have. — The rule is not the same in all of the states as to the nature of the ownership that a claimant under the homestead laws should have. An ownership in fee is sulficient every- where ; but in some of the states the right maybe claimed where the interest is less than a fee. Thus in Iowa, Illinois, Massachusetts and Mississippi, and probably in other states, it may be claimed in an estate for years. Pelan v. De Beoard, 13 Iowa, 53 ; ConMin v. Foster, 57 111. 104, 107; Public Statutes of Mass. (1882), chap. 123, § 1; Johnson v. Bichardson, 33 Miss. 462. It has also been held in Illinois that homestead may be claimed in a life estate, and it would seem that this must necessarily be the holding wherever the interest may be had in an estate for years. Deere v. Chapm,an, 25 111. 610. But the Illinois court has declined to extend the right to a building on another's land. Brown v. Keller, 32 111. 151. The Snpreme Court of Michigan, on the other hand, holds that the right ex- tends to a house that stands upon laud not owned by the person claiming the exemption, and further, that the removal of such a house by its owner to another site does not subject it to seizure and sale while in transit. Bunker v. Paquette, 37 Mich. 79. It should be said that the Michigan stat- ute in terms exempts a house situated on the land of another, if it is claimed and occupied as a homestead. See 2 Howell's Ann. Statutes (Mich.), § 7726. It is held in Michigan and Illinois, and probably in other states, that a homestead may be claimed in land of which a person is in possession under a contract of purchase. McKee v. Wilcox, 11 Mich. 358; Blue ^. Blue, 38 III. 9; Stafford v. Woods (111.), 33 N. E. Rep. 539. In some of the states the homestead right does not attach where the property OF AN ESTATE FOR LIFE. 157 is held in common with others. The J. 1. Cam Company v. Joyce, 89 Tcnn, 337; Fitzgerald v. Fernandez, 71 Cal. 504 ; Thurston y . Maddochs, 6 Allen, 437 ; West v. Ward, 26 Wis. 579; 8imon v. Walher, 28 La. Ann. 608; Ven- tress V. Collins, 28 La. Ann. 783. But in other states the fact tliat the property is held in common is no objection to the attaching of the riflit. Greenwood V. Maddox, 27 Ark. 648, 060; Rohson v. Hough, 56 Ark. 621; s. c, 20 S. Vv'. Rep. 523; Thorn v. Thorn, 14 Iowa, 49; Hewitt v. Puuikin, 41 Iowa, 35; Tarrant v. Swain, 15 Kans. 146; Horn v. Tufts, 39 N. H. 478; Giles V. Miller (Neb.), 54 N. W. Rep. 551; Lozo v. Sutherland, 38 Midi, 168; Sherrid v. Southwick, 43 Mich. 515; Cleaver v. Bigelow, 61 Mich. 47; Williams v, Wethered, 37 Tex. 130; Smith v. Descha>unes, 37 Tex. 429; Mc- Clary v. Dixby, 36 Vt. 254. 5bii; long estate continues. — The homestead right is, in most of the states, an interest that continues during the life or lives of those wlio are entitled to it, excepting in the case of minor cliildren. The provision generally is that the estate shall be for tlie life of the husband, or the one first entitled to it, and that, upon his death, it shall continue for the benefit of the sur- viving widow during her life or widowhood and of tlie children during their minority. But the widow and cliildren are jointly entitled to only one homestead- Each cannot claim a separate one as against the debts of the deceased owner. Carolina Nat. Bank v. Senn, 25 S, C. 572. In some states the widow is entitled to iiomestead in addition to her dower interest. Monk v. Capen, 5 Allen. 146; Mercier v. Chace, 11 Allen, 194; Chisholm v. Chisholm's Emcutors. 41 Ala. 327; Walsh v. Reis, 50 III. 477. But in others the contrary doctrine prevails. McAfee v. Bettis, 72 N. C. 28 ; Singleton v. Huff, 49 Ga. 582 ; Meyer v. Meyer, 23 Iowa, 359. Description and designation. — In some of the states the homestead must be particularly described and designated as such. For example, in the State of New York, this must be done in one of two ways. The designa- tion may be in the deed by which the homestead is conveyed to the party who desires the exemption, or it may be in a notice subscril)ed by the owner. In either case the instrument must be so executed as to be entitled to record, and must be recorded. N. Y. Code of Civ. Pro., § 1398. In Massachusetts the provision as to selection is substantially the same. Pub- lic Stat, of Mass., chap. 123, § 2. But formality of designation is not necessary in all of the states. In Michigan, for example, no selection is necessary when the tract occupied and claimed by the debtor is within the quantity and value fixed by law. Ownership and occupancy constitute a sufficient selection. If the homestead, however, is a jiart of a larger tract of land, or, if it is more valuable than the one provided by law, a selection becomes necessary if a creditor seeko to reach the excess, and the statute points out the course to be taken. Beecher v. Baldy, 7 Mich. 15 S OF CORPOREAL HEREDITAMENTS. 488; Thomas v. Bodge, 8 Mich. 51; 2 Howell's Ann. Stat, (Mich.), §§ 7723- 7729. The rule in Georgia is substantially the same as in Michigan. Pin- kerton v. Tumlin, 22 Ga. 165; Bearing v. Thomas, 25 Ga. 223. Who may claim exemption. — The statutes of the different states are by no means tlie same in their designation of the party or parties who may claim the homestead exemption. In some states the^ right is extended to the " heads of families," in others to a "householder having a family, " and in others to a "resident householder." Nor have the interpretations of these different expressions always been harmonious. But wherever the liomestead exemption exists, it may be claimed by the heads of families who are fatliers or husbands. This rule is universal. But it is not the universal rule that a person in order to be entitled to the right must be a husband or a father. In Georgia, for instance, it is held that an un- married man whose mother and sister live with him, and ai-e supported by him, is entitled to the homestead exemption (Marsh v, Lazenhy, 41 Ga. 153); but it is held in the same state that a bachelor living alone, though having servants, is not entitled. . Calhoun y. McLendon, 42 Ga. 405. An unmar- ried man with whom a brother and his wife lived, and for whom they kept house, he furnishiug all necessaries, was held not to be the head of a family, and, hence, not entitled to the homestead exemption in Whalen v. Cadman, 11 Iowa, 226. But in the same state a widower without children, occupying real property as a homestead for himself and his mother, was held entitled to the exemption. Parsons v. Livingston, 11 Iowa, 104. And in Arnold v. Waltz, 53 Iowa, 706, an unmarried woman, having in her house- hold and dependent upon her the children of a deceased sister, was held entitled to homestead rights. In the first of these Iowa cases the relation was one of contract; in the others there was a relation of dependence. If a person is a householder and owner, and is so situated that he owes a duty of support and protection to those residing with him, he will in most, if not in all of the states, be entitled to homestead rights, even though he be unmarried and without children. See Barney v. Leeds, 51 N. H. 253, 265. Not lost by death or absence of wife and children. — If homestead rights have once been acquired, they will not be lost by the death or absence of the householder's wife and children. Kiinbrel v. Willis, 97 111. 494; Wilkinson V. Merrill, 87 Va. 513; Kessler v. Brauh, 52 Tex. 575; Silloway v. Brown, 12 Allen, 30; Stanley v. Snyder. 43 Ark. 429; Myers v. Ford, 22 Wis. 139. But see Cooper v. Cooper, 24 Ohio St. 488. This has been held to be the law where the householder's wife has deserted him, and is living in another state. And the fact that he sustains improper relations with a woman liv- ing in the house with him does not affect his exemption rights. Whitehead V. Tapp, 69 Mo. 415. See. also, Griffin v, Nichols, Shepard & Co., 51 Mich, 575. OF AN ESTATE FOK LIFE. 15U Homestead for married women.— In several of the states homestead rights may be enjoyed by married women. In New York, for example, it is pio- vided that " a lot of land, with one or more buildings thereon, owned by a married woman, and occupied by her as a residence, may be designated as her exempt liomestead ; " and sucii homestead is entitled to the same pro- tection as the homestead of a houseli older having a family. N. Y. Code Civ. Pro., § 1399. Homestead nfUr dentil of owner . — It is a very general provision that the homestead interest, after tlie death of the householder, inures to the bene- fit of the widow during widowhood and of the minor cliildren during mi- nority. In some states the widow's right continues during iier life, and in others it is limited to her widowhood. Tliis limitation is frequently made ■where there are no children. To illustrate: In Iowa, if a wife survive her husband, she, as his successor, although there be no children, will have the right to enjoy the homestead during life if she continue to live thereon, and t!iat, too, even though she marries again. Nicholas v. Purczell, 21 Iowa, 265; Dodds v. Dodds, 26 Iowa, 311. But in Micliigan the widow without children can enjoy homestead rights only during widowhood. The Constitution (A.rt. XVI, § 4) provides: "If the owner of a homestead die, leaving a widow, but no children, the same shall be exempt, and the rents and profits thereof shall accrue to her benefit during the time of her wid- owliood, unless she be the owner of a homestead in her own right." It has been held tiiat the widow whose child is dead is in the same situation be- fore the law in regard to homestead rights that she wouhl be if she had been childless, and that her marriage puts an end to those rights, which will not be revived upon the death of her second husband. Dei v. Habel, 41 Mich. 88. Nature of residence necessary to the claiming of homestead. — It is very generally held that in order that homestead rights may exist in any par- ticular lot or parcel of land, it must appear that such lot or parcel is the hona fide residence of the person claiming such rights and of his family. An intention to make lands a home at some future time is not sufficient. Beecher v. Baldy, 7 Mich. 488, 501; Dyson v. Sheley, 11 Mich. 527; CooUdge v. Wells, 20 Mich. 79; Lee v. Miller, 11 Allen, 37; Elslon v. Robinson, 23 Iowa, 208; Christy v. Dyar, 14 Iowa, 438; s. c, 81 Am. Dec. 493, and see note, 497; Blum v. Carter, 63 Ala. 235; Williams v. Dorris, 31 Aik. 466; Tillar v. Bass, 57 Ark. 179; s. c, 21 S. W. Rep. 34; Bowlcer v. Collins, 4 Neb. 494; Fisher v. Cornell, 70 111. 216; Austin v. Stanley, 46 N. H. 51; Bunler v. Loclce, 15 Wis. 635; Ingels v. Ingels, 50 Kan. 755; Tromans v. Mahlman, 92 Cal. 1. It is held in Wisconsin that a buildino' may retain the character of a homestead although not used exclusively as a residence. Phelps v. Rooney, 9 Wis. 71; Harriman v. Queen Ins. Co., 49 160 OF CORPOREAL HEREDITAMENTS. Wis. 71 ; Palmer v. Ilawes, 80 Wis. 474. And this seems to be the pre- vailing doctrine. Klenk v. Knoble, 37 Ark. 298; Gregg v. Bostwick, 33 Cal. 220; Jl'igan v. Manners, 23 Kiin. 551; Orr v. Shra/t, 22 Mich. 2G0. While the general rule undoubtedly is that an intention to make certain premises a home at some future time, will not give to them homestead protec- tion, yet some courts have materially qualified and limited the proposi- tion. The Supreme Court of Michigan has probably gone fartiier than any other in its modification of the rule. In 7?e.s7ie v. Reshe, 51 Mich. 541, it was held that the homestead exemption attached under the following cir- cumstances : A single man In contemplation of marriage purchased a lot with the intention of making it his home. He married subsequently, and he and his wife inclosed, improved and used the lot with the constant pur- pose of makinii it their home as soon as then- means would permit, but no house had been erected thereon at the time of the levy of the execution. In Pile course of the opinion in this case, Cooley, J., says: " The lot, as has been said, was procured for the purpose of a home, and complainant, aided by the industry and frugality of his wife, was proceeding to make it such us rapidly as their limited means would permit. * ' * Every tiling but the dwelling proper had been erected before the levy was made, and complain- ant was bargaining with a builder for a house. If any thing was lacking to make the lot a homestead, it was because the poverty of complainant had precluded his advancing his imjirovements as rapidly as he desired. The lot, however, in the minds and hearts of complainant and iiis wife, had been appropriated as a home from before the day of their marriage; it was all the home they had; it represented all their scanty means, and was the center of their domestic hopes and aspirations.'' The doctrine of this case is certainly extreme and finds little support in authority. It " carries the doctrine of constructive occupancy for a homestead," says the Supreme Court of Kansas in Ingels v. Ingels, 50 Kan. 755, 762, "to the furthest limit yet reached by any court, so far as we have been able to re- view the authorities." But in some of the states a marked liberality of construction in this direction is apparent. Thus, in Iowa, it has been held that where the building on the premises in question was not ready for oc- cupancy at the time the owner reached it with his household goods, he having abandoned his home elsewhere, the putting of his goods into the house and unpacking them, and other acts of occupancy, such as making a garden, causing a part of the land to be sown in small grain and the keep- ing of his horse and buggy in the stable on the premises, amounted to a suf- ficient setting apart of the homestead from that time, actual occupancy l)y the owner and family having begun as soon as the house was ready. Neal v. Coe, 35 Iowa, 407, The case of Fogg v. Fogg, 40 N. H. 282, is to the effect that the moving in of the family furniture with the design of moving in the OF AN ESTATE FOU LIFE. 161 family, all constituting in fact one and the same act, gives to the property the homestead qualities before the entry of the family. " By the setting up of his furniture, with the purpose of immediately bringing in his wife and children to live tiiere, he must be regarded as having taken possession of the property as the family homestead." Bellows, J., in above cited case at page 385. In Barnes v. White, 53 Texas, 028, 681, it is lield that to impress the character of a homestead upon property where there has been no pre- vious actual occupancy, there should be at least a present homijide intention to use the property as a liome, coupled with such acts of preparation and subsequent early use as a homestead as would reasonably amount to a notice of dedication. But see Driiclcer v. Jiosenstein, 19 Fla. 191, where -ZVmZ v. ^oe and Barnes v. White, cited supra, are criticised. Sffect of leaving the homesieaa. — A.S a bona fide residence on the property is generally held necessary to the claiming of homestead rights, it would seem to follow that such residence should continue if the riglits are to con- tinue, and that the leaving of the premises would work a forfeiture of the homestead protection. And this is true as a general proposition. But the leaving of the premises never so operates, unless it amounts to an abandon- ment. The going away, in order to work a forfeiture, must be with the intention of not returning and occupying the premises as a homestead. This question of intention is one of fact to be solved by a consideration of aTnthe circumstances connected with the case, See Cabeen v. Mulligan, 37 111. 230; s. c, 87 Am. Dec. 247; Potts v. Davenport, 79 111. 455; Titman V. Moore, 43 111. 169; F]iffe v. Beers, 18 Iowa, 4; Locke v. Rowell, 47 N. H. 46; Campbell v. Adair, 45 Miss. 170; Hoffman v. Buschman, 95 Mich. 588; Pe7'ry v. Dillrance (Iowa), 58 N. W. Rep. 280. The cases upon this branch of the subject are numerous, but the foregoing are probably sufficient for the purposes of illustration. If the owner leaves the premises for a time only and with the intention of still retaining his home thene and of return- ing to it, his homestead rights will not be forfeited. See cases last cited and the following: Keyileij v. Hudelson, 99 111. 493; Moore v. Flynn, 135 111. 74; Uixon v. George, 18 Kans. 253; B. M. Osborne & Co. v, SchoonmnTcer, 47 Kans. 667, 670, 671; Leering v. Beard, 48 Kans. 16; Austin v. Stanley, AQ N. H. 51; Robinson v. Swearingen, 55 Ark. 55; Robson v. Hough, 56 Ark. 621; EckmanY. Scott, 34 Neb. 817; JfcFurland v. Washington (Ky.), 14 S W. Rep. 354; Painter v. Steffen (Iowa), 54 K W. Rep. 229. The lengtli of time that the owner has been absent from the premises is, of course, a material circumstance, but it is not necessarily a controlling one. It is of importance as bearing upon the question of intention. In considering the question of abandonment in Fgffe v. Beers, 18 Iowa, 4, 8, Dillon, J., says: "The difficulty arises in cases where the removal is actual, but where there is claimed to exist the intention to return and resume possession of the vf. R. p. h 162 OF CORPOREAL HEREDITAMENTS. premises as a home. For such cases no general rule can be enunciated; each turns upon siud the decision of each exacts a special regard to its own peculiar facts. How long an absence will forfeit the right, depends upon circumstances. If a man, for example, should lock up his homestead, or even rent it, and go to Europe on a tour of pleasure or for any other tem- porary purpose, clearly intending to return and resume possession of the liomustead, it seems clear that even five years' absence would not, certainly as respects general creditors, work a forfeiture of the homestead right. Prolonged absence would ordinarily justify the conclusion of abandonment; but this may be rebutted and explained, especially where third persons have not been actually misled." Acquiring new homestead. — A. person cannot have two homesteads at the same time. Therefore the acquirement of a new homestead is regarded as conclusive evidence of the abandonment of a former one. Boyle v. Shvl- inan, 59 Ala. 566; Dans, Moody & Co. v. Kelley, 14 Iowa, 523:, Atchison v. Wheeler, 20 Kan. 625; Donaldson v. Lam^JTcy, 29 Minn. 18; Jarvais v. Moe, 38 Wis. 440. In California aud Massachusetts the law in regard to the loss of homestead rights by abandonment is exceptional. In California it is provided by the Civil Code that a homestead can be abandoned only by a declaration of abandonment or a grant executed and acknowledged as provided by statute. Civ. Code of Cal., §§ 1243, 1244. And in ]\Iassa- chusetts a homestead cannot be lost by abandonment imtil a new one is acquired elsewhere. Woodbury v. Luddy, 14 Allen, 1. For a full collection of cases on the subject of abandonment, see note to Taylor v. Hargous, 60 Am. Dec. 607. Extent of exemption. — In some states the homestead exemption is practi- cally absolute, while in others it is qualified and limited to a considerable extent. The exemption does not, as a rule, extend to taxes upon the prem- ises or to what is due on the purchase-price. It_ does not usually avail as against any mortgage or pledge thereon lawfully obtained, and in some of tile states not as against a claim for services upon the premises by a labor-, ing person or mechanic. These are the principal exceptions. Sale or mortgage of homestead. — The homestead estate maybe sold and conveyed, and in most of the states it may be mortgaged. But as the homestead interest is generally created for the benefit of the wife and fam- ily as well as of tlie owner, it is provided in many of the states that he cannot sell, mortgage, or in any way incumber it, unless the wife joins with him in the instrument. There is a constitutional provision to this effect in Michigan, Kansas, North Carolina. Tennessee, Texas, Nevada, Alabama and Florida. And in New York and one or two other states no mortgage. OF AN ESTATE FOR LIFE. 1 G3 unless it be for tiie purchase-money of the premises, can be given upon tfie homestead. N. Y. Code Civ. Pro., § 1404. There is a provision, however, for cancelling the exemption by the recording of a notice to that eflfect, and when this has been done, a mortgage upon the property becomes effectual. N. Y. Code Civ. Pro., § 1404. 104 ^^' CORPOREAL HEREl>iTAMEi\TS. CHAPTER V. OF JOINT TENANTS AND TENANTS IN COMMON. A GIFT of lands to two or more persons in joint tenancy is such a gift as imparts to them, with respect to all other |>er8ons than themselves, the properties of one singlo owner. As between themselves, they must, of course, have separate rights ; but such rights are equal in every respect, it not being possible for one of them to have a greater interest than another in the The four uni- subject of the tenancy. A joint tenancy is accordingly teuuncy.""^ Said to 1)6 distinguished by unity oi po-s.-iessio?i, unity of interest^ unity of title, and unity of the time of the Joint tenants Commencement of such title («). Any est"ate mav be Jield in joint tenancy ; thus, if lands be given simply to A. and 13. without further words, they will become at once joint tenants for life (b). Being regarded, with respect to other persons, as but one individual, tiieir estates will necessarily continue so long as the longer liver of them exists. While they both live, as they must have several rights between themselves, A. will be entitled to one moiety of the rents and profits of the land, and B. to the other; but after the decease of either of then, the survivor will be entitled to the Joint tenants whole during the residue of his life. So, if lauds be in tail. given to A. and B. and the heirs of their two bodies; here, if A. and B. be persons who may possibly inter- marry, they will have an estate in s|>ecial tail, descendible only to the heirs of their two bodies (o) : so long as (a) 2 Black. Comm. 180. p. 123. ib) Litt. s. 283; Com. D\fr. (c) Co. Litt. 20 b. 25 b; Bac tit". Estates (K. 1); see ante, Abr. tit. Joint Tenants (G). OF JOIXT TENANTS AND TENANTS IN COMMON. 155 tliey both live, tlicj will be entitled to the rents and profits in equal shares ; after the decease of either, the survivor will be entitled f>)r life to the whole ; and, on the decease of such survivor, the heir of tlieir bodies, in case thej should have intermarried, will sncceed by descent, in the same manner as if both A. and 13. had been but one ancestor. If, however. A, and B. be persons wlio cannot at an\' time lawfully intermarry, as, if they be brother and sister, or both males, or both females, a gift to them and the heirs of their two bodies will receive a somewhat different construction. So iono- as it is possible for a unity of interest to continue, the law will carry it into effect : A. and C. will accordingly be regarde<] as one person, and will be entitled jointly during their lives. While they both live tiieir rights will be equal; and, on the death of either, the survivor will take the whole so long as he may live. But, as they cinnot intermarry, it is not possible that any one person should be heir of both their bodies : on the decease of the survi vor, the huVj therefore, in order to conform as nearly as possible to the manifest intent, that the heir of the body of each of them should inherit, is obliged to sever the tenancy and divide the inherit- ance between the heir of the body of A., and the heir o f the b ody of B. E-ich heir will accordingly ])e entitled^ r. to a moiety of the rents aiiil profits, as tenant in taij of/ such moiety. The heirs will now hold in a manner do-/ nominated tenancy in common ; instead of both having the whole, each will have an undivided half, and no , further right of survivorship will remain (<7). An estate in fee simple may also be given to two or jojut tenants more persons as joint tenants. The unity of this kind '" ^®^- of tenure is remarkably shown by the words which are made use of to create a joint tenancy in fee simple. W) Litt. s. 283. See Re Tiverton Market Act, 20 Beav. 374. |gg OF CORPOREAL HEREDITAMENTS. The lands intended to be given to joint tenants in fee simple are limited to them and their heirs, or to them, their heirs and assigns (e), although the heirs of one of them will only succeed to the inheritance, provided the joint tenancy be allowed to continue : thus, if lands be given to A., B. and C. and their heirs, A., B. and 0. will together be regarded as one person ; and, when they are all dead, but not before, the lands will descend to the heirs of the artificial person (so to speak) named in the gift. The survivor of the three, who together compose the tenant, will, after the decease of his com- panions, become entitled to the whole lands (/). While they all lived each had the whole ; when any die, the survivor or survivors can have no more. Thejieir of Trustees are the survivor is, therefore, the person who alone will be j'ihu teaianfs. entitled to inherit, to the entire exclusion of the heirs of those who may have previously died {g). A jy die Settled Land Act, 1882 (c;), the tenant for life under a settlement of an undivided share of land is empowered to concur in making partition of the entirety, and to convey the hmJ given on partition for all the estate, which is the subject of the settlement, in the maimer Partitiou by requisite for giving effect to the partition. Another AgricuUure. Very convenient mode of effecting a partition is, by application to the Board of Agriculture, who are em- (s) See Manners v. Charlesworth, may be made vesting their sliares 1 M3-hie & Keen, 330. in snch persons us shiill be (t) Stat. 3 & 4 Will. IV. c. 27, directed; stats. 13 & 14 Vict. c. S. 36. <10, ss. 7, 30; 53 Vict. c. 5, s. (m) Stats. 36 & 37 Vict. c. 66, 135. 88. 16, 17, 34; 37 & 38 Vict. c. (//) Stat. 8 & 9 Vict. c. 106, s. 83. 3, lepealing stat. 7 & 8 Vict. c. (x) Attorney- General v. Ilamil- 76, s. 3, to the same effect. ton, 1 Madd. 214. If any of the {z) Stat. 45 & 4il Vict. c. 38, parties entitled should be infants ss. 3, 20; see Williams's Con- or lunatics, and so unable to veyaiicing Statutes, 295 — 297, execute a conveyance, an order 321 — 325. OF JOINT TENANTS AND TENANTS IN COMMON. 171 powered bj recent Acts of Parliament to make orders under their hands and seal for the partition and ex- change of lands and other hereditaments, which orders are effectual without any further conveyance or re- lease (a). The iurisdiction of the Court of Chancery with re- Partition 1 . . •■• / • n 1 • ^c'' 18(58. gard to partition (now exercisable, as we have seen, m the Chancery Division) was extended by the Partition Act, 1868 {h). By this Act the Coui-t is empowered to direct a sale of the property instead of a pirtition, whenever a sale and distribution of the proceeds appears to the Court to be more beneficial to the parties interested (c). If the p:irties interested to the ifj"/^**'"** extent of a moiety or upwards request a sale, the Court -''^^• shall, unless it sees good reason to the contrary, direct a sale of the property accordingly (d). And if any party interested requests a sale the Court 7nay, if it thinks fit, unless the other parties interested or some of them undertake to purchase the share of the party requesting a sale, direct a sale of the ])roperty (e). This alteration of the law, which was some time since suggested by the late author (J^), has effected a sub- stantial improvement. (a) These powers were first Vict. c. 3S, s. 4S; 52 & 53 Vict, given to the Iiiclosure Commis- c. SO, s. 2; Williams's Convey- sioners (in 18&2 styled the Lund ancing Statutes, 348— 350. Commissioneis) and were tran.s- (b) Stat. 31 & 32 Vict. c. 40, ferred to the Board of Afrriculture amended by stat. 39 & 40 Vict. c. in 1889; see stats. 8 & 9 Vict. c. 17. 118, ss. 147, 150; 9 & 10 Vict. c. (c) Sect. 3. 70, ss. 9, 10, 11; 10 & 11 Vict. c. {d) Sect. 4; WaHn. Ante, p. 123. W. K. P. M 178 OF CORPOREAL HEREDITAMENTS. estates (\n). For the same reason an estate of freehold might be Confirmation. conveyed from a rightful owner to any one, who had obtained actual possession of his land, either with or without his privity, by deed of confirmation of the estate to him {q). Also, if two men of equal estate Exchange. {i.e., both seised in fee or tail) agreed to exchange lands, this might be completed at common law by entry with- out furnial livery of seisin {r). And a life-tenant in Surrender. (i) Ante, pp. 78, 106—109. (o) Ante, pp. 30, 31. (/fc) Co. Tr. 229, 2a0, 243, 2Gi ; {p) Bract, fo. 40 a; Litt. ss. Shep. Touch. 3, 4; 2 Black. 459,460,465. Comm. 34S— 357 ; Cruise on (q) Bract, fo. 40 b; Litt. ss. Fines, ch. iii. 515—591,531—533. (i) Cruise on Recoveries, 151. ir) Litt. ss. 62—65; Co. Litt. {m) Soe Cruise on Fines, 3, 6, 50, 51, 266 b. See stats. 29 Car. 62, 63, 65, 15S. II. c. 3, s. 3; 8 & 9 Vict. c. 106, [n) Ante, pp. 5, 29. a. 3. 188 OF CORPOREAL HEREDITAMENTS. Atnrricn possGssion might surrender or give up liis estate to tlie person next entitled to the free without making formal liverj {s). 19-J."^'' person next entitled to the freehold after his death No means of ^g ggg then that every mode of conveymg a freehold convevaiico at "^ "^ , , common law KHOwn to the comuion law either required or pre- eu r). gyppQgg(j g^ transfer of possession ; and that no one could acquire an estate of freehold without entry on the land. In later times a method of conveyance was devised, which could be made use of at any distance from the property : but this derived its effect from the Statute of Uses (t). Before proceeding further, therefore, it will be necessary to explain that statute, and what it was designed to abolish, namely, equitable estates in land. (s) Co. Utt. 837 b, 338 a ; see 9 Vict. c. 106, s. 3. stats. 29 Carr. II. c. 3, s. 3 ; 8 & {t) Stat. 27 Hen. VIII. c. 10. OF A COMMON LAW CONVEYANCE. 1S9 AMERICAN NOTES. ' Use of word " heirs." — See ante, p. 148, for note explaining as to the necessity of the use of the word heirs in this country in conveying an estate of inheritance. ^TTsE OF SEAL IN UNITED STATES. — The Seal is still used in most of the states, but in many it is provided that for private purposes any written or printed device may be substituted for the common-law seal. In a few, the use of the seal, excepting for official and corporate purposes, has been abolished. This is the case in Ohio, Indiana, Iowa, Nebraska, Mississippi, Texas, and possibly in some other states. See R. S. of Ohio (1890, Giauque's ed.), §4; Ind. Stat. (1894, Burn's ed.), § 454; McClain's Ann. Code of Iowa (1888), §3389; Comp. Stat. Neb. (1893), 78-3; Ann. Code of Miss. (1892), chap. 120; Texas Civil Stat., art. 4487. In California ''all distinctions between sealed and unsealed instruments are abolished." Cal. Civ. Code, § 1629. * Delivery of deeds. — The delivery^ of a deed is an indispensable requisite to its validity. It is the act of the grantor by which he makes known his final determination to consummate the conveyance. Without tills act, all the preceding formalities are of no avail. No special ceremony is prescribed by law as essential to a valid delivery. It may be accom- plished by acts or words, or by both. The delivery may be and usually is, made directly to the grantee by the grantor, or it may be made in escrow, as explained in the text ; or it may be made through an agent of either party. In every case where the validity of the delivery is attacked, the important question is as to the intention of the party making the deed. Did he intend certain acts or words to constitute a delivery ? If he did, and if he parted with all right of possession and dominion over tlie instru- ment, the delivery is effectual. In this all the authorities are agreed. The difficult cases, and those in regard to which the authorities are by no means harmonious, are those where the deed is left with a third person to be delivered to the grantee after the grantor's death, and those where tiie grantor himself retains the manual jjossession of the deed, intending that after his death it shall come to the liands of the grantee. It is held in many cases, and probably the holding must be regarded as in accordance with the weight of authority, that if a grantor delivers a deed to a deposi- tary with instructions to him to deliver it to the grantee upon his, the grantor's, death, no right to recall the deed being reserved, but the deliv- ery to the depositary being final so far as the grantor is concerned, the deed will become operative upon its delivery by the depositary to the grantee, the second delivery relating back to the first for the purpose of 190 OF CORPOREAL HEREDITAMENTS. passing tlie grantor's title ; but that, if the delivery to the depositary is not regarded by the grantor as an absolute and final act on his part, or if he expressly reserves the privilege of recalling the deed, the title will not pass upon the second delivery after the death of the grantor, without his having exercised the right of recall. In^JJook v. Broivi}, 34 N. H. 460, an import- ant case upon this subject, in which the earlier case of Shed v. Shed, 3 Kt\ H. 432, is expressly overruled, the court says: "To make the delivery' good and effectual, the power of dominion over the deed must be parted with. Until tlien. the instrument passes nothing; it is merely ambulatory and gives no title. * * * So long as it is in the hands of a depositary, sub- ject to be recalled by the grantor at any time, the grantee has no right to it and can acquire none; and if the grantor dies without parting with his control over the deed, it has not been delivered during his life, and after his decease no one can have the power to deliver it." Baker v. Haskell, 47 N. H. 479; Broion v. Broicn, 06 Me. 316; Thatcher v. St. Andrew^s Church, 37 Mich. 264; Latham v. Udell, 38 Mich. 238; Taft v. Taft, 59 Mich. 185; Prutsman v. Baker, 80 Wis. 644 Hathaway v. Payne, 34 N. Y. 92 ; Stone v. Dumll, 11 111. 475. The last case is somewhat exceptional, for the court expresses the opinion that a deed executed and left with a third person with instructions to de- liver the same to the grantee on the grantor's death, is an escrow until the second delivery. It was held in Golyer v. Hyclen (Ky.), 21 S. W. Rep. 868, that where a deed is delivered by the grantor to the draughtsman for the grantee, and is by him delivered to the grantee and accepted by him within three or four weeks thereafter, though after the death of the grantor, the delivery is valid ; but in the same case it was held that there was no valid delivery where the grantor, after executing a deed to his children, handed it to his wife, telling her to put it away or to take care of it, and she deliv- ered it to the grantees after his death. It was apparent that the grantor in- tended to keep control over the instrument. In Douglas v. West, 140 111. 455, it appeared that no specific directions were given to the depositary by the grantor to hold the deed until the death of the grantor and then deliver it to the grantees, but that previous statements of the grantor to the custo- dian showed an intention that the grantees should have the property after the grantor's death, and it was held that such statements, in connection with the fact that the grantor never exercised control over the deed, but let it remain with the depositary until his death, indicated that a delivery was intended for the grantees named therein. Control over deed reserved hj grantor. — It is held in a few cases that the placing by the grantor of a deed in the hands of a depositary, with instruc- tions to deliver it to the grantee upon the grantor's death, if it has not been recalled, constitutes a valid and effectual delivery, if the deed is left in the -fcjfe OF A COMMON LAW CONVEYANCE. 191 depositary's hands until the contingency happens. In Belden v. Carter, 4 Day (Conn.), 6G, the language used by the grantor to the depositary was : "Take these deeds and keep them; if I never call for them, deliver one over to P. and the otiicr to N. after my death; if I call for them deliver them to me." The deed in controversy was delivered to the grantee after the grantor's death, he never having called for it. The delivery was held to be good. See, also, Stewart v. Sleimrt, 5 Conn. 320; Wooducard v. Camp, 22 Conn. 457; Morse v. Slasoii, 13 Vt. 296, 307. Delivery without surrendering possession of instrument. — A valid delivery may undoubtedly be made without a surrender of the manual possession of the deed. This has been held in several cases. Usually, however, under .such circumstances, the validity of the deed is sustained upon the theory- that there has been a constructive delivery of the instrument. See McLur V. Coldough, 17 Ala. 89; Souverhye v. Arden, 1 Johns. Ch. */i40 ; Farrar v. Bridges, 5 Humph. (Tenn.) 411. Deeds left irith 2>ni^ers of grantor. — It frequently happens that a party executes a deed and places it among his papers, with the intention and expectation that it will become operative upon his death. Such deeds have been sustained, particularly when made by a parent in favor of an in- fant child. See Newton v. Dealer, 41 Iowa, 334; Maslerson v. Cheek, 23 111. 72; Reed v. Douthit, 62 111. 348. But the courts generally refuse to sustain a deed made and intended by the grantor to take effect after his death but retained in his own possession. See Stihcell v. Hubbard, 20 Wend. 44 ; Pat- terson V. Snell, 67 Me. 559; Jones v. Jones, 6 Conn. Ill; s. c, 16 Am. Dec. 35, and see note pp. 39-45; Huey \.Huey, 65 Mo. 689; Byars v. Spencer, 101 111. 429; Lang v. Smith, 37 W. Va. 725; Dome v. Hinde, 135 111. 137; Ander- son v. Anderson, 126 Ind. 62. ■* Alterations in or additions to a deed. — The tendency of adjudi- cation in this country seems to be in favor of the proposition that in case of alteration or rasure in or addition to a deed there is no presumption that the change was made either before or after the execution. The question is one for the jury. The burden of proof is upon the party who relies upon the deed. Ely v. Ely, G Gray, 439; Comstochy. Smith, 26 Mich. 306; Lit. tie V. Eerndon, 10 Wall. 26, 31 ; RoUnson v. Myers, 67 Pa. St. 9. But there are many authorities upon this subject that sustain the text. 6 Title not apkected by alteration or destruction op deed after DELIVERY. — See Rogers v. Rogers, 53 Wis. 36; Rifener v. Bowman, 53 Pa. St. 313; Wood v. Hilderbrand, 46 Mo. 284. 192 OF CORPOREAL HEKEDITAMENT8. « Statute of frauds. — The substance of the section of the statute of frauds in reo-ard to the conveyance of an interest in lands lias been adopted or re-enacted, it is believed, in all the states of the Union. ' Common-law conveyances.— The common -law conveyances men- tioned in the text are rarely and perhaps never used in the United States at the present time. CHAPTER YII. OF AN EQUITABLE ESTATE IN LAWD. Section I. Of Equity and the Corirt of Chancery. Besides the freehold estates in land, which may be enjoyed by tlie common law («), a man may have valuable interests in land to which he is entitled, not at law, but in equity only. This word equity, when Equity. used, as here, in contra-distinction to law, does not refer to what is morally riojht as opposed to what is legal, but denotes generally the body of rules which has been developed in the exercise of the equitable jurisdiction of the Court of Chancery {h). T^£Sg^. rules of equity are as much rules of positive law (c) as are the rules of common law; each body of rules is a part of the law of the land. Tlie rules of equity, however, are of later origin. Like the equity of the Prsetor in the Koman system (c?), they were introduced to mitigate the harsh- ness of a rigid legal system. In this country, however, they were not enforced in the same courts as the rules of law, but were administered in separate tribunals, the chief of which was the Court of Chancery. This Court gradually acquired complete power of carrying out its (a) Ante, p. 0, n. 3rd ed. ih) Cf. Story, Eq. Jur. ch. i. (d) As to which see Gai. Comm . §§ 25 et seq. I. §§ 2, 6 ; Dig. I. i. 7. He (c) /. e. rules enforced by a .lustitia et Jure: Maine's Ancient sovereign political authority; see Law, ch. iii.; Moyle's Justinian, Hallaaa, Jurisprudence, 36, 37, '2,1 et seq. W. R. P. N 194 OF CORPOREAL HEREDITAMENTS. own decrees, even when tliej over-rode the rules of the common law ; though the means adopted to seem re obedience were not the same as were used to give effect to the judgments of common law courts. But, notwithstanding this difference in procedure, the rules of equity established in the Chancery Court became as binding on the subject, and as enforceable by the executive power of the State, as the rules of common law. Origin of the The jurisdiction of the Court of Chancery, like that equitable •' . jurisdiction of the cominou law courts (e), was derived from the Chancery. aiithority of the King, regarded as the source of all justice within tiie realm. When Henry II. delegated liis ordinary legal jurisdiction to judges sitting per- manently {/), he reserved questions, which they could not determine, for the decision of himself and his council {g). To the King, therefore, and to his select council (/() petitions were constantly made for the redress of every kind of injustice, and especially for relief, as a matter of special grace and favour, in cases wherein no remedj' could be had by the ordinary law {i). A. D. 1348-9. About the twenty-second year of Edward III. petitions touching matters to be conceded of the royal grace were ordered to be prosecuted before the Chancellor ; and it appears that after this petitions for the redress of grievances, which the common law failed to remed}', began to be addressed to the Chancellor instead of the , King {1-). After a statute of the 17th year of Richard II. (/) extending the Chancellor's jurisdiction, such petitions (e) Ante, p. 9, n. xxvi. {f)Ante,-^.%,r\. (i) See Stubbs, Const. Hist. 280 ; Hollas V . liobinson, ih. 288 FurneKS v. Bond, 4 Times L. H. 457; Swain v. Ayrts, 21 Q. B 1). 289, 293. OF AN EQUITABLE ESTATE IN LAND. 199 ancient practice of men putting their trusted friends in possession of their lands, in confidence that their friends would dispose thereof according to their wishes {x). It appears that men gave their lands to others in trust, either for purposes, which were lawful but could not be carried out without the interposition of some person trusted to execute the donor's will, or for fraudulent purposes (t/). As to the latter, men put others into legal possession of their lands in order to defraud their creditors (3), or to delay actions brought to recover the lands («) ; and for a time gifts of land to trusted laymen to the use of religions houses were employed to evade the statute of Mortmain (h). The former kind of purpose is instanced by a gift of lands to others with intent to perform the donor's will, l^y disposing of the same according to his directions either in his lifetime or after his death. Thus, as a man could not convey to himself or his wife at common law (c), feoffments {). Such suits against laymen were, however, altogether pro- iiibited in 1247 [q). Other checks U['on feoffees in trust were also attempted (r), but proved insufficient when the obligation of good faith was without sanc- tion (.9). At length, in the reign of Henry Y., if uot earlier, relief against Ijrcach of trust was sought from the ChanceDor {t). The application found favour with ecclesiastical Chancellors fw), accustomed to regard breach of faith as an offence against ecclesiastical law {v). And thenceforward the protection of Chancery process was extended to all who claimed the benefit 01 a gift of lands or goods to others in trust for the use of the donor or his nominees {w). In Edward the Fourth's reign the nature of a use {x) Nature of a (which signified the interest of one, to whose use"*^' others held lands) was pretty well settled. Ile^ t o whose use a feoffment was made (called cestui qiLe use), was held to have no right to the land at law : all he had was the right to sue the feoffee in trust,personally. in Chancery (?/). He enjoyed a similar right againts the word affidavit, see Law Qnar- (r) Viz. conditions and coven- terly Review, i. 164, 169, 173; ants; see Law Quarterly Review, Madox, Form. Anel. Nos. 2, 8, i., 168—170; Bract. 213 b; 17 64, 142, 147, 149,^151, 153—162, Ass. pi. 20 ; 34 Ass. pi. 1; Litt. 630, 631. 674, 676, 688. ss. 852—359 ; Madox, Form. (p) Glanv. X. 12; 1 Roger de Aiigl. Nos. 126, 165, 170. Hoveden, Rolls ed., 254; 2 R, de («) See Petition of Commons, Diceto (ibid.), 67; 2 Jlatt. Paris. Rot. Pari. iii. 511 (4 lieu. IV. Chron. Maj. {ibid.), 368; Ann. ^e No. 112). Barton (ibid.), 256,406; Spence, (t) Hothenhale \, 'Wychingham, Eq. Jur. i. 118. 2Cal. iii. (q) 4 Watt. Paris, Chron. Maj. («) ^niie, p. 197 and n. (/). 614 ; Ann. de Burton, 417, 423. {v) Spence, Eq. Jur. i'. 442— See also Glanv. x. 12 ; Bract. 175 444; Law Quarterly Review, i. a, 401 b. It seems to have been 170, 173, 174. common to submit by consent to (w) See 1 Cal. x.\i., xxxv., ecclesiastical jurisdiction iu mat- xliii., xlvii., Ixviii, Ixii., ,xc., ters of breach of faith or agree- xci., xciv. ; 2 Cal. xix., xxi., ment ; see Madox, Form. Angl. xxiii., xxviii., xxxvi., xliv., xlv., Nos. 157-159, 161, 630, 641, xlviii., li., Ivi., Ixi., Ixvii. 665; Bract. 401, 406 b, 410 b, (x) See Co. Litt. 272 b. 411 a. (ji) y. B, 4 Edw. IV. 8, pl. 9. 202 OF CORPOREAL HEREDITAMENTS. trust. the feoffee's heir (2), orjigalnst his alienee, even foi_ valuable consideration, who took the land with notice of the trust (a) : but if the feoif ce enfeoffed another of Notice of a the land on a bond fide sale without notice of the use^ cestui que use was without remedy to recover the land from the alienee, though he might sue the feoffee in Chancery for his breach of trnst,and recover damages (b), And the feoffee in trust was bi)uiul in equity (that is, on pain of being subjected to the usual Chancery pro- cess (c) at suit of cestui que use) to allow him to take the pro6ts of the land ; to maintain actions at law at Ins request for the protection or recovery of the land {(I) ; and to execute the estate, that is, to dispose of the land according to the directions of cestui que use, or to enfeoff him thereof, should he desire it {e). Uses might arise by express declaration, or by implication. If a feoffment of land were expressly declared to be made to any particular use or intent, that was to be strictly observed {/). If no use were declared, payment by the feoffee of any sura of money, however small, would raise a use (as it was said) in his favour {g). But if a feoffment were made without de- claring any particular intent, and without any con- sideration (that is, without obtaining anything in return), it became a settled rule that it should be intended to have been made to the feoffor's own use (A). A use was also raised by a barg;iin for the sale of lands and payment of the purchase money, upon which the (z) 2 Cal. xxviii. ; Y. B. 8 Edw. Bacon on Uses, 10. IV. 6, pi. 1; Fitz. Abr. Age, 20, (/) Y. B. 5 Edw. IV. pi. 20; Subpoena, 14; Y. B. 22 Edw. IV. see Fitz. Abr. Subpoena, 23. 6, pi. 18. ((/} 1 Sand. Uses, 61, 62. (a) Y. B. 5 Edw. IV. 7, pi. 16. (h) See Y. B. 11 Hen. IV. 52, (h) Fitz. Abr. Subpoena, 19. pi. 30; 5 Edw. IV. 8, pi. 20; (c) Ante, p. l^ri. Litt. ss. 463, 4(54. It may be (d) Y. B. 2 Edw. IV. 2, pi. 6; inferred from this that it was a 7 Edw. IV. 29, pi. 15; see 1 Cal. regular practice for men to entrust xlviii. their lands to feofifees to their own («) 1 Cal. xc, xcir., cxv., use; Bacon on Uses, 21, 22. cxvi.; 2 Cal. xxi., xxii., xxviii.; OF AN EQUITABLE ESTATE IN LAND. 203 Court of Chancery considered that in equity the seller iminediatelj held the land sold to the buyer's use (i). A use was freely alienable without any formality, for cestui que use had but to declare his will concerning the land held to his use, and the feoffees were bound to fultil it; so that he could always make a testamen- tary as well as any other disposition to the use of the land (/(■). Though the feoffees to uses were bound in equity to Position of allow ceshd que use to have possession of the land, if i^^eaiCv. he desired it, the Courts of Law would not recognize his possession as that of a legal freeholder (^), or as held otherwise than at the will of the feoffees (m). They considered that cestui que use, having but a mere right to sue the legal tenants in Chancery, had no estate in the land at law {n). In the Court of Chancery, however, although the interest of cestui que use was protected not by process against the land itself, but only by process against the trustee personally, it was nevertheless regarded as an estate in the land (o). As the feoffees were bound in equity to execute the estate at the will of cestui que use {2?), he was con- sidered in the Court of Chancery to be the true owner of the land, and to enjoy in equity such estate in the land as he would have had at law, if the estate had been executed to him by conveyance from the feoffees. Thus it came about that there might be, as it were, two estates in the same land, when it had been entrusted to feoffees to uses. There was the estate of the feoffees cognizal)le at common law — the legal esta^.e; and there Legal estate, was the beneficial interest of cestui que use, not recognized at common law, but protected in equity and (i) Gilb. Uses ana Trusts, 49, (w) 1 Sand. Uses, GO and note 50(94, 95, 3rd ed.). (I). (k) Bacon on Uses, It!; 1 Sand. (n) Ante, pp. 7, 8, 70 ; 1 Rep. Dses, t)5. 121; Bacon on Uses, 5. (L) See Law Quarterly Review, (0) 1 Sand. Uses, 04. L 167, 103. {p) Ante, p. 204. 204 OF CORPOREAL HEREDITAMENTS. treated in courts of equity as being a like estate in the use of the land, as he would have had in the land itself, if his feofiees had executed the estate to him. Section III. Incon- veniences pro- duced by feofJmeuts to uses. The Statute of Uses. American note 2, p. 1i28. Of the Statute of Uses. This system of entrusting the legal possession of lands to feoflees to uses, while cestui que use enjoyed actual possession thereof as apparent owner, was certainly advantageous to the latter, when once his interest was protected. JJut it afforded opportunities of defrauding purchasers and creditors; and, as we have seen (§'), it infringed upon the interests of the lords and the Crown. In the reigns of Hichard III. and Henry VII. statutes were passed for removing these abuses (rV But the remedies so applied appear to have proved insufficient ; for in the next reign the Statute of Uses(s) was passed with the aim of entirely extirpating the evils of feoffments to uses. By this statute, after an elaborate rehearsal of all the evils which the authors of the statute conceived to have been caused by the practice of making feoffments to uses, it is enacted {t) that when any person or persons stand seised of any lands or other hereditaments to the use, confidence or trust of any other person or persons, the persons that have any such use, confidence or trust (by which was meant the persons beneticially entitled) shall be deemed in lawful seisin and possession of the same lands and hereditaments for such estates as they have in the use, trust or confidence ; and that the estate and /?06'5es62(?7i (ff) Ante, p. 200. c. 15; 1 Sand. Uses, 21. 52, 53. (/■) See stats. 1 Rio. III. c. 1 ; (») Stat. 27 Hen. VIII. c. 10. 4 Hen. VII. c. 17; I'J Hen. VII. {t) Sect. 1. OF AxN EQUITABLE ESTATE IN LAND. 205 of the persons so seised shall be deemed to be in the persons so benetieially entitled after such manner as the latter were entitled in the use, trust or confidence. Like provision was made to meet the case, then common, of divers persons being seised of any hereditaments to the use of any of themselves (u). Put shortly, the effect of the Statute of Uses is this : — If one or several be seised of any hereditaments to the use of another ur others, or of one or more of themselves, the person or persons having the use of the same hereditaments shall be deemed to be in possession thereof for such estate as he or ihcy has or have in the use. The statute in fact executes t)ie estate {v) to cestui que xise j that is, it gives him the same estate and possession at law as he would have if the feoffees to his use had executed the estate to him, or duly made to him a proper legal con- veyance of the land. Thus, if A. and B. be seised of land in fee simple to the use of C. and his heirs, by the Statute of Uses, C. shall be deemed in lawful seisin of the land for such estate as he has in the use of the land, and the estate and possession of A. and B. shall be deemed to be in C. after such manner as C. was entitled in the use, C. thus by force of the statute becomes tenant in fee simple of the land at law ; and he is deemed at law to be in possession of the land, though he may never have entered upon, or even seen it ix). And the estate and possession of A. and B. is altogether taken away from them, and considered at law to be in C. Similarly, if land be conveyed to A. and B. in fee simple to the use of A. and his heirs, the Statute of Uses at once gives to A. an estate in fee simple in ("m) Sect. 2. See ante, p. 200 ; turbance of the actual possession Bacon on Uses, 49. of tlie land; Gilb. Uses, 81 (185, 4^) Ante,\}. 202. Sided.); 2Fonb. Eq.l2; Harrison {X) He is not, however, deemed v. Blackburn, 17 C B., N. S. 678. to be in possession for the purpose See Anon. Cro. Eliz. 4i) ; Ileelis v. of maintaining an action of tres- Jilain, 18 C. B., N. S. 90; Had- pass, which is founded ou dis- field's case, L. R., 8 C. B., 306. 206 OF CORPOREAL HEREDITAMENTS. use. possession at law. And the law is the same of implied uses as of uses expressly declared. Thus if A., seised of land in fee simple, made a feoffment thereof to B. and his heirs, with due livery of seisin, but without con- sideration and without expressly declaring any use of the land, we have seen {y) that it was implied in law that A. should have the use of the land. But by the statute A. having the use of the land is deemed to have seisin of the land for the same estate as he has in the use ; and all B.'s estate and possession is deemed to be in A. A. therefore, the feoffor, instantly gets back all he irave; and the use is said to res^ilt to himself. Resulting 'pjjg propriety of inserting in every feoffment the words to the use of^ as well as to^ the feoffee is therefore manifest {£). The Statute of Uses is still in force ; and though it has failed to impress the popular imagination as vividly as the Habeas Corpus Act (a), it forms one of the most important landmarks of real property law, and should be deeply graven on every conveyancers heart. It will be observed that the statute made it possible to transfer the property in land from one to another by duly conveying the estate to a third party, to the use of the other. For directly the third party became seised of the land to the other's use, the Statute of Uses annexed the legal estate in the land to the estate in the use (5). This curious result of the statute remains law to this day, and, as we shall see, is con- stantly applied in practice. If, therefore, A. convey land to B. in fee simple to the use of C. and his heirs, B., to whom the land is given, now takes no estate therein at law, but C, in whose favour the use is declared, is at once invested with an estate in fee simple in land. The words to the use of are now almost universally employed when it is intended that an estate {y) Ante, p. 202. iv. 438. (s) Ante, i>. 179. (6) Ante, p. 204. (a) See Black. Comm. hi. 135, OF AN EQUITABLE ESTATE IN LAND 20V in land shall vest in any person by force of the Statute of Uses: but "upon confidence" or "upon trust for" would answer as well, since all these expressions are mentioned in the statute. Section IY. Of Trusts after the Statute of Uses. Estates ia use, beinff turned into legal estates by the Chancery iurisdiction Stitute of Uses, were withdrawn from the exclusive over trusts jurisdiction of the Court of Chancery. Indeed, it is said that the main object of the designers of the statute was to effect the entire extirpation of equitable estates in land (c). But in this respect the statute failed to carry out its authors' purpose. For the active exercise of the Chancery jurisdiction over estates held in trust was very soon revived, and estates in equity only, since known as trust estates, again arose and have continued to the present day. These results were caused by the doctrine established in the courts of coinnion law that there can be no use upon a use, or that when the ^o "se upon statute has once transferred the legal estate in land to a person in whose favour a use is raised, it will have no further operation ; so that no uses or trusts of the land in the hands of cestui que use will take effect as estates at law. This doctrine is based on a case occurring not long after the passing of the statute, where A. bargained and sold land to B. to the use of C, and B. paid the pur- chase mo«ey ; when it was held that B., in whose favour a use was raised by such payment (c/), took the legal estate by force of the statute, and that C. took no estate at all at law {e). This decision may have been founded simply on the principle that he, who paid the money, Oyer, (c) 1 Rep. 124, 125. Uses, 54; TyrreV B case, (d) Ante, p. 202. 155. (e) Bro. Abr. Feoffment and trust. OQg OF CORPOREAL HEREDITAMF^NTS. should have the land : but there grew out of it the rule, that the first use only shall be executed by the statute, or that there shall be no use upon a use {/). This rule was applied equally to uses i-aised by express declara- tion, and is still law. If therefore laud be conveyed to A. and his heirs, to the use of B. and his heirs, to the use of C. and his heirs, only the first use, that declared in B.'s favour, will be executed by the statute ; that is to say, the statute will annex the legal estate to the first use, so that B. shall have the fee simple at law, but it will have no further operation ; and C. will therefore take no estate at all at law {g). It was further held that, when land was conveyed to one, not simply to Special another's use, but for some special use or trust imposing an active duty on him, as to sell land or pay debts out of the profits, no estate could be executed by the statute, BO as to deprive him of the legal ownership, without which he could not perform his trust (A). Now there was nothing in the Statute of Uses to take away the established jurisdiction of the Court of Chan- cery to enforce trusts of property imposed on the person, wno was the legal owner. The Act merely turned cestui que xise into a legal freeholder, who had no occasion to resort to a court of equity for protection. And it does not appear that there was any intermission of this jurisdiction ia the case of special trusts or of chattels (^). When therefore it was held that no trusts or uses declared concerning the land in the hands of the first cestui que use would be turned into legal estates by the statute, but that he alone should have all the estate at law, recourse was had to the Chancer}^ juris- diction to enforce such trusts or uses. The case fell within the same principle as had ]n*evailed in originally (f; See Glib. Uses and Trusts, Sand. Uses, 2'iS et seq. 847, n., 3rd ed. ; Sug. Pow. 10. (i) 1 Spence, Eq. Jur. 46& (y) 1 Atk. 591. 467. (A) 1 Spence, Eq. Jur. 466; 1 OF AN EQUITABLE ESTATE IN LAND 209 securing the enforcement of uses in equity, namely that Chancery process would issue against a person, who committed a breach of trust reposed in him with regard to property, of which he was the legal owner. And it became established accordingly that trusts should be equally enforced in equity, whether the trustee became possessed of the land by the operation of the Statute of Uses or without it (k). If, therefore, an estate in fee simple be conveyed to A. to the use of B. to the use of or in trust for C, though B. will become tenant in fee simple at law under the Statute of Uses, yet in equity he will bo bound to hold the land and apply its ])rotits for C.'s use; and C. will be considered to be in equity the owner of the land. In this way, equitable estates in land (Z) were completely re-established. Here it may be noted that, since the above doctrines have be- come well established, it has nut been the practice to em)>loy the word use when intending to create a trust enfoi'ceablc in equity. And it is usually expressed that lands shall be held to the use of any one, only when it is intended that he shall take the legal estate therein. To impose a trust, it is generally declared that the legal owner (he, to whose use the land is in the first place given) shall hold it in trust for the person or purposes desired. An equitable or trust estate then is the name given Equitable to the interest of one, in trust for whom another holds '^*'^'^^' land as legal owner. In such a case the holder of the legal estate (m) in the land is called the trustee ; while Trustee and the per.-on beneficially entitled is called, in law French, ^^fj//^* cestui que trust. The nature of a trust estate since the Statute of Uses is similar to that of a use of lands {h) See Foorde v. Hopkins, 2 Sand. Uses, 2G5, 2G6 ; 1 Spence, Bulst. 83(), 837 ; Sanbach v. Dal- Eq. Jur. 490, 4i»l. ton, Tothill, pi. I'iS; 1 Alk. ."iOl ; (I) Ante, pp. 203, ?04. Gilb. Uses and Trusts, 102; 1 (in) Ante, \>. iQ'i. W. R. P. ■ O 210 OF CORPOREAL HEREDITAMENTS. before the statute (n). Thus trusts are still either special or simple (), and it is the trustee's duty to perform exactly the will of the person, who has created the trust, as declared at the time of its creation (q). In simple trusts, where one is a trustee of land for another simply, the ti-ustce is bouud, as in the case of the old uses (r), to maintain actions for the defence of the land, to allow cestui que trust to have possession and take the profits thereof, and, if tlie trust be for cestui que trust in fee simple, to convey the legal estate in the land as he shall direct, or to him, if he desire it (s). Furthermore, the nature of a trust estate remains the same. Strictly speaking, it is but a right against the trustee personally. It has been established, however, that the trust is so far annexed to the trustee's estate that, as a general rule, all persons, who acquire that estate, are bound by the trust. Thus the trust may be enforced against all persons who may take the trustee's estate by act of law or gratuitous conveyance from him; as his heirs, creditors and devisees (t). So purchasers having actual or constructive notice of the trust are bound by it [u). But if the trustee convey the trust estate to a hona fide purchaser for value, who has no no'ice of the trust, the latter will not be bound thereby; but will be entitled to retain and cnj>y for his own benefit the legal owner- ship he has acquired from the trustee. For in such a ffl) 1 Sand. Uses, 200; Lewin xxvi. s. 2, 8th ed. on Trusts, ch. i. ; ante, p. 201. {r) Ante, p. 202, (o) l^ewiii ou Trusts, ch. ii., («) Lewin on Trusts, 674, riS4, 8th ed. _ 853, 8th ed. (/;) Ante, p. 208; Lewin on {t) Lewin on Trusts, ch. xii. s. Trusts, ch. xii. s. 1, § 2, 8th ed. 3, 8th ed. (^) See Lewin on Trusts, ch. (m) Lewin on Trusts, ch. xxx., xvii., xviii., xxiii. s. 1, § 3, b. 1, § 1, 8th ed. OF AN EQUITABLE ESTATE IN LAND. 211 case cestui que trust has no equity against him ; but can only sue the fraudulent trustee for his breach of trust under the Court's equitable jurisdiction {x). It is not until we examine this apparent exception to the rule that the nature of a trust estate is made plain. We then see that it is not a true right of ownership, enforceable against the land directly, without the inter- vention of another person's action, and maintainable against all other persons whomsoever, but is properly a mere obligation incumbent on the legal owner of land and enforceable against some but not all of those, who succeed to his estate (y). As has been already indicated, however (2), notwithstanding this liability o{ cestui que trust to be wrongfully deprived of his interest in the land by the fraudulent dealings of his trustee, he is considered to be in equity the owner of the land, as against all persons hound Tjy the trust, and his bene- ficial interest is treated as being in equity an estate in the land {a). It may be remarked here that, since the Statute of Uses, it has not been the general practice of landowners to place their lands in the hands of trustees for themselves simply; as it was before that Act {b). The statute paved the way to the modern system of settlement {c) ; which is carried out by limiting succes- sive estates in use to be executed by the statute as legal estates {d). In modern practice, trusts for sale and similar special trusts are more commonly created than simple trusts of land. Trusts of property may be created by act of the Creation of parties or operation of law. Express trusts are created either by duly conveying the legal interest in the property to others on trust for the persons desired to (x) Lewin on Trusts, ch. xxx., (a) See Lewin on Trusts, pp. s. 1, S§ 1, 3, 4 & s. 3, § 4, pp. r— 10, 674, 882, 8th ed. 857—860, 894, 8th ed. (J) Ante, p. 200. \y) See Lewin on Trusts, ch. i. (c) Ante, pp. Ill, 126, (z) Ante, p. 203. {d) Ante, p. 205. o 2 212 OF CORPOREAL HEREDITAMENTS. Atnerican vote 3, p. Implied trusts. Resulting trusts. Atnerican note 4. j)p. !t!i8,-J39. be benefited, or, without any transfer of the legal ownership, by the owner declaring that he will hold the property on trust for them. When a declaration of trust has been duly made, either with or without a conveyance of the legal interest, the trust will be enforceable in equity, although no consideration {e) should have been given for its creation. But a mere voluntary covenant or promise to transfer property to another, made without any declaration of trust and not carried out by conveyance of the property at law, will not be specifically enforced in equity {/). Trusts may also be implied in certain cases, in which the acts of the parties shew an intention to create them. A sale of land is an instance of this, when the vendor is at once held to be trustee for the purchaser (g). But no trust will be implied from such a voluntary covenant or promise as has just been mentioned {h). Trusts are said to arise by operation of law in the following cases ; when they are created by implication of equity without any expression in word or act of the parties' inten- tion (a), that is to say : — (1) Where an owner conveys away his property at law, but it cannot be inferred that he intended to dispose of the beneficial interest therein; for instance, wdiere property is conveyed in trust for purposes, which fail or do not exhaust the whole estate conveyed ; or where one makes a gratuitous transfer of property at law, but no intention of gift can be in- ferred. (2) Where a purchaser of property takes a conveyance of the legal interest therein in the name of another, and there is nothing to shew that he intended the other to benefit. In these cases there is said to be a resulting trust in favour of the owner or purchaser (J). (e) Ante, p. 84. R., 18 Eq. 11; Lewiu on Trusts, (/) Lewin on Trusts, ch. vi., c'u. VI. 8th ed. 8th ed. (i) Lewin on Trusts, 108, n., (g) Lewin on Trusts, 108, 130 193, 8th ed. etfeg., 8th ed. (,/) See Lewin on Trusts, ch. is., (A) Kichards r. Delhridge, L. 8th ed. OF AN EQUITABLE ESTATE IN LAND. 213 (3) If a trustee use his position of legal owner to obtain Constructive some valuable interest in property for himself; when he will be held in equity to be a trustee thereof, construc- tively, for those for whose benefit he was entrusted with such legal ownership [k). In the regulation of trust estates and interests the Court of Chanceiy was generally guided by the prin- ciples applicable to estates and interests at law {I). Thus simple trusts created of real or personal j)roperty Real and confer on cestui que trust an interest in equity of^gj'!j\°°^ the nature of real or personal estate, as the case may equity. be ; so that cestui que t^mst of lands in fee simple has an estate in equity transmissible to his heirs, but his interest in chattels held on trust for him will pass to his executors or administrators {rn). Again, trusts declared in favour of one and his heirs, or of him and the heirs of his body, or of him for life, will create ec[uitable estates in fee simple, fee tail, or for life, analogous to the legal estates conferred by similar limitations (/i). But the decisions of equity do not follow the law in all its ancient technicalities, but proceed on a liberal system correspondent with the more modern origin of its power. Thus, equitable estates in fee simple or tail may be conferred without the use of the words heirs or heirs of the hody, if the intention be clear {o) ; for, equity pre-eminently regards the intentions and agreements of parties ; accordingly, (k) Lewin on Trusts, ch. x., estates in land, ttiat a limitation 8th ed. to one simply, without further (I) 1 Sand. Uses, 2G9 (280, 5th words, and without otherwise ex- ed.). pressing an intention that he (m) Ante, ■[>■[). \9> — 21; see Lewin shall take the fee, will give him on Trusts, 94, 149, 285, 823, &th a life estate only ; Holliday v. ed. Onerton, 15 Beav. 480 ; Lucas r. in) Ante, pp. 70, 72, 100, 123, Jirandreth, 28 Beav. 274; Tatham 125, 177. V. Vernon, 29 Beav. 604; Lewin ^o) Lewin on Trusts, ch. viii. on Trusts, p. 109, 8th ed.; El- s. 1, § 1, 8th ed. It appears, phinstone, Norton and Clark on however, with regard to formal luterpretatiou of Deeds, 276 — 8, limitations in a deed of equitable 214 OF CORPOREAL HEREDITAMENTS. Equitable estate tail in lands to be purchased. American note 5, p. il'49. Equitable estate in fee simple. words which at law would confer an estate tail, are sotnetiines construed in equity, in order to further the intention of the jjarties, as givin^^ merely an estate for life, followed by separate and independe.Mt estates tail to the children of the donee. This construction is frequently adopted hy equity in the case of marriage articles, wheie an intention to provide for the children might otherwise be defeated by vesting an estate tail in one of the parents, who could at once bar the entail, and thus deprive tiie children of all benefit {p). So if lands be directed to be sold, and the money to arise from the sale be directed to be laid out in the purchase of other land to be settlud on certain persons for life or in tail, or in any other manner, such persons will be regarded in equity as already in possession of the estates they are intended to have : for, whatever is fully agreed to be done, equity considers as actually accomplished. And in the same manner if money, from whatever source arising, be directed to be laid out in the pur- chase of land to be settled in any manner, equity will regard the persons on whom the lands are to be settled as already in the possession of their estates {q). And in both the above cases the estates tail directed to be settled may be barred, before they are actually given, by a disposition, duly enrolled, of the lands which are to be sold in the one case, or of the money to be laid out in the other (r). Again, an equitable estate in fee simple immediately belonijs to every purchaser of free- hold property the moment he has signed a contract for purchase, provided the vendor has a good title {s) ; and it is understood that the whole estate of the vendor is contracted for, unless a smaller estate is expressly men {p)\ Sand. Uses, 811 (337, 5th ed.); Watkins on Descents, 168 (214, 4th ed.). (<7) 1 Saud. Uses, 300 (324, 5th ed.). (r) Stat. 3 & 4 Will. IV. c. 74, 8s. 70, 71, repeating stat. 7 Geo. IV. c. 45, which repealed stat. 39 & 40 Geo. III. c. 66. is) Sug. Vend. & Pur., 174 et seq., 14th ed. OF AN EQUITABLE ESTATE IN LAND. 215 tioiied, tlie employment of the word heirs, or of other technical words, not being essential {t). If, therefore, the pnrcliaser were to die intestate the moment after the contract, tlie equitable estate in fee simple, which he had just acquired, would descend to his heir at law ; who would, until the passing of a recent Act which enacts the contrary (w), have had a right (to be enforced in equity) to have the estate paid for out of the money and other personal estate of his deceased ancestor; and the vendor would be a trustee for the heir, until he should have made a conveyance of the legal estate, to which the heir would be entitled. Many other examples of equitable or trust estates might be furnished. At law, the possession of cestui que trust in occupa- Possession of c 1 1 1 11 f Ml cestui que tion or the land was merely that oi a teiuint at will io trust. his trustees. Before the Judicature Acts, therefore, if he wished to have the benefit of a greater right to maintain or recover possession than is accorded to tenant at will («), he must hive directed his trustees ^J"/^**'""' to take action for him, and must have sued them in a^*^^'^^^* court of equity for any breach of trust in this respect {y). But the effect of the Judicature Acts {z) appears to be that the equitable right to possession of land enjoyed b}' cestui que trust shall now be recognized and enforced in every branch of the Court, which now exercises the jurisdiction of the old Superior Courts both of law and equity {a). As regards free enjoyment, an equitable tenant in fee Free enjoy- ment of cestu que trust. (t) Bower v. Cooper, 2 Hare Jones, 7 T. R. 43 ; Doe d. Jieade 408. V. Jieade, 8 T. R. 118; Lewin on (u) Stat. 40 & 41 Vict. c. 34. Trusts, 677, 678, 853, 8lh ed. (x) See Bac. Abr. Trespass (C, (z) Ante, p. 197. 3); Cole on Ejectment, 211—213, (a) Walsh v. Lonsdale, 21 Ch. 287; Asher v. Whitlock, L. R. D. 9 ; Furness v. Bond, 4 Times IQ. B.l. L. R. 457; Lowther v. Heaver, (1/) Doe d. Hodsden v. Utaple, 2 41 Ch. D. 248, 264. r. 'R. 684; Goodtitle d. Jonet v. 21G OF CORPOREAL HEREDITAMENTS. Restrictions on the use of land in equity. American tiotc 7 , i>. 230. or in tail has as ample a nglit as the tenant of a like estate at law (/>) : but an equitable tenant for life may be restrained from and is liable for committing waste to the saine extent as a legal tenant for life (c). Here it may be explained that a tenant in fee simple at law may in equity be subject to perpetual restrictions in the use of his land imposed by his own agreement or that of his predecessors in title for the benefit of the owners and occupiers of some other land ; for instance, not to build over part of his land, or not to use any liouse tiiereon as a public-house or hotel. Such an equity may bo enforced by injunction at suit of such owners or occu])iers against the tenant, his heirs and assigns, either of the whole or part of his estate, except only (as in the case of other equities (r/) ) such assigns as have acquired the land as purchasers for value with- out notice of the restriction {e). Power of dispositioD of trust estates. Free power of disposition inUr vivos or by will has always been incident to a trust estate, as it was to an estate m use before the statute (/'). But this power is of course commensurate with the estate of the cestui que trust. Thus an equitable estate tail must be barred in the same manner as an estate tail at law ; that is to say, since 1833, by deed duly enrolled (^), and previously by suffering a common recovery (/*). So cestui cj^ue trust of lands fur life only can dispose, for his own {b) Ante, pp. S5, 119. (c) Baker v. Sthi-iqht, 13 Ch. D. 170 ; Levvin on Trusts, 574, 8th ed. ; ante, pp. 127—129. id) Aide, p. 170 ; see Jessel, M. R., 20 Ch. D. 583 ; Lord Esher, M. R., 16 Q. B. 1). 787; Lindiev, L. J., ib. 788. («) See Tulk v. Moxhaij, 2 Ph. 774; Kenals v. Cowlishaw, 9 Cli. D. 125, 11 Ch. D. 8ti(5; Tate v. Gosling, 11 Ch. 0. 273; Auster- herry v. Corporation of Oldham, 29 Ch. D. 750; tipicer y . Martin, 14 App. Cas. 12; Mackenzie v. CMlderfi, 43 Ch . 1>. 2ii5 ; Su^. V. & P. 5'J(>, 14th ed.; see Duke of Bedford v. Trmtees of Britiifh Mmenm, 2 My. & K. 552 ; Sayers V. Colly er, 28 Ch. D. 103. (,/■) Ante, p. 203; Levviu on Trusts, ch. xxvii. ss. 1, 2. (g) Stat. 3 & 4 WilL IV. c. 74, ss. 1, 15, 40. (A) Cruise on Recoveries, 271 ; Lewin on Trusts, ch. xxvii. s. 1, §§5, 6; ante, pp. 108—111. OF A-V EQUITABLE ESTATE IN LAND. 21" benefit, of no greater interest than during liIs own life. But any person, who is beneficially entitled in possession to an equitable estate in land during his life, now has the powers of leasing, sale and other p »vvers given to a tenant for life by the Settled Land Act, 18S2 (i) ; to give eifect to which, he is empowered, equally witli the tenant of a legal life estate, to convey the settled land for all the estate, which is the subject of the settle- ment (^). Trust estates are now liable to involuntary Alienation alienation for debt, equally with legal estates; as will ""^ ^ '" be further explained in treating of creditors' rights {!). Trusts or equitable estates mav be created and passed Creation and J. 1 • i' 1 /. transfer of irom one person to another, without tiie use ot any par- trust estates. ticular ceremony or form of words {m). But, by the Statute of Frauds {71), it is enacted (o), that no action statute of shall be brought upon any agreement made upon con- '^'^^ ''^ sideration of marriage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be chare^ed therewith, or some other person thereunto -^'nf^iran by him lawfully authorized. It is also enacted (p), that ^^^' all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be mani- fested and proved by some writing, signed by the party who is b}' law enabled to declare such trusts, or by his last will in writing; and further (y), that all grants and ass gnments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning (i) Stat. 45 & 41; Vict. c. 38, (n) 29 Car. II. c. 3. s. 2, sub-ss. 5, 10 (i); ante, (0) Sect. 4; Sua;. V. & P. c. i, pp. 132—136. pp. 121 etseq., 14th ed. (k) Sect. 20; ante, p. 136. { p) Sect. 7; Tierney v. Wood, \l) Post, Ft. I., ch. xi. 19 Beav. 330; Dye v. Dye, 13 Q. (m) 1 Sand. Uses, 315, 316 B. D. 147. (343, 344, 5th ed.); Lewin on (j) Sect. 9. Trusts, ch. v., s. 1. 218 OF CORPOREAL HEREDITAMENTS. the same, or by bis last will. Trusts arising or resulting froui any conveyance of lands or tenements, by impli- cation or construction of law, and trusts transferred or extinguished by an act or operation of law, are ex- empted from this statute (r). In the transfer of equit- able estates it is usual, in practice, to adopt conveyances aj)plicable to the legal estate ; but this is never neces- sary is). If writing is used, and duly signed, in order to satisfy the Statute of Frauds, and the intention to transfer is clear, any words will answer the purpose (t). Descent of equitable fee. Formerly, no escheat of a trust estate. Law of escheat now apphes to trust estates. Stamp Duty. Tlie descent of an equitable fee upon intestacy follows the same course as that of a legal fee {u) ; and, therefore, in the case of gavelkind and b' -rough-English lands (a;), trusts affecting them will descend according to the descendible quality of the tenure (y). Formerly, an equitable estate in fee did not escheat to the lord upon failure of heirs of the cestui que trust (z), for a trust is a mere creature of equity, and not a subject of tenure. In such a case, therefore, the trustee held the lands discharged from the trust which had so failed ; and accordingly had a right to receive the rents and profits without being called to account by any one. In other words, the lands were thenceforth his own {a). But from and after the passing of the Intestates' Estates (r) Sect. 8 ; see ante, p. 212. («) 1 Sand. Uses, 342 (377. 5th ed.); Lewia on Trusts, cli. x.xvii. s. 1, §3. (t) Agreements, as a rule, now bear a stamp duty of sixpence, which may be denoted by an adhesive stamp, which is 1o be cancelled by the person by whom the agreement is first executed. Declarations of trust of any pro- Eerty made by any writing, not ein'g a will, or an instrument chargeable with ad valorem duty as a settlement, are charged with 8 stamp duty of 10«./ see stat. 54 A 55 Vict. c. 39, ss. 1, 7, 8, 22, & ]st schedule, replacing stat. 33 & 34 Vict. c. 97, s. 315 & schedule. (m) Ante, p. 91, and />os<, eh. ix. (.c) Ante, pp. 63, 65. {)/) 1 Sand. Uses, 270 (283, 5th ed.) ; Lewin on Trusts, ch. xxvii., s. 11. (z) 1 Sand. Uses, 288 (302, 5th ed"). («■) Burgess v. Wheate, 1 Wm. Black. 123; 1 Eden, 177 ; Taylor V. llaygarth, 14 Sim. 8; Davall v. New River Company, 3 De Gex & Smale, 394; Jieale v. Symonds, 16 Beav. 406 ; Gallard v. Hawkins, 27 Ch. D. 298. OF AN EQUITABLE ESTATE IN LAND. 219 Act, 1884 [h), where a person dies witliout an heir and intestate (c) in respect of any real estate consisting of any equitable estate or interest in any corporeal or in- corporeal hereditament, the law of esciieat shall apply in the same manner as if such estate or interest were a legal estate in corporeal hereditaments (d). Before the Treason, abolition of forfeiture for treason, it was the bettor opinion that, in tlie event of high treason being com- mitted by the ce.stulqae trust of an estate in fee simple, his equitable estate would be forfeited to the Crown {e). Trustees, as wo have seen (/*), are invariably made Descent of joint tenants. So that, if there are more trustees than trustee, one, npon the death of one of them the estate in any land subject to the trust vests at once in the surviving trustees or trustee. Formerly, upon the death of a sole or sole surviving trustee of lands, tlie legal estate there- in passed to his devisee or heir at law, according as he had or had not devised the same by his will, in each case subject to the trust {g). But now, by the Convey- ;f^^/^'<"^'^* ancing .\ct of 1881, on the death after the year 1881 of ^^^' ^'^'^^- ' a sole trustee of any freehold estate or interest of in- heritance in any hereditaments, the same shall, notwith- standing any testamentary disposition, devolve to and become vested in his personal representatives, in like manner as if the same were a chattel real (A). It was Failure of never precisely decided, whether, in case of the failure trustee, of heirs of the trustee of an estate in fee simple, the lord taking the land by escheat {i) was bound by the {h) Stat. 47 & 48 Vict. c. 71, Dec, 1881, any hereditament of 8. 4; passed 14th August, 1884. which he was seised in fee simple (c) See sect. 7. vested in his legal personal repre- (). These enact- ments were repealed by the Conveyancing Act of 18S1 {q), which has substituted provisions for the ap- pointment of new trustees applicable to trusts created either before or after its commencement (r). Under this Act {s), where a trustee is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from the trusts or powers re- posed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for this purpose l)y the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee {t) for the time being, or the personal representatives of the last surviving or continuing trustee, maj^, by writing, appoint a new trustee or new trustees. Every new trustee so appointed is at once invested with the same powers as an original trustee {u). On an appointment ^^'jy^^o^p of a new trustee, the number of trustees may be in-*^^' creased {x). It is not obligatory to appoint more than one new trustee, where only one trustee was originally appointed, or to fill up the original number of trustees, wliere more than two trustees were originally appointed ; but in the latter case, there must be at least two trus- tees to perform the trust {y). (p) Stat. 23 & 24 Vict. c. 145, (t) Including a refusing or re- 8S. 27, 34; passed 28lh Aug. tiring trustee, if willing to act in 1860. appointing a new one; s. 31, sub- {q) Stat. 44 & 45 Vict. c. 71, s. s. (6). 71. (m) Sect. 31, sub-s. (5). (r) Sect. 81, sub-s. 8. These (,r) Sect. 31, sub-s. (2). provisions may be excluded or (y) Sect. 31, sub-s. (3). An varied by the terms of the instru- appointment of a new trustee is ment creating the trust; see sub- charged with a stamp duty of 8. 7. 10«./ Stat. 64 & 55 Vict. c. 80, s. («) Sect. 31, sub-s. (1); see 1. & 1st schedule, replacing 33 <& Williams's Conveyancing Sta- 34 Vict. c. 97, schedule, tutes, 177 et seq. 222 OF CORPOREAL HEREDITAMENTS. Retirement of Formerly a trustee could only refu'c and be diPcharged trustee. ^^^^^ ^ ^^^^^^ ^^^^ accepted — (1) with the concurrence of all the cesteux qxie trudent being sui juris i (2) under the authority of the Court of Cliancery; or (3) by the appointment under an express or statutory power of a new trustee in his place (s). But now, by the Conveyancing Act of 1881 (a), where tliere are more than two trustees, a trustee may retire and be discharged from the trust, without any new trustee being appointed in his place, upon his declaring by deed his desire to be discharged, and his co-trustees, and such other person, if any, as may be empowered to appoint trustees, consenting by deed to his discharge. Vesting trust The mere appointment of a new trustee does not new'^trustees. give him the legal estate in the lands subject to the trust ; and it was formerly necessary for the persons who were trustees when the appointment was made, to execute a conveyance of their estate in any land subject to tlie trust to the new trustee and the continuing May be now trustees (h). In deeds of appointment of a new trustee by a'^dechfra- and of discharge of a retiring trustee executed after the year 1881, the estate in any land subject to the trust may be vested in the future trusters simply by a declaration to that effect made by the pioper persons without any conveyance (c). For, by the Conveyancing Act of 1881 (fi?), where a deed by which a new trustee is ap{:)ointed contains a declaration hy the appointor to the effect that any estate or interest in any land subject to the trust shall vest in the persons who by virtue of the deed become and are the trustees for performing the (2) See Lewin on Trusts, oh. (l) See Williams's Conveyanc- XXV 8th ed. ing Statutes, 181, 182. (a) Stat. 44 & 45 Vict. c. 41, s. ic) Stat. 44 & 45 Vict. c. 41, 32, the provisions of which may s. 34, sub-s. (5); see Williams's be excluded or varied by the terms Conveyancing Statutes, 181 — 185. of the instrument creating the {d) Sect. 34, sub-s. (1). trust; see sub-s. 3. tion. OF AN EQUITABLE ESTATE IX LAND. 223 trust, that declaration shall, -svithout any conveyance, operate to vest that estate or interest in tliose persons as joint tenants and for the purposes of the trust. And where a deed, by which a retiring trustee is dis- charged under the same Act, contains a similar declaration Jjy the retiring and continuing trustees, and Tjij the other person, if any, empowered to appoint trustees, that declaration shall, without any conveyance, operate to vest in the continuing trustees alone as joint tenants, and for the purposes of the trust, the estate and interest to which the declaration relates {e). Tt is not always possible to obtain the concurrence of ^"®f*'°s • 1 1 1 T 1 • orders. the person entitled to the legal estate in land subject to a trust, when it is wished to vest the estate in new trustees. Provision has, therefore, been made by the Trustee Acts, 1850 and 1852 {/), that in certain cases an order of Court may be made vesting any lands subject to a trust in such persons- and for such estate as shall be directed. Such an order may be obtained if the person seised or possessed of lands on trust be a lunatic, or an infant, or out of the jurisdiction or not to be found, or refuse to convey, and in one or two other cases ; and the order has the effect of a convey- ance {g). It must now be made, in the case of lunacy, by the Judge in Lunacy (Ji) ; in other cases, in the («) Stat. 44 & 45 Vict. c. 41, Inland Kevenue, 3 E.t. D. 46; 8. 34, sub-s. (2). The 34th section arde, p. 218, u. {t). does not extet.d to uny legal estate (_/') Stats. 13 & 14 Vict. c. «0 ; or interest in copyhold or cus- 15 & Kj Vict. c. 55 ; replacing tomaiy land, or to'land conveyed stats. 11 Geo. IV. & 1 Will. I\. by wa}' of mortgage for securing c. (inss that the seisin was thus transferred from one ])erson to another, by a mere ba?'gain and sale^ that is, by a contract for sale and payment of money without the necessity of a feoffment, {k) 27 Hen. VIII. c. 10. {I) Ante, pp. 202, 203. (_wi) 2 Saud. Uses, 43 (53, 5th ed.); Gilb. Uses and Trusts, 49 (94, 3rded.). (/i) Ante, p, 205 & n. (x). OF A MODERN CONVEYANCE. 235 or even of a deed {o) ; and, moreover, an estate in fee simple at law was thus duly conveyed from one person to another without the employment of the technical word heirs, which before was necessary to mark ont- the estate of the purchaser ; for it was presumed that the purchase-money was paid for an estate in fee simple {p) ; and as the purchaser had, under his contract, such an estate in the use, he of course became entitled, by the very words of the statute, to the same estate iu the legal seisin and possession. The mischievous results of the statute, in this par- ticular, were quickly perceived. The notoriety in the ti-ansfer of estates, on which the law had always laid much stress, was at once at an end ; and it was per- ceived to be very undesirable that so important a matter as the title to landed property should depend on a mere verbal bargain and money payment, or Ijargaln and sale, as it was termed. Shortly after the passing of the Bargains an.i Statute of Uses, it was accordingly required by another i"','' be b^v^deeci Act of Parliament (i^), passed in the same year, that ^"'""^'*^'^" every bargain and sale of any estate of inheritance or freehold should be made by deed indented and enrolled, within six months (which means lunar months) from Ihe date, in one of the Courts of Recoi\l at "Westminster, or before the custos rotulorum and two justices of the peace and the clerk of the peace for the county in which the lands lay, or two of them at least, whereof the clerk of the peace should be one. A stop was thus put to the secret conveyance of estates by mere contract and payment of money. For a deed entered on the (o) Dyer, 229 a; Comyns' Di- of bargain and sale may now be gest, lit'. Bargain and Sale (B. 1, enrolled in the Central Office of 4): Oilb. on Uses and Trusts, 87, the Supreme Court; stats. 30 & 271 (17!', 475, 3rd ed.). 37 Vict. c. 66, ss. 16, 77; 42 & (p) Gilb Uses, 62 (116, 3rd 43 Vict. c. 78; Rules of the Su- ed.). prcnie Court, 1SS3, Order LXl., {q) 27 Hen. VITI. c. 16. Deeds rule 9. 03G OF CORPOREAL HEREDITAMENTS. records of a court is of course open to public inspection ; and the expense of enrolment was, in some degree, a connterbalanee to the inconvenience of going to the A loophole _ lands to a'ivc livcrv of seisin. It was not long, however, discovered in & " ^ , . ibe statute. bcforc a loophole was discovercd in this latter statute, tlirongli which, after a few had ventured to pass, all the world soon followed. It was perceived that the Act spoke only of estates of inheritance or freehold, and was silent as to bargains and sales for a mere term of Bargain and years, wliicli is uot a freehold. A bargain and sale of sale for a year. »' ' i c zt i i i lands for a year only was not therefore atrected by the Act (r), but remained still capable of being accomplished by word of mouth and payment of money. The entry on the part of the tenant, required by the law (.s), was supplied by the Statute of Uses ; which, by its own force, placed him in legal intendment in possession for the same estate as lie had in the use, that is, for the term bargained and sold to him {t). And as any pecuniary payment, however small, was considered sufficient to raise a use (w), it followed that if A., a person seised in fee simple, bargained and sold his lands to B. for one year in consideration of ten shillings paid by B. to A., B. became, in law, at once possessed of an estate in the lands for the term of one year, in the same manner as if he had actually entered on the premises under a regular lease. Here, then, was an opportunity of making a conveyance of the whole fee simple, without livery of seisin, entry or enrolment. When the bargain and sale for a year was made, A. had simply to release by deed to B. and his heirs his (A.'s) estate and interest in the premises, and B. became at once seised of the Lease and lands for an estate in fee simple. This bargain and re ease. ^^^ ^^^^ ^ year, followed by a release, is the modern {r) Gilb. Uses, • 98. 296 (214, (t) Gilb. Uses, 104 (223, 3rd 502, 8rd ed.); 2 Saud. Uses, o3 ed.) (75, 5t;i ed.). (m) 2 Sand. Uses, 47 (57, 6th («) Ar.te, pp. 187, 232. ed.) OF A MODERN CONVEYANCE. 237 conveyance by lease and release — a method wliich was first practised by Sir Francis Moore, serjeant-at-law, at the request, it is said, of Lord Norris, in order tliat some of his relations might not know what conveyance or settlement he should make of his estate (a;) ; and although the efficiency of this method was at first doubted (y), it was, for more than two centuries, the common means of conveying lands in this country. It will be observed that the bargain and sale (or lease as it is called) for a year derived its effect from the Statute of Uses ; the release was quite independent of that statute, having existed long before, and being as ancient as the common law itself iz). The Statute of Uses was employed in the conveyance by lease and release only for the purpose of giving to the intended releasee, without his actually entering on the lands, sucli an estate as would enable him to receive the release. When this estate for one year was obtained by the lease, the Statute of Uses had perforuaed its part, and the fee simple was conveyed to the releasee by the release alone. The release would, before the Statute of Uses, have conveyed the fee simple to the releasee, supposing him to have obtained that possession for one year, which, after the statute, was given him by the lease. After the parsing of the Statute of Frauds (a), il became necessary that every bargain and sale of lands for a year Bargain and should bo put into writing, as no pecuniary rent was mutt be m^'^'*'' ever reserved, the consideration being usually five^"*'"°* shillings, the receipt of which was acknowledged, though in fact it was never paid. And the bargain and sale, or lease for a year, was usually made by deed, though this was not absolutely necessar}'. It was generally dated the day before the date of the release, though executed (x) 2Prest. Conv. 219. (j) Sugd. note to Gilb. Uses, (y) Sugd. note to Gilb. Uses, 229. 328; 2 Prest. Conv. 231 ; 2 Fonb. (a) Stat. 29 Car. II. c. 3; ante., Eq. 12. p. 1S4. 238 OF CORPOREAL HEREDITAMENTS. on the same day as the release, immediately before the The estate execution of the latter (6). On a conveyance by release bee? marked f^'oui a freeholder in fee to his lessee for years in °"^- possession of the laud, whether by entry or under flie Statute of Uses, it was as necessary as it was in a feofEmcnt, that the estate to be taken by the latter should be duly marked out; so that he would take no fee even thouo-h the lessor released all his estate to him, uuless the estate were released to him and liis heirs (c). Act abolishing This cumbrous contrivance of two deeds to every tyltr^^^""^ purcliase continued inconstant use down to the year 184:1, when the Act was passed to which we have before referred {d). This Act provided that every deed of release of a freehold estate, which should be expressed to be made in pursuance of the Act, should be as effectual as if the releasing party had also executed, in due form, a lease for a year, for giving effect to such release, although no such lease for a year should be executed. Act to amend In the vcar 1845, it was provided by the Act to iea/p7operty. amend the law of real property {e) that after tlie 1st of October 1845, all corporeal tenements and heredita- ments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. We have seen that, at common law, corporeal hereditaments were said to lie in livery, as being trans- ferable by delivery of possession ; while incorporeal hereditaments were said to lie in grant, because a deed (h) See Appendix (A) for the («) Stat. 8 & 9 Vict. c. 106, s. form of deeds of lease and re- 2. This Act repealed stat. 7 & 8 Igjjjjg Vict. c. 76, ss. 2, 13, ])roviding (c) Litt. s. 465 ; see ante, that after the year 1844 freehold p I'-^fj land might be conveyed by deed (d) Stat. 4 & 5 Vict. c. 21, re- without livery of seisin or a prior pealed as obsolete by stat. 37 & 38 lease. Vict. c. yO; ante, p. 232. OF A MODERN CONVEYANCE. 230 of grant was required to convey them, if desired to be transferred apart from the possession of anything cor- poreal (/"). Since this enactment, therefore, a simple deed of grant has been sufficient for the transfer of all freehold estates in possession, or corporc-al heredita- ments {g). And the method so introduced of conveying freeholds by deed of grant has ever since superseded all others in practice. The freehold possession or legal seisin being thus The estate , 1 ~ , . » 11/- V • taken must be capable of being transferred by a deed ot grant, there is marked out. the same necessity now as tliere was when a fcoiiment or release was employed, that the estate which the pur- chaser is to take should be niarked out {h). In deeds executed after the year 1S81, however, it is sufficient, in the limitation of an estate in fee simple, to use the ^»»"»"ic«w , . note ',i, p. words tn fee simple, without the word heirs ; and in the '■^^'•*- limitation of an estate in tail, to use the words in tail, without the words heirs of the hody ^ and in the limita- tion of an estate in tail male or in tail female, to use the words in tail tnale or in tail female, as the case requires, without the words heirs male of the hody or heirs female of the hody (i). These expressions were authorized by the Conveyancing Act of 1881, But this Act did not abolish the necessity for using proper words of limitation. It is considered, therefore, that at the present day the limitation by deed of estates in fee or in tail must be made, either by making use of the old words of inheritance, or procreation (^•), as heirs, heirs of the hody, &c., or else by employing the exact expressions mentioned in the Act. Thus if a man has purchased an estate in fee simple, the conveyance must be expressed to be made to him and his heirs, or to him (/■) Ante, pp. 30, 31. {i) Stat. 44 & 45 Vict. c. 41, s. ig) AtiU, v. 29. 51. Touch. 327; ante, {k) Ante, p. 177. p. 176. 240 OF CORPOREAL HEREDITAMENTS. in fee simple i for tlie construction of all conveyances, ■wills only excepted, is in this respect the same ; and a conveyance to the purchaser simply, without these words, would merely convey to him an estate for his life, as in the case of a feoffment (/). In the case of a grant also, as well as in a feoifment, it is the better opinion that, in order to give permanent validity to the conveyance, it is necessary either that a consideration should be expressed in the conveyance, or that it should 1)0 made to the use of the purchaser as well as unto him {m) : for a lease and release was formerly, and a deed of grant is now, as much an established conveyance as a feoffment; and the rule was, before the Statute of Uses, that any conveyance, and not a feoffment par- ticularly, made to another without any consideration, or any declaration of uses,should be deemed to be made to the Conveyance iise of the party conveying. In order, therefore, to avoid and to the use^'^'^J sucli Construction, and so to prevent the Statute of 'ifJ'^r,.^"'^' Uses from immediately undoini>: all that has been done, it is usual to express, in every conveyance, that the purchaser shall hold, not only unto, but unto aiid to the use o/" himself and his heirs. A conveyance A Conveyance might also have been made by lease may be made t\ ^ c re to uses. and release, as well as by a teoiiment, to one person and his heirs to the use of some other person and his heirs ; and, in this case, as in a similar feoffment, the latter person took at once the whole fee snnple, the former serving only as an instrument to enable the Statute of Uses to exei-ute the estate to him {n). This extra- ordinary result of the Statute of Usics is continually relied on in modern conveyancing; and it may now bo accomplished by a deed of grant in the same manner as it miofht have been before effected bv a lease and release. U) Shep. Touch. 327. Uses, 233; see ante, pp. 168, 2u2, i,m\ 2 Sand. Uses, 64—69, (77— 166. 84, 5th ed.); Sugd. note to Gilb. (n) See ante, p. 206. OF A MODEHX CONVEYANCE. 24-1 It has been found particularly advantageous as a means a man cannot fur avoiding a rule of law, that a man cannot make any himleff alone, conveyance to himself; thus if it were wished to make a conveyance of lands from A., a person solely seised, to A. and B. jointly, this operation could not, before the Statute of Uses, have been effected by less than two conveyances; for a conveyance from A. directly to A. and B. would have passed the whole estate solely to B, (o). It would, therefore, have been requisite for A. to make a conveyance to a third person, and for such person then to re-convey to A, and B. jointly. And this was the method actually adopted, under similar circumstances, with respect to leasehold estates and personal property', which are not effected by the Statute of Uses, until an Act was passed by which any person may now assign leasehold or personal property to him self jointly with another (/>); but this Act does not extend to freeholds. If the estate were freehold, previously to the year 1882, A. must have conveyed to B. and his heirs, to the use of A, and B. and their heirs ; and a joint estate in fee simple would have immediately vested in them both. In conveyances made after 1881, the like result may be obtained with- out the aid of the Statute of Uses. For by the Con- veyancing Act of 1881 {q), freehold land may now be But a man conveyed by a person io hi7nsclf joiiitly with another'^^^Jl^^^^^^l^'^l verson by the like means by which it might be 0011-!°.^''"®*^'/^ ' •' ^ ■' ^ . jointly with, veyed by him to another person. But this enactment a/io^Ae/- does not appear to enable a man to make any con- veyance to himself otherwise \\\^w jointly loith another person. Suppose, then, a person should wish to convey a freehold estate to another, rt;scrviug to himself a life (0) Perkins, s. 203. So a man s. 21 ; see Williams's Conveyanc- cannot covenant to pay money to ing Statutes, 224. himself and another on a joint (y) Stat. 44 & 45 Vict. c. 41, account; Faulkner v. Lowe, 2 E.x. s. 50; Williams's Conveyancing Rep. 595. Statutes, 223. {p) Stat. 22 & 23 Vict. c. 35, w. K. V. ■ Q 242 OF CORPOREAL HEREDITAMENTS. interest, — without the aid of the Statute of Uses he would be unable to accomplish this result by a single and may deed (/*). But, by means of the statute, he may make °"other\°o his ^ Conveyance of tiie piopert}' to the other and his heirs, own use. fg the use of himself (the conveying party) for his life, and from and immediately after his decease, to the use of the other and his heirs and assigns, or in fee simple (.s). By this means the conveying party wull at once become seised of an estate only for his hfe, and after his decease an estate in fee simple will remain for the other. Form of a The Consideration of the form of a deed of grant is grant. reserved for a subsequent chapter {t). But it may be a American help to the Student to turn to that chapter now, and ii49,25o.' peruse the precedents of purchase deeds there given. He may not see the reason for every expression used in these deeds ; but lie will understand the gist of them ; and it will quicken the knowledge he has already ac- quired to see how a grant of land is made in practice. Conveyance In ordor to make a complete and unavoidable con- Middiesex"and veyance of lands situate in Middlesex or Yorkshire Yorkshire. (^includiug the town and county of Kingston-npon-Hull), a memorial of the deed of conveyance must be duly registered in the county register. The registration of deeds affecting lands in these counties was rendered necessary by statutes of the reigns of Anne and George II. {u). These Acts provided that all deeds (r) Perk. ss. 7^4, 705; Youle the West Riding of Yorkshire; V. Jones, 13Mee. & Wels. 534. 6 Anne c. art of the great level of the fens, called Bedford Level, are also reqnired to be registered in the Bedford Level Otiice {3) ; but the cunsti-uction which .iniprirnn jjas boon Dut cm tlio statute, by which such registration note 4. i>i>. . , ' • '-^ £ • ^ ^ r " ! • "■"' """ is required, prevents any priority ot interest ironi being gained by priority of registration (a). Bedford Level. fiSl Lease and release an innocent con vevance So a grant. Word grant. A lease and release was said to be an innocent . conveyance ; for when, by means of the lease and the Statute of Uses, the purchaser had once been put into possession, he obtained the fee simple by the release ; and a release never operates by wrong, as a feoffment occasionally did (5), but simply passes that wliich may lawfully and riglitly be conveyed (c). The same rule is ap])licable to a deed of grant (rZ). Thus, if a tenant merely for his own life should, by a lease and release, or by a grant, ]>urport to convey to another an estate in fee simple, his own life interest only would pass, and no injury would be dune to tlie reversioner. The word grant is the proper and technical term to be employed in a deed of grant (e), but its employment is not absolutely necessary ; for it has been held that other words indicating an intention to grant will answer the purpose (/). And by the Conveyancing Act of 1881 {g), it is declared that the use of the word grant is not necessary in order to convey tenements or heredita- ments, corporeal or incorporeal. It will be seen then tiiat the conveyance of a freehold thouirh the chief Conveyance of freeholds stiU , , , • . mi £ i xj. a formal estate at hiw is still a lormal matter matter. {z) Stat. 15 Car. II. c. 17, s. 8. (a) Willis V. Brown, 10 Sim. 127. {h) Ante, p. 178. . (c) Litt. s. 600. \d) Litt. ss. file, 017. (e) Shep. Touch. 229. (/) Shove V. Pincke, 5 T. Rep. 124; Haggerston v. Hanhury, 5 Barn. & Cress. 101. (f/) Stat. 44 & 4.T Vict. c. 41, s. 49, which applies to convey- ances made before or after the commencement of the Act. See Williams's Conveyancing Sta- tutes, 222. OF A MODERN CONVEYANCE. 245 requisite in this respect is now a deed, and not delivery of possession, as was the case at common law (/*). Nor will an informal expression of intention ever sufhce to transfer a legal estate of freehold (/). Since it was enacted in 1845 that corporeal hereditaments should lie in grant as well as in livery, it has been the regular practice to convey freeholds by deed of grant {k). It should be noted, however, that other methods of convey- ance may still be employed, though in practice they seldom are. Thus a feoffment with livery of seisin may Feoffment, still be made. But as a feoffment must now be evidenced by deed, unless made by an infant under a custom (/), it would only give extra trouble to use it. A feoffment by an infant under the custom of gavelkind (w) is p'jrhaps the only case in which this mode of assurance is now used in practice. In this case the freehold may be conveyed without deed ; but the feoffment must be put into writing and signed by the infant to satisfy the Statute of Frauds (n) ; and formal livery of seisin must be made by the infant in person (o). So an estate in Bargain aud '' , . sale. fee simple may be conveyed by deed of bargain and sale duly enrolled pursuant to the statute of Henry VIIL already mentioned {]}). But this assurance is now hardly ever employed (q) : though it has the advantage that an office copy of the inrolment of a bargain and sale is as (?i) Ante, pp. 174, 176. or DMrbam it may be made in tlie (i) Ante, -p. 174:. As to tlie effect Lancaster or Durham Court of which such expiessions may have Chancery ; stat. 5 Eliz. c. 26, in equity, see a«.(;e, pp. 213,214. whicli also permitted inrolment (k) Davidson, Free. Conv. vol. in the palatine courts of Chester, ii., part i., p. 17fi, 4th ed. until tliey were abolished by 11 (l) Ante, p. 185, Geo. IV. and 1 Will. IV, c. 70. (m) Ante, ]). 6S. Under the old Yorkshire Registry (n.) A/ite, p. 185. Acts, inrolment might be made (o) David^on, I'rec. Conv. vol. in the county registers; 5 <& 6 ii., part i., pp. 177, 244, 4th ed. Anne c. 18, s. 1; 6 Anne c. 35, (p) Ante, p. 235. In some ss. IG, 17, 34; 8 Geo. II. c. 6, s. cities and boroughs the inrolment 21 ; but no similar ])rovisions are of bargains and sales is made by contained in the Yorkshire Regis- the mayors or other oflicers ; stat. tries Act, 1884. 27 rich. VITI. c. 1«, 8. 2. Of ((/) David.son, Free. Conv. vol. lands in the counties of Lancaster ii., pait i., p. 179, 4th ed. 246 OF CORPOREAL HEREDITAMENTS. person to the use of another. good evidence as the original deed (r). When a bargain and sale is employed, the whole legal estate in fee simple passes, as we have seen (s), by means of the Statute of Uses, — the bargainor becoming seised to the use of the Bargain and bargainee and iiis heirs. A bargain and sale, therefore, sale cannot be " *^ made to one Cannot, liKC a Icasc and release, or a grant, be made to one person to the use of another ; for, the whole force of the Statute of Uses is already exhausted in trans- ferring the legal estate in fee simple to the bargainee; so that the use declared would be a use upon a use, void at law, though valid in equity {i). Similar to a bargain and sale is another nietJK^d of conveyance occasionally, though very rarel)', (Muployed, namely, a Covenant to covoiant to stand selsed of land to the use of another, stand seised. . ., . c \ ^ ^ • rr\\ • • ^ m consideration oi blood or marriage. Ihis is also an assurance by means of the Statute of Uses ; for when such a covenant is made, the legal estate in the land passes at once to the covenantee under the Statute. No inrolment of the deed of covenant is necessary ; for the statute requiring the inrolment of bargains and sales extends only to bargains for valuable consideration, which tbe consideration of relationsbip by blood or marriage is not (u). Tiiis is perhaps the only instance ill wliicli such a consideration is of any eifect in law {,c). And it may be noted that a deed, in which such a con- sideration is expressed, may take effect as a covenant to stand seised, though it be in the form of a grant or other assurance (y). Again, a release is still an appro- priate method of conveying an estate from a freeholder to any one, who with his privity is in actual possession of the land, either by entry or under the Statute of / Release. (r) Stat. 10 Anne, c. 28 ^c. 18 in Ruffhead), s. 3. (s) Ante, pp. 234, 235. {t) Ante, p. 2ti7. (m) An intended marriaaje is a valuable consideration, but not the mere fact of relationship by marriage. (x) Principles of the Law of Personal Property, 108, n., 13th ed. (v) See Doe d. Danidl v. Wood- rqfe. 10 M. & W. G03 ; Poe d. Starling v. Prince, 15 Jur. 632; Prest. Abst. i. 70—72, iii. 121, 122, 187; Williams on Seisin, 145. OF A MODERN CONVEYANCE. 247 Uses (s). And a confirmation by the riu;htful owner of Confirmatioa. land to any one, wlio is actually possessed of it, has the same effect as of old (a). But, as has been explained, these are properly cases of the conveyance of incorporeal hereditaments, which always lay in grant (h). So that a deed expressed in terms of grant might always take effect as a release or confirmation (c). Of course, now that corporeal hereditaments lie in grant as well as incorporeal, it would be purely superfluous to gain possession under a lease, or to make an entry, for the mere purpose of receiving a release or confirmation from the freeholder in fee. It may be mentioned that a deed is now required to make an exchange or a surrender of^''*^^''°P? ^ _ '=' _ surrender. any freehold estate valid at law (d), except in the case of a surrender by operation of law {e). In addition to all these methods of conveyance, by Conveyance which the right of alienation incident to an estate in land may be exercised (/"), an estate of freehold may bo conveyed by the exercise of a power of appointment ur of a statutory power. Mention has already been made of conveyance under powers (g), and more will be said on this subject in a future chapter (Ji). The student, in- deed, can never be too careful to avoid supposing that, when he has read a chapter of the present, or any other elementary w^ork, he is therefore acquainted wnth all that is to be known on the subject. To place him in a position to comprehend more is all that can be attempted in a first book. (s) Ante, pp. 187, 233. («) See Lyon v. Eeed, 13 M. . 130. (d) Stat. 8 & y Vict. c. 106, s. (A) Post, Ft. II., oh. iii. 3; ante, p. 187. 248 OF COKPOKEAL HEKEDITAMENTS. AMERICAN NOTES. ' English Conveyancing Acts — The Statute of Uses. — The student should bear ia miad that the several acts in regard to conveyancing, nieii- tioued in the text of chapter VIII, are of no force or effect in the United States. This notion, however, should not prevail in regard to the Statute of Uses, which, together with its effect upon the law of conveyancing, should be thoroughly mastered by the American student. In several of the states the Statute of Uses has been recognized as a part of the common law. Mr. Washburn gives the following as those in which this has been the case: ]\Iassachusetts, Connecticut, New Hampshire, Alabama, and Rhode Island. 3 Wash, on Real Prop, ("ith ed.) 466. He cites in support of his statement the following cases wliich are in point: Johnson v. Johnson, 7 Allen, 197; Bryan v. Bradley, 16 Conn. 474, 483; Bell v. Scammon, 15 N. H. 394; Rol- lins V. Riley, 44 N. II. 11; Ho7-ton v. Sledge, 29 Ala. 478, 496; Nightingale v. Bidden, 7 R. I. 133; Spimgue v. Spragae, 13 R. I. 701. The Statute of Uses is also recognized in South Carolina (see Bouhnight v. Epting, 11 S. C. 71; Cribh v. Uogers, 13 S. C. 564; Howard v. Renderson, 18 S. C. 184); in Pennsylvania (see Ashhurst v. Gioen, 5 Watts & S. 333, 337, 338); in Maryland (see Milthews v. Ward, 10 Gill & J. 443), and probably in other states. In New Jersey the Statute of Uses is not in force, but a statute of the state accomplishes substantially the same end. See Rev. of N. J. 1G5, § 66. The object of this statute is to transfer the possession to the use. See Montgomery v. Bruere, 4 N. J. Law, 360, 282; Den v. Crawford, 8 N . J. Law, 109. By statute in Virginia the use is executed in case of a bargain and sale, a lease and release, or a covenant to stand seized, or where a deed operates by way of covenant to stand seized. See Code of Va. (1887), § 3436, and Ocheltree v. McGlung, 7 W. Va. 333. West Virginia has a similar statute. See Code of W. Va. (1891), chap. 71, § 14. In Illinois and Missouri the essential portion of tlie Statute uf r^cs li.is Im'cii cnaitcd. See R. 8. of 111. (Cothran's ed. 1889), 306, § :'.; 3 R. S. of Mo. {l^>i'd), § «y:J:3. In Xew York the English Statute of Uses was recognized and applied for many years, and until the change brought about by the revision of the statutes. See 3 Wash, on Real Prop. (5th ed.) 479, 480, and cases cited. The Revised Statutes pro- vide for the abolition of uses and trusts, excejjting as authorized and modified by statute, and that every estate shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise provided; that every person entitled to the actual possession of lands and the receipt of the rents and proQts thereof, in law or in equity, shall be deemed to have a legal estate therein of th'^ same quality and duration, and subject to the same conditions as his beneficial intere-it; and, further, that every dis- position of lands shall be directly to the person in whom the right to the OF A MODERN CONVEYANCE. 219 possession and profits shall be intended to be invested, and not to any otiier to the use of, or in trust for such person, and that if made to one or more persons to the use of, or in trust for anotlier, no estate or interest, legal or equitable, shall vest in the trustee. There is also a provision con- firming uses tliat ^vere^ executed ac the time of the adoption of the statutes. These provisions do not extend to trusts arising or resulting by implication of law, and by the terms of tlie statute they cannot be construed to pre- vent or affect the creation of certain express trusts th it are authorized and defined by the statute. The intent of this legislation was the abolition of uses and trusts, excepting as authorized by statute, and not merely to de- clare their construction, as was the case witii the English Statute of Uses. 1 R. S. of N. Y. 727-731, §§ 45-73 (8th ed. 2436-3440, §§ 45-73). Similar statutory provisions will bo found in jMichigan (2 Howell's Ann. Stat., §1 5363-5589); in Minnesota (Stat, of Minn., 1891, Kelly, §§ 4003- 4022), and in Wisconsin (A.nu. Stat, of Wis., Sanborn & Bisrryman, 1889, §1 3071-3094). In Uelfemtiiie v. Garrard, 7 Ohio, 270, it was held that the English Statute of Uses was not in force in that state. "Our system of conveyancing," says Judge Lane, speaking for the court in this case, "al- though it has grown out of the English system, does not depend upon the Statute of Uses, but has taken its form and derives its authority from our own statutes and local usages. '' Yet the forms of conveyance originatin'^ under the Statute of Uses are operative in tiiat state. See Lessee of Foster v. Daanison, 9 Ohio, 131, 124, 125. In Vermont the Statute of Uses has been held not to be in force. GorJiamv. Daniels, 23 Vt. 600. And it is probably not in force in Tennessee. See Hoobernj v. JIarding, 10 B. J. Lea, 393. See, upon the subject generally, 2 Wash, on Real Prop. (5th ed.) 465-484. And for a digest of the statutes upon this subject, see Stimson's American Statute Law, 333, chap. VI. From the foregoing, the student will see that a knowledge of the Statute of Uses, and of its construction, and of the conveyances originatin« in the statute is essential for the American practitioner, and is not of importance simply from an historical jjoint of view. ^ Use op word heirs. — As to the necessity of using this word in con- veyances in the United States, see ante, p. 148, note. ^The moder.nj coxvetance in the Ignited States. — It is substantiallv correct to say that the modes of conveyance that were authorized bv the Common law, as well as those arising by virtue of the Statute of Uses, would be recognized in the different states as valid, and effective to pass title. None of them in their original form, probably, are used to any considerable extent. In t!ie following states, Iiowever, according to Mr. Washburn, the form of deed in ordinary use is substantially that of bargain and sale: Ar- kansas, Con-iecticut, Delaware, Florida, Georgia, Illinois, Indiana, Ken- tucky, Maryland, Michigan, Minnesota, Mississippi, Missouri, New Hauip- 250 OF CORPOREAL HEREDITAMENTS. shire New Jersey, Peimsylvania, Vermont and Virgiaia. See 2 Wash, on Real Prop. (5th ed.) 481, 482. In New York the mode of conveying land by feoffment with livery of seizin is abolished by statute, and all coa- veyauces operate as, and are called grants. It is provided that deeds of bargain and sale, and of lease and release may continue to be used, but tliey are to be deemed and treated as grants. 1 11. S. of N. Y. 738, 739 (8th ed. 2451, 2452). In many of tlie states, including some of tliose just mentioned, there are prescribed statutory forms of deeds. And the matter of conveyancing in this country has been very largely regulated by statute. The use of statutory forms, however, is not, as a rule, made obligatory. The statutes are usually directory and do not invalidate the modes of con- veyance that were in use previous to their passage. By way of illustra- tion, the following form of deed is taken from the Michigan statute upon the subject: "A. B. conveys and warrants to C. D. (here describe the premises), for the sum of (here insert the consideration)." It is provided that a conveyance in this form "being dated and duly signed, sealed and acknowledged by the grantor, sliall be deemed and held to be a convey- ance in fee simple to the grantee, his heirs and assigns, with covenant from the grantor for himself and his heirs and personal representatives, that he is lawfully seized of the premises, has good right to convey the same, and guarantees the quiet possession thereof; that the same are free from all incumbrances, and that he will warrant and defend the title to the same against all lawful claims." 2 Howell's Ann. Stat., § 5728. An equally brief and simple form of quit-claim deed and mortgage is also pro- vided. 2 Howell's Ann. Stat., §§ 5729, 5731. Brief statutory forms of conveyance are also found in Indiana, Illinois, Wisconsin, Iowa, Maryland, Tennessee, Arkansas, Texas, California, Dakota, South Carolina, Viri^inia, West Virginia, Missouri, Mississippi and possibly in other states. For a collection of these statutory forms and a full digest of the subject, see Stimson's American Statute Law, 187-192. For the forms of statutory deeds and mortgages in New York, see Laws of 1890, chap. 475 (Supp. to 8th ed., R, S. of N. Y. 3459-3464). Short forms of conveyances are provided for by statute in Ontario. See 1 R. S. of Ont. (1887). chapters 105-107. A form of deed known as the quit-claim has met with quite general recoo-nition in this country. It differs from a release in that it may be used as a primary conveyance. By the quit-claim the grantor passes all of the interest in the property that he has at the time of the conveyance, but under such a deed, in the absence of fraud, die grantee has no remedy against the grantor in case of failure of title. Thorp y. Keolcuk Coal Co., 48 N. Y. 253; 3 Wash, on Real Prop. (5th ed.) 378, 381; and .see the same author, vol. 3, pp. 380-385, upon the general subject of deeds in use in the United States. OF A MODERN CONVEYANCE. 251 '• Recording of conveyances. — The recorcliug of conveyances is pro- vided for in each of tiie United States. The system varies somewhat in matters of detail in tlie different states, but it is substantially the same tliroughout the country. Each state has provided by law for offices in which tiie records are to be kept for reference and for officers whose duty it is to record the instruments that are presented and are entitled to record, in books prepared for that purpose. The object of tlie recording acts is to provide a public record of all transfers, in order tliat a person about to be- come interested in property may, by an examination, ascertain as to the condition of the title. In a general way it may be said that the record operates as a constructive notice to the world. But, strictly sjicaking, the record of a deed or other instrument is, according to the statutes and de- cisions of most of the states, constructive notice of its existence and con- tents only to persons claiming subsequently through or under the person by whom the deed or instrument was e.Kccuted. " The whole object of the registry acts is to protect subsequent purchasers and incumbrancers against previous conveyances 'which are not recorded, and to deprive the holder of the previous unregistered conveyance of the right which his priority in execution would have given him at the common law." Losey v. Simpson, 11 N. J. Eq. 24G, 249; TiUon v. Hunter, 24 Me. 29, 35; E/y v. Wilcox, 20 Wis. 524, 529, 530 ; Edwards v. McKernan, 55 Mich. 520, 526 ; Maul v. Bider, 59 Pa. St. 107, 171; Gillett v. Gaffney, 3 Col. 351, 366. Certificate of aclcnowledgment. — loitnesses, etc. — To guard against the re- cording of instruments that have been improperly obtained, it is very gen- erally provided that before an instrument can be recorded, the free and voluntary execution thereof must be acknowledged or proved before some officer designated by law, and that the certificate of the officer must be appended thereto. In the absence of this certificate, the register has no authority to enter the instrument upon the record. As to statutory forms for such certificates and the officers before whom acknowledgments may be taken in the different states, see Stimson's American Statute Law, §§ 1570-1582. An acknowledgment cannot properly be taken by one inter- ested in tlie conveyance. Wilson v. Traer, 20 Iowa, 231, 233; Beaman v. Whitney, 20 Ms. 413; Oroesleck v. Seeley, 13 Mich. 329, 345; City Bank of Boone v. Badtke (Iowa), 54 N. W. Rep. 435. In some states acknowl- edgment is not necessary as a prerequisite to a valid registration. Tliis is the case in Illinois (111. Rev. Stat., Cothran's ed., 1889, chap. 30, §31), and in Colorado (Mills' Ann. Stat, of Col., 1891, chap. 29, § 448). But wherever acknowledgment is necessary there must be a substantial compliance witli the statute, hham v. Bennirif/ton Tron Co., 1 9 Vt. 230, 245, 246; Greenwood v. Jenswold. 69 Iowa, 53; Be Witt v. Moulton, 17 Me. 418; Brown v. Lunt, 37 Me. 423; Girardin v. Lanijie, 58 Wis. 267; Johns V. Scott, 5 Md. 81. In some of the states it is provided by statute that 252 OF COKPOllEAI. ilEKEDITAMKNTS. proof of the execution of the deed or otlier instrument l)y a subscribing -witness, or by subscribing witnesses, may take the place of tlic acknowledg- ment. Thus, in New York, in order that a conveyance may be entitled to record, it must be acknowledged by tlie party or parties executing tlie same, or it must be proved by a subscribing witness thereto. See 1 R. S. of ]Sr. Y., p. 750 (8th ed., p. 2470). And in several of the states, the execu- tion of a conveyance must be attested by either one or two subscribing wit- nesses. See a. S. of Conn. (1888), § 2954; R. S. of Fla. (1892), § 1950; IloweU's Ann. Stat, of JNIich., § 5G58; Stat, of Minn. (Kelly's ed., 1891), § 4121; N. II. Pub. Stat. (1891), chap. 137, § 3; Ohio R. S. (1890), § 4106; Vt. Rev. Laws (1880), § 1927. If a deed, or other instrument entitled to record, is executed and acknowledged outside of the state iu which it is to be recorded, the statutes usually require tliat there be annexed to it tlie certificate of some official designated in tlie statute, to the effect that the person taking the acknowledgment was authorized so to do, and that his signature is genuine and in the proper form. Sometimes this provision ex- tends to acknowledgments taken in another county within the state. For the provisions of the different states upon this subject, see Stimson's Am. Statute Law, §§ 1581-1533, Prerequisites to registration mvst he observed. — In order that the record of a deed or other instrument may oi)erate as ccmstructive notice, it must ap- pear that all the prerequisites to a valid registration have been observed. In other words, a deed must be legally recordable in order that the record thereof may be constructive notice. Pringle v. Dunn, 37 Wis. 449; s. c., 19 Am. Rep. 772; Girardin v. Lampe, 58 Wis. 267; Pojje v. He^iry, 24 Vt. 560; Bishop v. ^Schneider, 46 Mo. 472; Bradley v. Walker, 138 N. Y. 291; Emeric v. Almn/do, 90 Cal. 444; Stiles v. Japhet, 84 Texas, 91. It is also a rule that in order that subsequent purchasers may be bound, the record must be properly made. It must show on its face that the instrument was so exe- cuted and acknowledged as to entitle it to record. If it fails to show this, it amounts to nothing as a constructive notice. "And proof that tlie instrument was in fact so executed and acknowledged as to entitle it to record, does not change the effect to be given to the record." See Qirnr- di/iY. Lampe, 58 Wis. 267, 270; Pringle v. Dunn, 37 Wis. 449. A deed improperly recorded is not constructive notice to a subsequent grantee, but it is held in the following cases that such grantee has had actual notice of the existence of such a deed and its contents, if he has examined its record. Musgrovev. Bonser, 5 Ore. 813; s. c, 20 Am. Rep. 737; Hastings y. Cutler, 24 N. H. 481. Extent of the constructive notice furnished l>y the reco^-d. — The extent of the constructive notice furnished by the record depends upon and is limited by tlie terms of the record. It is of the instrument, as recorded, that tlie record furnishes constructive notice. Thus if tlie condition in a mortgage OF A MODERX CONVEYAXCE. 253 as written is to pay $5,000, but tlie record sliows the condition to be to pay $500, the record will be constructive notice of a mortgage of $500 only. Terrell v. Andrew Couvty, 44 Mo. 809; Beehnan v. Frost, 18 Johns. 544; Chamhcrlain v. Bell, 7 Cal. 292. What may he recorded. — This is a matter that is provided for by statute in the different states. In a general way it may be said that every instru- ment by which any estate or interest in real property is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected in law or equity, may be recorded. For a detailed statement of the statutory provisions of the different states upon this subject, see Stim- son's Am. Stat. Law, § 1024. When an indruinent is so recorded as to furnish constructive notice. — Tn the majority of the states an instrument has priority from the time when it is deposited for record and the proper memorandum made, by the recording officer, of the time of its receipt. See Stimson's Am. Stat. Law, §§ 1G17, 1618. But in some of the states a stated time for recording conveyances is provided by statute, and where this is the case, if a conveyance is recorded within the time allowed by law, its record relates back to the time of the delivery of the conveyance, and gives it priority over a subsequently exe- cuted instrument which has been previously recorded. If, however, the instrument is recorded after the time provided by the statute, the record is constructive notice only from the time it is made. See 3 Wash, on Real Prop. (5th ed.) 340; G. S. of Ky. (1«88); chap. 24, § 14; Ind. Stat. (Burns' ed. 1894), § 3350; Brightly's Purdon's Digest (Pa. 1883), p. 583, § 94. Actual notice. — Actual notice takes the place of the constructive notice furnished by the record. It " has tlie same effect in determining the right of precedence between persons claiming under different deeds from the same grantor as a record thereof regularly made would itself have." See 3 Wash, on Real Prop. (5th cd.) 343. Actual notice consists not only of actual knowledge of the existence of the instrument, but also of a knowl- edge of such facts as would induce a prudent man to make inquiry. In order that a purchaser may gain precedence over a prior unrecorded con- veyance he must be a purchaser for value and without notice. To consti- tute a bona fide purchaser, there must be a want of notice both at tlie time of the purchnse and at the time of the payment of the consideration. Blanchard v. Tuler, 13 Mich. 339. \«' 254 OF CORPOREAL HEREDITAMENTS. CHAPTER IX. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. Having examined the means of conveying a freehold estate between living persons, we will now proceed to consider the subject of succession after death. This can, of course, only take place in the case of a freehold estate in fee or in tail. Succession to a freehold in fee may be upon intestacy or under a will : but the succession to an estate tail cannot be affected by the tenant's will, as we have seen {a). At the present day, it is perhaps exceptional for a man to become entitled to a freehold in fee, as heir, upon the death of a former tenant in- testate (J)). But as this is a more ancient method of acquiring title than to take lands by devise under the tenant's last will, we will first investigate the law of succession upon intestac}*, and afterwards examine that Rules of of conveyance by will. We shall, therefore, now proceed to consider the rules of the descent of a fee, as altered by the Act for the amendment of the law of inheri- tance (c). This Act does not extend to any descent on tlie death of any person, who may have died before the 3'ear 1834 {d). For the rules of descent prior to tliat date, the reader is referred to the Commentaries of Blackstone (e), to Watkins's Essay on the Law of Descents, and to the author's Lectures on Seisin, pp. 51-69. (a) Ante, p. 117. ss. 19, 20. (h) ?,eeante, pp. 90, n. (d) Sect. 11. (c) Stat. 3 & 4 Will. IV. c. lOfi, («) 2 Black. Comm. c. 14. amended by 22 & 23 Vict. c. 3p. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 255 1. The first rule of descent now is, ihat inlieritances Rule i. shall lineally descend, in the first place, to the issue of the last purchaser in infinitum. As we have seen (/"), Purchase. .' the word jnirchase has in law a meaning more extended than its ordinary sense : it is possession to which a man Cometh not by title of descent {g) : a devisee under a will is accordingly a purchaser in law. And, by the Act, the purchaser from whom descent is to be traced is defined to be the la^t person who had a right to the land, and who cannot be proved to have acquired the land by descent, or by certain means {li) which render the land part of, or descendible in the same manner as, other land acquired by descent. This rule is an alter- Descent ation of the old law, which was, that descent should be traced from traced from the person who last had the feudal posses- [^s^t^*^'^*"" sion or seisin (^) ; the maxim being seisina fac'it .<;;'2y> possessed. item, {k). This maxim, a relict of the troublesome times wdien right without possessi'm was worth but little, sometimes gave occasion to difficulties, owing to the uncertainty of the question, whether possession had or had not been taken by any person entitled as heir; thus, where a man was enteiing into a liouse by the window, and when half out and half in, was pulled out asfain by the heels, it was made a question, whether or not this entry was sufficient, and it was adjudged that it was (V). These difficulties cannot arise under the present law ; for now the heir to be sought for is not the iieir of the person last posfised, but the heir of the last person entitled who did not inherit^ whether he did or did not obtain the possession, or the receipt of the rents and profits of the land. The rule, as altered, is not indeed Objection to , J, /. /. !•■ f • Mil 1 T the alteration altogether tree irom objection; for it will be observed that, not content with making a title to the land equi- if) Ante, -p. 75. (k) 2 lilack. Conim. 200; (h) Litt. s. 12. Watk. Descent, c. 1, s. 2. (/t) Escheat, Partition and In- (l) Watk. Desceut, 45 (4th ed. closure, 8. 1 . 53). (i) Ante, p. 43. 956 ^^ CORPOREAL HEREDITAMENTS. valent to possession, tlie Act of 1833 added a new term to the definition, hy directing descent to be traced from tlie last person entitled who did not inherit. So that if a person who has hecuine entitled as heir to another should die intestate, the heir to be sought for is not the heir of such last owner, but the heir of the person from whom such last ownerinherited. This pi'ovisioii, though made by an Act consequent on tlie report of the Real Pro])erty Commissioners, was not proposed by them. The Commissioners merely proposed tint lands should pass to the heir of '(\\q person lant entitled (m)^ instead, as before, of t\\Q per Kon last possessed j thus facilitating the disi-overy of tlie heir, by rendering a mere title to the lands sufficient to make the person entiiled the stock of descent, without his obtaining tlie feudal posses- sion, as before required. Under the old law, descent was confined within the limits of the family of the pur- chaser; but now no j)erson who can be shown to liave inherited can be the stock of descent, except in the case of the total failure of the heirs of the purchaser (n) ; in every other case, descent must be traced from the \-A?t purchaser. The author is bound to state that the decision of tlie Courts of Exchequer and the Exchequer Chamber, in the case of Muggleton v. Barnette (llateral heirships, in exclusion of lineal ancestors, from gifts of estates (at the time when inheritances were descendible only to issue or lineal heirs) made, by the terms of the gift, to be descendible to the heirs of the donee, in the same manner as an ancient inheritance would have descended. This was called a gift oi^Fexudum . - ... Ill /> 7 novum ut ft'udam novum, or new inheritance, to hold ut J euaum antiquum, antiquum, as an ancient one. Now, an ancient inherit- ance, — one derived in a course of descent from some remote lineal ancestor, — would of course be descendible to all the issue or lineal heirs of such ancestor, includ- ing, after the lapse of many years, numerous families, all collaterally related to one another ; an estate newly granted, to be descendible ut feudum ayitiquum, would (/!■) 2 Black. Comm. 220. 11 a. (.1) Braci. fo. 62 b; Co. Litt. 2(^0 OF CORPOREAL HEREDITAMENTS. therefore be capable of de?cencling to the collateral relations of the grantee, in the same manner as a really ancient inheritance, descended to him, would have done. Bnt an ancient inheritance could never go to the fathei- of any owner, l)efanse it must have come from his father to him, and the fatlier must have died before the son could inherit : in grants of inheritances to be descendible as ancient ones, it followed, therefore, that the father or any lineal ancestor could never inherit {r/t). So far, therefore, the explanation holds; but it is not consistent with every circumstance ; for an elder brother has always been allowed to succeed as heir to his younger brother, conti'arj' to this theory of an ancient lineal inheritance, which would have previously passed by every elder brother, as well as the father. The explanation of the origin of a rule, though ever so clear, is, however, a different thing from a valid reason for its continuance; and, at length, the propriety of placing the property of a famil}'' under the care of its head, is now perceived and acted on; and the father is heir to each of his children, who may die intestate, and without issue, as is more clearly pointed out by the next rule. j^^l^g G. The sixth rule is, tiiat the father and all the male paternal ancestors of the purchaser, and their descend- ants, shall be admitted before any of the female paternal ancestors or their heirs; all the female paternal ances- tors and their heirs before the mother or any of the maternal ancestors, or her or their descendants; and the mother and all the male maternal ancestors, and her and their descendants, before any of the female Preference of maternal ancestors, or their heirs {n). This rule is a males to development of the ancient canon, which requires that, in collateral inheritances, the male stock should always (m) 2 Black. Comm. 212, 221, («) Stat. 3 & 4 Will. IV. c. 106, 222; Wright's Tenure.*, 180. See s. 7, combined with the definition also Co. Litt. 11 n, n. (1). of "descendants," s. 1. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 263 be preferred to the female; and it is analogous to the second rule above given, which directs that in liueal inheritances the male issue shall be admitted before the female. This strict and careful preference of the male... to t he female line was in full accordance with the spirit of the feudal system, wliicii, being essentially military in its nature, imposed obligations by no means easy for a female to fulfil ; and those who were unable to perform the services could not expect to enjoy the benefits (o). The feudal origin of our laws of descent will not, how- ever, afford a complete explanation of this preference ; for such lands as continued descendible after the Saxon custom of equal division, and not according to the Norman and feudal law of primogeniture, were equally subject to the preference of males to females, atid de- scended in the first place exclusively to the sons, who divided the inheritance between them, leaving nothing at all to their sisters. The true reason of the prefei- ence appears to lie in the degraded position in society, which, in ancient times, was held b}' females ; a position arising from their deficiency in that kind of might, which then too frequently made the right. The rights given by the common law to a husband over his wife's property (rights in modern times generallj^ controlled by proper settlements previous to marriage, and now abolished) show the state of dependence to which, in ancient times, women must have been reduced {p). The Preference of preference of males to females was left untouched by females" still the Act for the amendment of the law of descents ; and °o°ti""e 1 their issue. first to lus eldcstsoii, by Ann Lee, William Brown ; and from him (2ndly) to his eldest son by Sarah Watts, Isaac Brown. Isaac dying without issue we must now seek the heir of the imrchaser^ and not the heir of Isaac. William, the eldest son of the purchaser, is dead ; but William may have had other descendants, besides Isaac his eldest son; and, by the fourth rule, all the lineal descendants in hifinitum of every person deceased shall represent their ancestor. We find accordingly that AVilliam had a daughter Lucy by his first wife, and also a second son, George, by Mary Wood, his second wife. But the son George, though younger than his half sister Lncy, yet being a male, shall be preferred according to the second rule ; and he is therefore (3rdly) the next heir. Had Isaac been the purchaser, tlie case would have been different; for, his half brotlier George would then have been postponed, in favour of his sister Lncy of the whole blood, according to the seventh rule. But now Benjamin is the pur- chaser, and both Isaac and George are equally his grandchildren. George dying without issue, we must ao;ain seek the heir of his grandfather Benjamin, who now is undeniably (4thly) Lucy, she being the remaining descendant of his eldest son. Lncy dying likewise Avithout h-sue, her father's issue become extinct ; and we must still inquire for the heir of Benjamin Brown the purchaser, whom we now find to be (othly) John Brown, his only son by his second wife. The land then OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 267 descends from John to (Othlj) his eldest son Edmund, and from Edmund (Tthly) to his only son James. James djuig without issue, we must once more seek the heir of the purchaser, whom we find among the yet living issue of John. John leaving a daughter by his first wife, and a son and a daughter by his second wife, the lands descend (Sthly) to Henry liis son by Frances Wils^on, as being of the male sex ; but he dying without issue, we again seek the heir of Benjamin, and find tliat John left two daughters, but by different wives ; these daughters, being in the same degree and both equally the children of their common father whom they repre- sent, shall succeed (Othly) in equal shares. One of these daughters dying without issue in the lifetime of the other, the other shall then succeed to the whole as the only issue of her father. But the surviving sister dying also without issue, we still pursue our old inquiry and seek again for the heir of Benjamin Brown the purchaser. The issue of the sons of the purchaser is now extinct ; Descent to and, as he left two daughters, Susannah and Catherine, otthepur-*^ ^ by different wives, we shall find, bv tlie second and f?^'''.^'^!' ^'"^ ■/ ' ' ./ tneir issue third rules, that they next inherit (lOthly) in equal shares as heirs to him. Catherine Brown, one of the daughters, now marries Charles Smith, and dies, in the lifetime of her sister Susannah, leaving one son John. The half share of Catherine must then descend to the next heir of her father Benjamin, the purchaser. T^e next heirs of Benjamin Brown, after the decease of Catherine, are evidently Susannah Brown and John Smith, the son of Catherine. And in the first edition of the present work it was stated that the half share of Catherine would, on her decease, descend to them. This opinion has been very generally entertained (s). (z) 23 Jjaw Mag. 279 ; 1 Hayes's wood's Conveyaiiciug, by Sweet, Conv. 313 ; 1 Jarmau & By the- 139. 258 OF CORPOREAL HEREDITAMENTS. On further researcli, however, the author inclined to the opinion that the sliare of Catherine would, on her decease, descend entirely to her son (llthly) by right of representation ; and that, as respects his mother's share, he and lie only is the right heir of the purchaser. The reasoning which led the author to this conclusion will be found in the Appendix {a). This point is now established by judicial decision (b). Descent to If Susannah Brown and John Smith should die the piirduiser, ^^itlio^t issuo, the descendants of the purchaser will and his issue. i\^q^^ have becotne extinct; and Josepii Brown, the father of the purchaser, will then (12thly), if living be his heir by the fifth and sixth rules. Bridget, the sister of the purchaser, then succeeds (^13thly), as repre- senting her father, in preference to her half bi-orher Timothy, who is only of the half blood to the pnr(;haser, and is accordingly postponed to his sister by the seventh rule. But next to Bridget is Timothy (14thly) by the same rule, Bridget being supposed to leave no issue. Descent to the On the decease of Timothy without issue, all the LTc'esuTrfo"''' dcsccudants of the father will have failed, and the in- and^hdr"'*'" ''cHtance will next pass to Philip Brown (ISthly), the issue. paternal grandfather of the purchaser. I'ut the grand- father being dead, we must next exiiaust his issue, who stand in his place, and we find that he had another son, Thomas (16thly), who accordingly is the next heir; and, on his decease without issue, Stephen Brown (iTthly), though of the half blood to the purchaser, will inherit, by the seventh rule, next after Thomas, a kins- man in the same degree of the whole blood. Stephen Brown dying without issue, the descendants of the fa) See Appendix (C). 1874, stated in the Author's Lec- (i> Cooper v. France, 14 Jur. tures on the Seisin of the Freehold, 214-19 L. J. (N. S.) Ch. 313; Lecture VI., p. 81. Lewin v. Letcin, C. P., 21 Nov. OF THE DESCENT OF AX ESTATE IN FEE SIMPLE. 269 grandfather are exliausted ; and we must accordingly still keep, according to tlie sixth rule, in the male paternal line, and seek the paternal great grandfather of the purchaser, who is (ISthly) Robert Brown ; and who is represented, on his decease, by (19thly) Daniel Brown, his son. After Daniel and his issue follow, bv the same rule, Edward (20thly) and his issue (21stly) Abraham. All the male paternal ancestors of the purchaser, and pescent to ths ■"■ female patei- their descendants, are now supposed to have failed ; and nai ancestors by the sixth rule, the female paternal ancestors and Leirs. their heirs are next admitted. By the eighth rule, in the admission of the female paternal ancestors, the mother of the more remote male paternal ancestor, and her heirs, shall be preferred to the mother of a less remote male paternal ancestor and her heirs. Barbara Finch (tiSndly), and her heirs, have therefore priority both over Margaret Pain and her heirs, and Esther Pitt and her heirs ; Barbara Finch being the mother of a more remote male paternal ancestor than either Margaret Pain or Esther Pitt. Barbara Finch being dead, her heirs succeed her ; she therefore must now be regarded as the stock of descent, and her heirs will be the right heirs of Benjamin Brown the purchaser. In seeking for her heirs inquiry must first be made for her issue ; now her issue by Edward Brown has already been ex- hausted in seeking for his descendants ; but she might have had issue by another liusband ; and such issue (23rdly) will accordingly next succeed. These issue Half blood to are evidently of the half blood to the purchaser. But where the"**'"' they are the right lieirs of Barbai-a Finch: and they '^""^'"°" . «' ~ 'J ancestor is are accordingly entitled to succeed next after her, » female, without the aid they might derive from the position expres>ly assigned to them by the seventh rule. The common ancestor of the ])urchaser and of the issue is Barbara Finch, a female ; and, by the united operation 270 OF CORPOREAL HEREDITAMENTS. of the other rules, tliese issue of tlic half blood succeed next after the coinrrK^n ancestor. The latter part of the seveuth rule is, therefore, explanatory only, and not absolutely necessary {c). In default of issue of Barbara Finch, the lands will descend to her father Isaac Finch (24thly), and then to his issue (2.5thly), as representing him. If neither Barbara Finch, nor any of her lieirs, can be found, Margaret Pain (2Gthly), or her heirs, will be next entitled, Mari!;aret Pain being the niotlier of a more remote male paternal ancestor than Esther Pitt ; but next to Margaret Pain and her heirs will be Esther Pitt (2Tthly), or her heirs, thus closing the list of female paternal ancestors. Descent to the Ncxt to the female paternal ancestors and their heirs purchaser and comes the mother of the purchaser, Elizabeth Webb, Luccstors."^^ (2Sthly) (supposing her to be alive), with respect to whom the same process is to be pursued as has before been gone over with respect to Joseph Brown, the pur- chaser's father. On her death, her issue by John Jones (29thly) will accordingly next succeed, as representing her, by the fourth rule, agreeably to the declaration as to the place of the half blood contained in the seventh rule. Such issue becoming extinct, the nearest male maternal ancestor is the purchaser's maternal grand- father, William Webb (30thly), whose issue (31stly) will be entitled to succeed him. Such issue failing, the whole line of male maternal ancestors and their descen- dants must be exhausted, by the sixth rule, before any of the female maternal ancestors, or their heirs, can find admission ; and when the female maternal ancestors are resorted to, the mother of the more remote male maternal ancestor, and her heirs, is to be preferred, l)y the eighth rule, to the mother of the less remote male maternal ancestor, and her heirs. The coui'se to be (c) See Jarman & Bythewood's Conveyancing, by Sweet, vcl. i. 14G, note {ai. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE, 271 taken is, accordingly, precisely the same as in pursuing the descent through the paternal ancestors of the pur- chaser. In the present table, therefore, Harriet Tibbs (32ndlj), the maternal grandmother of the purchaser, is the person next entitled, no claimants appearing whose title is ])refcrable; and, should sl)e be dead, lier heirs will be entitled next after her. On the failure of the heirs of the purchaser, the person last entitled is, as we have seen {(I), to be substituted in his place, and the same course of investigation is again to be pursued with respect to the person last entitled as has already been pointed out with respect to the last purchasci-. And if Escheat, tiiere should be no heirs of the person last entitled, as well as of the purchaser, the land will escheat to the lord of the fee, as has been previously explained {e). It should be carefully borne in mind, that the above- Rules of de- mentioned rules of descent apply exclusively to estates ^pp"* t° "gr- in land, and to that kind of property which is clenomi- ^°°"' ^*^'^^'^- nated t'eal, and have no application to money or other personal estate, which is distributed on intestacy in a manner which the reader will find explained in the author's treatise on the law of personal property {f). An exception to the law of descent is made in case Descent of of the death, after the year 18S1 (^), of a sole trustee veste^d in sole or mortgagee of freeholds. For by the Conveyancing |^"^[^®°J"g Act of 1881 (/<), where a freehold estate or interest of (d) Ante, p, 265. With this exception, before the (e) Ante, p. 60. yetir 1882, the fact, that a fee was (_/■) Page 467, 13th ed. held subject to a trust or niort- {g) By Stats. 37 & 38 Vict. c. gage, made no difference in the 78, s. 5. and 38 & 39 Vict. c. 87, course of its descent at law. See 8. 48, if any person seised of any ante, p. 179; Williams's Convey- herediiament in fee simple as a aucing Statutes, 17, 19, 171. bare trustee died intestate between, (A) Stat. 44 & 45 Vict. c. 41, the 7th August, 1874, and the s. 30. amended by 50 k 51 Vict. 31st December, 1881, the same c. 73, s. 45; see Williams's Con- vested like a chattel real in his veyancing Statutes, 170—176 ; Ii« legal personal representative. PUUng's Trusts, 26 Ch. D. 432. 272 OF CORPOREAL HEREDITAMENTS. inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incor- poreal, is vested on any trust, or by way of mortgage, in any ])erson solely, the same shall on his death, not- withstanding any testamentary disposition, devolve to his personal representatives, in like manner as if the same were a chattel real vestino; iu them. Succession Every person succeeding to any real property as heir is Duty.'^^^*^ now cliarged with succession duty, and may be further charged with estate duty in the same manner as a person succeeding under a will (^), and at a rate to be determined, apparently, by bis degree of relationship to the last possessor ijc). (i) Stats. 10 & 17 Vict. c. 51, (k) Not the last purcliaser; s. 2 ; 51 Vict. c. 8, s. 21 ; 52 Hanson on Succession Duties, Vict. c. 7, s. 6; see the end of 23:i, 2-iO, 3rd ed. the next chapter. See American note 3, pp. 273-378, as to statutes of descent in the United States . OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 273 AMERICAN NOTES. [The American student in reading cliapter IX should keep in mind that none of the modern acts of Parliament referred to therein are of any prac- tical force or effect in this countrj'.] ' PiirMOCrENiTURE. — This right has never been recognized in the United States. Under the statutes of descent in this country, as fully appears by note 3, there is no distinction among children. As a general rule they all inherit equally. - Coparceners. — In most of the states this terra is not used, and per- sons, taking by descent, take as tenants in common; in a few of the states, liowever, they take as coparceners. See Stimson's Am. Stat. Law, §§ 1375, 137G, 3130. ^ Descent op real property in the United States. — The de- scent of real property in the several states is regulated entirely by statute. These statutes are based to a limited extent upon the English canons of descent; and in a few states it is declared that in cases not pro- videtl for by statute, tiie common-law rules shall prevail. Tiie leading features of the different statutes are given below. Aside from the rigiits of the surviving husband or wife, which will be considered later, the statutes of all the states provide that the real estate of an intestate shall descend in the first instance to his children. If some of the children are living and some dead, the issue of the latter take per stirpes. But the English rule that lineal descendants in injinituiii rejjresent their deceased ancestor, is in many states limited to the extent that, when such descendants are all related to the intestate in the same degree, they take ^jer capita. Such is the case in the following states: California (Cal. Civil Code, § 138G, ed. of 1836), Florida (Fla. R. S., § 1824, ed. of 1892), Indiana (Ind. R. S., § 2623, Burns' ed. 1894), IMassachusetts fMass. Pnb. Stat., chap. 125, § 1, ed. of 1882), Michigan (Vol. II, Howell's Ann. Stat. of 1882, § 5772a), Missouri (Mo. R. S., Vol. I, § 4469, ed. of 1889), Ne- braska (>Jeb Comp. Stat. 401. § 30, oA. of 1893), New York (1 N. T. R. S. 751, § 2; 8th ed., Vol. IV, p. 2463), Ohio (R. S. of 1890, § 4168), Ore- gon (Hill's Ann. Laws, § 3098, ed. of 1887), Pennsylvania (Brightlv's Purdon's Dig., ed. of 1883, 930, § 10), Texas (Sayles' bivii Stat., V'-l. I, art. 1652), Virginia (Va. Code, § 2550, ed. of 1887), West A^irginia (W. Va. Code. 665, § 3, ed. of 1891). Wa=;hington (Hill's Stat., Vol. I, § 1480, Wis- consin (San. & B.'s Ann. Stat., § 2270). If there are no lineal descendants, the statutes differ somewhat as to the person next entitled to inherit. In California (Cal. Civil Code, § 1386), Iowa (McClain's Ann. Code, § 3659-60), Kansas {Gen. Stat, of 1889, Vol. I, § 2011-12). Kentucky (Gen. Stat, of 1888, chap. 31, § 1), Massachusetts W. R. P. S 274 OF COEPOREAL HEREDITAMENTS. (Pub. Stilt., chap. 125, § 1, ed. of 1882), Washington (Hill's Stat., Vol. I, § 1480), and Wisconsin (San. & B.'s Ann. Stat., § 2270), the estate passes equally to the father and mother or to the survivor; except that in Ken- tucky, if the father is dead, one-half goes to the mother and the other half to the brothers and sisters of the decedent. In Colorado (Mills' Ann. Stat, of 1891, § 1524). the Dakotas (Compiled Laws of 1887, § 3401), Florida (Fla. R. S., § 1820), Michigan (II IloweU's Ann. Stat., § 5772a), Minnesota (Minn. Gen. Stat, of 1891, Vol. II, § 5677), Nebraska (Neb. Comp. Stat. 404, § 30), New Hampshire (>r. H. Pub. Stat, of 1891, chap. 196, § 1), Ore- gon (Hill's Ann. Laws, Vol. II, § 3098, Vermont CVt. Rev. Laws of 1880, § 2230), Virginia (Code, § 2548), and VTest Virginia (Code, 665, § 1), the inheritance goes first to tlie father, and if he is dead, equally to the mother, brotiiers and sisters of the decedent; except in Colorado and Minnesota, where tlie motiier takes to the exclusion of the brothers and sisters. And in the Dakotas, Michigan, Nebraska, and Oregon, the mother takes to the exclusion of the issue of deceased brothers and sisters. In Connecticut (Ct. Gen. Stat., § 632, ed. of 1888), Mississippi (Miss. Ann. Code of 1892, § 1543), New Jersey (Rev. of 1877, p. 297, § 2), and Ohio (R. S., §4158-9), the brothers and sisters and their descendants are preferred to the father and mother. By the New York statute, the inheritance goes to the father unless it came to the decedent on the part of the mother, in which case, if she is dead, the father gets a life estate with reversion to the brothers and sisters of the intestate and their descendants, but if there be no such brothers or sisters, or their descendants living, the inheritance goes to the father in fee. If the father is dead or not entitled to inherit because the inheritance came to the intestate on the part of the mother, the mother takes a life estate with reversion to such brothers and sisters of the intestate as may be living and the descendants of such as may be dead. But if the intestate leaves no brother or sister and no descendant of any brother or sister, the inheritance goes to the mother in fee. 1 R. S. of N. Y. 751, §§ 5, 6 ; (8th ed., vol. IV, p. 2404). la Pennsylvania, the father and mother or the survivor takes a life estate with reversion to tlie brothers and sisters. Brightly's Purdon's Dig., p. &30, § 15. In Indiana, one-half of the estate goes to the father and mother or to the survivor and the oth.er half to the brothers and sisters. Ann. Stat of Ind. (Burns' ed. 1894), § 2624. It may be stated, as a general rule, that in those states in which the father and mother are preferred to or sliare with the brothers and sisters of the intestate, the latter take in de- fault of parents, and that the father or mother or the survivor takes in default of brothers and sisters or descendants. In several states the ordinary course of descent is modified by a provision to the effect that if a child, havinff inherited propertv from a parent, dies under age and un- married, his share goes to the other issue of that parent. Such a provision OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 275 is found in California (Civil Code, § 1386), the Dakotas (Corap. Laws, § 3401), Michigan (2 Howell's Ann. Stat., § 5772a), Minnesota (2 Gen. Stat., § 5677), Nebraska (Comp. Stat., p. 404, § 30), New Hampshire (Pub. Stat., chap. 196, § 2), Oregon (2 Hill's Ann. Laws, § 3098), Washington (1 Hill's Ann. Stat., § 1480), and Wisconsin (1 S. & B.'s Ann. Stat., § 2270). In Connecticut (Ct. Gen. Stat., § 633), Illinois (111. R. S., chap. 39, § 1), New Hampshire (Pub. Stat., chap. 196, § 1), Mississippi (Miss. Ann. Code, § 1543), and Vermont (Rev. Laws of Vt., § 2230), a general provision is found to the effect that if there are no issue, parents, brothers or sisters, or their descendants, the estate shall descend to the next of kin in equal de- gree. The same rule applies in California (Civil Code, § 1386), the Da- kotas (Comp. Laws, § 3401), Massachusetts (Pub. Stat., chap. 125, § .'.), Michigan (2 Howell's Ann. Stat., § 5772a), Nebraska (Comp. Stat., p. 404, § 30), Oregon (2 Hill's Ann. Laws, § 3098), Washington (1 Hill's Ann. Stat., § 1480), and Wisconsin (1 S. & B.'s Ann. Stat., § 2270), except that, when there are two or more collateral kindred in the same degree, claiming under different ancestors, those claiming under the nearest ancestor are preferred. In Wyoming it is expressly provided that the inheritance shall go equally to the grandparents, uncles and aunts and their descendants (Wy. R. S. of 1887, § 2221); while the statutes of Colorado (Mills' Ann. Stat., § 1524) and Missouri (Mo. R. S., § 4465) provide in addition that, in default of these heirs, tiie great-grandparents shall inherit. The statutes of Florida (R. S., § 1820), Indiana (Ind. R. S., § 2626, Burns' ed., 1894), Kentucky (Gen. Stat., p. 480, § 1), Texas (1 Sayles' Civ. Stat., art. 1645), Virginia (Va. Code, § 2548), and West Virginia (W. Va. Code, p. 665, § 1), while differing in detail, give one-half to the paternal and the other half to the maternal kindred, and in case one class of heirs fails, the whole goes to the other class. In New York the inheritance descends to the brothers and sisters of the parents equally; unless it came on the part of a particular parent, in which case the brothers and sisters of that parent are preferred. 1 R. S., pp. 753-3, §§ 10-13; (8tii ed., vol. IV. p. 2465). A similar distinc- tion is observed in Indiana, but in the latter state grandparents are preferred to uncles and aunts. In New York, the estate cannot ascend beyond the parents of the intestate. Id. Tlie statutes of Iowa (1 McClain's Ann. Code, § 3661), and Kansas (Gen. Stat., vol. 1, § 2613), provide merely that, if the jjarents are dead, the estate shall descend as if they had outlived the intestate and had died seized of their respective shares. It is provided in nearly all the states that if there is no one entitled to the inheritance under the statute, it shall escheat to the state. Where the statutes are silent in this respect, the result is douljtless the same. Half-U'jods. —In Illinois (R. S., chap. 39, § 1), Massachusetts (Pub. 6 2 270 OF CORPOREAL HEREDITAMENTS. Stat., chap. 135, § 2), Oregcu (2 Hill's Ann. Laws, § 3103), Ver- mont (Rev. Laws, § 2231), and Washington (1 Hill's Ann. Stat., § USfi), no distinction is made between relatives of the half and of the full blood. They also inherit equally in California (Cal. Civil Code, § 1394), the Dakotas (Comp. Laws, § 3410), Michigan (2 Howell's Ann. Stat., § 5776a), Minnesota (2 Gen. Stat., § 5678), New York (1 R. S. 753, § 15: 8tli ed., vol. IV, p. 2405), Nebraska (Comp. Stat. 405, § 33), Indiana (lud. R.S., § 2627, Burns' ed. 1894), and Wisconsin (1 S. &B.'s Ann. Stat., § 2272), unless the estate came to the intestate by descent, gift, or devise from an ancestor, in which case all who are not of the blood of that ances- tor are excluded. However, in Indiana {supra), they are allowed to inherit in default of kindred of the blood of such ancestor. In Colorado (Mill's Ann. Stat., § 1526); Texas (Sayles' Civil Stat., art. 1648), Wyoming (R. S., § 2223), Florida (R. S., § 1823), Kentucky (Gen. Stat., chap 31, § 3), Mis- souri (R. S., vol. I, § 4468), Virginia (Code, § 2549), and West Virginia (Code, p. 665, § 2), collaterals of the half-blood take only half as much as those of the whole blood ; and in the five states last mentioned, the same rule applies when they share with kindred in the ascending line. In Con- necticut (Gen. Stat., § 632), New Jersey (Rev. of 1877, p. 298, § 5), Ohio (R. S., § 4159), and Pennsylvania (1 Brightly's Purdon's Dig., p. 931, § 23), brothers and sisters of the half-blood are postponed until after those of the whole blood, and, except in Ohio, until after the parents. In these states, distinctions are also made in regard to ancestral property. Illegitimates. — In the following states, illegitimate cliildren inherit their mother's estate equally with legitimate children: California (Civil Code, § 1387), the Dakotas (Comp. Laws, § 3403), Illinois (R. S., chap. 39, § 2), Florida (R. S., § 1817), Indiana (Ind. R. S., § 3629, Burns' ed. 1894), Iowa (McClain's Ann. Code, § 3670), Kansas (Gen. Stat., vol. I, § 2613), Ken- tucky (Gen. Stat., chap. 31, § 5), Massachusetts (Pub. Stat., chap. 125, § 3), Michigan (3 Howell's xlnn. Stat., § 5773a), Minnesota (2 Gen. Stat., § 5680, Mississippi (Ann. Code, § 1549), Missouri (R. S., § 4473), Nebraska (Comp. Stat., p. 405, § 31), New Hampshire (Pub. Stat., chap. 196, § 4), Ohio (R. S., §4174), Oregon (2 Hill's Ann. Laws, § 3101), Pennsylvania (1 Brightly's Purdon's Dig. 984. § 40), Texas (1 Sayles' Civ. Stat., art. 1657), Vermont (Rev. Laws, § 2232), Virginia (Code, § 2552), West Virginia (Code, p. 666, § 5), Washington (Hill's Ann. Stat., § 1484), Wisconsin (S. & B.'s Ann. Stat., § 2273), and Wyoming (R. S., § 2330). But in California, the Dakotas, Kentucky, Michigan, Minnesota, Nebraska, Oregon, Washington, and Wis- consin, illegitimate children are expressly prohibited from claiming through the mother by right of representation. In New York, illegitimate children can inherit from the mother in default of lawful issue. R. S. of N. Y., 8th ed., vol. IV, p. 2468. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 277 It is frequently provided that, if tlte parents afterwards marry and the father acknowledges the child with certain formalities, the latter becomes legitimate for all purposes; and in California (Civil Code, § 1387), the Da- kotas (Comp. Laws, § 3403), Iowa (McClain's Ann. Code, § 3671), Minne- sota (2 Gen. Stat., § 5680), Nebraska (Comp. Stat., p. 405, § 31), Washington (Hill's Ann. Stat., § 1484) and Wisconsin (S. & B.'s Ann. Stat., §2274), such acknowledgment alone will entitle the child to inherit from his father. In Iowa, the cliild may also inherit from tlie father, whenever the paternity is proved during the life of the father. McClain's Ann. Code, § 3671. It is a general rule in this country that, upon the death of a bastard, his issue inherit from him; and if there are no issue, tlie estate, witli a few exceptions, goes to the motiier and lier kindred. In Iowa, if the father and child have mutually recognized such relationship, the father may inherit. McClain's Ann. Code, § 3672. Surviving husband or wife. — For the sake of clearness, nothing has been said thus far as to tlie rights of a surviving husband or wife ; but in nearly all the states they are allowed to take, to some extent, by descent. (1) If there are lineal descendants, the surviving husband or wife in Illinois, Kentucky, Massachusetts, Indiana, Michigan. Nebraska, New Jersey, New York, Ohio, Oregon, Vermont, Virginia, West Virginia and Wisconsin, is respectively entitled only to curtesy or dower (cf. generally the statutes of descent). In a large number of the remaining states, the husband or wife takes a portion of the estate in fee, varying from one-half or one-third to an equal share with the children. In California (Cal. Civil Code, § 1386) and Washington (Hill's Ann. Stat., § 1480), if there is one ciiild or the issue of one child, the husband or wife takes one-half; while, if there are more than one, such share is reduced to one-third. Under all the statutes, the remainder of the estate goes to the lineal descendants as above indicated. (2) If there are no lineal descendants, the whole estate goes to the husband or wife in fee in Colorado (Mills' Ann. Stat., § 1524), Florida (R. S., § 1820), Kansas (Gen. Stat, of 1889, §§ 2611, 2619), Missis- sippi (Ann. Code, § 1545), and Wisconsin (S. «fe B.'s Ann. Stat, § 2270); and also in Ohio, unless it is ancestral property, in which case only a life estate goes to the husband or wife (Ohio R. S., §§ 4158-9). In California (Civil Code, § 1386), Connecticut (Gen. Stat., §§ 623, 632), the Dakotas (Comp. Laws, § 3401), Illinois (R. S., chap. 39, § 1), Iowa (McClain's Ann. Code, §§ 3644, 3659), New Hampshire (Pub. Stat., cliap. 195, §§ 11, 13), Texas (Sayles' Civil Stat., art. 1646), Vermont (Rev. Laws, § 2230) and Washington (Hill's Ann. Stat., vol. I, § 1480), the husband or wife takes one-half of the estate in fee and the other half goes to the pa- rents or to tlie br()th(U's and sisters according to the policy of the partic- ular state. In Vermont, if the estate does not exceed $2,000 in value, the 278 OF CORPOREAL HEREDITAMENTS. husband or wife takes the whole; and in that state, as well as in New Hampshire, the husband or wife must elect between curtesy or dower and the statutory provision. In Michigan (3 Howell's Ann. Stat., § 5772a) and Nebraska (Comp. Stat., p. 404, § 30), the estate goes to the widow for life. (3) If there are no lineal descendants, parents or brothers and sisters or their issue, the husband or wife takes the whole estate in preference to the more remote kindred in California (Civil Code, § 1380), the Dakotas (Comp. Laws, § 3401), Missouri (1 R. S., § 4465), and Washington (Hill's Ann. Stat., § 1480). (4) If there are no kindred entitled to inherit, the estate descends to the husiiand or wife in Illinois (R. S., chap. 39, § 1), Iowa, (McClain's Ann. Code, §§ 3644, 3662), Kentucky (Gen. Stat., c])ap. 31, § 1), Massachusetts (Pub. Stat., chap. 124, §§ 1, 3), Michigan (2 Howell's Ann. Stat. § 5772a), Pennsylvania (Brightly's Purdon's Dig., vol. I, p. 933, § 28), Virginia (Va. Code, § 3548), West Virginia (W. Va. Code, p. 665, § 1), and Vermont (Rev. Laws of 1880, §3330); and in Florida (R. S., § 1823), Iowa (supra), Kentucky (supra), Missouri (1 R. S., §4467), Oliio (1 R. S., § 4161), Virginia (supra). West Virginia (supra), and Vermont (supra), it will de- scend to their kindred rather than escheat to the state. CHAPTER X. OF A WILL OF LANDS. The right of testamentary alienation of lands is a matter depeiuling upon Act of Parliament. We have seen, that previously to the reign of Henry VIH. an estate in fee simple, if not disposed of in the lifetime of the owner, descended, on liis death, to his heir at law {a). To this rule, gavelkind lands, and lands in a few favoured boroughs, formed exceptions ; and the hardship of the rule was latterly somewhat mitigated by the prevahMice of conveyances to uses ^ for the Court of Chancery allowed the use to be devised by will {b). But when the Statute of Uses (c) came into operation, and all uses were turned into legal estates, the title of the heir again prevailed, and the inconvenience of the want of testamentary power then began to be felt. To remedy this inconvenience, an Act of Parliament (d), to Statute of which we have before referred (d), was passed six years after the enactment of the Statute of Uses. By this Act, every person having any lands or hereditaments holden in socage, or in the nature of socage tenure, was enabled by his last will and testament in writing, to give and devise the same at his will and pleasure ; and those who had estates in fee simple in lands held by knights' service were enabled in the same way to give and devise two-third parts thereof. When, by the statute of 12 Car. II. c. 24 (/ ), socage was made the (a) Ante, p. 8^1. plained by statute 34 & 35 lieu. (b) Ante, p 203. VlII. c. 5. (c) Stat. 27 lien. VIII. c. 10; (e) Ante, p. 81. ante, p. 164. (/) Ante, p. 59. id) 32 lien. VIII. c. 1, ex- 2S0 OF CORPOREAL HEREDITAMENTS. universal tenure, all estate in fee simple became at once devisable, being all then liolden by socage. This exten- sive power of devising lands by a mere writing unat- The statute tested was soon curtailed by the Statute of Frauds ( ^), o rau b. ■which required that all devises and bequests of any lands or tenements, devisable either by statute or the custom of Kent, or any borough, or any other custom, should be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and should be attested and sub- scribed in the presence of the said devisor by three or four credible witnesses, or else they should be utterly Wills Act. void and of none effect. And thus the law continued till the year 1837, when an Act was passed for the amendment of the laws with respect to wills (A). By this Act the original statute of Henry VlII, {i) was repealed, except as to wills made prior to the Ist of January, 1838, and the law was altered to its ]u-esent state. This Act permits of the devise by will of every kind of estate and interest in real property which would otherwise devolve to the heir of the testator, or, if he became entitled by descent, to the heir of his an- cestor (j); but enacts (k), that no will shall be valid, unless it shall be in writing, and signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses, present at the same time {I) ; and such witnesses shall attest, and shall sub- scribe the will in the presence of the testator. One would have thouo-ht that this enactment was sufficiently (a) 29 Car. II. c. 3, s. 5. cheat to the lord of the fee. (A) Stat. 7 Will. IV. and 1 Vict, (/c) Sect. 9. c. 26. (l) See In, ilie goods of Ounston, (i) 32 Hen. VIII. c. 1. Blake v. Blake, 7 P. D. 102; (./) Stat. 7 Will. IV. and 1 Wright v. Sanderson, 9 P. \). Vict. c. 26, s. 3. See ante, p. 149; Daintree v. Butchtr and C.l, n. (.r), as to the devise of FasuLo,lZ I' . D. &1,\0'i. land, which would otherwise es- OF A WILL OF LANDS. 2S1 clear, especially that part of it which directs the will to be signed at the foot or end thereof. Some very careless , testators, and very clever judges, liave, however, con- trived to throw upon this clause of the Act a discredit which it does not deserve. And it has accordingly been enacted (m), by way of explanation, that " Every will s'aall, so far only as regards the position of the Wills Act siernature of the testator, or of the person signine: for him, be Amendment Act 1852 deemed to be ■v:alid, if the signature shall be so placed at, or after, ' or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the tes- tator intended to give effect by such his signature to the writing signed as his will; and that no such will shall be affected by the circumstance that the signature shall not follow, or be immediately after, the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under or beside the names, or one of the names of the subscribing witnesses, or by the circumstance that a signature shall be on a side or page, or other portion of the paper or papers, containing the will, where- on no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page, or other portion of the same paper, on which the will is written, to contain the signature; and the enumeration of the above circumstances is not to restrict the generality of the above enactment; but no signature shall be operative to give effect to any disposition or direction which is underneath, or which follows it; nor shall it give effect to any disposition or direction inserted after the signature shall be made " [n). The unlearned reader will perhaps be of opinion that there is not one of the positions above so laboriously enumerated, that miglit not very properly have been considered as at the foot or end of the will within the sjnrit and meaning of the Act ; except in the case of a (m) Stat. 15 & 10 Vict. c. 24. 12 P. D. 8. (n) See Manjary v. liobinson. 2S2 OF CORPOREAL HEREDITAMENTS. Atnerican note 1 , 2>i>. 301, 30-4. large blank being left before the signature, apjDarently for the purpose of the subsequent insertion of other matter; in which case the fraud to which the will lays itself open would be a sufficient reason for holding it void. Who may be wituesses. Wills Act. Atnerican note 2, pp. dOii, 303. The Statute of Frauds, it will be observed, required that the witnesses should be credible ; and, on the ]-)oiiit of credibilit}', the rules of law with respect to witnesses have, till recently, been very strict ; for the law had so great a dread of the evil influence of the love of money, that it would not even listen to any witness who had the smallest ])ecuniary interest in the result of his own testimony. Hence, under the Statute of Frauds, a bequest to a witness to a will, or to the wife or husband of a witness, prevented such witness from being heard in support of the will; and, the witness being thus incredible, the will was void for want of three credible witnesses. By an Act of Geo. II. (c»), a witness to whom a gift was made was ren- dered credible, and the gift only which was made to the witness was declared void ; but the Act did not extend to the case of a gift to the husband or wife of a witness ; such a gift, therefore, still rendered the whole will void {j)). Under the Wills Act, however, the incompetency of the witness at the time of the e.xecution of the will, or at any time afterwards, is not sufficient to make the will invalid {q ); and if any person shall attest the execution of a will, to whom, or to whose wife or husband, any beneficial interest whatsoever shall be given (except a mere charge for payment of debts), the person attesting will be a good witness ; but the gift of such beneficial interest to such person, or to the wife or husband of such person. (o) Stilt. 25 Geo. II. c. 6. 71. 72, 4th ed.; 2 Strange, IS.i.i. iji) Hntfidd V. Thorpe, 5 Barn. iq] Stat. 7 Will. IV. and 1 Vict. k Aid. 5"S9; 1 Jarui. oa Wills, c. 2ti, s. 14. OF A WILL OF LANDS. 283 will be void (/*). Creditors, also, are good witnesses, although the will should contain a charge for payment of debts (6-) ; and the mere circumstance of being ap- pointed executor is no objection to a witness {t). By more recent statutes {u), the rule which excluded the evidence of witnesses in Courts of Justice, and of parties to actions and suits, on account of interest, has been very properly abolished; and the evidence of interested persons is now received, and its value estimated accord- ing to its worth ; but the Wills Act is not affected by these statutes (x). The Courts of Common Law had formerly exclusiv^e jurisdiction in questions arising on the validity of a will of real estate, whilst the Ecclesi- astical Courts had the like exclusive jurisdiction over wills of personal estate. But in the year 1857 an ActCourtof was passed establishing a Court of Probate (^), of which the I'urisdiction was in 1875 transferred to the Hiffh Court of Justice, and has since been principally exer- cised in the Probate, Divorce, and Admiralty Division, where all wills of personal estate are now required to be proved. This Act provided for the citation before - the Court of the heir at law of the testator and the devisees of his real estate ; and such heir and devisees, when cited, will be bound by the proceedings (s) ; but this occurs only when a contest is expected or actually takes place. In all ordinary cases, a will, so far as it affects real estate, does not require to be proved («). (r) Stat, 7 Will IV. and 1 Vict. amended by stat. 21 & 22 Vict. c. 0. 20, s. 15. See Gurtiey v. 95. Gurney, 3 Drew. 208 ; Tempest (2) Stat. 20 & 21 Vict. c. 77, V. Temjiesty 2 Kay & J. t)35 ; ss. 61, 62, 63. See per Jessel, Thorpe v. Bestwick, 3 Q. B. D. M. R., in Sagden v. Lord St. 311. Leonards, 1 1\ D. 236. These (s) Sect. 16. provisions extend only to wills {t) Sect. 17. made since the Wills Act. Camp- (m) Stats. 6 & 7 Vict. c. 85; bell r, Lvcy, L. R., 2 P. & D 14 & 15 Vict. c. 99, amended by 209. stats. 16 & 17 Vict. c. 83. (a) In the goods of Tomlinson, (x) Stats. 6 & 7 Vict. c. 85, s. 1 ; 6 P. D. 209; f/i the goods of Horn^ 14 & 15 Vict. c. 99, s. 5. buckle, 15 P. D. 149. (y) Stats. 20 & 21 Vict. c. 77, 284 OF CORPOREAL HEREDITAMENTS. Revocation of a will. Atnericaii note 3, pp. 303, 304. Bv marriaare. By burning, By writing dul}' executed By subse- quent will. So mneh, then, for the power to make a will of lands, and for the formalities with which it must bo accompanied. A will, it is well known, does not talso effect until the decease of the testator. In the mean- time, it may be revoked in various ways ; as, by the marriaire of either a man or a woman {h); though, before the Wills Act, the marriage of a man was not sufficient to revoke his will, unless he also had a child born (c). A will may also be revoked by burning, tearing, or otherwise destroying the same, by the tes- tator, or by some person in his presence, and by his direction, with the intention of revoking the same (d). But the Wills Act enacts {e) that no obliteration, interlineation, or other alteration, made in any will after its execution, shall have any effect (except so far as the words or effect of the will, before such altera- tion, shall not be apparent), unless such alteration shall be executed in the same maimer as a will ; but the signature of the testator, and the subscription of the witnesses, may be made in the margin, or on some other part of the will, opposite or near to such altera- tion, or at the foot or end of or opposite to a memo- randum referring to such alteration, and written at the end or some other part of the will. A will may also ' be revoked by any writing, executed in the same manner as a will, and declaring an intention to revoke, or by a subsequent will or codicil (/), to be executed as before. (J) Stat. 7 Will. IV. &1 Yict. c. 26, s. 13. "Except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor or administrator, or the person en- titled, as his or her next of kin, under the Statute of Distribu- tions." In the (jooda of Feniviek, L. K., 1 P. & D. 319; In the aoods of l^siseLl, 15 P. D. 111. (c) 1 Jarman on Wills, 122, 4th ed. See Marston v. Eoe d. Fox, 8 Ad. & Ell. 14. (ri) Stat. 7 Will. IV. and 1 Vict, c. 2)3, s. 20. There must be both actual destruction and intent to destroy; Andrew v. Motley, 12 C. B., N. S. 514; Chee!>e v. Love- Joy, 2 P. D. 251; Mills v. Mill- ward, 15 P. D. 20. (e) Sect. 21. if) Stat. 7 Will. IV. and 1 Vict, c. 2ij, s. 20. See BMier v. Hdlier, 9 P. D. 237; hi the goods oj Gosling, 11 P. D. 79. OF A WILL OP LANDS. 2S5 And where a oodicil is added, it is considered as part of Bj codicil, tlie will; and the disposition made by the will is not disturbed further than is absolutely necessary to give effect to the codicil {g). The above are the only means by which a will can Subsequent now be revoked ; unless, of course, the testator choose afterwards to part with any of tiie property comprised in his will, which he is at perfect liberty to do. In this case the will is revoked, as to the property parted with, if it does not find its way back to the testator, so as to be his at the time of his death. Under the Statute of Hen. VIII. a will of lands was regarded in the light of 2i present conveyance^ to come into opera- tion at a future time, namely, on the death of the testator. And if a man, having made a will of his lands, after- wards disposed of them, they would not, on returning to his possession, again become subject to his will, without a subsequent republication or revival of the will (A). But, under the Wills Act, no subsequent conveyance shall prevent the operation of the will, with respect to such devisable estate or interest as the tes- tator shall have at the time of his death (^). In the same manner, the old statute was not considered as After-pur- enabling a person to dispose by will of any lands, except such as he was possessed of at the time of making his will : so that lands purchased after the date of the will could not be affected by any of its dispositions, but descended to the heir at law (k). This also is altered by the Wills Act, which enacts (J) that every will shall be construed, with reference to the property comprised in it, to speak and take effect as if {g) 1 Jarman on Wills, 176, {h) 1 Jarman on Wills, 645, 4tli ed. 4tb ed. (A) 1 Jarrnan on Wills, 147, 198, (I) Stat, 7 Will. IV. & 1 Vict. 4tb ed. c. 26, s. 24 ; lie Portal and Zamdt (i) Stat. 7 Will. IV. and 1 30 Ch. D. 50. Vict. c. 26, s. 23. 286 OF CORPOREAL HEREDITAMENTS. A will now speaks from the death of tlie testator. American note 4, pp. 304,305. General residuary devisee. American note 5, p. 305. it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. So that every man may now dispose, by his will, of all such landed property, or real estate, as he may hereafter possess, as well as that which he now has. Again, the result of the old rule, that a will of lands was a present conveyance, was, that a general devise by a testator of the residue of his lands was, in effect, a specific disposition of such lands and such only as the testator then had, and had not left to any one else {m). A general residuary devisee was a devisee of the lands not otherwise left, exactly as if such lands had been given him by their names. The consequence of this was, that if any other persons to whom lands were loft died in the lifetime of the testator, the residuary devisee had no claim to such lands, the gift of which thus failed ; but the lands descended to the heir at law. This rule is altered by the Act, under which (w), unless a contrary intention appear by the will, all real estate comprised in any devise, which shall fail by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in the will. A lapse. American note Gf i>. 305. This failure of a devise, by the decease ofMie devisee in the testator's lifetime, is called a lapse ^' and this lapse is not prevented by the lands being given to the devisee and his heirs; and in the same way, before the Wills Act, a gift to the devisee and the heirs of his hody would not carry the lands to the heir of the body of the devisee, in case of the devisee's decease in the lifetime of the testator (o). For the terms heirs and heirs of the hody are words of limitation merely ; that is, they («x) 1 Jarmaa on Wills, G45, 4th ed. (n) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 25. (o) Hodgson and Wife v. Am- brose, 1 Dougl. S37. OF A WILL OF LANDS. 287 merely mark out tlie estate, which the devisee, if living at the testator's death, would have taken, — in the one case an estate in fee simple, in the other an estate tail ; and the heirs are no objects of the testator's bounty, further than as connected with their ancestor(^). Two ^'o lapse now cases have, however, been introduced by the Wills Act, in which the devise is to remain unaffected by the decease of the devisee in the testator's lifetime. The Estate tail. first case is that of a devise of real estate to any person for an estate tail', in which case, if the devisee siiould die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue shall be living at the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the deatli of the testator, unless a contrary intention shall appear by the will [q). The other case is that of peviseto the devisee being a child or other isstie of the testator testator. dying in the te.-tator's lifetime and leaving issue any of whom are living at the testator's death. In this case, unless a mere life estate shall have been left to the devisee, the devise shall not lapse, but shall take effect as in the former case (r). The construction of wills is the next object of our Constmction attention. In construing wills, the Courts have always borne in mind, that a testator may not have had the same opportunity of legal advice in drawing his will, as he would have had in executing a deed. And the iirst great maxim of construction accordingly is, that the intention of the testator ought to be observed (,. Sfy. 510, 520; James, L. .1., Pike v (b) Turner, h. J., Jo/mson v. Fitzgihbon, 17 Cli. D. 454, 461. Gallaglter, 3 De G. F. & J. 494, u 2 308 OF CORPOREAL HEREDITAMENTS. exectftion of the judgment (c), to satisfy his claim. In Judgment our law, tlie judgment debts of a tenant in fee long affected his lands with a peculiar and extensive liability to be taken in execution, not only in iiis own hands, but also in the hands of purchasers from him. At the present time, however, a course of complicated legislation has ended in ])lacing such restrictions on the exercise of judgment creditors' rights against their debtor's lands, as reduce to a mhiimamthe possibility of any hardship being caused to a purchaser for value. Tiie first enactment which gave to a judgment creditor a remedy against the lands of his debtor was made in the reign of Edward I. (c^), shortly before the passing of the Statute of Quia Emptores ((?), which sanctioned the full and free alienation of fee simple estates. By this enactment it is provided, that, when a debt is recovered or acknowledged in the King's Court (/*), or damages awarded, it shall be thenceforth in the election of him that sueth for such debt or damages to have a writ oi fieri facias unto the sheriff of the lands and goods (^), or that the sheriff deliver to him all the chattels of the debtor (saving oidy his oxen and beasts of his plough (A), and the one half of his land, xinul the debt be levied according to a Writ of €%i7. reasonable price or extent. The writ issued by the Court to the sheriff, under the authority of this statute, was called a writ of elegit / so named, because it was stated in the writ that the creditor had elected {elegit) to pursue the remedy which the statute had thus pro- vided for him (i). One moiety only of the land was (c) F^ee ante, p. 23, n. (x). the year 1884, it has no lonper (d) Stat. 13 Edw. I. c. 18, called been ])ossible to take the goods oi the Statute of Westminster the a debtor under a writ of elegit, and Second. the writ has extended to lands and («■) Stat. 18 Edw. I. c. 1. hereditaments only; see stat. 4t> (/) Ante, p. 9, n. & 47 Vict. c. 52, s. 14H, sub-s. 1 ; (g) k?, io thQ viv\t of fieri facias, Williams on Personal Property, see Williamson Personal Property, 71, )3th ed. 69, 13th ed. (i) Co. Litt. 289 b; Bac. Abr. \h) Since the commencement of tit. Execution (C 2;. OF CREDITORS' RIGHTS. 3Q9 allowed to be taken, because it was necessary, according to the feudal constitution of our law, that, whatever were the diihculties of the tenant, enough land should be left him to enable him to perform the services due to bis lord {J). The statute, it will be observed, was passed prior to the time when the alienation of estates in fee simple was sanctioned by Parliament; and there can be no doubt, that long after tlie passing of this statute the vendors and purchasers of landed property held a far less important place in legal consideration than they do at present. This circumstance may account Construction •" r ^ 1 1 4- ^.' 1 • 1 ' '^^^^^ statute. lor tlie somewhat liarsli construction, winch was soon placed on this statute, and which continued to be applied to it, until its replacement by an enlarged and amended Act of modern date (k). It was held, that, if at the time when the judgment of the Court was given for the recovery of the debt, or awarding the damages, the debtor had lands, but afterwards sold them, the creditor might still, under the writ with which the statute had fnruifhed him, take a moiety of the lands out of the hands of the purchaser (1). It thus became important for all purchasers of lands to ascertain, that those from whom they purchased had no judgments against them. For, if any such existed, one moiety of the lands would still remain liable to be taken out of the hands of the purchaser to satisfy the judgment debt or damages. It was also held that if the debtor purchased lands after the date of the judgment, and then sold them again, even these lands would be liable, in the hands of the purchaser, to satisfy the claims of the creditors under the writ of elegit (m). In consequence of the construc- tion thus put upon the statute, judgment debts became incumbrances upon the title to every estate in fee simple, (/) Wright's Tenures, 170. (m) Brace v. PucJiess of Marl- (k) Stat. 1 & 2 Vict. c. 110. borough, 2 1'. Wrns. 492; Sug. (I) Sir John de Moleyn's case, V. & P. 520, 14th ed. ; Prest. Year Book, 3U Edw. III. 24 a. Abst. 323, 331, 332. 310 Dockets. Now closed. OF CORPOREAL HEREDITAMENTS. which it was necessary to discover and remove previously to every purchase. To facilitate purchasers and others in their search for judgments, an alphabetical docket or index of judgment was provided by an Act of William and Mary (n), to be kept in each of the Courts, open to public inspection and search. But, by an enactment of the present reign (o) these dockets have now been closed, and the ancient statute is, with respect to purchasers, virtually repealed (p). be taken. Stat. 1 &2 The rights of judgment creditors against the lands of their debtors, were remodelled by an Act of Parliament passed in the year 1838, for the purpose of extending the remedies of creditors against the property of their The whole of debtors {q). The old statute extended to only one half the lands can ^^ ^^^^ ^^^^^ ^^ ^j^^ ^^^^^^, . ^^^^^ y^^ ^j^-^ ^^^^ ^j^^ ^j^^j^ of the lands, and all other hereditaments of the debtor, can be taken under the writ of elegit (/•). The power of the judgment creditor to take lands out of the hands of purchasers was no longer left to depend on a forced construction, such as that applied to the old statute ; for this Act expressly extends the remedy of the judg- ment creditor to lands of which the debtor shall have heen seised or possessed at the time of entering up the judgment, or at any time afterwards. It was also ex- pressly provided that a judgment should operate as a charge on such lands; to enforce which the judgment creditor was given a remedy in equity, that is, in the Court of Chancery {s). But no judguient should by virtue of this Act affect any hereditaments as to purchasers, mortgagees, or creditors, unless registered against the Registry of judgments. (w) Stat. 4 & 5 Will. & Mary, c. 20, made perpetual by stat. 7 & 8 Will. HI. c. 3(5 (o) Stat. 2 & 3 Vict. c. 11, ss. 1, 2. {f) See 1 Dart, V. & P. 525— 630, 6th ed. {q) Stat. 1 & 2 Vict. c. 110, amended by stats. 2 & 3 Vict, c. 11; 3 & 4 Vict. c. 82; 18 &19 Vict. c. 15; and 23 and fide purchaser or mortgagee, although execution or other process should have issued thereon and have been duly registered, unless such execution or other process should be executed and put in force within three calendar months from the time when it was reiristered. By a later Act, passed on the 29tli of July, ISG-t {d)^ no judgment {e) to be entered Recogni- zances. (J) Stat. 23 & 24 Vict. c. 38, debtor's name in the registry ss. 1, 2. above referred to. (c) In consequence of this pro- ((i) Stat. 27 & 28 Vict. c. 112, vision it was still necessary to 8. 1 . search for judgments against the («) Including registered decrees, orders of courts of equity and bankruptcy, and other orders having the operation of a judgment ; s. 2. The provisions of this Act, and of the previous Act of 1860, also extend to recognizances and statutes A recognizance is un obligation entered into before some court of record or magistrate duly authorized, whereby one acknowledges himself to owe to the Queen or some other a certain sum, and conditioned to be void on the happening of a particular event, as, if he or some other appear in court when required, keep the peace or pay a debt. Before the Act of 1800, recognizances duly enrolled bound all lands which the debtor had at the time or after; see stats. 13 Edw. I. c. 18; 29 Car. II. c. 3, s. 18; Bro. Abr. Recognisans, 4, 7; Bac. Abr. Exe- cution (B); 2 Black. Comm. 341 ; 2 Wms. Saund. a, n. (5); 2 Tidd's Practice, 1083, 9th ed. ; Parke, B., R. v. EUis, 4 Ei. 652, OF CREDITORS' RIGHTS. 313 up after the passing of the Act shall affect any land, of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of elegit, or other lawful authority, in pursuance of such judgment. Under this Act, the judgment creditor ac- quires no right in the judgment debtor's lands until possession thereof has been delivered to him by the sheriff under the writ of elegit (f), or until he has got the sheriff's return to the writ, whereby the debtor's estate in the lands becomes vested in him ; and the priorities of judgment creditors are determined by the dates on which their writs were placed in the sheriff's hands {g). The Act required every writ, by virtue whereof any land should have heen actually delivered in execution, to be registered against the debtor's name, and provided that no other registration of the judgment should be necessary for any purpose (h). In 1879 the registers of judgments and of writs of execution were ti-ansferred to the Central Office of the Supreme Court, where all subsequent registrations and searches were required to be made (/). It was, however, decided under the Act of ISG-i that the actual delivery in execution of any land was not avoided, although the writ were not subsequently registered (j). But it has since been provided by the Land Charges Registration and Searches Act, 1SS8 (k), that every writ or order affecting 662; 2 Wms. Exors., pt. iii., bk. ii., ch. ii., § ii. 3. Statutes g^j^^^^^g^ merchant and staple, and recognizances in the nature of a statute jigrchant staple were modes of charginij lands with the payment of a debt ^^^^ Staple, under certain statutes, which, having long been obsolete, were repealed in 1863. See 2 Black. Comm. 160; 2 Wms. Exors. zihi sup. ; stat. 26 k 27 Vict. c. 125. (/■) J'e Hohson, 83 Ch. D. 493. Statutes. 262-274. (y) Guest V. Cowhridye Railway (J) Re Pope, 17Q. B. D. 743. It Co., L. R. 6 Eq. 619; Ilattoii v. was considered tliat registration Hcyivood, h. R. 9 Ch. 229, 236; was chiefly required for the pur- Me Pope, 17 Q. B. D. 743, 745, pose of obtaining an order for sale 751. under section 4 of the Act ; see (h) Stat. 27 & 28 Vict. c. 112, below, p. 253. 8. 3. {h) Stat. 51 k 52 Vict. c. 51, (i) See Williams's Conveyancing ss. 4, 5, 6. 314: OF CORPOREAL HEREDITAMENTS. land (including hereditaments of any tenure) issued or made by any Court for the purpose of enforcing a judg- ment {I), and every delivery in execution or other pro- ceeding taken in pursuance of any such writ or order shall be void, as against a purchaser for vahie (w.) of the land, urdess the writ or order is for the time being duly registered against the name of tlie person whose land is affected, in the Office of Land Registry (w). Such registration of a writ or order has the same effect as and makes unnecessary registration thereof in the Cen- tral Ofhce of the Supreme Court in pursuance of any other Act {o), Registration under this Act ceases to have effect at the expiration of five years, but may be renewed, and, if renewed, has effect for five years from the date of renewal (/>). Due provision is made for searches in the register established by this Act {(j). Summary of the law of judgments. American note 1, pp, 334, 335. It appears from this long chain of legislation that a judgment creditor can now take under the writ of elegit all hereditaments belonging to his debtor at the time of the judgment or at any time after; that judgments entered up on (r) or after the 29tli of July, 1864, are not a charge on the debtor's land until it has been actually delivered in execution; and that even actual delivery in execution of any land is now void as against a pur- chaser for value, unless the writ be duly registered. Judgments entered up between the 23rd of July, 1860, and the 28th of July, 1864, both inclusive, are not a charge (7) Including any order or decree having the effect of a judgment, except an order made by a court having jurisdiction in b'anlvruptcy in exercise of that jurisdiction ; s. 4. {m) Including a mortgagee or lessee, or other person who for valualile consideration takes any interest in or a charge on land. {n) The registration of a writ or order affecting land may be vacated pursuant to an order of the High Court or a judge; stat. 53 & 64 V^ict. c. 69, s. 19. (o) Sect. 5, sub-s. 4. yp) Sect. 5, sub-s. 3. (q) Sects. 15—17. (/•) Acts of Parliament take effect from the first instant of the day on which they are passed; Tomlinson v. Bullock, 4 Q. B. D. 231. See, too, Sug. V. & P. 530. OF CREDITORS' RIGHTS. 31; on land, nntil a writ or other process of execution be duly registered : nor unless such writ or process be put in force within three months after registration. But judgments entered up before the 23rd of July, 1860, may still be a charge on land {s). Lands in either of the counties palatine of Lancaster ^°"°.*''®* ■■■ , palatine. or Durham were affected both by judgments of the Courts at Westminster, and also by judgments of the Palatine Court (t). These latter judgments had, within the county palatine, the same effect as judgments of the Courts at Westminster ; and an index for their registration was established in each of the counties palatine, similar to the index of judgments at the Common Pleas {u). And by an Act of 1855 (a?) it was provided that no judgment, decree, order or rule of ani/ Court should bind lands in the counties palatine, as against purchasers, mortgagees, or creditors, unless duly registered and re-registered in the Court of the county palatine in which the lands vrere situate. But the Acts of ISGO, 1864 and 1888, altering the law of judg- ments (?/), apply to lands in the counties palatine as well as elsewhere in England (s). Under the Middle- (s) Before that date it was a duly signed, or, it seems, by due common practice to enter up application to the Court for the judgment by consent as security purpose. See Sbelford's Real Pro- for payment of a debt ; see perty Statutes, 237, 238, 8th ed. ; Principles of the Law of Personal Archbold's Queen"s Bench Prac- Property, 141—144, 13th ed. tice, 955, 14th ed. ; Rules of the Judgments entered up before the Supreme Court, 1883, Order xlii., 23rd of July, 1860, may have been rules 20—23. kept alivo, so as to prevent their It) 2 Wms. Saund. 194. being barred by lapse of time, under {u) Stats. 1 & 2 Vict. c. 110, s. Stat. 37 & 38 Vict. c. 57, s. 8 (see 21 ; 13 & 14 Vict. c. 43, s. 24. Re Tyate, 15 Ch. D. 125), by pay- (x) Stat. IS & 19 Vict. c. 15, ment of some principal or interest, ss. 2, 3. or by acknowledgment in writing (y) Ante, pp. 312—314. («) In 1830 the palatinate jurisdiction within the county of Durham, which formerly belonged to the Bishop of Durham, was transferred to the Crown; stats. 6 & 7 Will. IV. c. 19; 21 & 22 Vict. c. 45. By the Judicature Acts of 1S73— 5, the jurisdiction of the Court of Common Pleas at Lancaster and of the Court of Pleas at Durham was transferred to the High Court of Justice; and that of the Lancaster Chancery 316 OF CORPOREAL HEREDITAMENTS. Lands in Middlesex and York- shire. Judgments of inferior courts. Remedies of execution creditor. Tenant by elegit. sex and Yorkshire Registry Acts («), before judgments could affect landu in either of those counties, they were required to be registered in the county register. But the necessity for so registering judgments appears to have been removed by the Act of 1^64, depriving sub- sequent judgments of their lien on lands (b). Under the Yorkshire Registries Act, 188i (c), however, it seems that an execution creditor should register his writ in Yorkshire in order to secure undisputed priority over any subsequent assurance of the land {d). Judg- ments of county courts and other inferior courts must be removed into the High Court before they can affect freehold lands (d'). And judgments of the superior (/") and of certain inferior {g) courts in England, Scotland or Ireland may now be rendered as effectual as judg ments of similar courts in any other part of the United Kingdom. Here we may advert to the means by which a judg- ment creditor, who has taken his debtor's lands in execution, may realise his debt. First, he may hold the lands, as tenant by elegit, until the debt be satisfied Court of Appeal to the Court of Appeal, which is a branch of the Supreme Court; stuts. 36 & 37 Vict. c. 6G, ss. 16—18; 37 & 38 Vict. c. 83. But the Courts of Chancery of the counties palatine of Lancaster and Durham still exercise jurisdiction; see stats. 13 & 14 Vict. c. 43; 17 & 18 Vict. c. S2 ; Re Longdendale Cotton Spinning Co., 8 Ch. D. 150, as to Lancaster; 52 & 53 Vict. c. 47, as to Durham. Lands in the county palatine of Chester, and in the principality of Wales, were in 1830 placed exclusively within the jurisdiction of the Courts at Westminster, stat. 11 Geo. IV. & 1 Will. IV. c. 70, s. 14. (a) Stats. 7 Anne, c. 20, s. 18, as to Middlesex; 6 Anne, c. 20, s. 5 (5 & 6 Anne, c. 18, s. 4 in Ruffhead) as to the West Riding of Yorkshire ; 6 Anne, c. 62, s. 19 (6 Anne, c. 35, s. 19, in Ruff- head), as to the East Riding) ; 8 Geo. II. c. 6, s. 1, as to :he North Riding; see Benham v. Keane, 3 DeG.^F. & J. 318. (5) Stat. 27 & 28 Vict. c. 112, S. 3; ante, p. 312. (.0) Stat. 47 & 48 Vict. c. 54 ss. 3, 4—6, 14, {d See Elphinstone and Clark on Searches, 139 — 141. (e) See stats. 1 & 2 Vict. c. 110, s. 22; 18 & 19 Vict. c. 15, s. 8< 35 & 36 Vict. c. 86, schedule, s. 9; 51 & 52 Vict. c. 43, s. 151 ; Elphinstone and Clark on Searches, 53 — 56. (/ ) Bv stat. 31 & 32 Vict. c. 54. ig) By stat. 45 & 46 Vict. c. 31. OF CREDITORS' RIGHTS. 317 out of the rents and profits (i) ; and this was formerly his only remedy (k). A tenancy by elegit is a chattel real, passing to the executor or administrator, not the heir (l) ; and the tenant was expressly provided by statute with the freeholder's remedy for disposses- • sion {m). The Act of 1838 enabled the creditor to take proceedings to realise his judgment, as a charge, in equity (n). And he is now provided with a more com- plete remedy by the Act of 1864: amending the law of judgments. Under this Act (o), every creditor, to whom any land of his debtor shall have been actually delivered in execution by virtue of any judgment, and whose writ shall have been duly registered (p), may obtain from the Chancery Division of the IIifj;h Court, upon petition ^'"^»*i<"»" •^ •? » r r no'e 2, i^p. in a summary way, an order for the sale of his debtor's ^^"''''^*'- interest in snch land. The other judgment creditors, if any, are to be served with notice of the order for sale ; and the proceeds of the sale are to be distributed amongst the persons M'ho may be found entitled thereto, according to their j^riorities {q). And every person claiming any interest in such land through or under the debtor, by any means subsequent to the deliver}- of such land in execution as aforesaid, is bound by every such order for sale, and by all the proceedings conse- quent thereon (/■). Secondly, freeholders are subject to involuntary aliena- Bankruptcy, tion for debt in the tenant's lifetime in the case of his ])ankruptcy. Bankruptcy is the name given to the judicial proceedings, first introduced by statutes of (i) 2 Inst. 396; 2 Black. Comm, {m) Stat. 13 Edw. I. c. 18. 161; 2 Wms. Saund. Y2, note («) Ante, p. 310. (tj); Elphinstone and Clark on (o) Stat. 27 & 28 Vict. c. 112, Searches, 67; Stat. 1 & 2 Vict. c. s. 4. 110, s. 11. (/)) Seeawile, pp. 313, 814. (k) See I^'eate v. Duke of Marl- (q) Sect. 5. borough, 3 My. & Cr. 407, 417. (rj Sect. 6. (I) Co. Litt. 43 b; see ante, p. 25. 318 OF CORPOREAL HEREDITAMENTS. or arrange ment. Henry YIII. and Elizabeth [s), by which a man may be released from his debts, after surrendering all his pro- perty to his creditors. By the Bankrnptcy Act, 1883, when a debtor is adjudged bankrupt, the whole of his freehold, as well as his personal estate, vests in the trustee under the Act, who is empowered to sell the same and divide the proceeds amongst the creditors, Composition who have proved their debts {t). And where a debtor is released from his debts by a composition or scheme of arrangement approved by the Court under the present bankruptcy law (w), all or any part of his property may by the terms of the composition or scheme be vested in the trustee appointed to carry out the same. Debtors frequently obtain a release from their debts by private arrangement with their creditors. But every assignment of property, or other deed or agreement of arrangement, made for the benefit of a man's creditors generally (otherwise than in pursuance of the bankruptcy law) is now void, unless duly registered in the Central Office under the Deeds of Arrangement Act, lbS7 (v) ; and is void, as against a person becoming after the year 1888 a purchaser for value of any land or hereditaments comprised therein, unless also duly registered in the debtor's name in the Office of Land Registry under the Land Charges Act of 1888 (»). Both these registers are open to search {>/). Before the Bankruptcy Act, 1861 (s), which first rendered non-traders, as well as traders, sul)ject to the bankruptcy laws, a debtor might also be divested of his property on his insolvency, that Insolvency. (s) Stats. 34 & 35 Hen. VIII. 3, sub ss. 16, 17. c. 4; 13 Eliz. c. 7; see Williams (-v) Stat. 50 & 51 Vict. c. 57, on Personal Property, 174, 13th ss. 4—6. ed '-' "■ 51. (t) Stat. 46 & 4? Vict. c. 52, ss. 20, 44, 54, 56, 58, 108; see Williams on Personal Property, 196, 197, 202, 203, 207, 212, 13th ed. (u) Stat. 53 & 54 Vict. c. 71, s. (x) Stat. 51 & 52 Vict. c. ss. 2, 4, 7—9. (I/) Stats. 50 & 51 Vict. c. 57, s. 12; 51 & 52 Vict. c. 51, ss. 16, 17. (s) Stat. 24 & 25 Vict. c. 134, ss. 19—27, 69. OF CREDITORS' RIGHTS. 319 is, on liis taking the benefit of the Acts for the relief of insolvent debtors («) ; in which event his whole estate became vested in the assignee under the Acts for the benefit of his creditors (b). Fee simple estates are also subject in the hands of the Alienation for heir or devisee of a deceased tenant to debts of all kinds death, contracted by him in his lifetime. This liabilit}', too, has been established by very slow degrees (c). It ^JJ^^s'T" appears that, in the early periods of our history, the ^^*'- heir of a deceased person was bound, to the extent of the inheritance which descended to him, to pay such of the debts of his ancestor as the goods and chattels of the ancestor were not sufficient to satisfy (d). But the spirit of feudalism, which attained to such a height in the reign of Edward I., appears to have infringed on this ancient doctrine ; for we find it laid down by Britton, who wrote in that reign, that no one should be held to pay the debt of his ancestor, whose heir he w\as, to any other person than tlie king, unless he were by the deed of his ancestor especially bound to do so (e). On this footino; the law of Eno-land lono; continued. It Heirs might " ^ . . anciently be allowed any person, by any deed or writing under seal bound by (called a special contract or special t}') (/") to bind or ^^^^^^^ ^• charge his heirs, as well as himself, with the payment of any debt, or the fulfilment of any contract; in such a case the heir was liable, on the decease of his ances- (ffl) stats. 1 & 2 Vict. 0. 110, 4, 10; 10 & 11 Vict. c. 102. s. 5. 8S. 23 e< «e^., replacing 7 Geo. IV. (c) See Co. Litt. 191 a, n. (1), c. 57, continued and amended by vi. 9. 11 Geo. IV. & 1 Will. IV. c. 38; (d) Glanville, lib. vii. c. 8; 5 & Vict. c. 116; 7 & S Vict. c. Bract. 61 a; 1 Reeves's Hist. Eng. 96; 10 & 11 Vict. c. 102; all Law, 813. These authorities ap- repealed by 24 & 25 Vict. c. 134, pear to be express; the contrary s. 230, and .32 & 33 Vict. c. 83, s. doctrine, however, with an ac- 20. See Williams on Personal count of the reasons for it, will be Property, 286, 12th ed.; 2-11, found in Bac. Abr. tit. Heir and 13th ed. Ancestor (F). (4) See stats. 1 & 2 Vict. c. («) Britt. 64 b; Fleta, fo. 135. 110, ss. 37, 45- 5 & 6 Vict. c. ( /) See a/i^t, pp. ISO— 182. 116, s. 7; 7 ^•^''• estate ; when a sale or mortgage of the real estate will be decreed, if necessary, to raise money to pay the debt (s). A creditor by special contract innding the heir has also the remedy, seldom exercised, of suing the heir or devisee for the debt (a). And any creditor may now take proceedings to have the insolvent estate of his deceased debtor administered in bankruptC3^ When an order is made for the administration in bankruptcy of a deceased debtor's estate, his property (real as well as personal) vests in the official receiver of the Court as trustee thereof, who is then em- jjowered to realise the same by sale or otherwise, and distribute the proceeds among the creditors of the deceased (h). (u) See Williams on Personal v. Insall, 1 Mac. & G. 449; British Property, 214, 239, 13th ed. Mutual Investment Co. v. Smart, {x) Formerly bj' suit, now by L. R., 10 Cli. 5(i7 ; Price w . Price, action or summons; Rules of the 35 Ch. D. 297. Supreme Court, 1883, Order LV., (a) See stat. 11 Geo. IV. & 1 rr. 3— 5. Will. IV. c. 47, ss. 2—8; Shel- {y) Ante, p. 198. ford's Real Property Statutes, pp. .{z) See Seton on Decrees, 801, 463—470, 8th ed.'; Williams^s 805, 800, 814, 820, 843, 844, Conveyancing Statutes, 334, 235. 857, 947, 4th ed. ; Spackman v. (b) Stat. 4G & 47 Vict. c. 52, s. 'Jimhrell, i: Sim. 253; Richardson 125. V. Horton, 7 Beav. 112; Pimm V 2 324 Crown debts. OF CORPOREAL HEREDITAMENTS. The Crown is, by Koyal prerogative and by Statute, invested with various special privileges for the recovery of the debts due to it, besides the ordinary creditor's remedies. Thus a Crown debtor's freeholds in fee simple, in the hands of himself, his heirs or devisees (c), may be seized, as well as his body {d) and goods, in satisfaction of any debt due to the Crown under process duly issued for the purpose {e). And debts due, or which might have become due, to the Crown, from persons wdio were accountants to the Crown (/), and debts of record {g\ or by specialty (A) in form prescribed by statute (^), due from other persons to the Crown were formerly binding on their estates in fee simple when sold, as well as when devised by will, or suffered to descend to the heir at law {k). Simple contract debts {I), Debts of record. (c) H. V. The. Estate of G. Eassell, McCleland, 105. (d) See A.-G. v. Edmunds, 22 L T . N . S . 667 ; -/i« Smith, 2 Ex. D. 47. («) 3 Black. Comm. 420; Man- ning's Exchequer Practice, pt. i., bit i., 2ud ed. ; Chitty on the Prerogatives of the Crown, ch, xii. ; Stat. 2S & 29 Vict. c. 104, ss. 47, 51. (/•) Stats. 13 Eliz. c. 4; 25 Geo. III. c. 35; Co. Litt. 191a, n. (1), vi. 9, 209 a, n. (1); Bug. V. & P. 544, 14th ed. ig) These are debts appearing to be due by matter of record ; that is, by the evidence of any court of record, properly a court, of which the proceedings are enrolled or recorded, and the records of which are indisputable evidence of its proceedings. Judgment debts and recognizances (see ante, p. 248) are debts of record ; so are debts found to be due to the Crown by the verdict of an inquest of office held for the purpose. See Glanv. viii. 5—11; Bract. 156 b, 268 b, 289 ; Britton, liv. i. ch. 1, §§ 7—12, ch. 28, ,§1; Co. Litt. 117 b, 260 a; Black. Comm. ii. 464; iii. 24; Manning's Exchequer Practice, 1, 36 et seq., 2nd ed. ; Chitty on the Prerogatives of the Crown, 265—271, 293. (A) Ante, p. 819. (i) Stat. 33 Hen. VIII. c. 39, ss. 36, 37, 52 (ss. 50—56, 75 in Ruffhead); see Chitty, Preroga- tives, 265, 293. (k) By stats. 2 & 3 Vict. c. 11, s. 10, and 12 & 13 Vict. c. 89, any two of the commissioners of the Treasury were empowered to certify that any lands of any crown debtor or accountant should be held by the purchaser or mortgagee thereof discharged from all further claims of the Crown in respect of any debt or liability of the debtor or accountant to whom the lands belonged. And by stats. 16 & 17 Vict. c. 107, ss. 195—197; 23 & 24 Vict. c. 115, s. 1; and 39 & 40 V'ict. c. 36, ss. 167, 288, a similar power was given to any two of the commissioners or prin- cipal officers, or the only commis- sioner or principal officer, of any public department with respect to any crown bond or other security concerning or incident to any such department. (I) Ante, pp. 87, 88, 321. OF CREDITORS' RIGHTS. 39(5 however, due to the Crown from a vendor of lands, who was no public accountant to the Crown, were not binding on the purchaser unless he had notice of them {m). But no liabilities to the Crown by record, specialty, or accountantship incurred after the 3rd of June, 1839, can affect any lands as to purchasers or mortgagees nnless duly registered in the index of Crown debtors and accountants {n) and re-registered within tlie last five years {o). And b}' the Crown Suits Act of 1865 (/>), no such liabilities to the Crown incurred after the 1st of November, 1865, shall aifect any land as to a bond fide purchaser for valuable consideration or a mortgagee, whether he have or have not notice of the same, unless a writ or process of execution has been issued and registered in the Central Office of the Supreme Court {<]) before the execution of the conveyance or mortgage, and the payment of the purchase or mortgage money. No other registration of the writ or process, or of the debt or liability (if incurred after the last-mentioned date), is now necessary for any purpose (/'). By a statute of the reign of Elizabeth, conve}' ances Conveyances of landed estates, and also of goods, made for the f°g frg^itors. purpose of delaying, hindering or defrauding creditors, are void as as^ainst them ; unless made upon qoods -^nierican ° ' ]r n •> note 5, itp. which here means valuable, consideration {s), and bond ^^^' ^^*- fide, to any person not having, at the time of the conveyance, any notice of such fraud (t). Sucli con- (m) Kinff V. Smith, Wightw. ss. 4, 48, 40. 84; Casherd v. A.~(t., 6 Price, {q) Orij^inally in the office of 411, 473—47'). the Court of Common Pleas ; see («) Stat. 2 & 3 Vict. c. 11, s. Williams's Conveyancing Sta- 8. This register was originally in tutes, 267, 268. the oliice of the Court of Common (r) Sect. 49. Pleas, but is now in the Central («) Ante, p. 84. oHice of the Supreme Court; see (t) Stat. 13 Eliz. c. 5; Twyne' s Williams's Conveyancing Sta- ease, 3 Rep. 81 a; 1 Smith's tutes, 264, 268. Leading Cases, 1 ; Spencer v. (o) Stat. 22 & 23 Vict. c. 35, s. 22. Slater, 4 Q. H. I). 13 ; lie Johnson, \p) Stat, 28 & 29 Vict. c. 104, Goldeny. Gillam, 20 Ch, D. 389; 326 OF CORPOREAL HEREDITAMENTS. vej'ances of land are, therefore, of no avail against tlie claim of a creditor to take the land in execution, or against the title of the debtor's trustee in bankruptcy, or against creditors who take proceedings to secure payment of their debts out of the debtor's estate after his deatli (w\ Fraudulent conveyances of property are also void, as against the trustee in bankruptcy of the conveying party, under the bankruptcy laws {x}. And by the Bankruptcy Act, 1883 (y), any voluntary settle- ment of property (s) shall, if the settlor becomes bank- mpt wirhin two years after the settlement, be void against the trustee in the baiikruptc}^ and shall, if the settlor becomes bankrupt at any subsequent time within ten years after the settlement, be void as against the trustee in the bankruptcy, unless the parties claiming under the settlement can prove that the settlor was at tlie time of making the settlement able to pay all his debts without tiie aid of the property comprised in the settlement, and that the interest of the settlor in such property passed to the trustee of such settlement on the execution thereof (a). Alienation of Witli regard to the alienation of an estate tail for Gstits t3.ll for debt. debt, under the old law of judgments (h), lands held for an estate tail could not be seized under a writ of elegit for a longer time than the life of the tenant in tail, against whom judgment for debt or damages had been recovered (c). But by the Act of 1838, extending Halifax Joint Stock Banking or transfer of property, but except- Co.'v. Gledhill, 1891, 1 Ch. 31. ing settlements on the settlor's wife {u) Richardso^n, v. Smallwood, or children of property accrued to Jac. 552. him after marriage in right of his (,x) See Principles of the Law of wife. Personal Property, 178, 182, 13th (a) Ex parte Huxtable, He Coni- ed.; 1 Smith's Leading Cases, 2t) heer, 2 Ch. D. 54; ex f arte Hill- — 29, 9th ed. man. Re Pumfrey, 10 Ch. D. iy) Stat. 46 & 47 Vict. c. 52, s. 622; ex parte 'jiussell, Be Butter- 47, replacing 32 & 33 Vict. c. 71, worth, 19 Ch. D. 588; Re Brigg& s. 91, avoiding similar settlements and ISpicer, IS'il, 2 Q\\ 127. by traders. (b) Ante, pp. 808—310. (a) Including any conveyance {c) Anderson's case, 7 Rep. 21. OP CREDITORS' RIGHTS. 397 creditors' remedies, jadginent debts (J) were made Judgment binding on the lands of the debtor, as against the issue of his body, and also as against all other parsons whom he might, without the assent of any other person, cut off and debar from any remainder or rev-ersion (e). As we have seen, no judgment entered up on or after the 29th of July, 18Gi, can atfect any land, nntil the land has been actually delivered in execution ; and actual delivery in execution is void, as against purchasei'S, unless the writ be duly registered (/). An estate tail Bankruptcy 111 111- 1 c 111 °^ tenant ia may also be barred and disposed or on tlie bankruptcy tail, of a tenant in tail, for the benefit of his creditors, to the same extent as he might have barred or disposed of it for his own benefit {g). But if a tenant in tail die before any judgment against him has affected his lands, and without having been adjudged bankrupt (A), the entailed lands will no longer be subject to his debts, except certain Crown debts (/). For, by a Statute of Henry VIII. (k), estates tail are charged, in the hands of the heir, with debts due from his ancestor to the Crown by judgment, recognizance, obligation or other specialty (^), although the heir shall not be comprised therein. And all arrears and debts due to the Crown, by accountants to the Crown, whose yearly or total receipts exceed three hundred pounds, were, by a Statute of Elizabeth (7/i), placed on the same footing. A life estate is liable during the tenant's life to be involuntary taken to satisfy any judgment debt of his, in the same fife "s^te." (d) See ante, p. 311 . 74, s. fi5. (e) Stat. 1 & 2 Vict. c. 110, s. (i) 1 Rolle Abr. 841 (F) ; 7 13. See Lewis v. Duncombe, 20 Rep. 21. Beav. 398; Sug. V. & 1'. 52tj, (k) 33 Hen. VIII. c. 39, s. 52 14tli ed. (?. 75 in Ruffliead) ; Chitty on the ( /") Ante, pp. 312 — 314. l^rerogative of tiie Crown, 299. (g) Stats. 3 & 4 Will. IV. c. 74, (I) Ante, pp. 312, 319. 8S. 56—73; 41! & 47 Vict. c. 52, (m) Stat. 13 Eliz. c. 4 ; and see B. 56, sub-s. 5. 25 Geo. III. c. 35 ; Chitty, Pre- (A) See Stat. 3 & 4 Will. IV. c. rogative, 294, 295. trust estates. 328 OF CORPOREAL HEREDITAMENTS. manner as an estate in fee simple {n). And it is siini- lai'l)- liable to vest in the creditors' trnstee on liis bank- ruptcy {o). But it is not in any way subject to the tenant's debts after his death. Determinable life estates are not subject to the tenant's debts after their deter- Estates/>?tr mination (p). Estates pur autre vie are liable to autre vie. alicuation for debt in the tenant's lifetime in the same manner as other freehold estates {g) ; and after his death, they continue liable to his debts during the remainder of the life of the cestui que vie (?•). Judgment Judgment creditors have the following rights against rights against their debtors' equitable or trust estates : — (1) They may by statute take lands and hereditaments held on a simple trust is) for the debtor under the writ of elegit. This remedy was first given by the Statute of Frauds (^), and was enlarged by the Act of 1838 extending creditors' remedies, liy this Act, execution may be delivered under the writ of elegit of all such lands and heredita- (/?) Ante, pp. SOS— 314, (q) Ante, pp. 308—314. (o) Aide, p. 318. ('•) Ante, p. 145. (p) See ante, pp. 88, 89, 141, 142. («) Ante, p. 210. Kt) Stat. 29 Car. II. c. 3, s. 10, which empowered the sheriff to deliver execution unto the judgment creditor of all such lands and hereditaments as any other persou or persons should be seised or possessed of in. trust for the judgment debtor, like as the sheriff might have done if the judgment debtor had been seised of such lands or hereditaments of such estate as they be seised of in trust for him at the time of execution sued. This enactment was evidently copied from a similar provision made by stat. 19 Hen. VII. c. 15, respecting lands of which others were seised to the use of a judgment debtor; wliich statute of course became inoperative when uses were, bv the Statute of Uses, turned into estates at law. The construction placed upon this enactment of the Statute of Frauds was moie favour- able to purchasers than that placed on stat. 13 Ed\v. I. c. 18, ante, p. 244. For it was held that although the trustee might have been seised in trust for the debtor at the time of obtaining the judg- ment, yet if he had conveyed away the lands to a purchaser before execution was actually sued out on the judgment, the lands could not afterwards be taken ; because the trustee was not, in the words of the statute, seised in trust for the debtor at the time of execution sued ; Hunt X. Coles, Com. 226; Harris v. Pugh, 4 Biug. 335; 12 J. B. Moore, 577. But stat. 1 & 2 Vict. c. 110, deprived purchasers of this advantage. OF CREDITORS' RIGHTS. 320 ments as the person against whom execution is sued, or any pertion in trust for hhn, shall have been seised or possessed at the time of entering up the judgment or at any time afterwards (m). (2) Judgment creditors may Equitable , . . n 1 -77 • mi • • • execution. ol)tam what is called equitaote execution. Inis origi- nated in the relief which the Court of Chancery used American '' note G, 2>- to give to a judgment creditor, who had sued out a writ ^ss. of elegit to take the debtor's land at law, but was pre- vented from executing it by the fact that the legal estate was outstanding in some other, who was not trustee for the debtor simply {x). In such cases, the creditor might have obtained the appointment by the Court of a receiver of the rents and proflts of the debtor's equitable estate in the land (?/). The juris- diction of the present High Court of Justice (s) to appoint a receiver was enlarged by tlie Judicature Acts («). And now it appears that a judgment ci-editor may obtain equitable execution by means of an order for the appointment of a receiver of the profits of his debtor's interest in land, whenever there are circum- stances to hinder the convenient operation of his legal remedy by elegit (h) ; and there is no necessity for him to sue out an elegit in the first instance (c). As iudgments were enforceable in equity under the How far , , , ,, 111 • •. judgments are old law, they were regarded as charges in equity upon charges upon equitable estates in land, and therefore binding upon all eS£''^ who succeeded to the judgment debtor's estate, except those who took it as purchasers for value without notice iu) Stat. 1 & 2 Vict. c. 110, (a) Stat. -36 & 37 Vict. c. 06, s. 11. s. 25, sub-s. 8. {X) Mate V. Duke of Marl- (A) Anylo-ltalian Banh v. borough, 3 My. & Cr. 407; Mil- Davies, 9 Ch. D. 275; Sm.it?i v. ford 'on Pleading, 126 (148, 5th Cornell, 6 Q. B. D. 75; Salt v. ed.); I.ewm on Trusts, 797 etseq.. Cooper, 16 Ch. D. 544; Fe Pope, 8th ed. 17 Q. B. D. 743; Be Shephard, («)19 Ves. 633; 2 Swanst. 137, 43 Ch. D. 131; Levasseur\. Mason, 155; Daniell, Ch. Pr. 1563, 1564, tfc Jiarrj, ISltl, 2 Q. B. 73. 5th ed. (c) Ex parte £cans, lie Wat- (s) Ante, p. 197. kins, 13 Ch. D. 252. 330 OF CORPOREAL HEREDITAMENTS. of the judgment (d). The Act of 1S38 for extending creditors' reniedies expressly made judgments a charge on all hereditaments to which the judgment debtor should at the time of entering up judgment, or at any time afterwards, be entitled for any estate or interest whatever at law or in equity (y). But, as we have seen, under this Act purchasers were not to he affected by judgments, unless duly registered {(j). The Acts of 183'J and 1860, before referred to (A), further protected pur- chasers of equitable as well as legal estates {i}. And now, under the Act of ISO-i, no subsequent judgment shall affect any land, until such land shall have been actually delivered in execution by virtue of a writ of ele(/it, or other lawful aathority {1\). It is held under this Act that an equitable interest in land is actually delivered in execution, when the judgment creditor has obtained an order for the appointment of a receiver; and he has no charge until then (Z). As we have seen, since 18S8, it has been further requisite to register the writ or order enforcing a judgment in the office of Land Registry ; or else it will be void as against purchasers for value (w). Bankruptcy of Equitable ostatcs are liable to involuntary alienation 'trull. ^"'^ on the bankruptcy of the person entitled thereto, in the same manner as his estates at law {ii). But on the bankruptcy of a trustee, the legal estate in any pro- perty, of which he is trustee for any other person, does not pass to the trustee for his creditors, but remains vested in him (p). (d) Sug. V. & P. 518,14th ed. ; 9 Ch. 229; and cases cited in Lewin on Trusts, 797—803, 8th notes (i) (c) to p. S29, ante. ed. ; atite, p. 210. (m) Ante, pp. 31.3, 314. (f) Stat. 1 & 2 Vict. c. 110, s. (/i) Ante, p. 318. 13 ; ante, p. 310. {o) Stat. 46 & 47 Vict. c. 52, ( ^^^• natural-born British subject ; and a title to real and personal property of every description may be derived through, from or in succession to an alien (c) in the same manner in all respects as through, from or in succession to a natural-born British subject. Corporations, as conceived by the common law, were corporations, under no incapacity to hold or dispose of lands. A eorp^oration, it may be explained, is a fictitious body invested by law with the attributes of a person, having a corporate name by which it can sue and be sued and hold property, but enjoying immortal existence by -d.mer!cnn reason of the perpetual succession of its members (d) ; 3si. as the Corporation of London, or Trinity College, Cambridge. But by the effect of the statutes pro- hibiting the alienation of lands into mortmain (e), cor- porations are generally disabled from holding lands other respects it was valid ; Shep. Sharp v. St. Sauveur, L. R., Touch. 232; 4 Leon. 84; Fish 7 Ch. 343. V. Klein, 2 Mer. 431. Stat. 22 & (c) All the King's natural-born 23 Vict. 0. 21, s. 25, abolished the subjects were enabled to trace necessity of an inquest of office. their title by descent through (o) Harrow v. Wadkiii, 24 their alien ancestors by stat. 11 Beav, 1; Sharp v. St. Sauveur, & 12 Will. III. c. 6, explained by L. R., 7 Ch. 343; overruling 25 Geo, II. c. 39. Kittson V. Stordy, 3 Sm. & G. {d) 10 Rep. 30 b; 1 Black. 230. But if lands were directed Comm. 4fi7, 475; Mayor <& Com- to be sold, and the produce given noonalty of Colchester v. Lowten, to an alien, the Crown had then 1 V. & B. 22t), 244—246. Bhick- no claim; Du Hourmelin v. burn, J., lliche v. Ashhury linil- Sheldon, 1 Beav. 79, 4 My. & Cr. wnij Carriage Co., L. R., 9 Ex. 525 224, 263; see Grant on Corpora- {b) Stat. 33 Vict. c. 14, s. 2, tions, 129. passed 12th May, 1870, and («) Stats. 7 Edw. I. st. 2; 7 & amended by stats. 33 & 34 Vict. 8 Will. III. c. 37; now repealed c. 102, and 35 & 86 Vict. c. 39. and replaced by stat. 51 A 52 Vict. This Act is not retrospectiye; c. 42, s. 1; ante, pp. 58, 82. 348 OF CORPOREAL HEREDITAMENTS. Alienation of corporation hinds. Ecclesiastical corporations. ^lunicipal corporations. Alienation of charitj lands. witliout a licence from the Crown to hold lands in mortmain, or the antliority of an Act of Parliament {/). The corporations, ■\vhicli are empowered by statnte to hold land without a licence in mortmain, are too numerous to be particularly specified here {g). For example, every joint stock compan}' incorporated under the Companies Act, 1862 (A), has power to hold lands : but no company formed for the purpose of promoting art, science, religion, charity or any other like object, not involving the acquisition of gain by the company or the members thereof, may hold more than two acres of land without the sanction of the Board of Trade (i). Whether any particular corporation can freely exei'cise its capacity for alienating its lands depends generally on the purposes of its existence. Corporations existing for public or charitable purj)oses have been in many instances placed under statutory restraints in the M'ay of the disposal of their lands. Thus ecclesiastical corporations and colleges were restrained by statutes of Elizabeth and James I. from alienating their lands for more than twenty -one years or three lives ; and sales and leases of the lands of such bodies are now regulated by numerous statutes [j). Municipal corporations subject to the provisions of the Municipal Corporations Act, 1882, may not alienate corporate land (except by leas- ing to a limited extent) without the approval of the Treasury (Jc). The alienation of land held for charitable purposes, whetlier by corporations or other trustees, was subject to the control of the Court of Chancery {I) and (/) Britton, liv. 2, Ch. 3, s. 11; Co'. Liti. 2 b, 99 a; Black. Comm. i. 479; ii. 2()8 e< seq.; Shelf ord on Mortmain, 6, 35 etseq. (g) See Index to Statutes, Mortmain, 2, 3. (A) Stat. 25 & 26 Vict. c. 89, s. 18. (i) Sect. 21. U) See Co. Litt. 43 a, 44 a; Index to Statutes, 1890, Colleges (2), Corporation (2), Ecclesiasti- cal Commission (3), Lease (3). ik) Stat. 45 & 46 Vict. c. 50, ss. r,, 108; replacing stats. 5 & 6 Will. IV. c. 76, ss. 94, 96; 6 & V Will. IV. c. 104, 8. 2. (I) 2 Maddock's Chancery Practice, 95, 3rd ed.; 1 Dart, V. &P. 19, 6th ed. OF PERSONAL CAPACITY. 349 is now placed under statutory restriction (?n). And the alienation of Crown lands has long been regulated by Parliament (n). It is held, moreover, that coi'porations created by statute for special purposes, as a liailway Company, are prohibited from dealing with their cor- porate property in a manner which is extraneous to the purposes for which they were created (o). The capacity of a corporation to contract with regard to land is commensurate with its power of disposing of land (o). Here it may be mentioned that it was held under the old law of uses (p), ti>at a corporation, having no con- science, could not stand seised of land to others' use (q). But a trust may be enforced against a corporation under modern equity {r). (m) Stat. 18 & 19 Vict. c. 124, s. 29. The alienation and convey- ance of Charity lands are now regulated by stats. 16 & 17 Vict. c. 137 (ss. 21, 24, 26, 62 especially); 18 & 19 Vict. c. 124 (ss. 16, 30, 35, 36, 37 especially); 23 & 24 Vict. c. 136. s. 15; 32 & 33 Vict. c. 110, s. 12; see Gover- nors of the Charity for Belief of Poor Widows and Children of Clergymen v. Sutton, 27 Beav. 651; Royal Society of London and Thompson, 17 Ch. D. 407; Finnis & Young to Forbes o& Pochin (No. 2), 24 Ch. D. 591. (w.) Avte, p. 61, n. (s). (o) Mulliner v. Midland Rail- way Co., 11 Ch. D. 611; Re Metro- politan District Railway Co. <& Cosh, 13 Ch. D. 607; Pollock ou Contracts, 109 et seq. & note D., 5th ed. {p) Ante, D. 201. Iq) 1 Rep." 122a; 1 Sand. Uses, 59. For this reason, it was the practice, down to 1845, for a Corporation to convey by feoff- ment, and not bv lease and release; 1 Dart, V. k P.- 600, 6th ed. (r) Lewin on Trusts, 31, 8th ed. 350 OF CORPOREAL HEREDITAMENTS. AMERICAN NOTES. [The student should remember that the modern English legislation, referred to in the text of the foregoing chapter, is of local application only.] " R£GHr3 o? INFANTS. — It is Well settled in this country that a conveyance of land by an infant is voidable and may be disaffirmed by him after he attains his majority, but there is some conflict of authority as to what acts on his part will amount to alRrmance or dlsatfirmance. The better opinion is that mere silence for any period of timj less than that jirescribed by the statute of limitations within which an action for the recovery of real estate must be brouglit, will not bar the right of the infant to avoid his convey- ance. Slin^ V. Eoerhinlt, lOi U. S. 30"); Birch v. Linton, 78 Va. 584; Hjffert V. Miller, 83 Ky. 573; Da,ois v. Dudley, 70 Me. 236; Prout v. Wiley, 3S Mich. 16i; contra, Ooodnow v. Lumber Co., 31 Minn. 468. But delay for a much shorter period, when coupled with acts indicating an inten- tion to ratify the conveyance, or circumstances that create an estoppel, may prevent him from afterward disaffirming. Davis v. Dudley, swpra; Bich- ardson v. Pate, 93 Ind. 423; Bingham v. Barley, 55 Tex. 281. As a rule, the infant must, upon repudiating the transaction, return the consid- eration, if it remains in his hands; but if he has lost or squandered it dur- ing his minority, he is under no obligation to restore its equivalent. Green v. Green, 69 N. Y. 553; Walsh v. Young, 110 Mass. 396; Craig v. Van BMer, 100 Mo. 584. - Guardians op infants. — Gruardianship in socage is rarely met with in the United States. It is recognized in New York and is ret^ulated by statute in that state. 1 R. S., p. 718, §§ 5-7 (8th cd., vol. 4, p. 2418). See Li )'e Hynes, 105 N. Y. 560. In nearly all the states, provision is made by statute for the appointment of testamentary guardians. In the greater number this power is restricted to the father of the infant; but in the fol- lowing states, with certain limitations in some of them, a like power is given to the mother: California (Civ. Code of 1886, § 241), Colorado (Mills' Ann. Stat., § 2090), the Dakotas (Comp. Laws of 1887, § 2637), Illi- nois (R. S., Cothran's ed., chap. 64, § 5), Massachusetts (Pub. Stat, of 1882, chap. 139, § 5), Michigan (3 Howell's Ann. Stat.. § 6311), Nebraska (Comp. Stat, of 1893, chap. 34, § 11), New York (Laws of 1893, chap. 175), and Texas (Sayles' Civil Stat., art. 2497). By the statutes of CaUfornia (Civ. Code, § 241), in the Dakotas (Comp. Laws, § 3637), and Illinois (R. S., Cothran's ed., chap. 64, § 5), the consent of the mother is necessary to a valid appoint- ment by the father. In this country guardians appointed by probate or surrogate or other courts having the requisite jurisdiction constitute the largest and most important class. The mode of appointment and generally their rights and duties are regulated by statute in the di^erent states. ^ Rights of makried women. — See notes to Chap. XIII. ^ Property rights of aliens. — Statutes have been passed in nearly every state which remove in whole or in part the common-law disal>ility of OF PERSONAL CAPACITY o.jI alienage. In the Dakotas (Comp. Laws of 1887, §§ 2686, 3417), IMichigan (3 Howell's Ann. Stat., § 5775), Missouri (R. S. of 1889, § 342), Massachu- setts (Pub. Stat, of 1883, chap. 126, § 1), Ohio (R. S. of 1890, § 4173), and Oregon (3 Hill's Ann. Laws, § 2988), general provisions are found to the effect that aliens, whetiier residents or not, may acquire, hold and dispose of real estate in the same manner as a citizen. In New Jersey (Rev. of 1877, p. 6), Virginia (Code of 1887, § 43), and West Virginia (Code of 1891, chap. 70), there are similar provisions which apply only to alien friends. The constitutions of Colorado (art. 3, § 37), Iowa (art. 1, § 32), Michigan (art. 18, § 13), Nebraska (art. 1, § 25), West Virginia (art. 2, § 5), and Wiscon- sin (art. 1, § 15), place resident aliens upon the same footing as citizens, in regard to the acquisition of property rights; and in Florida (Dec. of Rights, § 18), the constitutional provision extends to non-resident aliens. In New York an alien may acquire, hold and convey real estate in tlie same manner as a citizen, provided he files in the office of the secretary of state a depo- sition to the effect that he resides and intends always to reside in tlie United States and to become a citizen thereof as soon as he can be naturalized, and that lie has taken the preliminary steps toward naturali- zation. 4 R. S. (8th ed.), p. 3435-7. Although statutes have recently been enacted in several states depriving non-resident aliens of the right to acquire and hold real estate, the tendency of modern legislation is to enlarge the proi)erty rights of resident aliens. ^ Rights OP CORPORATIONS TO hold and dispose op lands. — Corpora- tions are very numerous in the United States, and their right to hold and dispose of realty is controlled and regulated in each instance by their cor- porate powers. In this country, as in England, the old law that made it impossible for a corporation to hold property in trust has been changed, and at the present time a corporation that has legal capacity to take, hold and convey property, may take and hold it in trust, and the trust may be enforced against the corporation, provided it be not inconsistent with the purposes of the corporation. " Although it Avas in early times held," says Judge Story in Vlddl v. Girnrd's Executors, 3 How. (U. S.) 137, 187, 188, " that a corporation could not take and hold real or personal estate in trust upon the ground that there was a defect of one of the requisites to create a good trustee, viz., the want of confidence in the person; yet that doctrine has been long since exploded as unsound and too artificial; and it is now held that where the corporation has a legal capacity to take real or personal estate, there it may take and hold it upon trust in the same man- ner and to the same extent as a private person may do. It is true that if the trust be repugnant to or inconsistent with the proper purposes for which the corporation was created, that may furnish a ground why it may not be compellable to execute it. But tliat will furnish no ground to declare the trust itself void, if otherwise unexceptionable; but it will simply require a new trustee to be substituted by the proper court possess- ing equity jurisdiction to enforce and perfect the objects of the trust." 352 OF CORPOREAL HEREDITAMENTS. CHAPTER XIII. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. The next subject ot our attention will be tlie mutual rights in respect of laud:-, arising from the relation of husband and wife. In pursuing this subject, let us consider, first, the rights of the husband in respect of the lands of his wife ; and, secondly, the rights of the wife in respect of the lands of her husband. The rights of 1. First then, as to the rights of the husband in iu^respect of rcspcct of the lands of his wife. Since the commence- his w^e^°^ ment of the year 1883, the legal capacity of wives, with regard to property, has been completely changed by the operation of the Married Women's Property Act, American -[^$2 (a). But wivcs, who wcrc married before the year note 1 , pp. \ / ' ./ 373-375. 1SS3, Still remain subject to the previous law, with respect to property to which their title accrued before that year (i). And without some knowledge of the old law, it wonld be impossible to understand the Act in question. We shall therefore first inquire into the position of wives with regard to property at common law, then examine the privileges which might be secured to them under the rules of equity, and lastly consider the rights now conferred on them by statute. The common At common law, by the act of marriage, the husband husband* and ^'^^ ^^i^^ became in law one person, and so continued during the coverture or marriage {c). The wife was, as (a) Stat. 45 & 4fi Vict. c. 75; p. 345. see Williams's Conveyancing Sta- (c) Litt. s. 168; 1 Black. Comm. tutes, 373, 382, 383. 442; Gilb. Ten. 108; 1 Roper's (S) Sect. 5; lie Harris's Settled Husband and Wife, 1. Estates, 28 Ch. D. 171; ante. wife. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 353 it were, merged in her linsband. Immediately upon marriage, therefore, the husband became entitled to the whole of the rents and profits which might arise fi'oin liis wife's lands, and acquired a freehold estate therein, during the continuance of the coverture [d) ; and, in like manner, all the goods and personal chattels of the wife, tlie property in which passed by mere delivery of posses- sion, at once belonged solely to her husband {e). For by the ancient common law, it was impossible that the wife should have any power of disposition over property for her separate benefit, independently of her husband. The husband also acquired bj' marriage a seisin {/') of all his wife's freeholds, jointly with her {(j). If, how- Curtesy ever, the husband had issue by his wife born alive, that might by possibility inherit the estate as her heir, he became entitled to an estate, after the wife's death, for in'^rican ' ' note 2. pp. the residue of his own life in such lands and tenements ^^^> ^'^^• of his wife as she was solely seised of in fee simple, or fee tail in jDossession (A). The husband, wliile in the enjoyment of this estate, was called a tenant by the cwtesy of England, or more shortly, tenant by the curtesy. But the estate must have been a several one, Estate miist or else held under a tenancy in common, and must not have been one of which the wnfe was seised jointly, with any other person or persons (/). The estate must also Estate must have been an estate in possession; for there could be giou" ^°^^°** no curtesy of an estate in revei'sion expectant on a life interest or other estate of freehold (Z'). The husband ((/) 1 Rop. Husband and Wife, fee in right of tlie wife ; Polijhlanh 3: Robertson v. A'orrin^ 11 Q. B. v. Haickinit, 1 Doug. 329; 1 916. Wins. Sand. 253, n. (e) 1 Hop. Husband and Wife, [h) Litt. ss. 35, 52, 90; Co. 1G9 ; sue Williams on Personal Litt. 29, 30; 2 Black. Connn. 12t); Property, 481 — 4S3, IStli ed. 1 Rop. Husband and Wife, 5; liur- (f) Ante, p. 43. ker v. Barker, 2 Sim. 24'.i. (g) Co. Lift. 273 b, 325 b, (i) Co. Litt. 1:^3 a; 1 Rop. 351 a; Eoln-rtfon, v. Avrrix, 11 Husband and Wife, 12. Y. B. 91(3. Of the wife's freehold (k) 2 Black. Coinm. 127; Watk. estates of inheritance the husband Desc. Ill (121, 4th ed.;. and wife were said to be seised iu W. R. P. W 354 OF CORPOREAL HEREDITAMENTS. Issue must iini?t also have had, bv his wife, issue born aHve ; except born alive in the casB of gavelkind lands, where the husband had '^''averkind'° ^ I'ight to his cui'tesj, whether he had liad issue or not; lands. L)nt, by the custom of gavelkind, curtesy extends only to i moiety of the wife's lands, and ceases if the husband Issue must marries again (/). The issue must also have l)een capable capubie^of of inliei-iting as heir to the wife {?»). Thus, if the wife inhentinKas ^ygj.g gcised of lands iu tail male, the birth of a dauo-hter heir to the ' o "ife. only would not entitle her husband to be tenant by curtesy ; for the daughter could not by possibility in- The wife herit such an estate fi-om her mother. And it was been* actudiy nocessary that the wife should have acquired an actual seised. seisiu of all estates, of which it was possible that an actual seisin could be obtained ; for the husband had it in his own power to obtain for his wife an actual seisin ; and it was his own fault if he had not done so (w). Husband's The liusband could dispose of the estate which he diLnoIh^on took during coverture or by the curtesy in lands be- of his wife's ],)ncnn<' to his wife at common law, without her concur- treeholds. c? ""^ rence (o) ; and it was subject to his debts in his lifetime either upon execution of a judgment against him (^>), or on his bankruptcy (^\ But he could make no lawful disposition of her freehold estates to endure beyond his own interest. So that, if his wife survived him, she resumed her right to her freehold estates, which could not be defeated by his debts or aliena- tions (r). And if he survived her, her estates in fee (I) Co. Litt. 30 a, n. (1); Bac. the author to incline to the con- Abr. title Gavelkind (A); Rob. trary opinion will be found in Uavel. book ii. c. 1. Appendix (D). See £uffer v. (/«) Litt. s. 52; 8 Rep. 34 b. Faniimll, 17 Ch. D. 115. in) 2 Black. Comm. 131; Parker (o> Co. Litt. SO a; liohertson V. Carter, 4 Hare, 416. In the v. Mrris, 11 Q. B. 016. first edition of this work a doubt (p) Note (1) to UnderJdll v. was thrown out whether, under Devereux, 2 Wms. Saund. 690, the now law of inheritance, a 6th ed.; stat. 1 & 2 Vict. c. 110, husband can ever become tenant s. 11 ; ante, jpp. 308 et seg. by the curtesv to any estate which (q) Com. Dig. Bankrupt, D (11); his wife has inherited. The ante, p. 317. reasons which afterwards induced (r) Litt. ss. 594, 598—600, OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 355 simple or tail descended to her heir, if she were the purchaser, or to the heir of the purchaser, if she had become entitled bj descent, subject only to the husband's estate by the curtesy, if he had become entitled there- to (s). For the incapacity, under which a married woman laboured at common law, not only hindered her from making any separate disposition of her lands in her lifetime, but also prevented her from devising them by her will. By the Settled Estates Act, 1877 (?;), a Husband's 1,1 • 1 1 11 1 , powers of husband entitled to land as tenant by the curtes}", or leasing, &c. in right of a wife who is seised in fee, has the same power of leasing as is tliereby given to a tenant for life. And by the Settled Land Act, 1SS2 {u), a tenant by the curtesy has the powers of leasing and sale, and the other powers given to a tenant for life by that Act. But although the husband alone could not lawfully Power of dis- alienate his wife's freeholds for a greater estate than his husband and own, and the wife alone had no disposing power at all, ^'^'^ together. by the common law the husband and wife together might make any such dispositions of the wife's interest i I real estate as she could do if unmarried. The mode in which such dispositions were formerly effected was by a ^^/ii3 duly levied in the Court of Common Pleas. Fine. We have already had occasion to advert to lines, in 605; Co. Litt. 3-2(5 a; Rohertson 120, which repealed Stat. 32 Hen. \. Norris, 11 Q. B. 916; 1 Rop. VIII. c. 28, enabling husbands Husband and Wife, 5.5 et seq., 137. seised in right of or "jointly with (.sj By Stat. 6 Anne, c. 18, s. 5, their wives' to make leases, with ever}' hnsband seised in right of their wives' concurrence, of such his wife only, who continues in of the lands as had been most possession after the determination commonly let to farm for twentj' of his estate, without the consent years before, for any term not of the persons next entitled, shall exceeding twenty-one jears or be adjudged to be a trespasser; three lives, under the same re- and the full value of the profits strictions as tenants in tail were received during such wroniiful by the same Act empowered to possession may be recovered in lease. damages against him or his execu- iu) Stat. 45 & 4fi Vict. c. 38, tors or his administrators. s. 58, sub-s. 1 (viii.); 47 & 48 (t) Stat. 40 & 41 Vict. c. IS, s. Vict. c. 18, s. 8; ante, pp. 132— 46; see ante, p. 131, n. (o). This 136. Act replaced stat. 19 & 20 Vict. c. w 2 356 OF CORPOREAL HEREDITAMENTS. respect to their former operation on estates tail {x). They were, as we have seen, lictitions suits commenced and then compromised by leave of the Court, whereby the lands in question were acknowledged to be the right of one of the parties. Whenever a married woman was party to a fine, it was necessary that she should be examined apart from her husband, to ascei*- tain whether she joined in the fine of her own free-will, or was compelled to it by the threats and menaces of her husband {y). Having this protection, a fine by husband and wife was an effectual conveyance, as well of the wife's as of the husband's interest of every kind, Conveyance in the land Comprised in the fine. The cumbrous and woraeTin'der expensive nature of fines having occasioned their aboli- fv^i %^r ^ tion. provision was made by the Act of 1833 for the \\ ill. IV. 1 "^ _ c- "4- abolition of Fines and Recoveries (s) for the convey- ance by deed merely of the interests of married women in real estate. By this Act, every kind of conveyance or disclaimer of freehold estates which a woman could execute if unmarried might be made by her by a deed executed with her husband's concurrence (a) : but the separate examination, which was before necessary in the case of a fine, was still retained; and every deed, executed under the provisions of the Act, was required The wife to be produced and acknowledged by the wife as her must have ^^ ^ ^ t^ ^^^^ deed, before a judge of one of the superior acknowledged 7 j o i the deed. Courts at Westminster, or of any County Court, or a master in Chancery, or two commissioners (J), who were required, before they received the acknowledgment, to examine her apart from her husband touching her knowledge of the deed, and to ascertain whether she freely and voluntarily consented thereto (c). Deeds (x) Ante, p. 109. (6) Stats. 3 & 4 Will. IV. c. 74; (y) Cruise on Fines, 108, 109. s. 79 ; 51 & 52 Vict. c. 4-3, s. 184, {z} Stat. 3 & 4 Will. IV. c. 74; replacing 19 & 20 Vict. c. 108, ante, p. 94. See stat. 4 & 5 Will. s. 73. IV. c. 92, as to Ireland. (c) Stat. 3 & 4 Will. IV. c. 74, (a) Sect. 77 ; stat. 8 & 9 Vict. s. 80 ; 2'ennent v. Welch, 37 Ch. c. 106, s. 7. -li- 622. This Act also required a OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 357 executed bj married women after the year 1SS2 may be acknowledged before one commissioner only [d). But without a fine at common law, or a deed acknow- ledged under the Act of 1833, no conveyance could formerly be made of any married woman's estate in lands at law {e). And this is still the law with regard to those lands of wives married before the year 1883, to which their title accrued before that year. The rule of law, by whicli husband and wife were Husband and considered as one person, was occasionally productive Tidered^as one of rather curious consequences. Thus, if lands were P';''^°°- given to A. and B. (husband and wife), and C, a third husband and person, and their heirs — here, had A. and B. been thfr^/person. distinct persons, each of the three joint tenants would, as we have seen (/"), have been entitled, as between themselves, to one-third part of the rents and profits, and would have had a power of disposition also over one-third part of the whole inheritance. But, since A. and B., being husband and wife, were only one person, they took, under such a gift, a moiety only of the rents and profits, with a power to dispose only of one-half of the inheritance (g) ; and C, the third person, took the other half, as joint tenant with them. Again, if lands Gift to were given to A. and B. (husband and wife) and their wife and their heirs. certificate of the taking of the (e) Cahill v. Cahill, 8 App. acknowledgment to be duly signed Cas. 420. But there might be and filed, otherwise the acknow- given to a married woman a power ledgment was of no effect; sects. of appointment enabling her to dis- 84 — 86 ; JoLly v. Handcock, 7 Ex. pose of an estate in land as efifec- 820. But a certificate of the ac- tually as a single woman. See knowledgment of deeds executed ijost, part II. Ch. III. after tiie year 1882 is not required ; ( /") Ante, pp. 164, 166. Stat. 45 & 46 Vict. c. 39, s. 7. (q) Litt. s. 291; Gordon v. The last mentioned enactment (in Whieldon, 11 Beav. 170; Re this respect replacing stats. 17 & Wi/lde, 2 De Gex, M. & G. 724. 18 Vict. c. 75, & 41 & 42 Vict. The rule is also applied to gifts to 0. 23) also removes doubts, which husband and wife and others as might arise in consequence of any tenants in common; but it may person taking the acknowledg- be excluded by the words of the ment being an interested party. gift or the context; see Jie Dixon, id) Stat. 45 &, 46 Vict, c. 39, 42 Ch. D. 306 8.7. 358 OF CORPOREAL HEREDITAMENTS. heirs — here, had they been separate persons, they would have become, under the gift, joint tenants in fee simple, and eacli would have been enabled, witliout the consent of the other, to dispose of an undivided moiety of the They took by inheritance. But as A. and B. were one, they took, as entireties. . . , , ,• i- i i -i ^ i i i i it was said, by entireties / and, whilst the husband Atnericnn. uiiijlit do wliat lie pleased with the rents and prolits iiHte S, pp. ^ ' * 370,377c during the coverture, he could not dispose of any part of the inheritance, without his wife's concurrence. Unless they both agreed in making a disposition, eacii one of thcra had to run the risk of gaining the wliole Husband and i^y survivorship, or losing it by dying first (A). Another uot convey to conscquonce of the unity of husband and wife was the inability of either of them to convoy to the other. As a man could not convey to himself, so he could not con- vey to his wife, who was regarded as part of himself (^). But by means of the Statute of Uses the effect of a conveyance by a man to his wife could be produced {k); for a man might and still may convey to another person to the use of his wife in the same manner as, under the statute, a man may convey to the use of himself (1). And by the Conveyancing Act of 1881, in conveyances made after the year 1881, freehold land may be con- veyed by a husband to his wife, and by a wife to her husband, alone or jointly with another person (w). A man has always been able to leave lands to his wife by his will ; for the married state does not deprive the husbandof that disposing power which he would possess if single {n), and a devise by will does not take effect until after his decease (o). Bulesof Next, as to the rights of married women under the (h) Doe d. Freestone v. Parratt, s. 50; see Williams's Convey- 5T. Rep. 652. ancing Statutes, 223, 224, 891, (i) Litt. s. 168 ; see Williams's 392. Conveyancing Statutes, 891, 892. (») See Williams on Personal Ik) i Rop. Hnsb. and Wife, 53. Property, 481, 13th ed. (I) Ante, p. 241. (o) Lilt. s. 168. (wi) Stat. 44 & 43 Vict. c. 41, OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 359 rules of equitj'. If lands were held on trust for a wife equity as to for life or in fee simple or tail, but without any provision perty! ^'^^' for her separate benefit, the husband was entitled to receive the rents and profits, and acquired an equitable estate therein during the continuance of the cover- ture {p). It appears, however, that in such a case the wife might, under certain circumstances, acquire a ri'dit Wife's equity to iX S6ttlti- in equity to have a provision tor her maintenance ment. secured to her by settlement of the rents and profits, or part thereof, in trust for that purpose {q). Equity also C"rt*^sy of followed the l.iw in giving to the husband the right to estate, enjoy his wife's equitable estate of inheritance after her death for the rest of his own life, as tenant by the cui-tcsy in equity, under circumstances similar to those, which gave rise to a tenancy by the curtesy at law (r). The wife's equitable estates might be disposed of by the hus- band and wife together, by the same means as they might use to convey her legal estates, but not otherwise [s). In modern times, however, if property of any kind Trusts for were vested in trustees, in trust to appl_y the in(0:he enforced." for the separate use of a woman during any coverture, present or future, the trust for the separate use of the ^oTe^^^""" wife might be enforced in equity {t). That is, the ^^^• (p) Lewin on Trusts, 748, J. & S. 93, 94 ; Wortham v. 8th ed. Pemherton. 1 De G. & Sni. 644, (q) If the husband became (iiil ; Smith v. Matthews, 3 l)e G., bankrupt, and the wife had no F. &J. 139; Barnes v. Robinson, means of support, she might IN. R 257; Sugd. V. & P. 5ii0, obtain such a settlement as against 14th ed. ; Lewin on Trusts, 749, his assignee or trustee in banli- 750, 8th ed.; Williams on Settle- ruptcy. But she could not obtain ments, 99, 100; see also Fowke such a settlement as against her v. Drat/cott, 29 Ch. D. 990 husband, so long as he supported (/■) 1 Rop. Hush, and Wife, 18; her; or against his assignee for Lewin on Trusts, 723, 733, 8th valuable consideration, though ed. ; ante, p. 353. her husband should, subsequently («) Taylor v. Meads, 4 I)e G., to the assignment, have ceased to J. & S. 604, 605; Lewm on support her. See Sturgia v. Trusts, 748, 8th ed. ; ante, p. 284. Cham2)neys, 5 My. & Cr. 97; (t) As to the history of the Tidd V. Lister, 10 Hare, 140; 3 introduction of this doctrine, see De G. M. k G., 857, 869, 870; Hnynes, Outlines of Kiiuity, Lcct. Durham v. UrackU's, H Jur., N. S. VII. pp, 217 et seq., 4th ed. 1175; Gleacet v. Faine, 1 De G., 3G0 OF CORPOREAL HEREDITAMENTS. Courts of Equity obliged the trustees to hold for the sole benefit of the wife, and prevented the husband from interferini^ with her in the disposal of such income ; she consequent!}' enjoyed the same absolute power of disposition over it as if she were sole or unmarried. And, if the income of property were given directly to a woman, for her supreme use, without the intervention of any trustee, the Court comi)elled her husband himself to hold his marital rights in such income simply as a trustee for his wife independently of iiimself (u). The limitation of property in trust for the separate use of an intended wife was one of the principal objects of a modern marriage settlement. By means of such a trust, a provision might be secui'ed, which would be indepen- dent of the debts and lial)ilities of the husband, and thus free from the risk of loss, either by reason of his com- mercial embarrassments, or of his extravagant expendi- Separate pro- tui'e. In Order more completely to protect the wife, the lenderTdm'i^ Court of Chancery allowed property thus settled for the alienable. separate use of a woman to be so tied down for her own personal benefit, that she should have no power, during her coverture, to anticipate or assign her income; for it is evident that, to place the wife's property beyond the power of her husband, is not a complete protection for her, — it must also be placed beyond the reach of his persuasion. In this particular instance, therefore, an exception has l)een allowed to the general rule, which forbids any restraint to be imposed on aliena-. tion. For, when the trust, under which property was held for the separate use of a woman during any cover- ture, declared tliat she should not dispose of the same or of the income thereof in any mode of anticipation, every attempted disposition by her during such cover- ture was deemed absolutely void {x). Not only the («) 2 Rop. Husb. and Wife, 152, (x) Brandon v. Hohinaoa. 18 182; Major v. Lansley, 2 Russ. Ves. 434 ; 2 Rop. Husb. and Wife, & iMvlue," 355. 230; Tulldt v. Anndrong, 1 Heav. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 3(31 income, but also the co/y^w^ of any property, whether As to the real or personal, might be limited to the separate use q^'^'^^P^^- a married woman. And in 1865 it was finahy settled that a simple gift of real estate for a wife's separate use, either with or without the intervention of trustees (y), was suffi- cient to give her the power to dispose by her own act i^iter vivos or by will, with the consent or concurrence of lier husband, of the whole equitable estate so limited to her (s). The same rule had long been established with respect to personal estate («). And where lands were limited on trust for a wife in fee, for her separate use, she had the right of every cestui que trust in similar case (J), to require her trustees to convey the legal estate therein according to her direction (c). If the lands had been so given without the intervention of trustees, she must have conveyed the legal estate therein by- deed acknowledged (ci), in which she could then have compelled her husband to concur. For in the Courts of Equity, a married woman was as competent to act with respect to her separate estate as if she were single {e\ And not only was a wife so enabled to alienate directly any part of her separate estate, but if she made any g-eneral pecuniary en^^affements with life's general 1 1 n engagements. reference to her separate estate, her creditors, though they could have no remedy against her at law, might take proceedings in equity to have their claims satisfied out of any separate estate, to which she was entitled, with- out restraint on anticipation, at the time of entering into the engagement (/). If, however, a gift of real 1 ; 4 M.r. & Cr. 3ii0; Scarhorovgh (h) Ante, p. 210. V. Bovman, 1 Beav. 34; 4 M. & (c) 4 De G., J. & S. 604; L. R., Cr. 377; Baggett v. Meux, 1 Col- 8 Eq. 142. Iyer, 138; affirmed, 1 Ph. r,27 ; {d) A7ite, ^. Zr,&. ante, p. 89. (e\ 1 Bro. C. C. 20; Lewiii on (y) Ball V. Waterhome, 5 Giff. Trusts, 759, &th ed. 64. (/) Pike v. Fitzgibhon, 17 Ch. (a) Taylor \. Meads, 4 De G., D. 454 ; Williams's Conveyancing J. & S. 5H7. Statutes, 393, 394, and cases (a) Fettiplace v. Gorges, 1 Ves. there cited. jun, 46. 362 OF CORPOREAL HEREDITAMENTS. estate for the separate use of a wife had been accom- panied with a restraint on anticipation of the income she was prevented from disposing thereof during her coverture, except (in the case of an estate in fee simple) by will (ff). Nor could she subject such real estate to her general engagements (A), But now, under the Con- veyancing Act of 1881 (^), a married woman may, if it appears to the Court to be for her benefit, obtain an order of the Court enabling her to deal with any pro- perty of hers, notwithstanding that she be restrained Curtesy of from anticipation. It was finally settled, after conflict- wife's sepurate , '- ^ ' equitable estate in fee. ing decisions, that a husband should have curtesy of his wife's equitable estate in fee belonging to her for her separate use, if she died possessed thereof and intes- tate (k) ; but not if she had disposed thereof in her life- time or by her will {I). Married Women's Property Act, 1870. Originally, a trust of property for the separate use of a wife could only arise by act of parties ; as by ante- nuptial contract between husband and wife, or by the express provision of those, by whom the property was bestowed {?n). But the Married Women's Property Act, 1870 {71), provided that certain kinds of property should belong to wives for their separate use (ww) ; amongst other things, the rents and profits of any free- hold, copyhold or customaryhold proj^erty vviiich should descend upon any woman, married after the passing of the Act, as heiress or co-heiress of an intestate (o). (g) Baggett v. Meux, I Ph . 627 ; Cooper V. Macdonald, 7 Ch. D. 288. (A) Pike V. Fitzgibhon, 17 Ch. D. 454. (i) Stat. 44 & 45 Vict. c. 41, s. 39. (k) AppUton V. Rowlei^, L. R., 8 Eq. 139; Eager v. turnivaU, 17 Ch. D. 115; see Williams on Settlements, 105—108. {I) Cooper V. Macdonald, 7 Ch. D. 288. {in) See Lewin on Trusts, 754 — 757, 8th ed. (m) Stat. 33 & 34 Vict. c. 93, passed 9th Aug. 1870, and re- pealed as from the 1st Jan., 1883, without prejudice to any right acquired while it was in force, by Stat. 45 & 46 Vict. c. 75, ss. 22, 25. (nil) See sects. 1, 7, 8, lO; WMUiams's Conveyancing Statutes, 377—382. (0) Sect. 8, which, however, takes effect subject and without OF THE MUTUAL IlIGUTS OF HUSBAND AND WIFE. 3(33 The capacity of wives with regard to property was The Manied completely altered by the Married Women's Property Property* Act, 1882 {2^)1 which canie into operation ou the 1st of ^^^t, is82. Jamiarj', 1883 {q). By this Act, a married woman is capable of acquiring, holding and disposing, by will or otherwise, of any real or personal property, in the same manner as if she were a feme sole, without the inter- vention of any trustee (/"). Every woman, who marries after the commencement of the Act, is entitled to hold and dispose of, as her separate property, all real and personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage {s). Every woman married before the commencement of the Act is entitled to hold and dispose of, as her separate property, all real and personal property, to which her title shall accrue after the commencement of the Act {t). But the Act is not to interfere with any settlement made (w) or to be made respecting the property of any married woman, or to interfere with or render inoperative any restriction against anticipation attached or to be attached to the enjoyment by a married woman of any property or income {x). As we have seen, the Act also gave to married women the power to contract at law with respect to their separate property, to which they are entitled without restraint on anticipation (y). It is thought that, if any real estate, which becomes the separate property of a wife by virtue of this Act, should have been limited to her directly, the legal estate will vest in her alone, and her husband will not acquire any prejudice to the trusts of any (r) Sect. 1, sub-s. 1. settlement affecting such pro («) Sect. 2. perty ; and is held not to make {t) Sect. 5 ; see Reid v. lieid, the fee simple of such property 31 Uh. D. 402. subject to a trust for the woman's {u) See Hancock v. Hancock, separate use; Johnisonw . Johnson, 38 Cli. D. 78. 35 CL. D. 345. (x) Sect. 10. {p) Stat. 45 & 4G Vict. c. 75. (y) Sect. 1, sub-ss. 2 -4; ante, {q) Sect. 25. p. 345. 30 i OF CORPOREAL HEREDITAMENTS. estate therein or right to receive the rents and profits during the continnance of the coverture. And if any real estate should, since the commencement of the Act, be limited to trustees on trust for a wife, it is thought that her equitable estate therein will be her separate pro- perty by virtue of the Act, though no trust for her sepa- Whether any rate use sliould have been imposed (s). Whetlierahusband wife's sepa- shall be tenant by the curtesy of real estate of in- rate property . i^gritance, wliicli lias been his wife's separate property by virtue of the Act of 1882, is a question, upon which the Act itself is silent ; and the point has not yet come before the Courts. But the considerations, which de- termined the Court to allovv curtesy of an equitable estate settled to the wife's separate use in fee (a), are in favour of extending the husband's right to the wife's separate property under the Act. As in the case of a fee simple settled to the wife's separate use {b), tiiere can be no curtesy of her statutory separate property, of which she has disposed in her lifetime or by will. The question can only arise upon her intestacy ; in which event it is thought that any estate in fee simple, which was her separate property, will descend to tlie heir of the last purchaser, according to the previous law (c), subject or not to her husband's right to curtesy, as the Courts may decide (d). Wife's power A wife may now dispose during coverture of her over her statutory Separate property, whether real or personal, property. ^J ^'^^ same means by which a single woman may transfer property of the like nature. She may there- fore convey any legal estate of freehold, which is her separate property, by deed of grant, without the necessity of acknowledgment or of her husband's concurrence (e). (s) See Williams's Conveyanc- (b) Ante, p. 362. Ing Statutes, 382, 383, 418, 419, (c) Aide, p. 355. 421. {d) See Williams's Conveyanc- (a) Ante, p. 362, and cases ing Statutes, 452, 459, 460. there cited. (e) Me Drummond and Davies' OF THE MUTUAL RIGHTS OF HUSBAXD AND WIFE. 3(55 But she may ftill be deprived of the power of dis- position hy a restraint on anticipation {/). So a wife may devise by will any legal estate in fee simple, which belongs to her separately under the Act. J3iit it is held that the Act has not given to wives a general capacity of ownei'ship similar to a man's, but has only conferred upon them a special capacity with regard to property, which is their separate property during cover- ture. If therefore a wife having separate property make a will during coverture, become a widow, acquire other property as a widow, and die without having re executed her will, her will avails not to dispose of all the property belonging to her at her death (as would a widower's will {(/) ), but only passes such property as was her separate property while she was married (/<). It is also held that the Act has not repealed the old rule of construction, that in gifts to husband and wife and others in joint tenancy or tenancy in common, the husband and wife become entitled only to the share of one person between them (/). But on a gift of lands to husband and wife jointly made after the commencement of the Act of 18S2, it appears that they take no longer by entireties, but as joint tenants (k). It is thought too that a husband may now convey any real estate to his wife directly to be held by her as her separate property under the Act ; and that a wife may now Contract, 1891, 1 Ch. 524 ; see ceived a decidedly narrow inter- ante, p. 361. pretation. The view taken by (/) Ante, p. 860, the judges of the scope of! the Act Iff) Ante, ]). 286. augments the probiibility of their (A) Jie Price, 28 Ch. D. 709; deciding in favour of thehusbaiid's Jie Cuiio, 4.3 Ch. D. 12. These curtesy of his wife's separate pro- cases followed a decision, under perty. the previous law, that a married (i) Re March, 27 Ch. D. 166; woman's will, disposing of her Re Jupp, 39 Ch. D. 14S; see separate estate, would not pass ante, p. 235. Another instance any property she had acquired as of narrow interpretation of the a widow, unless re-executed during statute. This rule of constrnc- widowhood ; Willock v. Noble, tion is entirely at variance with L. R., 7 H. L. 580. In this the common sense of laymen, respect, as in the case of wives' {k) Re March, 27 Ch. D. 166; contracts, the Act of 1882 has re- see a/iurchaser ; but, as to the estate of the trustee, it was declared to be in trust only for the purchaser and his heirs. J3y this means the purchaser and the trustee became joint tenants for life of the legal estate, and the remainder of the in- heritance belonged to the purchaser. If, therefore, the purchaser died during the life of his trustee, the latter acquired in law an estate for life by survivorship ; and as the husband had never been solely seised, the wife's dower uever arose ; whilst the estate for life of the trustee was subject in equity to any di.-position which the husband might think fit to make by his will. The husband and his trustee might also, at any time during their joint lives, make a valid conveyance to a purchaser without the wife's concurrence. The defect of the plan was, that if the trustee happened to die during the hus- band's life, the latter became at once solely seised of an estate in fee simple in possession ; and the wife's right ta dower accordingly attached. Moreover, the husband could never make any conveyance of an estate in fee simple without the concurrence of his trustee so long as he lived. This plan, therefore, gave way to another method of framing purchase-deeds, which will be here- after explained {d), and by means of which the wife's dower under the old law was effectually barred, whilst the husband alone, without the concurrence of any other person, could effectually convey the lands. The right of dower might have been barred alto jointure, gether by a jointure, agreed to be accepted by the intended wife previously to marriage, in lieu of dower. id) Seejjost, Ibe chapter on Executory Interests. W. K. P. X 370 OF COKPOKEAL HEKEDITAMENTS. Equitable jointure. This jointure was either legal or equitable. A legal jointure was first authorized by the Statute of Uses (e), which, by turning uses into legal estates, of course, ren- dered them liable to dower. Under the provisions of this statute, dower may be barred by the wife's accept- ance previously to marriage, and in satisfaction of her dower, of a competent livelihood of freehold lands and tenements, to take effect in profit or possession presently after the death of the husband for the life of the wife at least (y ). If the jointure were made after marriage, the wife might elect between her dower and her jointure {g). A legal jointure, however, was in modern times seldom resorted to as a method of barring dower : when any jointure was made, it was usually merely of an equitable kind ; for if the intended wife were of age, and a party to the settlement, she was competent, in equity, to ex- tinguish her title to dower upon any terms to whicii she might think proper to agree (A). And if the wife should have accepted an equitable jointure, the Conrts of equity would effectually restrain her from setting up any claim to her dower. But in equity, as well as at law, the jointure, in order to be an absolute bar of dower, was required to be iuade before marriage. Dower under the Act, The dower of women married since the 1st of January, 1834, may be barred by the acceptance of a jointure in the same manner as before : but, in their case, the doc- trine of jointures is of very little moment. For, by the Dower Act (^), the dower of such women has been placed completely within the power of their husbands. Under the Act no widow is entitled to dower out of any land, which shall have been absolutely disposed of («) 27 Hen. VIII. c. 10. (^f) Co. Lilt. 36 b; 2 Black. Comm. 137; 1 Roper's Husbaud and Wife, 462. (g) 1 Roper's Husband and Wife, 468. (h) Ibid. 483; Di/ke v. Jiendall, 2 l)e G., M. & G. 209. (i) 3 & 4 Will. IV. c. 105, Gavelkind lands are within the Act, Farley v. Bonham, 2 John. & H. 177. OF THE MUTUAL RIGHTS OP HUSBAND AND WIFE. 371 by her husband in his lifetime or by his will, or in which he shall have devised any estate or interest for her benefit, unless (in the latter case) a contrary inten- tion shall be declared by his will (k). And all partial estates and interests, and all charges created by any disposition or will of the husband, and all debts, incum- brances, contracts and engagements to which his lands may be liable, shall be effectual as against the right of his widow to dower (l) . The husband may also either wholly or partially deprive his wife of her right to dower, by any declaration for that purpose made by him, by any deed, or by his will (m). As some small compensation for these sacrifices, the Act has granted a right of dower out of lands to which the husband had a right merely without having had even a legal seisin (n) ; dower is also extended to equitable as well as legal estates of inheritance in possession, excepting of course estates in joint tenancy (o). The effect of the Act is evidently to deprive the wife of her dower, except as against her husband's heir at law. If the husband should die intestate, and possessed of any lands, the wife's dower out of such lands is still left her for her support, — unless, indeed, the husband should have executed a declaration to the contrary. A declaration of this kind Declaration , „ , . „ against dower. has, unfortunately, round its way, as a sort oi common form, into many purchase-deeds. Its insertion seems to have arisen from a remembrance of the troublesome nature of dower under the old law, united possibly with some misapprehension of the effect of the new enact- ment. But, surely, if the estate be allowed to descend, the claim of the wife is at least equal to that of the heir, supposing him a descendant of the husband ; and (Jc) Z & 4: Will. IV. c. 105, ss. ^''obIe, 20 Beav. 598 ; 7 De Gex, 4, 9 ; see Lacej/ v. JJill, L. R. 19 M. & G. 687. Eq. 340. (w) Sect. 3. (l) Sect. 5 ; Jones v. Jones, 4 (o) Sect. 2 ; Fr]/ v. ]\''oble, 20 Kiiy & .). SOI. Beav. 598; Clarke v. Franklin, 4 iwi.;! Sects. 6, 7, 6. See Fry r. Kay & J. 206. X 2 372 OP CORPOREAL HEREDITAMENTS. far superior, if the heir be a lineal ancestor, or remote relation ( />). The proper method seems therefore to be, to omit any such declaration against dower, and so to leave to the widow a prospect of sharing in the lands, in case her lord shall not think proper to dispose of them. Leases by tenant ia dower. By the Settled Estates Act, 187Y, every tenant in dower may grant the same leases as a tenant by the curtesy, or other tenant for life is thereby empowered to grant (q). Action for An action for dower, like other real actions, was dower. , formerly commenced in the Court of Common Pleas; and when real actions were abolished in the year 1833 (r), writs for the recovery of dower were excepted. In 1860 these writs were abolished (i-), and the forms of an action for dower were assimilated to those of other Bill in equity, comuion law actions (t). A widow's dower might also have been recovered by bill in equity {u). Since the Judicature Act (a?), claims for dower are brought by action in the High Court of Justice in the ordinary form {y). As we have seen, under the Intestates' Estates Act, 1890 (s), a widow may acquire a further interest in her husband's real estate, besides her dower, if he die intes- tate after the 1st of September, 1890, leaving no issue. Intestates' Estates Act, 1890. (p) Sugd. Vend. & Pur. 545, 11th ed. {q) IStat. 40 & 41 Vict. c. 18, s, 46. See ante, p 131, n. (o). (r) By Stat. 3 & 4 Will. IV. c. 27, s. 36. is) Stat. 23 & 24 Vict. c. 126, 8. 26. (t) Sect. 27 ; repealed by stat. 46 & 47 Vict. c. 49. (u) See Anderson L. R., 11 Eq. 329, appeal, L. R., 8 Ch. cases there cited. (x) Ante, p. 197. {>/) See Rules of the Supreme Court, 1883, Appendix A. Pt. III. s. 4. (s) Stat. 53 & 54 Vict. ante, p. 260, Pignet, reversed on 180, and the 29; OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 373 AMERICAN NOTES. ' Statutory provisions in the United States in regard to wipe's REAL PROPERTY. — The studeut will understand, of course, that the Eng- lish legislation in regard to the property rights of married women, referred to in the text, is not of practical moment in this country. We have upon our statute books, however, legislation of a similar cht-on, 1 C. B. 623. (e) Stat. 4 Geo. II. c. 28, s. 2, now replaced by 15 & 16 Vict. c. 76, s. 210 ; Bowser v. C(9%, 1 Hare, 109 ; Stanhope v. Ha- woHh, 3 Times L. R. 34. (/) Slat. 23 & 24 Vict. c. 120, s.l. OF A REVERSION AXU A VESTED REMAINDER. 39I law would nut allow of the transfer of a mere conditioiia right to put an end to the estate of another (g). A right of re-entry was considered in the same light as a right to bring an action for money due: which right in ancient times was not assignable. This doctrine sometimes occasioned considerable inconvenience ; and in the I'eign of Henry YIII. it was found to press hardly on the grantees from the crown of the lands of the dissolved monasteries. For these grantees were of course unable to take advantage of the conditions of re-entry, which the monks had inserted in the leases of their tenants. A parliamentary remedy was, therefore, applied for the benefit of the favourites of tlie crown ; and the oppor- tunity was taken for making the same provision for the public at large. A statute was accordingly passed (A), Remedy by which enacts, that as well the grantees of the crown as all other persons being grantees (^) or assignees, their heirs, executors, successors and assigns, shall have the like advantages against the lessees, by entry for non payment of rent, or for doing of waste, or other forfei- ture, as the lessors or grantors themselves, or their heirs or successors, might at any time have had or enjoyed; and this statute is still in force. It is also provided by the Conveyancing Act of ISSl, with regard only to leases made after the year 1881 (k), that every condi- tion of re-entry and other condition contained in a lease shall be incident to the reversionary estate in the land, and shall be capable of being enforced by the person from time to time entitled, subject to the term, to the income of the land leased. The landlord may also sue his tenant personally for rent due to him. Rent service, being incident to the reversion, passes Rent serrice (g) Liu. ss. 347, 348; Co. Litt. within the Act, Wright v. J>ur- 265 a, n. (1). roiujhes, 3 C. B. 085. (h) Stat. 32 lien. VIII. c. 34; (k) Stat. 44 & 45 Vict. c. 41, Co. Litt. 215 a; lifherwood \ . Old- s. 10. See Wilhams's Convey- know, 3 Man. k Selw. 382, 3'J4. auciug Statutes, 104—109. (i) A leasee of the reversion is 392 OF INCORPOREAL HEREDITAMENTS. passes by grant of the reversion. Attornment. Anifricnn note 3, pp. *06, 407 Pine. Attornment abolished. by a grant of such reversion without the necessity of any express mention of the rent (l). Formerly no grant could be made of any reversion without the eon- sent of the tenant, expressed by wluit was called his attornment to his new landlord (m). It was thouo-ht reasonable that a tenant should not have a new land- lord imposed upon him without his consent; for, in early times, the relation of lord and tenant was of a much more personal nature than it is at present. The tenant, therefore, was able to prevent his lord from making a conveyance to any person whom he did not choose to accept as a landlord ; for he conld refuse to attorn tenant to the purchaser, and without attornment the grant was invalid. The landlord, however, had it alwaj's in his power to convey his reversion by the expensive process of a Jlne duly levied in the Court of Common Pleas ; for this method of conveyance, being judicial in its nature, was carried into effect without the tenant's concurrence ; and the attornment of the tenant, which for many purposes was desirable, could in such case be compelled {n). It can easily be imagined, that a doctrine such as this was found incon- venient when the rent paid by the tenant became the only service of any benefit rendered to the landlord. The necessity of attornment to the validity of the grant of a reversion was a(!Cordingly abolished by a statute of Anne (o). But the statute very properly provides (p), that no tenant shall be prejudiced or damaged by pay- ment of his rent to the grantor, or by breach of any condition for non-payment of rent, before notice of the grant shall be given to him by the grantee. And by a further statute {q), any attornment which may be made by tenants without their landlord's consent, to strangers (0 Litt. SB. 228, 229, 572; Perk. s. 113. (w) Litt. S3. 551, 567, 568, 569; Co. Litt. 309 a, n. (1). («) Shep. Touch. 254. (0) 8tat. & 5 Anne, c. 3 (c. 16 in Ruflfhead), s. 9. See Allcock V. Moorhouse, 9 Q. B. D. 366. (P) Sect. 10. iq) Stat. 11 Geo. II. c. 19, s. i. OF A REVERSION AND A VESTED REMAINDER. 893 claiminer title to the estate of their landlords, is rendered null and void. Nothing, therefore, is now necessary for the valid conveyance of any rent service, but agrantby deed of the reversion, to which such rent is incident. When the conveyance is made to the tenant himself, it is called a release {r). The doctrine, that rent service, being incident to the Rent for- . , merly lost by reversion, always follows such reversion, formerly gave destruction oi: rise to the cnrious and nnpleasant consequence of tlie rent being sometimes lost when the reversion was de- stroyed. For it is possible, under certain circumstances, that an estate may be destroyed and cease to exist. For instance, sujipose A. to have been a tenant of lands for H terra of years, and B. to have been his undertenant for a less term of years at a certain rent ; this rent was an incident of A.'s reversion, that is, of the term of years belonging to A. If, then, A.'s term should by any means have been destroyed, the rent paid to hira by B. would, as an incident of such terra, have been destroyed also. Now, by the rules of law, a convey- ance of the iraniediate fee siraple to A. would at once have destroyed his term, — it not being possible that the term of years and the estate in fee simple should subsist toirether. In le^al Ian2:ua2re the terra of years would have been inerged in the larger estate in fee simple; Merger, and the term being merged and gone, it followed as a necessary cun-equence, that all its incidents, of which B.'s rent was one, ceased also (s). This unpleasant result i^eases sur- was some time since provided for and obviated with order to be res]ject to leases surrendered in order to be renewed, — ^^^ the owners of the new leases being invested with the same light to the rent of undertenants, and the same remedy for recovery thereof, as if the original leases had been keep on foot (i). But in all other cases the (r> Afite. p. 233. 393. (*) Webb V. Kusstll, 3 T. R. (t) Stat. 4 Geo. II. c. 28, 8. 6; 394 OF INCORPOREAL HEREDITAMENTS. inconvenience continued, until a remedy was provided by the Act to simplify the transfer of property {u). Act to amend This Act, however, was shortly afterwards repealed by real property, the Act to amend the law of real property {x), which provides, in a more efficient thongli somewhat crabbed clause ((/), that, when the reversion expectant on a lease, made either before or after the passing of the Act, of any tenements or hereditaments of any tenure, shall, after the 1st of October, 1845, be surrendered or merge, the estate, which shall for the time being confer, as against the tenant under the same lease, the next vested right to the same tenements or hereditaments, shall, to the extent and for the purpose of preserving such inci- dents to and obligations on the same reversion as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease. A remainder. No tenure be- man) no tenure exists tween parti- . , , cuiar tenant irom the Same source, the and remain- derman. No rent service. 2. A remainder chiefly differs from a reversion in this, — that between the owner of the particular estate and the owner of the remainder (called the reraainder- They both derive their estates grant of tlie owner in fee simple ; and one of them has no more right to be lord than the other. But as all estates must be holden of some person, — -in the case of a grant of a particular estate with a remainder in fee simple, — the particular tenant and the remainderman both hold their estates of the same chief lord as their grantor held before (s). It consequently follows, that no rent service is incident to a remainder, as it usually is to a reversion ; for rent service is an incident of tenure, and in this case no tenure exists. The other point of diflPerence between a reversion and a remainder we have already noticed (a), 3 Prest. Conv. 138; Cousins v. Phillips, 3 Hurlst. & Colt. 892; extended to crown lands by stat. 8 & 9 Vict. c. 99, s. 7. {u) Stat. 7 & 8 Vict. c. 76, s. 12. (ar) Stat. 8 & 9 Vict. c. 106. ly) Sect. 9. (2) Litt. s. 215. (a) Ante, p. 386. OF A REVERSION AND A VESTED REMAINDER. 395 namely, that a reversion arises necessarily from the grant of the particular estate, being simply that part of the estate of the grantor which remains undisposed of, but a remainder is always itself created by an ex- press grant. We have seen that the powers of alienation possessed ^j^^^Ji^j^n* by a tenant in fee simple enable him to make a lease for "?"-y,'^'^ ^-''^''- ' , cised coucur- a term of years, or for life, or a gift in tail, as well as rentiy. to grant an estate in fee simple. But these powers are not simply in the alternative, for he may exercise all these powers of alienation at one and the same moment ; provided, of course, that his grantees come in one at a time, in some prescribed order, the one waiting for liberty to enter until the estate of the other is deter- mined. In such a case the ordinary mode of convey- ance is alone made use of; and until the passing of the Act to amend the law of real property (b), if a feoff- ment should have been employed, there would have been no occasion for a deed to limit or mai'k out the estates of those who could not have immediate posses- sion (c). The seisin would have been delivered to the first person who was to have possession (d) ; and if such person was to have been only a tenant for a terra of years, such seisin would have immediately vested in the prescribed owner of the first estate of freehold, whose bniliff the tenant for years is accounted to be. From such first freeholder, on the determination of his estate, the seisin, by whatever means vested in him, will devolve on the otlier grantees of freehold estates in the order in which their estates are limited to come into possession. So long as a regular order is thus laid down, in which the possession of the lands may devolve, it matters not how many kinds of estates are granted, or on how many (6) Stat. 8 & Vict. c. 100, {d) Litt. s. f.O ; 2 Black. Comm. s. 3 ; ante, p. 185. 107. c Litt. s. &) ; Co. Litt. 143 a. ' 39G OF INCORPOREAL HEREDITAMENTS. Example, persons the same estate is bestowed. Thus, a grant may be made at once to lilty different people separate!}" for tlieir Hves. In such case the grantee for Ufe who is first to have the possession is the particular tenant to wlioin, ou a feoffment, seisin would i)e delivered, and all the rest are remaindermen ; whilst the reversion in fee simple, expectant on the decease of them all, remains with the grantor. Tlie- second grantee for life has a remainder expectant on the decease of the first, and will be entitled to possession on the determination of the estate of the first, either by his decease, or in case of his forfeiture, or otherwise. The third grantee must wait till the estate both of the first and second shall have determined ; and so of the rest. The mode in which Buch a set of estates would be marked out is as follows : — To A. for his life, and after his decease to B, for liis life, and after his decease to C. for his life, and so on. This method of limitation is quite sufficient for the purpose, although it by no means expresses all that is meant. The estates of B, and C, and the rest arc in- tended to be as immediately and effectually vested in them, as the estate of A. ; so that if A. were to forfeit his estate, B, would have an immediate right to the possession: and so again C. would have a right to enter, whenever the estates both of A. and B. might determine. But owing to the necessary infirmity of language, all this cannot be expressed in the limitations of every ordi- Wordsused nar}^ deed. The words "and after his decease " are, to confer a,^ • i ^ m ■ , • f ■ vested re- thcreiore. Considered a sufficient expression of an mten- "fife interest , tion to coufer a Vested remainder after an estate for life. In the case we have selected of numerous estates, every one given only for the life of each grantee, it is manifest that very many of the grantees can derive no benefit ; and should the first grantee survive all the others, and not forfeit his estate, not one of them will take anything. Nevertheless each one of these grantees has an estate for life in remainder, immediately vested in him ; and OF A REVERSION AND A VESTED REMAINDER. 397 eacli of these remainders is capable of being transferred, a vested re- both at law and in equit^y, by a deed of grant, in the be conveyed" same manner as a reversion. In the same wav, a sjrant „'utT^ °^ may be made of a term of years to one person, an estate for life to another, an estate in tail to a third, and last of all an estate in fee simple to a fourth ; and these grantees may be entitled to possession in any prescribed order, except as to the.grantee of the estate in fee simple, who must necessarily come last ; for his estate, if not literally interminable, yet carries with it an interminable power of alienation, which would keep all the other grantees for ever out of possession. But the estate tail may come first into possession, then the estate for life, and then the term of years ; or the order may be re- versed, and the term of years come first, then the estate for life, then the estate tail, and lastly the estate in fee simple, which, as we have eaid, must wait for possession till all the others shall have been determined. When a remainder comes after an estate tail, it is liable to be barred by the tenant in tail, as we have already seen. This risk it must run. But, if any estate, be it ever so Definition of small, is always ready, from its commencement to its remainder, end, to come into possession the moment the prior estates, be they what they may, happen to determine, — it is then a vested remainder, and recognized in law as an estate grantablo by dee:l (e). It would be an estate in possession, were it not that other estates have a prior claim ; and their priority alone postpones, or perhaps may entirely prevent, possession being taken by the remainderman. The gift is immediate; but the en- joyment must necessarily depend on the determination of the estates of those who have a prior right to the possession. In all the cases which we have as yet considered, each (e) Fearne, Cont. Rem. 216; 2 Prest. Abst. 113. 39S OF INCORPOREAL HEREDITAMENTS. One person may have mora than one estate. Rule in Shelle}/$ case. American note 4, pp. 407-t09. of the remainders lias belonged to a different person. No one person has had more than one estate. A., B. and C. ma}' eacli have had estates for hfe ; or the one may have had a term of years, tlie other an estate for life, and the last a remainder in tail or in fee simple. But no one of them has as yet had more than one estate. It is possible, however, that one person may have, under certain circumstances, more than one estate in the same land at the same time, — one of his estates being in possession, and the other in remainder, or perhaps all of them being remainders. The limitation of a remainder in tail, or in fee simple to a person who has already an estate of freehold, as for life, is governed by a rule of law, known by the name of the rule in Shelley's case, — so called from a celebrated case in Lord Coke's time, in which the subject was much discussed (/* ), — although the rule itself is of very ancient date {g). As this rule is generally supposed to be higidy technical, and founded on principles not easily to be perceived, it may be well to proceed gradually in the attempt to explain it. Grantee of a feudal estate regarded as taking only a personal interest. We have seen that, according to feudal law, the grantee of an hereditary fief was considered as being entitled during personal enjoyment only, that is, for his life; while his heir was regarded as having been endowed with a substantial interest in the Lnid. And these conceptions seem to have been imported into English law along with the principle of tenure (A). In early times after the Conquest therefore, if a grant of land were made to a man and his heirs, his heir, on his death, became entitled; and it was not in the power of the ancestor to prevent the descent of his estate accord- ingly. He could not sell it without the consent of his ( /■) Shelley's i 104. (g) Year Book, 18 577, translated 7 Man 1 Rep. 94, Edw. II. & Gran. 941, n. (c); 38 40 Edw. III. 9. (h) Ante, p. 73. Edw. III. 26; OF A REVERSION AND A VESTED REMAINDER. 309 lord ; ranch less could ho then devise it by his will. The ownership of an estate in fee simple was then but little more advantageous than the possession of a life interest at the present day. The powers of alienation belonging to such ownership, together with the lia- bilities to which it is sul)ject, have almost all been of slow and gradual growth, as has already been pointed out in different parts of the preceding chapters (i). A tenant in fee simple was, accordingly, a person who held to him and his heirs; that is, the land was given to him to hold for his life, and to his heirs, to liold after his decease. It cannot, therefore, be wondered To A. for his at, that a gift, expressly in these terms, "To A. for his 'decease to his life, and after his decease to his heirs," should have^'^ ''^^''^" been anciently regarded as identical with a gift to A. and his heirs, that is, a gift in fee simple. Nor, if such was the law formerly, c:in it be matter of surprise that the same rule should have continued to prevail up to the present time. Such indeed has been the case. Notwithstanding the vast power of alienation now possessed by a tenant in fee simple, and the great liability of such an estate to involuntary alienation for the purpose of satisfj'ing the debts of the present tenant, the same rule still holds ; and a grant to A. for his life, and after his decease to his heirs, will now convey to him an estate in fee simple, with all its incidents ; and in the same manner a grant to A. for his life, and after his decease to the heirs of his body will now conv^ey to him an estate tail as effectually as a grant to him and the heirs of his body. In these cases, '^ordsof If 11 • T 1 • • -1 '"nitatiou. therefore, as well as m ordmary linntations to A. and his heirs, or to A. and the heirs of his body, the words heirs, and heirs of his hody, are said to be words of limitation; that is, words which limit or mark out the estate to be taken by the grantee {ii). At the present (*) Ante, pp. 72 — 81. Perrin v. Make, ante, p. 288. (_m) See ante, pp. 17«— 178 ; 400 OF LVCORPOREAL HEREDITAMENTS. day, when the heir is perhaps the last person likely to get the estate, those words of limitation are regarded simply as formal means of conferring powers and privileges on the grantee — as mere technicalities, and nothmg more. But, in ancient times, these same words of limitation really meant what they said, and gave the estate to the heirs, or the heirs of the body of the grantee, after his decease, according to the letter of the gift. The circum- stance, that a man's estate was to go to his heir, was the very thing whicii, afterwards, enabled him to convey to another an estate in fee simple (j). And the circum- stance, that it was to go to the heir of his body, was that which alone enabled him, in after times, to bar an estate tail and dispose of the lands entailed by means of a common recovery. Rule in Having proceeded thus far, we have already mastered S^to^itatTs' the first branch of the rule in Shelley's case, namely, in possession, ^.j^g^j. ^jijch relates to estates in possession. This part of the rule is, in fact, a mere enunciation of the pro- position already explained, that when the ancestor, by any gift or conveyance, takes an estate for life, and in the same gift or conveyance, an estate is immediately limited to his heirs in fee or in tail, the words " to his heirs" are words of limitation of the estate of the ancestor. Suppose, however, that it should anciently have been wished to interpose between the enjoyment of the lands by the ancestor and the enjoyment by the heir, the possession of some other party for some litnited estate, as for his own life. Thus, let the estate have been given to A. and his heirs, but with a vested estate to ]^. for his own life, to take effect in possession next after the decease of A. — thus suspending the enjoy- ment of the lands by the heir of A., until after the determination of the life estate of B. In such a case it is evident that B. would have had a vested estate for ij) Ante, p. 76. As to estates in remainder OF A REVERSION AND A VESTED REMAINDER. 401 his life, in remainder, expectant on tlie decease of A.; and the manner in wliieh such remainder would have been limited, would, as we have seen (k), have been to A. for his life, and after Iiis decease to B. for his life. The only question then remaining would be as to the mode of expressing the rest of his intention, — namely, that, subject to B.'^ life estate, A. should have an estate in fee simple. To this case the same reasoning applies, as we have already made use of in the case of an estate to A. for his life, and after his decease to his heirs. For an estate in fee simple is an estate, by its very terms, to a man and his heirs. But, in the present case, A. would have already had his estate given hiin by the first limitation to himself for his life ; nothing, therefore, would remain but to give the estate to his heirs, in order to complete the fee siniple. The last remainder would, therefore, be to the heirs of A. ; and the limitations would run thus: " To A. for his life, and after his decease to B. for his life, and after his decease to the heirs of A." The heir, in this case, would not have taken any estate independently of his ancestor, any more than in the common limitation to A and his heirs : the heir would have claimed the estate on!}' by its descent from liis ancestor, who had pre- viously enjoyed it dui'ing his life ; and the interposition of the estate of B. would have merely postponed that enjoyment by the heir, which would otherwise have been immediate. But we have seen that the very cir- cumstance of a man's havino- an estate which is to sro to his heir will now give him a power of alienation either by deed or will, and enable him altogether to defeat his heir's expectations. And, in a case like the present, the same privilege will now be enjoyed by A. ; for, whilst he caimot by any means defeat the vested remainder belonging to B. for his life, he may, subject to B.'s life interest, dispose of the whole fee simple at (k) Ante, p. 396. W. R. F. Z 402 OF INCORPOREAL HEREDITAMF^NTS. liis own discretion. A. therefore will now have in these lands, so long as B. lives, two estates, one in possession and the other in remainder. In possession A. has, with re<^ard to 0., an estate only for his own life. In remainder, expectant on the decease of B., he has, in consequence of his life interest being followed by a limitation to his heirs, a complete estate in fee simple. The right of B. to the possession, after A.'s decease, is the only thing which keeps the estate apart, and divides it, as it were, in two. If, therefore, B. should die during A.'s life, A. will be tenant for his own life with an immediate remainder to his heirs ; in other words, he will be tenant to himself and his heirs, and will enjoy, without any interruption, all the privileges belonging to a tenant in fee simple. Remainder to ]3y a parity of reasoning a similar result would follow, the body. if the remainder were to the heirs of the body of A., or for an estate in tail, instead of an estate in fee simple. The limitation to the heirs of the body of A. would coalesce, as it is said, with his life estate, and give him an estate tail in remainder, expectant on the decease of B. ; and if B. were to die during his lifetime, A. would become a complete tenant in tail in possession. Anyuumber 'pi^Q example we have chosen, of an intermediate of estates mav ' . • • i • i i interpose. " estate to B, for life, is founded on a prmciple evidently applicable to any number of intermediate estates, in- terposed between the enjoyment of the ancestor and that of his heir. Nor is it at all necessary that all tliese estates should be for life only ; for some of them Intermediate may be larger estates, as estates in tail. For instance, Miate tail. g,,ppose lands given to A. for his life, and after his decease to B. and the heirs of his body, and in default of such issue (which is the method of expressing a remainder after an estate tail), to the heirs of A. In this case A. will have an estate for life in possession, OF A REVERSION AND A VESTED REMAINDER. 403 with an estate in fee simple remainder, expectant on the determination of B.'s estate tail. An important Example, case of this kind arose in the reign of Edward 111. (l). Lands were given to one John de Sntton for his life, the remainder, after his decease, to John his son, and Eline, the wife of John the son, and the heirs of their bodies ; and in default of such issue, to the right heirs of John the father. John the father died first ; then, Jolm and Eline entered into possession. John the son then died, and afterwards Eline his wife, without leav- ing any heir of her body. R., another son, and heir at law of John de Sutton, the father, then entered. And it was decided by all the Justices that he was liable to pay a relief (m) to the chief lord of the fee, on account of the descent of the lands to himself from John the father. Thorpe, who seems to have been a judge, thus explained the reason of the decision : — " You are in as heir to your father, and your brother [father?] had the freehold before; at which time, if John his son and Eline had died [without issue] in his lifetime, he would have been tenant in fee simple." The same principles will apply where the first estate Where the is an estate in tail, instead of an estate for life. Thus, ai/estate tail, suppose lands to be given to A. and the heirs male of his body begotten, and in default of such issue, to the heirs female of his body begotten (n). Here, in default of male heirs of the body of A., the heirs female will inherit from their ancestor the estate in tail female, which by the gift had vested in him. There is no need to repeat the estate which the ancestor enjoys for his life, and to limit the lands, in default of heirs male, to him and to the heirs female of his body begotten. This part of his estate in tail female has been already given (I) Provost of Beverley's case, (m) Ante, p. 53. Year Book, 40 Edw. III. 9. See (n) Litt. s. 710; Co. Litt. 376 b. 1 Prest. Estates, 304. z2 40i OF INCORPOREAL HEREDITAMENTS. to him in limiting the estate in tail male. The heirs female, being mentioned in the gitt, will be supposed to take the laud as heirs, that is, by descent from their ancestor, in whom an estate in tail female must conse- quently be vested in his lifetime. For, the same rule, founded on the same principle, will apply in every Ruiein5A€^- instance; and this rule is no other than the rule in eyscase. Shelley^ s cass, which lays it down for law, that when the ancestor, by any gift or conveyance, takes an estate of freehold, and, in the same gift or conveyance, an estate is limited, either mediately or immediately, to Ms heirs in fee or in tail, the words " the heirs" are words of limitation of the estate of the ancestor. The heir, if he should take any interest, must take as heir by descent from his ancestor; for he is not constituted, by the words of the gift or conveyance, ^purchaser of any separate and independent estate for himself. Ancestor need The rule, it will be observed, requires that an estate estate'^for t°he of freehold merely should be taken by the ancestor, w^hoie of his ^^^ ^^^ necessarily an estate for the whole of his own life or in tail. In the examples we have given, the ancestor has had an estate at least for his own life, and the enjoyment of the lands by other parties has post- poned the enjoyment by his heirs. But the ancestor himself, as well as his heirs, may be deprived of pos- session for a time ; and yet an estate in fee simple or fee tail may be effectually vested in the ancestor, sub- ject to such deprivation. For instance, suppose lands to be given to A., a widow, during her life, provided she continue a widow and unmarried, and after her marriage to B. and his heirs during her life, and after her decease, to her heirs. Here, A. has an estate in fee simple, subject to the remainder to B. for her life, ex- pectant on the event of her marrying again ( , I the life estate, have accelerated the possession or the re inaindcr in fee simple by giving to B. an uninterrupted estate in fee simple in possession ; and the contingent remaiuder would consequently have been destroyed {d). The same effect would have been produced by A, and B. both conveying their estates to a third person, C, before the birth of a son of A. The only estates then existing in the land would have been the life estate of A. and the remainder in fee of B. C, therefore, by acquiring both these estates, would have obtained an estate in fee simple in possession; on which no re- mainder could depend {e). But the Act to amend the Act to amend law of real property (f) altered the law in all these property, cases ; for, whilst the principles of law on which they proceeded were not expressly abolished, it was never- theless enacted ( g), that a contingent remainder shall be, and if created before the passing of the A.ct, shall be deemed to have been, capable of taking effect, notwith- standing the determination by forfeiture, surrender or merger of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened. This Act, it will be observed, applies only to the three cases of forfeiture, surrender or merger of the particular estate. If, at the time when the particular estate would naturally have expired, the contingent remainder be not ready to come into immediate posses- sion, it will still fail as before (/<), except in the cases provided for by the Act of 1877 to amend the law as to contingent remainders (t). (d) Fearne, Cont. Rem. 318. s. 8, to the same effect. (e) Fearne, Cont. Rem. 322, (g) Sect. 8. note; JS'oel v. BewUy, 3 Sim. 103; (A) Price v. Hall, L. R., 5 Eq. Egerton v. Massey, 3 C. B., N. S. 399; Perceval v. Perceval, L. R., 338. 9 Eq. 386. (/) Stat. 8 & 9 Vict. c. 106, {i) Stat. 40 & 41 Vict. c. 33, repealing stat. 7 & 8 Vict. c. 76, ante, p. 419. 428 OF INCORPOREAL HEREDITAMENTS. Trustees to preserve contingent remainders. The disastrous consequences whicli would have re- sulted from the destruction of the contingent remainder, in such a case as that we have just given, were obviated in practice by means of the interposition of a vested estate between tlie estates of A. and B. We have seen {k) that an estate for the life of A., to take effect in possession after the determination, by forfeiture or otherwise, of A.'s life interest, is not a contingent, but a vested estate in remainder. It is a present existing estate, always ready, so long as it lasts, to come into possession the moment the prior estate determines. The plan, therefore, adopted for the preservation of contingent remainders to the children of a tenant for life was to give an estate, after the determination by any means of the tenant's life interest, to certain per- sons and their heirs during his life, as trustees for pre- serving the contingent remainders ; for which purj)ose they were to enter on the premises, should occasion require ; but should such entry be necessary, they were nevertheless to permit the tenant for life to receive the rents and profits during the rest of his life. These trustees were prevented b}- the Court of Chancery from parting with their estate, or in any way aiding the destruction of the contingent remainders whicli their estate supported {I). And, so long as their estate con- tinued, it is evident that there existed, prior to the birth of any son, three vested estates in the land ; namely, the estate of A. the tenant for life, the estate in re- mainder of the trustees during his life, and the estate in fee simple in remainder, belonging, in the case we have supposed, to B. and his heirs. This vested estate of the trustees, interposed between the estates of A. and B., prevented their union, and consequently pre- vented the remainder in fee simple from ever coming into possession, so long as the estate of the trustees (k) Ante, p. 415. (l) Fearne, Cont. Rem. 326. OF A CONTINGENT REMAINDER. 429 endured, that is, if tliej' were faithful to their trust, 80 long as A. lived. Provision was thus made for the keeping up of the feudal possession until a son was born to take it; and the destruction of the continoent remainder in his favour was accordingly prevented. But now that contingent remainders can no lunger be destroyed, of course there is no occasion for trustees to preserve them {m). In a furmer part of this volume we have spoken of Trust estates, equitable or trust estates (n). In these cases the whole estate at law belongs to trustees, who are account- able in equity to their cestui que trusts, the beneiicial owners. As equity follows the law in the limitation of its estates, so it permits an equitable or trust estate to be disposed of by way of particular estate and (m) The following extract from a modern settlement, of a date previous to 1845, will explain the plan which used to be adopted. The lands were conveyed to the trustees and their heii's, to the uses declared by the settlement; by which conveyance the trustees took no permanent estate at all, as has been explained {ante, p. 16*i), but the seisin was at once transferred to those to whose use estates were limited. Some of these estates were as follows: — * " To the use of the said A. and " his assifrns for and during; the *• term of his natural life without '" impeachment of waste and from "and immediately after the doter- " mination of that estate by for- " feiture or otherwise in the life- " time of the said A. + To the use " of the said {trusteesi their heirs " and assigns during the life of " the said A. In trust to preserve " the contingent uses and estates *' hereinafter limited from being " defeated or destroyed and for " that purpose to make entries " and bring actions as occasion •' may require. But nevertheless "to permit the said A. and his " assigns to receive the rents issues " and profits of the said lands " hereditaments and premises " during his life. And from and " immediately after the decease " of the said A. To the use of " the first son of the said A. and " of the heirs of the body of such " first son lawfully issuing and in " default of such issue. To the " use of the second third fourth " fifth and all and every other " son and sons of the said A. seve- " rally successively and in rernain- " der one after another as they " shall be in seniority of age and " ])iiority of birth and of the " sevei'al and respective heirs of " the body and bodies of all and " every such son and sons lawfully " issuing the elder of such sons " and the heirs of his body issuing " being always to be preferred to " and to take before the younger " of such sons and the heii-s of his " and their body and respective " bodies issuing. And in default " of such issue" Ac. Then follow the other remainders. {n) Ante, p. 209 et seq. To A.'s first and other sons in tail. * To A. for life. + To trustees during his life to preserve contingent remainders. 1^30 OF INCORPOREAL HEREDITAMENTS. remainder, in tlie same manner as an estate at law. Contingent remainders may also be limited of trust Contingent estates. But between such contingent remainders, and remainders of ,. ^ ., n ^ .. . ^ ±1 trust estates coutmgent remainders oi estates at law, there was rtrlfctiWe? always tins difference, that whilst the latter were de- structible, the former were not (o). The destruction of a contingent remainder of an estate at law depended, as we have seen, on the ancient feudal rule, which required a continuous and ascertained possession of every piece of land to be vested in some freeholder. But in the case of trust estates, the feudal possession remains with the trustee {p). And, as the destruction of contingent remainders at law defeated, when it hap- pened, the intention of those who created them, equity did not so far follow the law as to introduce into its system a similar destruction of contingent remainders of trust estates. It rather compelled the trustees con- tinually to observe the intention of those whose wishes they had undertaken to execute. Accordingly, if a conveyance had been made unto and to the use of A. and his heirs, in trust for B. for life, and after his decease in trust for his first and other sons successively in tail, — here the whole legal estate would have been vested in A., and no act that B. could have done, nor any event which might have happened to his equitable estate, before its natural termination, could have de- stroyed the contingent remainder directed to be held by A. or his heirs in trust for the eldest son. (o) Fearne, Cont. Rem. 321. Talbot, 52 n. ; Astley v. MickU' to) See Chapman v. Missett, thwait, 15 Ch. D. 59; Abbiss v. Cas. Temp. Talbot, 145, 151 ; Burney, 17 Ch. D. 211. Hopkins v. Hopkins, Cas. Temp. OF A CONTINGENT REMAINDER. 431 AMERICAN NOTES. ' Is A FREEHOLD NECESSARY TO SUPPORT A FREEHOLD CONTINGENT RE- MAINDER? — la many of the states the rule of the coramon law which, with the reason for its existence, is given in the text, has been changed by statute. Thus, in New York, it is j^rovided by statute that "a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years." 1 R. S. of N. Y., p. 734, § 24; 8tli ed., vol. 4, p. 2433, § 2t. A similar provision is in force in Indiana and probably in other states. See 2 Ind. Stat. (Burns' ed., 1894), § 3379. And in New York, Indiana, Michigan, Wisconsin, Iowa, Minne- sota, Nebraska, Virginia, West Virginia, Kentucky, Missouri, Texas, Cali- fornia, Dakota, Georgia and Mississippi, provisions will be found to the eflfect that any estate may be made to commence in the future, either with or without the intervention of a precedent estate, and that, too. whether created by deed or by will. See Stimson's Am. Statute Law, § 1421. '^ Posthumous children. — It is provided in ISTevv York that "where a future estate shall be limited to heirs or issue or children, posthumous children shall be entitled to take, in the same manner as if living at tlie death of their parents," and further that "a future estate depending on tlie contingency of the death of any person without heirs or issue, or cliil- dren, shall be defeated by the birth )f a posthumous child of such person, capable )f taking by iescent." 1 R. S. of N. Y., p. 725, §§ 30, 31; 8th ed., vol. IV, p. 2434, §§ 80, 31. Similar legislation will be found in a large number of states. See Stimson's Am. Statute Law, § 1413. ^ Vesting op contingent rkmainder during the contixuance ok PARTICULAR ESTATE OR EG INSTANTI THAT IT DETERMINES. — In Several of the states the common-law rule has been changed by statute, and it is jiro- vided that a contingent remainder shall not be defeated by the termination of the precedent estate before the happening of the contingency, but that it may take effect at any time after such termination. Such a provision will be found in New York, Michigan, Wisconsin, Minnesota, California and Dakota. See Stimson's Am. Statute Law, § 1426. •* Expectant estates alienable.— In New York it is provided by stat- ute tliat "expectant estates are descendible, devisable and alienable in the same manner as estates in possession." See 1 R. S., p. 72.), § 35; 8th ed., vol. IV, p. 2434, § 35. A like provision is found in Michigan (2 Howell's Ann. Stat., § 5551), Minnesota (3 Stat, of Minn., Kelly's ed., 1891, § 3964), and Wisconsin (Ann. Stat, of Wis., S. & B.'s ed., § 2059). * Expectant estates not to be defeated. — In New York expectant estates can not "be defeated or barred by any alienation or other act of the owner of tlie intermediate or precedent estate, nor by any destruction 432 OF INCORPOKEAL HEREDriAMENTS. of such precedent estate by disseisin, forfeiture, surrender, merger or other- wise." 1 R. S. of N. Y., p. 725, § 32; 8th ed., vol. IV, p. 2434, § 32. A like provision is found in several other states. See 2 Howell's Ann. Stat, of Mich., § 5548; 2 Stat, of Minn. (Kelly's ed., 1891), § 3965; 1 Ann. Stat- of Wis. (S. & B.'s ed.), § 2056. And in Virginia, West Virginia and Ken- tucky a contingent remainder will not fail for want of a particular estate to support it. See Code of Va. (1887), § 2424; Code of W. Va., chap. 71, § 12; Gcu. Stat, of Ky. (Bullitt & Feluud, 1888j. chap. 63, § 11. CHAPTEE III. OF AN EXECUTORY INTEREST, Contingent remainders are future estates, "whicli, as we have seen (a), were cohtinnally liable, at common law, until thej actually existed as estates, to be de- stroyed altopjether; executory interests, on the other hand, are future estates, which in their nature are indestructible (h). Tliey arise, when their time comes. Executory as of their own inherent strength ; they depend not for 'J'/t^efr^owa''*' protection on any prior estates, but on the contrary, strength, they themselves often put an end to any prior estates, which may be subsisting. It is proposed, in the present chapter, to consider the means by which these future estates may be created ; and, in the next, to treat of the time fixed by the law, within which they must arise, and beyond which they cannot be made to commence. We shall then be enabled to revert to the rules, which prev^ent the settlement of property in per- petuity by a series of contingent remainders. 1. Executory interests may now be created in two ways — under the Statute of Uses (o), and by wiih Executory interests created under the Statute of Uses are called (a) Ante, Tp. 424 et seq. Taunt. 263; see ante, pp. 78, n,, (h) Fearne, Cont. Rem. 418. 94. Executory interests subse- Before fines were abolished, it quent to, or in defeazance of an was a matter of doubt whether a estate tail, ma}- also be barred in fine would not bar an executory the same manner, and by the same interest, in case of non-claim for means, as remainders expectant five years after a right of entry on the determination of the estate had arisen under the executory tail. Fearne, Cont. Rem. 423. interest. EomiUy v. James, 6 (c) Stat. 27 Hen. VIII. c. 10, W. K. f. B B 434 OF INCORPOREAL HEREDITAMKNTS. SpringinEj and shifung uses. Executory uses anciently iiUowed by the Court of Chancery. The Statute of Uses. Executory uses still allowed. springing or shifting uses. "We have seen {d) that, pre- viously to tlie passing of this statute, the useoi land was under the sole jurisdiction of the Court of Chancery, as trusts were afterwards. In the exercise of this jurisdic- tion it would seem that the Court of Chancery, rather than disappoint the intentions of parties, gave validity to such interests of a future or executory nature, as w^ere occasionally created in the disposition of the use {c). For instance, if a feoffment liad hcen made to A. and his heirs, to the use of B. and his lieii-s from to-morrow, the Court would, it seems, have enforced the use in favour of B. notwithstanding that, by the rules of law, the estate of B. would have been void if). Here we have an instance of an executory interest in the shape of a springing use, giving to B. a future estate arising on the morrow of its own strength, depending on no prior estate, and therefore not liable to be destroj'ed by its prop falling. When the Statute of Uses { /->! marriage, to marriage, to the trustees (say B. and C. and their heirs) other uses, "to the use of A. and his heirs until the intended mar- riage shall be solemnized, and from and immediately after the solemnization thereof," to the uses agreed on ; for example to the use of D., the intended husband, and his assigns for his life, and so on. Here B. and C. take no permanent estate at all, as we have already seen (k). A. continues as he was, a tenant in fee simple until the marriage ; and, if the marriage should never happen, his estate in fee simple will continue with him untouched. But, the moment the marriage takes place, — without any further thought or care of the parties, — the seisin or possession of the lands shifts away from A. to vest in D., the intended husband, for his life according to the disposition made by the settlement. After the execution of the settlement, and until the marriage takes place, the intei'est of all the parties, except the settlor, is future, and contingent also on the event of the marriage. But the life estate of D., the intended husband, is not an interest of the kind called a contingent remainder. For, the estate which precedes it, namely, that of A., is an i^,',"'//'*!^^ estate in fee simple, after which no remainder can be^**^'" (*) Ante, p. 417. (k) Ante, pp. 206, 240-242. B B 2 436 OF INCORPOREAL HEREDITAMENTS. Another instance. Name and arms. Jimited. The use to D. for his hfe sprin^^s up on the marriage taking place, and puts an end at once and for ever to the estate in fee simple wliich belonged to A. Here, then, is the destruction of one estate, and the substitution of another. The possession of A. is wrested from him by the use to D., instead of D.'s estate wait- ing till A.'s possession is over, as it must have done had it been merely a remainder. Another instance of the application of a sliifting use occurs in those cases in which it is wished that any person who shall become entitled under the settlement should take the name and arms of the settlor. In such a case, the intention of the settlor is enforced by means of a shifting clause, under which, if the party for the time being entitled should refuse or neglect, within a definite time, to assume the name and bear the arms, the lauds will shift away from him, and vest in the person next entitled in remainder. From the above examples, an idea may be ormed of the shifts and devices which can now be effected in settlements of land, by means of springing and shifting uses. By means of a use, a future estate may be made to spring up with certainty at a given time. It may be thought, therefore, that contingent remainders, having until recently been destructible, w'ould never have been made use of in modern conveyancing, but that every thing would have been made to assume the shape of an executor}' interest. This, however, is not the case. For, in many instances, future estates are necessarily required to wait for the regular expiration of those which precede them ; and, when tiiis is the case, no art or device can prevent such estates from being what they are, contingent remainders. The only thing that could formerly be done, was to take care for their preservation, by means of trustees for that purpose. For, the law, having been acquainted with remainders OF AN EXECUTORY INTEREST. 437 long before uses were introduced into it, wiH never con- No limitation T •, .• ,1 . . IT.' construed as striie any limitation to be a springing or shitting use, a shifting use which, by any fair intei-pretatiun, can bo regarded as a ^egarded^as^a remainder, whether vested or contingent (l). remainder. The establishment of shifting and contingent uses occasioned great ditiiculties to tlie early lawyers, in consequence of the supposed necessity that there should, at the time of the happening of the contingency on which the use was to shift, be some person seised to the use then intended to take effect. If a conveyance were made to B. and his heirs, to the use of A. and his heirs until a marriage or other event, and afterwards to the use of C. and his heirs, it was said that the use was executed in A. and his heirs by the statute, and that as this use was co-extensive with the seisin of B., B. could have no actual seisin remaining in him. The event now happens. Who is seised to the use of C. ? In answer to this question it was held that the original seisin reverts back to B., and that on the event hap- pening he becomes seised to the use of C. And to support this doctrine it was further held that meantime a possibility of seisin, or scintilla juris, remained xe^iedi Scintilla, in B. But this doctrine, though strenuously main-"^"'^' ained in theory, was never attended to in practice. And in modern times the opinion contended for by Lord St. Leonards was generally adopted, that in fact no scintilla whatever remained in B., but that he was, by force of the statute, immediately divested of all estate, and that the uses thenceforward took effect as legal estates according to their limitations, by relation to the original seisin momentarily vested in B. (m). Finally, an Act of 1860 declared the law to be in Now '' ' abolished. (l) Fearne, Cont. Rem. 386 — mere and Lloyd, IS Cli. D. 524; 395, 526; Doe d. Harris v. Howell, Dean v. Dean, 1891, 3 Ch. 150. 10 Barn. & Cress. 191, 197; 1 (m) Sugd. Pow. 19, 8th ed. Prest. Abst. 130. See Me Lech- 438 OF INCORPOREAL HEREDITAMENTS. accordance with Lord St. Leoiiards's opinion, and gravely abolished the existence of scintilla juris in). Powers. Example. Creditors' rights. JLmeric" note a, p 46,i. One of the most convenient and usefnl applications of springing uses occurs in the case of powers, which are methods of causing a use, with its accompanying estate, to spring up at tlic will of any given per- son (o) : — Thus, lands may be conveyed to A. and his heirs to such uses as B. shall, by any deed or by his will, appoint, and in default of and until any sucii appointment, to the use of 0. and his heirs, or to any other uses. These uses will accordingly confer vested estates on C, or the parties having them, subject to be divested or destroyed at any time by B.'s exercising his poicer of appointment. Here B., though not owner of the property, has yet the power at any time, at once to dispose of it, by executing a deed ; and if he should please to appoint it to the use of himself and his heirs, he is at perfect liberty so to do ; or, by virtue of his power, he may dispose of it by his will. Such a power of appointment is evidently a privilege of great value; it is nearly as good as ownership ; and it has, accord- ingly, been made to share the liabilities of ownership. Thus, under the Act of 183S extending creditors' remedies, the sheriff may deliver execution under the writ of elegit of all hereditaments, over which a judg- ment debtor shall at the time of the judgment, or at any time afterwards, have any disposing power which (w) Stat. 23 & 24 Vict. c. 38, s. 7, which provides that where by any instrument any heredita- ments have been or shall be limited to uses, all uses there- under, whether expressed or im- plied by law, and whether imme- , diate or future, or contingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise, by force of and by rela- tion to the estate and seisin origi- nally vested in the person seised to the uses ; and tlie continued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of, or to give effect to, future or contingent or executory uses ; nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain or to subsist in him or elsewhere. (0) See Co. Litt. 271 b, a. (1), VII., 1. OP AX EXECUTORY INTEREST. 439 he might, without the assent of any other person, exercise for his own benefit {j)). And by the Bank- Bankruptcy, ruptcy Act, 1883, the trustee for the creditors of any person becoming bankrupt may exercise, for the benefit of his creditors, all powers (except the right of nomina- tion to a vacant ecclesiastical benefice) which might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge (. taking tlie lands in execution, or in the event of li.'s bankruptcy, as well as by an appointment made b}^ B. But if B. should die before the lands have been affected by any judgment against him (r), and without having been bankrupt, or having made any appointment by deed or will, C will become indefeasibly entitled to the lands; which will be no longer subject to B.'s debts (.9). If, however, B. should exercise the power by deed or will in favour of a volunteer (or person not claiming for valuable consideration {t) ), he will be considered to have made the lands his own ; and they will therefore be liable to satisfy all his debts after his death, but not until all his other property has been exhausted {u). Suppose, then, that B. should exercise his power. Exercise of and appoint the lands by deed, to the use of D. and hisJIg^*^""^^ (/;) Stat. 1 & 2 Vict. c. 110, Ch. D. 1005. Stat. 32 & S3 Vict. s. 11; aide, p. 24G. By sect. 13, c. 71, ss. 15, par. (4), 25, par. (5), jiidginents were also made a were to tlie same etfect. The charge on such hereditaments : former Acts gave a similar power but the effect of the Act in this to the assignees of the bankrupt; respect was modified by later Acts see stats. 6 Geo. IV. c. Ii5, s. 77; of ISOO, 18(i4 and 1888, in the 12 & 13 Vict. c. 106, s. 147. manner explained in the chapter (/•) See aide, pp. 310 — 315. on Creditors' Rights; ante, pp. («) Holmes v. CoghiLl, 7 Ves. 312—315. 49'J; 12 Ves. 200. iq) Stat. 46 & 47 Vict. c. 52, {t) Ante, p. 84. ss. 44, 50; see Williams on Per- («) Sag. Pow. 474, 8th ed. • sonal Property, I'JO, 202, 203, 207, Fleming v. Buchanan, 3 De G. M. 13th ed. ; Mchok to Mxey, 29 & G. 976. 440 ^t' INCORPOREAL HEREDITAMENTS. lieirs. In this case, tlie execution by B. of tlic iiistni- uient required by the power, is the event on which the use is to spring up, and to destroy the estate ah-eady existing. Tile moment, theretore, that B. lias duly executed liis power of appointment over the use in favour of D. and his heirs, D. has an estate in fee simple in possession vested in him, by virtue of tlie Statute of Uses, in respect of the use so appointed in his favour; and the previously existing estate of C. is The power is tlicncefortli Completely at an end. The power of dis- used °^^^ ^ *^ position exercised by B. extends, it Avill be observed, only to the use of the lands ; and the fee simple is vested in the appointee, solely by virtue of the opera- tion of the Statute of Uses, which always instantly annexes the legal estate to the use {v). If, therefore, B. were to make an appointment of the lands, in pur- suance of his power, to D. and his heirs, to the use of E. and his heirs, D. would still have the use, which is all that B. has to dispose of ; and the use to E. would be a use upon a use, which, as we have seen (mj), is not executed, or made into a legal estate by the Statute of Uses. E., therefore, would obtain no estate at law : althoue-h the Court would, in accordance with the ex- pressed intention, consider him benehcially entitled, and would treat liim as the owner of an equitable estate in fee simple, obliging D. to hold his legal estate merely as a trustee for E. and his heirs. The terms and In the excrcise of a power it is absolutely necessary the"p^ower "'^ that the terms of the power, and all the foimalities re- piiedwir.''" qnii-ed by it, should be strictly complied with. If the power should require a ^/c'gcZ only, a ■2^iZ^ will not do; or, if a will only, tiien it cannot be exercised by a deed (a?), or by any other act, to take effect in the life- {v) See ante, pp. 204 — 206. (.r) Marjoribanks v. Hovenden, (w) Ante, p. 207. 1 Drury, il. OF AN EXECUTORY INTEREST. ^n time of the person exercising the power (y). So, if the power is to be exercised by a deed attested by two wit- nesses, then a deed attested by one witness only will be insufficient (2). This strict cotnphance with the terms of the power was carried to a great length by the Courts of law ; so much so that where a power w\as Power to be required to be exercised by a writing under hand and Iw^xiv^'glmAaY seal attested hi/ witnesses, the exercise of the power ^^f|,°^'''?*^!*'^^'' was held to be invalid if the witnesses did not sign witnesses, a written attestation of the signature of the deed, as well as of the sealing («). The decision of this point was rather a surprise upon the profession, who had been accustomed to attest deeds by an indorsement, in the words " sealed and delivered by the within-named B. in the presence of," instead of wording the attesta- tion, as in such a case this decision required, '"'•Signed, sealed, and delivered," &c. In order, therefore, to render valid the many deeds which by this decision were rendered nugatory, an Act of Parliament (Z*) was Stat. 54 Geo. passed by which the defect thus arising was cured, as to all deeds and instruments, intended to exercise powers, which were executed prior to tlic 30th of July, 1814, the day of the passing of the Act. But as the Act had no prospective operation, the words ''^signed, sealed and delivered" were still necessary to be used in the attestation, in all cases where the power was to be exercised by writing under hand and setd, attested ly witnesses (ointnient be for a charitable purpose, — in any of these cases, equity will aid the defective execution of the power (/"); in other ■words, the Court will compel the person in possession of the estate, and who was to hold it until the power was duly exercised, to give it up on an undue execution of such power. Tt is certainly hai'd that, for want of a little caution, a purchaser should lose his purciiase or a creditor his secuiity, or that a wife or child should be unprovided for; but it may well be doubted wiietherit be truly equitable, for their sakes, to deprive the person in possession ; for the lands were originally given to him to hold until the happening of an event (the execution of tlie power), which, if the power be not duly executed, has in fact never taken place. The above remarks equally apply to the exercise of Exercise of a power by will. Formerly, every execution of a power P"^^*^"" -5^ ^^' • to appoint by will was obliged to be effected by a will conformed, in the number of its witnesses and otlier circumstances of its execution, to the requisitions of the power. But the Wills Act of 1837 (g) requires that all wills should be executed and attested in the same uniform way (A); and it accordingly enacts (^), that no appoint- Wilis Act. ment made by will in exercise of an}' power shall be valid, unless the same be executed in the manner required by the Act: and that every will executed in the manner thereby required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of a|tpointraent by will, notwithstanding it shall have (e) See 7 Ves. 506; Sugd. Pow. 5 Beav. 249. 532 et neq., 8th ed. (y) 7 Will. IV. & 1 Vict. c. 26. ). But the Act provides, that in case any appointment under a power of appointment, or any disentailing assurance, shall have been executed by any infant tenant in tail under the Act, and such Sk. infant shall afterwards die under age, such appointment or disentailing assurance shall thereupon become abso- lutely void {q). The power to dispose of property independently of ignorance of any ownership, though established for some three cen- po^grs"i[as"^ turies, is at the present day frequently unknown to *'''"^*r'^ '^'^' ' ' ./ a J appointment those to whom such a power may belong. This igno- of intention, ranee has often given rise to difficulties and the disaj) pointmentof intention in consequence of the execution of powers by instruments of an informal nature, par- ticularly by wills, too often drawn by the parties them- selves. A testator would, in general terms, give all his estate or all his property ; and because over some of it he had only a power of appointment, and not any actual ownership, his intention, till lately, was defeated. For such a general devise was no execution of his power of appointment, but operated only on the property that was his own. He ought to have given not only all that he had, but also all of which he had any power to dis- pose. The Wills Act of 1S37 (r) provided a remedy for such cases.by enacting {i) that a general devise of the real a general estate of a testator shall be construed to include any appo7n°ment real estate which he may have power to appoint in any "°^^ '^•'^^°"' '' r rj •' by a genera ed devise. (p) Stat. 13 & 19 Vict. c. 43, tenants in tail, do not become 8. 1. See Re Cardross 8 Sdtlement, void on their death under age; 7 Ch. D. 72s. Jie Scott, 1891, 1 Ch. 20S. (q) Sect. 2. It has been held (ri Stat. 7 Will. IV. & 1 Vict, that appointments made under c. 26. the Act by infants, who are not («) Sect. 27. 445 OF INCORPOREAL HEREDITAMENTS, American manner he may think proper (t), and shall operate as ^c-- ' an execution of such power, unless a contrary intention shall appear by the will. A power may A power of appointment may sometimes belong to a ienti3'*^with pcrsou Concurrently with the ordinary power of alien- ownership. -vtion arising from the ownershij) of an estate in the lands. Thus lands may be limited to such uses as A. shall appoint, and in default of and until appointment A power may to the use of A. and his heirs (u). And in such a case puisiied or A. may dispose of the lands either by exercise of his acmweyunce powcr {x), ov by Conveyance of his estate (y). If he of the estate, ^xercises his power tiie estate limited to him in default of appointment is thenceforth defeated and destroyed ; and, on the other hand, if he conveys his estate, his power is thenceforward extinguished, and cannot be exercised by him in derogation of his own conveyance. So if, instead of conveying his own estate, lie should convey only a partial interest, his power would be sus- pended as to such interest, although in other respects it would remain in force ; that is, he may still exercise his power, so only that he do not defeat his own grant. When the same object may be accomplished either by an exercise of the power, or by a conveyance of the estate, care should be taken to express clearly by which of the two methods the instrument employed is in- tended to operate. Under such circumstances it is very useful first to exercise the power, and afterwards to convey the estate hy way of further assurance only ; in which case, if the power is valid and subsisting, the subsequent conveyance is of course inoperative (2) ; (t) Cloves V. Aivhry, 12 Beav. 289. 604; He Mills, 34 Ch. D. 186; {y) Cox v. Chamherlain, 4 Ves. Be Williams, 42 Clu D. 93; Re 631; Wynne v. Griffith, 3 Bing. Byron's Settlement, 1891, 3 Ch. 179; 10 J. B. Moors, 592; 5 B. 474. & Cress. 923 ; 1 Russ. 283. (m) Sir Edward Clere's case, 6 [z) Kay v. Pung, 5 Mad. 310; Rep. 17 b; Maundrell v. Maun- 5 B. & Aid. 561; Doe d. Wigan drell, 10 Ves. 246. v. Jones, 10 B. & Cress. 459. (z) Roach V. Wadham, 6 East, OF AN EXECUTORY INTEREST. 447 but if the power should by any means have been suspended or extinguiahed, then the conveyance takes effect. The doctrine of powers, together with that of vested remainders, was brought into very frequent operation by the usual form of modern purchase deeds, whenever the purchaser was married on or before the first of January, 1834, or whenever, as sometimes happened, it was wislied to render unnecessary any evidence that he was not so married. We have seen {a) that the dower of such women as were married on or before the first day of January, 1834, remained subject to the ancient law ; and the inconvenience of taking a conveyance to the purchaser jointly with a trustee, for the j^urpose of barring dower, has also been pointed out ih). The Modem modern method of effecting this object, and at the same barring time of conferring on the purchaser full power of dis- °"^^'"" position over the land, without the concurrence of any other person, was as follows : A general power of ap- pointment by deed was in the first place given to the purchaser, by means of which he was entitled to dispose of the lands for any estate at any time during his life. In default of and until appointment, the land was then given to the purchaser for his life, and, after the deter- mination of his life interest by any means in his lifetime, a remainder (which, as we have seen (c), was vested) was limited to a trustee and his heirs during the pur- chaser's life. This remainder was then followed by an ultimate remainder to the heirs and assigns of the pur- chaser for ever, or, which is the same thing, to the purchaser, his heirs and assigns for ever {d). These limitations were sufficient to prevent the wife's riglit of dower from attaching. For the purchaser had not, at (a) Ante, p. 867. {d)Fearne, Cont. Rem. 547, n. ; (b) A7ite, p. 3i)9 Co. Litt. 379 b, n. (1). (c) Ante, pp. 415, 428. 448 OF INCORPOREAL HEREDITAMENTS. Uses to bar dower. any time during liis life, an estate of inheritance in possession, out of wliicli estate only a wife could claim dower {e) : he had during his life only a life interest, together with a remainder in fee simple expectant on his own decease. The intermediate vested estate of the trustee prevented, during the whole of the purchaser's lifetime, any union of this life estate and remainder {/). The limitation to the heirs of the purchaser gave him, according to the rule in Shelley's case (^), all the powers of disposition incident to ownership: though subject, as we have seen (/«), to the estate intervening between the limitation to the purchaser and that to his heirs. But the estate in the trustee lasted only during the purchaser's life, and daring his life might.at any time be defeated by an exercise of his power. A form of these uses to har doioer, as they were called, will be found in the Appendix {i). They will not bar the dower of wives married after the 1st of January, 1834 ; to whom dower is expressly given by the Dower Act []{■) out of any estate of their husbands which, whether wholly equit- able, or partly legal and partly equitable, is or is equal to an estate of inheritance in possession {I). Besides these general powers of appointment, there exist also powers of a special kind. Thus the estate which is to arise on the exercise of the power of appoint- ment may be of a certain limited duration and nature : Where the of this an example occurs in the power of leasing which limited dura- was formerly given to every tenant for life under a p°°' . properly drawn settlement. "We have seen [in) that a leasing. tenant for life carmot, by virtue of the right of aliena- tion incident to his estate, make any disposition of the Special powers («) Ante, p, 367. (/) Ante, p. 428. {g) Ante, pp. 400, 404. (h) Ante, p. 404. (i) See Appendix (A). (h) Stat. 3 & 4 Will. IV. c. 105, s. 2; ante, 371. (Z) And if the deed is of a date previous to that day, even an ex- press declaration contained in the deed that such was the intent of the u.ses will not be sutficient; Fry V. ^^oble. 20 Beav. 598; 7 De Gex, M. & U. 687; Clarke v. Franklin, 4 K. J. 266. (w) Ante, p. 130. OF AN EXECUTORY INTEREST. 449 property to take effect after his decease. Such right of alienation, therefore, does not enable him to grant a lease for any certain term of years, but only contingently on his living so long. But if his life estate were limited to hinj in the settlement by way of use, as in practice was always done, a power might be conferred on him of leasing the land for any term of years, and under what- ever restrictions might be thought advisable. On the exercise of this power, a use would arise to the tenant for the term of years, and with it an estate for the term granted by the lease, quite independently of the con- tinuance of the life of the tenant for life {71). But if the lease attempted to be granted should have exceeded the duration authorized by the power, or in any other respect infringed on the restrictions imposed, it would have been void altogether as an exercise of the power, and might formerly have been set aside by any person having the remainder or reversion, on the decease of the tenant for life. But now, by an Act of 1849 (o). Relief against defects in such a lease, if made bona fide, and if the lessee have leases under entered thereunder, shall be considered in equity as a^'^^^^'^^' contract for the grant of a valid lease under the power, to the like purport and effect as such invalid lease, save 80 far as any variation may be necessary in order to comply with the terms of the power ; and all persons, who would have been bound by a lease lawfully granted under the power, shall be bound in equity by such con- tract ( j9). But in case the reversioner is able and will- ing during the continuance of the lessee's possession to confirm the lease without variation (^), the lessee is bound to accept a confirmation accordingly (/•). The («) 10 Ves. 256. Williams's Conveyancing Sta- (0) Stat. 12 & 13 Vict. c. 26, tutes, 309— 311. amended by stat. 13 & 14 Vict. (q) As to the power of a tenant c. 17. ' for life in reversion to conKrm (/)) As to the pov7er of a tenant such leases, see stat. 45 & 45 Vict, for life to make a lease for giving c. 38, s. 12; Williams's Convey- effect to such a contract, see aiicing Statutes, 309 — 311. stat. 45 & 46 Vict. c. 38, 8. 12 ; (r) Stat. 13 & 14 Vict. c. 17, W. R. P. C C 450 ^^ INCORPOREAL HEREDITAMENTS. snme Act contains a further provision (.e Succes- ' ' •' J 7 3 gjQj, Duty that where any person shall have a general power of Act, I853. appointment, under any disposition of property taking effect upon the death of any person, he shall, in the event of his making any appointment thereunder, be deemed to be entitled, at the time of his exercising such power, to tlie property thereby appointed, as a succession derived from the donor of the power ; and where any person shall have a limited power of appoint- ment, under a disposition taking effect upon any such death, any person taking any property by the exercise of such power shall be deemed to take the same as a succession derived from the pei'son creating the power as predecessor (k). But where the donee of a general power of appointment shall become chargeable with duty in respect of the property appointed by him under such power, he shall be allowed to deduct from the duty so payable any duty he may have already paid in respect of any limited interest taken by him in such property {I). Powers may, generally speaking, be destroyed or Powers may (i) Sect. 17, sub-s. 1 . By sub-s. s. 4. See Ee Jiarker,Exch.,'! J\ir., 2, an exchange or partitioa may N. S. 1061; Attorney-Generalx . be made subject to and in con- Floyer, H. of Lords, 9 Jur., N. S. sideration of the reservation of 1; 9 H. of L. Cas. 477 ; Charlton an undivided share in mines or v. Attorneg- General, 4 App. Cas. minerals. 427; ante, p. i!y9. (k) Stat. It) & 17 Vict. c. 51, {I) Sect. 33. 454 0^ INCORPOREAL HEREDITAMENTS. be extin- extinguished by deed of release made by the donee or release. ^ owner of thc powcr to any person having any estate of freeliold in the Lmd ; "for it would be strange and unreasouable that a thing, which is created by the act of the parties, should not by their act, with their mutual consent be dissolved again " {ni). And it is now expressly enacted that a perton to whom any power, whether coupled with an interest or not, is given may by deed re- Exceptions, lease or contract not to exercise the power (n). Tiie excep- tions to this rule ai)j)ear to be all reducible totheeimple principle, that if the duty of the donee of the power may require him to exercise it at any future time, then he Release of cauuot extinguish it by release {o). By the Act for the ull'rried ^ abolition of fines and recoveries (/>), it is provided {q), womeu. ^-^^^ every married woman may, with the concurrence of her husband, by deed to be acknowledged by her as her act and deed according to the provisions of the Act (}•), release or extinguish any power which may bo vested in or limited or reserved to her, in regard to any lands of any tenure, or any money subject to be invested in the purchase of lands (.s), or in regard to any estate in any lands of any tenure, or in any such money as aforesaid, as fully and etiectually as she could do if she were Disclaimer of a feme solo (?!). A power, whether coupled with an ^^°^* ■ interest or not, may now be effectually disclaimed (u) by deed {x). The above remarks as to the extinguish- ment of powers are not intended to apply to statutory powers, which are regulated by the terms of the statute (m) Alhany s case, 1 Rep. 110 b, (r) See ante, p. 356. 113 a; Smith v. Peath, 5 Mad. (s) See ara^e, p. 214. 371; Jlorner v. Swan/i, Turn. (t) As lo the capacity of married & Russ. 430. women to release or extinguish (w) Stat. 44 & 45 Vict. c. 41, powers since the commencement s. 52. See Williams's Convey- of the Married Women's Property ancing Statutes, 22t>. Act, 1882, see Williams's Con- (o) See 2 Chance on Powers, vey ancing Statutes, 383—386. 584; Williams's Conveyancing (a) See a»i«, p. 91. Statutes, 227. (x) Stat. 45 & 46 Vict. c. 39, (/)) Stat. 3 & 4 Will. IV. c. 74. s. 6. See Williams's Convey- {q) Sect. 77. aacing Statutes, 2S0, 281. OF AX EXECUTORY INTEREST. 455 creating them. Thus we have seen that the powers given to a tenant for life by the Settled Land Act, i8S2, are not capable of release ; and a contract by a tenant for life not to exercise any of his powers under that Act is void (y). Our notice of powers must here conclude. On a subject so vast, much must necessarily remain unsaid. The masterly treatise of Sir Edward -^'"''»'«*^«'» •' tiute 4, j>p, Sugden (afterwards Lord St. Leonards), and the accurate ^^^' ^*^' work of Mr. Ciiance on Powers, will supply the student with all the further information he may require. 2. An executory interest may also be created by Creation of ... „, , . eio PTT / executory Will, iieiore the passmg 01 tlie Statute 01 Uses (3), interests by wills were employed only in the devising of uses, under the protection of the Court of Chancery, except in some few cities and l)oroughs where the legal estate in lands mio-ht be devised by special custom (a). In givino- Directions ™® , "^ ^ T . , \, . ° that executors eiiect to these customary devises, the Courts, in very should sell early times, showed great indulgence to testators (i^) ; able by *cus- and perhaps the first instance of the creation of an ''"™" executory interest occurred in directions given by tes- tators, that their executors should sell their tenements. Such directions were allowed by law in customary de- vises (c) ; and in such cases it is evident that the sale by the executors operated as the execution of a power to dispose of that in which they themselves had no kind of ownership. For executors, as such, have nothing to (y) Ant*, pp. 137, 138. qui n'avoit rien, et en meme le (z) 27 Hsn. VIII. c. 10. maniere come on aura Jire from (a) Ante, p. 80. Jiiid, et uncore nul fire est deius (h) 30 Ass. 183 a ; Litt. sec. 586. le flint : et ceo est pour performer (f) Year Book, 9 Hen. YI. 2-t b, le darrien volonte de le devisor.'' Babington : — " La nature de devis Paston. — "Une devis est marveil- ou terres sont devisables est, que ous en lui meme quand il peut on peut deviser que la terre sera prendre effect; car si on devise vendu par executors, et ceo est en Loudres que ses executors ven- bon, come est dit adevant, et est dront ses terres, et devie seisi ; marvellous ley de raison : mes son heir est eins par descent, et ceo est le nature d'un devis, et encore par le vend des executors devise ad este use tout temps en il sera ouste." See also Litt. tiel forme; et issiiit on aura loy- s. 1G9. almeat franktenement de cesty 456 ^^ INCORPOREAL UEREDITAMENTS. do with freeholds. Here, therefore, was a future estate or executory interest created ; the fee simple was shifted away from the heir of the testator, to whom it had descended, and became vested in the purchaser, on the event of the sale of the tenement to him. The Court of Chancery also, in perniittiniji; the devise of the use of such lands as were not themselves devisable, allowed of the creation of executory interests by will, as well as in Directions transactions between livinc' persons {d). And in par- that executors . , ,. . . , , . . , should sell ticular directions i^-iven bv persons havino^ others seised whichothers ^^ lands to their use, that such lands should be sold by were seised to j-ijej,. executors, Were not only permitted by the Court of the testator s ' . use. Chancery, but were also recognised by the legislature. For, by a statute of the reign of Henry YIII. (e), of a date previous to the Statute of Uses, it is provided, that in such cases, where part of the executors refuse to take the administration of the will, and the residue accept the charge of the same will, then all bargains and sales of the lands so willed to be sold by the executors, made by him or them only of the said executors that so doth accept the charge of the will, shall be as effectual as if all the residue of the executors so refusing, had joined with him or them in the making of the bargain and sale. The statute But, as we have seen(y), the passing of the Statute of Uses abolished for a time all wills of uses, until the Statute of Wills (g) restored them. When M'ills were restored, the uses, of which they had been accustomed to dispose, had been all turned into estates at law; and such estates then generally came, for the fiist time, within the operation of testamentary instruments. Under these circumstances, the courts of law in in- terpreting wills, adopted the same lenient construction which had formerl}' been employed by themselves in (d) Perk. ss. 507, 528. (/) Ante, pp. 81, 204, 278. (e) Stat. 21 Hen. VIII. c. 4. {g) 32 Hen. VIII. c. 1. OF AN EXECUTORY INTEREST. 457 the interpretation of customary devises, and also by the Court of Chancery in tlie construction of devises of the ancient" use. The statute which, in the case of wills of uses, had civen validity to sales made by the executors accepting the charge of the will, was ex- tended, in its construction, to directions (now autho- rized to be made) for the sale by the execnturs of the legal estate, and also to cases where the legal estate was devised to the executors to be sold (A). Future -*"'«!;'''""* ^ ^ note 5, 1*. estates at law were also allowed to be created by will, *^^' and were invested with the same important attribute of indestructibility which belongs to all executory interests. These future estates were called executory Executory devises, and in some respects they appear to have been more favourably interpreted than sbifting uses con- tained in deeds [i), though, generally speaking, their attributes are the same. To take a common instance : Example. a man may, by his will, devise lands to his son A., an infant, and his heirs ; but in case A. should die under the age of twenty-one years, then to B. and his heirs. In this case A. has an estate in fee simple in possession, subject to an executory interest in favour of B. If A. should not die under age, his estate in fee simple will continue with him unimpaired. But if lie should die under that age, nothing can prevent the estate of B. from immediately arising, and coming into possession, and displacing for ever the estate of A. and his heirs. Precisely the same effect might have been produced by (h) Bonifant v. Greenfield, Cro. and Mr. Sanders (1 Sand. Uses, Eliz. 80; Co. Litt. 113 a; see 142, U3 ; 148, 5th ed.), and denied Mackintosh v. Barber, 1 Bing. 50. to be law by Mr. Butler (note {//) (i) In the cases of Adams v. to Fearne, Cont. Rem. p. 41). Savage, (2 Lord Raym. 855; 2 Mr. Preston also lays down a doc- Salk. 679), and Jinwley v. Holland trine opposed to the above cases (22 Vin. Abr. 189, pi. 11), limi- (1 Prest. Abst. 114, 130, 131). tations which would have been Sir Edward Sugden, however, valid in a will by way of executory supports these cases, and seems devise were held to be void \\\ a sutlicieutly to answer Mr. Butler's deed by way- of shifting or spring- objection (Sugd. Gilb. Uses and ing use. llut these cases have Trusts, 35, note). been doubted by Mr. Serjeant Hill 458 OF INCORPOREAL HEREDITAMENTS. a conveyance to uses. A conveyance to C. and his heirs, to the use of A. and his heirs, but in case A. should die under age, then to the use of B. and his lieirs, would have effected the same result. Not so, however, a direct conveyance independently of the Statute of Uses. A conveyance directly to A. and his heirs would vest in him an estate in fee simple, after which no limitation could follow. In such a case, therefore, a direction that, if A. should die under age, the land should belong to B. and his heirs, would fail to operate on tlie legal seisin ; and the estate in fee simple of A. would, in case of his decease under age, still descend, without any interruption, to his heir at law. Difference A good illustration of the difference between a con- between a . '^ •11 1 • continoreiit tmgeut romamder and an executory devise occurs in and a" exe- the caso of a devise of lands by will to A. for life, with cutory devise, pei^iainder in fee to such son of B. as shall first attain the age of twenty-one years. In this case the limita- tion to the son of B. is either a contingent i-emainder or an executory devise, according as A., the tenant for life, may or may not survive the testator. If A. should survive the testator, there will be an estate of freehold subsisting in the premises, for the determination of which the limitation to the son of B. must wait, before it can take effect in possession. This limitation is, therefore, a remainder; and, as it depends on the con- tingency of B. having a son who may attain twenty- one, it is a contingent remainder. But if A. should die in the lifetime of the testator, the will would start, on the testator's death, with a simple limitation to such son of B. as shall first attain the age of twenty-one years. This limitation has not to wait for the deter- mination of any prior estate of freehold ; but it arises of itself on the event of a son of B. attaining the age of twenty-one years ; and it displaces, when it takes OF AN EXECUTORY INTEREST. 459 effect", tlie eotate in fee simple, which, not being other- wise disposed of, descends, immediately on the death of the testator, to his heir at law. It is, therefore, in this case, not a contingent remainder, but an executory devise. Under the law as it stood before the Act of 1877 amending the law as to contingent remainders (k), if A. survived the testator, but died before any son of B. attained twenty-one, the limitation failed for want of an estate of freehold to support it : whereas if A. died in the lifetime of the testator, it was not liable to any failui'e. It was to remedy the hardship occasioned by the failure of such a limitation as this, when it occurred in the shape of a contingent remainder, that the Act above mentioned was framed. The alienation of an executory interest, before its Alienation of becoming an actually vested estate, was formerly sub- fufJrest''^ ject to the same rules as governed the alienation of con- tingent remainders {I). But by the Act to amend the law of real property, all executory interests may now be disposed of by deed (w). Accordingly, to take our previous example, if a man should leave lands, by his Example. will, to A. and his heirs, but in case A. should die under age, then to B. and iiis heirs, — B. may by deed, during A.'s minority, dispose of his expectancy to another person, who, should A. die under age, will at once stand in the place of B. and obtain the fee simple. (k) Stat. 40 & 41 Vict. c. 33, way of executory devise, the first ante, p. 419. executory devisee, even though an tl) Ante, p. 422. infant, may convey the whole fee (m) Stat. 8 & 9 Vict. c. 106, simple in order to carry icto effect s. 6, repealing stat. 7 & 8 Vict. any decree for the sale or niort- c;jj]q (,p j^qp^. 8. V6, s. 5. In order to facilitate gage of the estate for payment of g.,,,^ j-f,,. p^y. the payment of debts out of real such debts. And this provision, fjic'nt of estate, it is provided, by stats. 11 so far as it relates to a sale, has j^ij^jj^ Geo. IV. & 1 Will. IV. c. 47, been extended to the case of the 8. 12, and 2&3 Vict. c. fiO, that land having descended to the heir, when lands are by law, or by the subject to an executory devise will of their owner, liable to the over in favour of a person or payment of bis debts, and aie by persons not existing or not ascer- thc will vested iu any person by tained ; stat. 11 & l:i Vict. c. 87. 4.60 OF INCORPOREAL HEREDITAMENTS. But before the Act, this could not have been done ; B. might indeed have sold his expectancy ; but after the event (the decease of A. under age), B. must have executed a conveyance of the legal estate to the purchaser ; for, until the event, B. had no eMate to convey {n). Estates Similar to an estate arising by executory devise, is force^f ^" estate which arises solely by the force of a statute, statute on npou the executiou of sotne statutory power. This execution or r ./ j. a statutory occurs whenever an estate in land is transferred by any power, person by means of an authorit}^ conferred upon him by some statute, and not by means of the right of aliena- tion incident to an estate in land or of a power given Conveyance to him Under the Statute of Uses or by a will. For life under example, by the Settled Land Act, 1S82, a tenant for life Ac" 1882^'^ under a settlement is empowered to convey the settled land by deed for all the estate and interest, which is the subject of the settlement, or for any less estate or interest, as may be required for carrying into effect the powers of leasing, sale, exchange, partition and other powers given by that Act {o). He may thus convey the whole legal estate in fee simple in the settled land, if comprised in the settlement, even though he himself should have merely an equitable estate for life {p). When a tenant for life exercises his power of convey- ance under this Act, the legal estate in the settled land is, by the force of the statute, taken away from the persons, in whom it has been previously vested, and conveyed to the lessee, purchaser or other person, to the extent speciiied in the deed, by which the lease, pur- chase or other transaction is carried out. Thus the estate limited by such a deed arises solely by virtue (jf the Act, which has empowered the tenant for life to («) Ante, p. 422. Williams's Conveyancing Sta- le) Stat. 45 & 46 Vict. c. 38, tutes, 321—325. s. 20. See ante, pp. 132 — 137; (/)) See a« u ^ J > note 4, p. devisor or testator, or during the minority of any ^J"^- person living, or in ventre sa mere at the death of the grantor, devisor or testator, or during the minority only of any person who, under the settlement or will, would for the time being, if of full age, be entitled to the income directed so to be accumulated {q). But the Act does not extend {r) to any provision for payment of debts, or for raising portions for children (.§), or to any (t>) Stat. 39 & 40 Geo. III. N. S. 288. c. 98; Fearne, Cent. Rem. 538, (r) Sect. 3. n. (X). is) See Halford v. Stains, 16 (p) 4 Ves. 227; Fearne, Cont. Sim. 488, 496"; £acon v. Procter, Rem. 436, note. Turn. & Russ. 31 ; Bateman v. (q) Wilson v. Wilson, 1 Sim., Hodgkin, 10 Beav. 420 j Barring- D D 2 remainders. Rule 1. 4g3 OF INCORPOREAL HEREDITAMFJNTS. direction toucliing the produce of timber or wood. Nor does it apply to a trust to expend part of the income of a landed estate in maintaining the property in good repair {t). Any direction to accumulate income, which may exceed the period thus allowed, is valid to the extent of the time allowed by the Act, but void so far as this time may be exceeded {u). And if the direction to accumulate should exceed the limits allowed by law for the execution of executory interests, it will be void altogether, independently of the above Act (a?). Rules for Let US uow return to the rules governing the creation contingent of Contingent remainders. We have considered the first of these, that the freehold must never be without an owner, or that every contingent remainder must be supported by a particular estate of freehold {y). And it will be remembered that, in consequence of this rule, every contingent remainder must vest during the con- tinuance or immediately on the termination of the par- ticular estate, or it will fail altogether (s). Also, that an Act of 1877 now saves from this consequence of the rule every contingent remainder created after the Act, which would have been valid if originally created as a shifting use or executory devise {a). We have now seen, how- ever, that for a limitation to be valid as a shifting use or executory devise, it must conform to the rule against perpetuities (b). No contingent remainder will there- fore be preserved by this Act, unless it be such as must necessarily vest within the duration of existing lives ton V. LuldeU, 2 De Gex, M. k G. Ker v. Lord Dungannon, 1 Dr. & 480; Edirnrds v. Tuck, 3 De Gex, War. 509; Curtis v. Lukin, 5 Bea.v. M. & G. 40. 147 ; Broughton v. James, 1 Coll. (t) Vine V. Raleigh, 1891, 2 2G; Scari'shrick v. Skelmersdale, Ch 13. 17 Sim. 187; Turvin v. Newcome, («) i Jarm. Wills, 306, 4th ed. 3 Kay & J. 16. See Re Lady Rosslyn's Trust, 16 (y) Ante, p. 416. Sim. 391 ; Ralph v. Carrick, 5 {z) Ante, p. 418. Ch. D. 984, 997, 998. (a) Ante, p. 419. (.7!) Lord Southampton v. Mar- (6) Ante, p. 465. quu of Hertford, 2 Ves. & Bea. 54; OF REMOTENESS OF LIMITATION. 469 and twenty -one 3'ears after. Thus, if land be granted after 1877 to A., a bachelor, for lite, and after his death to his first son, who shall attain the age of twenty-four years, the gift to A.'s son is good as a contingent remainder, and may take effect if a son of A. attain twenty-four in A.'s lifetime (c). Jjut if A. die before any son of his attain twenty-four, the contingent re- mainder to A.'s son will fail altogether, by the common law rule, as not having vested before or at the termina- tion of the particular estate. And it will not be saved by the Act of 1877 {d)\ because, as we have seen {e\ it would not have been valid, if originally created as a shifting use or executory devise. The liability of contingent remainders to be destroyed perpetuity by the act of the tenant, on whose j3articular estate J," nl^j^^g^j °^ they depended, was a great safeguard against the '"6™'''°'^^''*° creation of a perpetuity {f). But if there had been no check but this, a perpetual settlement miglit possibly have been made, after the introduction of trustees to preserve contingent remainders {g), by giving life estates successively in remainder to successive generations of children. But it seems to have been understood by those concerned in drawing settlements of land in the modern form generally adopted after the Bestoration (A), that estates given to unborn children should be con- lined to such as must be ascertained within the compass of existing lives {i). For the conveyancing practice established with regard to such settlements was (as it still is) to limit the land to an intended husband, or eldest son coming of age, for life, with remainder to his unborn sons successively in tail {k). And attempts to confer successive life estates on successive generations (c) Ante, p. 418. {g) Ante, p. 428. (d) Ante, p. 419. (h) Ante, p. 124. ie) Ante, p. 465. \i) Ante, p. 405. (/) Ante, pp. 424, 464; see 1 (/!•) See the books cited m note Ri-jj. 120, 131 b. («) to p. 131, ante. 470 OF INCORPOREAL HEREDITAMENTS. of unborn children were lield to violate the principle of policy mentioned above (/). After a time, the restraint imposed on the creation of successive contingent re- mainders came to be generally defined in a sort of work- ing rule adopted by conveyancers and quoted by judges, that an estate given to an unborn person for life cannot be followed by any estate to any child of such unborn person. And it was allowed on all hands that, if such a limitation were made, the estate given to the child of the unborn person would be void (;^). The reason assigned for this, however, was not always the same ; for tiie origin of the rule was attributed sometimes to the general policy of the law restraining attempts to create a perpetuity, sometimes to the old doctrine which prohibited double possibilities (n). This rule gained autliority from general nse (o). After the period allowed for the creation of executory interests had been extended to an independent term of twenty-one years after the duration of existing lives {p), it was much debated, whether the rule so applied to contingent remainders should or should not be considered as merely an instance of the settled rule against perpetuities (q). But limitations likely to raise this question were eschewed in practice (/■). The point first came before the Court in 1889, M'hen the judges were apparently not inclined to sanction any possible (l) Ante, p. SV4; Ilumberston tion seems to be the correct one; V. Eumherston, 1 P. W. 332; 1 Gray, Rule against Perpetuities Atk. 51)3; Seaward v. Willock, (Boston, 1886;, pp. 135, 137, 139, 5 East, I'.tS, 205. 140, 206—208. (m) Duke of Marlhoroiigh v. (o) Cole v. Setvell, 2 H. L. C. Earl Godolphin, 1 Eden, 415, 186; Monypenny v. Dering, 2 De 416; 2 Cases and Opinions, 432 G. M. & G. 145, 170; Sugden'on — 441; Hay v. Earl of Coventry, Property, 120; Sugden on the 3 T. R. 86 ; Bradenell v. Elwes, Real Property Statutes, p. 285, 1 East, 452; Fearne's Posthuma, n. (a), 1st ed., 274, n. (a), 2nd 215; Fearne, Cont. Rem. 502, ed.; 1 Jarm. Wills, 221, 1st ed., 565, Butl. note; 2 Prest. Abst. 251, 4th ed. ; Williams on Real 114; Sug. Pow. 393, 8th ed. Property, 212, 1st ed., 276, 13th ed. («) Ante, pp. 420, 421 ; Fearne, (p) Ante, p. 465. Cout. Rem. 251, n., 502, 565, n.; Co. (r}) See Appendix E., and the Litt. 371 b, n. (1), vii. 2; Vaizey, editor's note thereto. Law Quarterly Review, vi. 419. (r) Davidson, Free. Conv. Historically, the former explana- vol. iii. pp. 336—338, 3rd ed. OF REMOTENESS OF LIMITATION. 471 extension of the time of settlement for the sake of in troducing a uniform rule. Accordingly, the working rule of conveyancers was declared to be an independent rule of law; and a remainder limited to the child of an unborn person, after a life estate to the unborn parent, was held to be void, notwithstanding that the gift in remainder had been expressly confined to such child of the unborn parent as should be born within the compass of lives existing at the time of the gift (s). Tlie creation of continjrent remainders of lee:al estates ^"le 2 is therefore subject to the rule, that an estate cannot be well limited, in remainder after an estate given to an unborn person for life, to any child of such unborn person. The above rule is, however, subject to some modifica- Cy-'prh tion, when the gift is made by will. For in the case of a gift hij will to the unborn son of some living person for his life, and after the decease of such unborn son, to his sons in tail, the Courts of law have been so indulgent to the ignorance of testators, that they have endeavoured to carry the intention of the testator into effect, as nearly as can possihly he done^ without in- fringing the rule of law, which makes such a remainder void. Accordingly, they take the liberty of altering his will to what they presume he would have done had he been acquainted with the rule which prohibits the son of any unborn son from being, in such circumstances, the object of a gitt. This, in law French, is called the cy-prcs doctrine {t). From what has already been said, it will be apparent that the utmost that can be legally accomplished towards securing an estate in a family is to give to the unborn sons of a living person estates in tail : such estates, if not barred, will descend («) WTdthy V. Mitcliell, 42 Ch. 4th ed. ; Vanderplank v. King, T) . 494; 44 Ch . D. 85; see Law 3 Hare, 1; Alonypenriij v. Dering, Quarterly Review, \\. A\0 et seq. 10 Mee. & Wels. 418; Hampton \t) Feariie, Cont. Rem. 204, v. Ilohnan, 5 Ch. Div. 183, note: 1 Jarman on Wills, 298, 4"J^ OF INCORPOREAL HEREDITAMENTS. on the next generation ; but the risk of the entails being barred, cannot by any means be prevented. Tlie Courts, therefore, when they meet witii such a disposi- tion as above described, instead of confining the unborn son of the living person to the mere life estate given him by the terms of the will, and annulling the subse- quent limitations to his offspring, give to such son an estate in tail, so as to afford to his issue a chance of inheriting should the entail remain unbarred. But this doctrine, being rather a stretch of judicial authority, is only applied where the estates given by the will to the children of the unborn child are estates in tail, and not where they are estates for life {u), or in fee simple (x). If, however, the estate be in tail, the rule equally applies, whether the estates tail be given to the sons successively according to seniority, or to all the children equally as tenants in common (y). Rale 3. But in the same year, in which the second rule here given was established as law, a case occurred for which the above rules were insufficient to provide. Accordingly, the policy of the law restraining every contrivance to create a perpetuity (s) was again invoked ; and the limitation of successive contingent remainders was de- clared to be subject to a further rule, which appears to be this : — that a contingent i*emainder limited to take effect after a contingent remainder will be void, unless it must necessarily vest within the period allowed by the rule against perpetuities (a). Thns, if land be limited to A., a bachelor, for life, and after his death to his first. son for life, and after the son's death, to A.'s eldest (u) Semvardx. Willock, 5 East, {y) Pitt v. Jackson, 2 Bro. C. C. 198. See, however, per Holt, 51; Vanderplank x .K'mg, ZB.&rQ,\. L. J., in Forshrook v. Forshrooh, {z) A?ite,j). ifii. L. R., 3 Ch. 93, 99; and per Jessel, (a) £e Frost, 43 Cb. D. 246. M. R., in Hampton v. Ilolman, See 1 Jarm. Wills, 281, 4th ed. 5 Ch. l)iv. 183, 193. All limitations ulterior to a void (x) Brixtoiuv. PFarrfe, 2 Ves. jun. remainder are, as a rule, a. so 33(5; Hale v. Pew, 25 Beav. 335. void; ib. 283—288. OF REMOTENESS OF LIMITATION 473 daughter who shall then be living ; here the contingent remainder to A.'s eldest daughter living at his son's death will be void ; because it could not vest till the son's death, which might obviously occur more than twenty-one years after the death of A. This rule, how- ever, is subject to the proviso, that it shall not apply to the case of a contingent remainder limited to take effect on the termination of an estate tail originally limited as a contingent remainder; for in tiiis case the latter remainder may be defeated by barring the entail; it does not therefore tend to tie up property beyond all power of alienation (U). Contingent remainders of trust estates (c) are void Contingent .« , ^ ,, . , , , , , ,. . remainders if they are limited, so that they may exceed the hmitof trust prescribed by law to the creation of executory in-^^''®^' terests {d). Thus, if land be conveyed unto and to the use of trustees and their heirs, upon trust for A. for life, and after his decease for such son of A. as shall first attain the age of twenty -four years, the limitation to the son of A. is void for remoteness {e). The reason for this distinction between legal and equitable estates is, that, in the case of the latter, the freehold is in the trustees, and the rule of law, that a contingent re- mainder would fail if it did not vest before or at the termination of the particular estate, cannot apply (y). And equity, in giving effect to contingent remainders of trust estates, has held them to be subject to the rules as to remoteness, which apply to executory interests. ■ It thus apjicars that the general principle of legal policy, forbiddinii: all such limitations as tend to create a perpetuity, has been applied to contingent remainders (J) Meolls V. Sheffield, 2 Bro. (c) Ante, p. 429. C. U. 215; Phillips V. Deakin, 1 (d) Abhiss v. Burney, 17 Ch. D. M. & B. 744; Cole v. iiewell, 2 211. Conn. & Liiws. 344; 4 Dru. & («) Ante, p. 465. War. 1 ; 2 II. L. C. 186; Sugd. (/) Ante, p. 430. Law of Property, 120. 474 OF INCORPOREAL HEREDITAMENTS. as well as executory interests. But wlien we inquire, what limitations in particular are held to create a per- petuity, we find that the law has answered the question in one way as regards contingent remainders of legal estates, and in another as regards executory interests and contingent remainders of equitable estates: the result is that the subject of remoteness of limitation is particularly distinguished by what the Romafis termed ineleganiia juris. This is, no doubt, deplorable ; but, as has been already pointed out (y), we must tak e the law as we find it. Estates under Where powers of aopointuient are ffiven in favour of special power . , . ', take effect particular obiccts, as the appointor's children ih), the as if thevhad ' ^ i • i • i; .i ■ j- ., i been inserted estates wliicli arisc irom the exercise oi the power take tiemeau^' effect precisely as if such estates had been inserted in the settlement, by which the power was given. Each estate, as it arises under the ])ower, takes its place in the settlement in the same manner as it would have done had it been originally limited to the appointee, without the intervention of any power ; and, if it would have been void for remoteness in the original settle- ment, it will be equally invalid as the offspring of the power {i). Succession Duty. Before leaving the subject of settlements, it may be mentioned that by the Succession Duty Act, 1853 (k\ every past or future disposition of property, by reason whereof any person has or shall become beneficially entitled to any property or the income thereof upon the (g) Ante, p 4. n. (t). (h) Ante, p. 453. {i) Co. Litt. 271 b, n. (1), vii. 2; Whitby v. Mitchell, 42 Ch. D. 494; 44 Ch. D. 85. (/{;) Stat. 16 & 17 Vict. c. 51, s. 2 ; see Wilcox v. Smith, 4 Drew. 40 ; Attorney- General v. Lord Middleton, 3 H. & N. 125 ; Attorney -General v. Sihthorpe, 3 H. & N. 4'24; Attorney- General V. Lord Draybrooke, 5 H. & N. 488; 9 H. L. C. 150; Attorney- General v. Floyer, 9 H. L. C. 477 ; Attorney- General v. Smythe, 9 H. L. Cas. 498; Charlton v. Attorney-General, 4 App. Cas. 427. OF REMOTENESS OF LIMITATION. ^175 death of any pnrson dying after the 19th of May, 1853, eitlier immediately or after any interval, either certainly or contingently, and either originally or by way of sub- stitutive limitation, is deemed to confer on the person so entitled a " succession ; " in respect of which he is charged with duty payable on his becoming entitled in possession {I). So that " successions " chargeable with duty may arise on the death, after the Act, of a tenant for life under any settlement made before or after the Act. In such cases the rate of duty is determined by the relationship between the successor and the settlor. Such successions may also be chargeable with estate Estate duty. duty (m). The nature of succession duty in the case of a succession to real property has been already explained {n). {I) Sects. 10, 20. («) Ante, p. 299, (w) Aiite^ p. 300. 47G OF INCORPOREAL HEREDITAMENTS. a:merican notes. [The student is reminded that the recent English legislation referred to in the foregoing chapter is not of practical importance in the United States.] ' Rule against perpetuities. — The common-law rule against perpetui- ties, which is fully explained and illustrated in tlie text, is still in force in many of the states. The rule, says Professor Gray, has teen carried as a part of the common law "to all the English colonies where the principles of the common law ^jrevail. * * * Considering the unformed condi- tion of the doctrine of remoteness at the time of tiie planting of the Ameri- can colonies, it would have been quite possible for it to have developed there in a different shape from that which it assumed in England. But as a matter of fact the rule seems, in the absence of statute, to be always adopted tiiroughout the United States in its modern English form." Gray on Perpetuities, § 200. Tiie common-law rule is recognized in the follow- ing cases: Hawley v. Northampton, 8 Mass. 3, 37; Projjrietors of Church in, Brattle Square v. Grant, 3 Gray, 142; Jackson v. Phillips, 14 Allen, 572; Dorr V. Lovering, 147 Mass. 530; Donahue v. McMchol, 61 Pa. St. 78; Lawrences Estate, 130 Pa. St. 854; Stout v. Stout, 44 N. J. Eq. 479; Wood- ruffs. Pleasants, 81 Va. 37; Brown v. Brown, 86 Tenn. 277; Collins v. Foley, 63 Md. 158. In several of the states we find modifications by statute to a greater or less extent of the common-law rule. See Gray on Perpetuities, Appendix C. ; 2 Washb. on Real Prop. (;th ed.) 795-799; Chaplin on Sus- pension of Power of Alienation, Appendix. But the radical change was made in the state of New York with the adoption of the Revised Statutes. Tlie system instituted in that state, except in its application to personal property, has since been followed in Michigan, Wisconsin and Minnesota. The New York statutes provide that the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer pe- riod than during the continuani:e of not more than two lives in beiuf at the creation of the estate, except in the single case that a contino-ent re- mainder in fee may be created on a jirior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited, shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age; that every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than that prescribed; that the power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed ; that successive limitations of estates for life shall not be valid unless to per- sons in being at the creation thereof, and that when a remainder shall be limited on more than two successive estates for life, all the life estates sub- sequent to those of the two persons first entitled thereto shall be void; that no remainder shall be created upon an estate for the life of any other OF REMOTKNESS OF LIMITATION 477 person or persons than the grantee or devisee of such estate, unless such re- mainder \)e in fee, and tliat a remainder sliall not be created upon sucli an estate in a terra of years, unless it be for the whole residue of such terra ; that when a remainder shall be created upon any such life estate, and more than two persons shall be named, as the persons during whose lives the life estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced; that a contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be sucli that the remainder must vest in interest during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof; that no estate for life shall be limited as a remainder on a term of years, except to a person in being at the creation of such estate; that the absolute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee. See 1 R. S. of N. Y. 723, 724, §§ 14-21, 23 (8th ed., vol. IV, pp. 2432, 2433, §§ 14-21, 23). There are two sections in regard to the suspension of the power of alienation as applied to per- sonalty that need not be quoted in this connection. See 1 R. S. of N. Y. 773, §§ 1, 2 (8th ed., vol. IV, p. 2516, §§ 1, 2). As has bfcn suggested, the foregoing provisions have been practically copied in Michigan (2 Howell's Ann. Stat., §§ 5530 et seq.). Wisconsin (1 Wis. Ann. Stat., S. & B.'s ed., § 2038 et seq.) and Minnesota (3 Stat, of Minn., 1891, Kelly's ed., § 3973 et seq.). Attention, however, should be called to the fact that by an act passed in 1887 in Wisconsin, the period in that state was enlarged by the addition of twenty-one years. The statutes of Michigan, Wisconsin and Minnesota omit the sections of the New York statute that apply to personal property. And it has been held in Wisconsin that there is in that state no rule against perpetuities as connected with personal property. See Bodge v. WUli/mis, 40 Wis. 70, 95, 96, But the correctness of the conclusion in regard to tiiis matter in the foregoing case was doubted in the case of Be Wolf v. Lmcson, 61 Wis. 469, 473, 474. In Michigan the doctrines of the common law as to perpetuities apply so for as personalty is concerned. See Palms v. Palms, 68 Mich. 355, 370. The statutory provisions upon the subject of perpetuities in the four states named have given rise to much and varied litigation. It would be foreign to the purpose of this work to attempt to collate the numerous de- cisions. For a full consideration of the subject, the reader is referred to Chaplin on Suspension of the Power of Alienation, a work which treats ex- clusively of the system in force in those states. 2 RESTRiCTroN ON ACCUMULATION. — Statutes similar to that referred to in the text are to be found in several of the states. See Stimson's Am. Statute Law, § 1443. 4T8 OF INCORPOREAL HEREDITAMENTS. CHAPTER V. dttaments. OF HEREDITAMENTS PURELY INCORPOREAL. We now coirie to the consideration of incorporeal hereditaments, usually eo called, which, unlike a rever- sion, a remainder, or an executory interest, are ever of an incorporeal nature, and never assume a corporeal Three kinds of shape. Of these purel_y incorporeal hereditaments poreai here^' there are three kinds, namely, lirst, such as are appen- dant to corporeal hei'editaments ; secondly, such as are appurtenant', both of which kinds of incorporeal here- ditaments are transferred simply by the conveyance, by whatsoever means, of the corporeal hereditaments to which they may belong; and thirdly, such as are in gross^ or exist as sej^arate and independent subjects of property, and which are accordingly said to lie in grant, and have always required a deed for their transfer {a). But almost all purely incorporeal hereditaments may exist in both the above modes, being at one time appendant or appurtenant to corporeal property, and at another time separate and distinct from it. 1. Of incorporeal hereditaments which are appendant to such as are corporeal, the first we shall consider is a A seignory. seignory or lordship. In a previous part of our work {1>)^ we have noticed the origin of manors. Of such of the lands belonging to a manor as the lord granted out in fee simple to his free tenants, nothing remained to him but his seignory or lordship. By the grant of an estate in fee simple, he necessarily parted with the possession. (a) Ante, p. 31. {h) Ante, p. 49. OF HEREDITAMENTS PURELY INCORPOREAL. 479 Thencefortli liis interest, accordingly, became incorporeal ill its nature. But he had no reversion ; for no rever- sion can remain, as we have already seen (c), after an estate in fee simple. The grantee, liovrever, became his tenant, did to liim fealty, and paid to him his rent- service, if any were agreed for. This simjily having a free tenant in fee simple was called a seignory. To this seignory the rent and fealty were incident, and the seignory itself was attached or appendant to the man( r of the lord, who had made the grant ; whilst the land granted out was said to bo liolden of the manor. Ycry many grants were thus made, until the passing of the statute of Quia emj>tore8 {d) put an end to these creations of tenancies in fee simple, by directing that on every such conveyance the feoft'ee should hold of the same immediate lord as his feoffor held before [e). But such tenancies in fee simple as were then already sub- sisting were left tm touched, and they still remain in all cases in which freehold lands are holden of any manor. The incidents of such a tenancy, so far as respects the tenant, have been explained in the chapter on free tenure. The correlative rights belonging to the lord form the incidents of his seignory. The seignory, with all its incidents, is an appendage to the manor of the lord, and a conveyance of the manor simply, without mentioning its appendant seignories, will accordingly comprise the seignories, together with all rents incident to them {f). In ancient times it was necessary that Attornment, the tenants should attorn to the feoffee of the manor, before the rents and services conld effectually pass to him {g). For, in this respect, the owner of a seignory was in the same position as the owner of a reversion (A). But the same statute {i) which abolished attornment in (c) Ante, p. 397. {g) Co. Litt. 310 b. (d) IS Edw. J. c. 1. (h) Ante, p. 392. (e) Ante. pp. 46, 79. (i) Stat. 4 & 5 Anne, c. 3 (c. 16 (/) Perk. 3. 116. in Rufifhead, s. 9; ante, p. 392. 480 OF INCORPOREAL HEREDITAMENTS the one case abolished it also in the other. No attorn- ment, therefore, is now reqnired. Rights of Other kinds of appendant incorporeal hereditaments common. • t . r i y . 7 are rights oi commo7i, sucli as common oj turoary, or a right of cutting turf in another person's land; coinmon of inscanj^ or a right of hsliing iu another's water; Common of and coTYimon of pastu7'e, which is the most usual, pas ure. being a right of depasturing cattle on the land of American another (h). Rights of common owe their origin to the note l,p. . . . . SOS. necessities of the agricultm'al village communities, which, as we have seen (Z), were spread over England at the time of the Norman Conquest (m). It will be remembered that the land used to be cultivated upon the common field system, the various holdings being composed of strips of land lying dispersed among the common fields of the village. The rights of common enjoyed by the holders of arable land were accordingly of two kinds ; first, to put in cattle to range over the whole of a common field, during such time as it lay fallow ; secondly, to pasture their cattle on the waste lands of the village. The holders of strips in the common meadows also enjoyed the right of putting in cattle to graze over the whole, when not closed for raising the hay-crop (w). When the English inaneria had been generally subjected to the law of feudal tenure (o), it was considered that the soil of the waste lands of a manor belonged to the lord of the manor, subject, however, to the common rights of his tenants to depasture cattle thereon (^). And after the free- \lc) For further information gradoff. Villainage in England, upon this subject the reader is 259, 260. referred to the late author's (0) Ante, p. 49. Treatise on Rights of Common. (jw) See Bract, fo. 227, 228; (J) Ante, p. 47. Williams on Commons, 103 et (m) Williams on Commons, 87 ^eq., 150 ; Scrutton, Commons, et seq. ; Vinogradoff, Villainage 3ii— 41 ; Vinogradoff, Villainage in England, Essay II., ch. ii. in England, 271—275. (n) Ante, pp. 47* 48 ; Vino- OF HEREDITAMENTS PURELY INCORPOREAL. 481 holders had become the most prominent tenants of a manor ((]i), it was estabhshed as law that every free- holder of ancient arable land held of a manor may, of common right (that is, by the common law alone, independently of grant or agreement) depasture on the lord's wastes such a number of commonable beasts as he can maintain, when the common is not available, upon his holding (r). And this right was designated common appendant (s). The right of common pasture in the common fields appears, properly, to have been also of common right (t). Owing to the general in- clusure of common lands, which has been before mentioned {n), rights of common in common fields are now practically extinct. Rights of common over wastes have been also extinguished in njany cases by the inclosure of waste lands {x). But in other cases they still remain, and of late years they have in many instances been successfully asserted (y). Any convey- ance of the lands, to which such riglits belong, will comprise such rights of common also (s). The regula- tion of Metropolitan and other commons is now pro- vided for by statute (a). Another kind of appendant incorporeal hereditament Advowson is an advowson appendant to a manor. But on this*^^^^" ^° * liead we shall reserve our observations till we speak of the now more frequent sul>ject of conve^yance, an ad- vowson in gross, or an advowson unappended to any thing corporeal. (g) Ante, pp. 50, 56. {y) See Smith v. Earl Brown- (r) Williams on Commons, 31 low, L. R., 9 Eq. 241 ; Warrick et seq., W3. v. Queen's College, L. R., 10 Eq. {s) lAtt. s. 184; Co. Litt. 105, 6 Ch. Tlti; Betts v . Thomp- 122 a; 5 Rep. 37, 38. See Ap- son. L. R., G Ch. 732; Hull v. pendix F. Byron, 6 Ch. D. 667; Robertson (<) Williams on Commons, 67 v. //arp/>, 43 Ch. I). 484. —69; Vinogradoff, Villainage in («) Litt. s. 183 ; Co. Litt. 121 b. England, 201, 268—271. (a) Stats. 29 & 30 Vict. c. (w) Ante, p. 67. 122; 32 & 33 Vict. c. 107; (x) See Williams on Commons, 39 & 40 Vict. c. 56, amended by 246 et seq.; Scrutton, Commons, 42 & 43 Vict. c. 37; Williams oa Ch. vi., vii. Commons, 2i>5 et seq. W. E. P. E 12 482 OF INCORPOREAL HEREDITAMENTS. Strips of waste by the side of "roads American note fi, ». 503. Soil of river. American note 3, 2>P' 503, 500. In connection with the subject of commons, it may be mentioned that strips of waste land between an inclosure and a highway, and also the soil of the high- wa}' to tlie middle of the road, presumptively belong to the owner of the inclosure (h). And a conveyance of the inclosure (c), even by reference to a plan which does not comprise the highway (n). induction. When the advowson belongs to the bishop, the forms of presentation and institution are supplied by an act called collaium {11). In some rare ea-es of advowsons Collation. donative, the patron's deed of donation is alone sufii- Donatives, cient {0). Where the patron is entitled to the advow- son as his private property, he is empowered by an Act of Parliament of the reign of George IV. (jA to present Agreements 1 .^ ^ .IT.,.,, for resigna- any clerk under a previous agreement with him for iiistion. resignation in favour of any one person named, or in favour of one or two (q) persons, each of them being by blood or marriage, an uncle, son, grandson, brother, nephew or grand-nephew of the patron, or one of the patrons beneficially entitled. One part of the instru- ment by which the engagement is made must be de- posited within two calendar months in the ofiice of the (i) 2 Black. Comm, 33, 34. any ecclesiastical benefice, dignity (m) 1 Black. Comm. 190, 191. or promotion, or any perpetual (a) 2 Black. Comm. 22. curacy, was subject to an aii valo- (0) 2 Black. Comm. 23. By rem, dutv, which was repealed by Stat. 33 & 34 Vict. c. 97, every stat. 40 Vict. c. 13, s. 13. appointment, whether by way of ( p) Stat. 9 Geo. IV. c. 94. donation, presentation or nomi- (ly) The Acts reads one or two, nation, and admission, collation but this is clearly an error. or institution to or licence to hold W. K. P. F F 498 OF INCORPOREAL HEREDITAMENTS. registrar of the diocese {?'), and tlie resignation must refer to the engagement, and state the name of the person fur whose benefit it is made (s). History of Advowsons are principally of two kinds, — advowsons advowsons /•-• 11 £ • t). Tenure in villenage was thus placed outside the pale of property protected by law. By the middle of the thirteenth century, the rnajierium of Domesday has become a feudal manor, of which the most important tenants are the freeholders in knight's service or socage {c) ; while the position of the villani is not only degraded by denial of protection in the King's Court, but is further complicated with questions of personal status. The law of the thirteenth century is stated by Bracton. In his treatise, tenure Bracton's in villenage, with its labour-services, is contrasted with tenure in free tenure by military service or in socage; and jt^i'l^'i'iSS' appears that the tenant in villenage may be either a free (z) Ante, pp. 55 — 57. attributed either to grant or en- (a) Viaogradoff, Villainage, 81 franchisement. These, he sug- — 83, 215, 210. gests, cannot be explained except (h) Ante, p. 17 and note (n). as free land, which was oi'igiually id) Ante, pp. 40, .=iO, fi6. It ':s an integral part of the land tilled not clear how this change took bv the village. See Vinogradoff, place. Kg doubt it resulted partly Villainage, Essay II. Ch. IV.; fiom grants of land out of ;.he see also pp. 121 et seq.; Bract, fo. lord's demesne to be held freely, 7, 20 a, 209 a; Britton, liv. 3, partly too from the enfranchise- ch. 2, §§ 7, 8 ; stat. Extenta ment (or grant to be held freely) Manerii, Statutes of the Realm, i. of land formerly held in villenage. 242; Seebohm, Ch. III. s. 3; Professor Vinogradoff shows, how- Cartulary of the Abbey of Ramsevr ever, that there are instances of (Rolls ed.). i. 280, 287, 2'J7, 334, thirteenth century freeholds, of 370, 440 (instances of enfranchise- which the origin cannot well be ment). W. K. P. GO oU OF COPYHOLDS. Merchetum . Privileged villenage. man or a bondman {d). The meaning of the word villanus has also boon modified; and it is used to denote eitlier a tenant in villenage (whether bond or free), or one who is in personal condition a bondman {e). Bracton (/) describes tenure in villenage as being either absolute {purum) or privileged. The tenant in absolute villenage holds by uncertain and unlimited services ; he has to do what he is bid, may be taxed at the will of the lord, and has to pay the merchetum^ or tine for the privilege of giving his daughter in marriage. The burthen of the merchetum is incident to the status of a bondman only, and not to that of a free man. But a free man may hold land in absolute villenage ; and in such a case he must perform the services, if he wish to continue in the occupation of his holding. And if a free man paid the merchetain^ he would pay it as an incident of his tenure, and not of his status (g). Privileged villenage is to hold land under an agreement with the lord at fixed services of a servile nature, which are determined by the agreement. Either a free man or a bondman can hold in this way. Tenant in villenage holds possession in the name and at the will of his lord, who is seised of land held of him in villenage in his demesne (h). If a tenant in villenage be ejected by any other than his landlord, the King's Court does not recognize that he has any right of his own to recover possession of his holding {i). If a tenant in absolute villenage be ejected by his landlord, the law, regarding liira strictly as tenant at his lord's will, does not recognize that he has any right to recover possession. Still, a free man holding in absolute villenage ought not (d) Bracton, fo. 207 a, 208 b. (e) See Bracton, fo. 208 b, where he also uses the word servus in speaking of the personal status of a bondman; see also fo. 4b, 6b; Co. Litt. 5 b. In Glanville (lib. 5) a bondman is called nativus. (/) Fo. 7, 26, 208 b. (g) Bracton, fo. 199 b, 200 a; see ante, p. 16 and n. (A). {h) Bract, fo. 263 a; ante, p. 48. (i) Bract, fo. 7 a, 26 b, 16S a, 190, 197 b, 207 a, 20» b, 210 b, 273 b. OF COPYHOLDS. 5^5 to be ejected, whilst he performs the customary services. A tenant in privileged villenage of the kind above mentioned acquires by the agreement a right to sue his lord personally, in virtue of which he may possibly recover possession, if ousted by the lord ik). Another vuianum kind of privileged villenage is the tenure called vil- lanum socaginra^ wliich is the tenure of those who hold land of manors in the ancient demesne of the Crown (Z) by fixed services of a servile nature. Such tenants can not be ejected, so long as they perform their services ; nor can they be compelled to remain in the occupation of their holdings, and therefore they are called free. But their possession is not protected in the King^s Court, but only by a special roval writ in the manorial^ court. And they cannot alien their tenements by gift (m), or transfer them to others, any more than bondmen can ; and therefore if their holdings are to be transferred, they surrender them to the lord or his steward, who delivers them to others to hold in villenage. Practically, however, the tenant in absolute villenage Actual posi- or the thirteenth century was placed m a more favour- tenant in able position than was accorded to him by King's Court [I'jr^teenth" law. In everyday life the will of the lord was, as a*^®^^"''^'- rule, controlled by custom. And what is more, the humblest villager had some security against the in- vasion of his customary rights in the manorial court, of which the fi.ndings were originally those of the whole body of villagers, whether bond or free (n). Thus the services required of the tenant in villenage were those accustomed to be rendered in respect of his holding ; ik) Bract, fo. 24 b, 26 b, 163 b, (n) Maitland, Select Pleas in 190, 199 b, 200 a, 208 b, 209 a. Manorial Courts (Selden Society, See Vinogradoff, Villainage, 70 — vol. 2), Introd. Ix. et seq., 163. 74,77—81. 164; Vinogradoff, Villainage, (i) Ante, J). 6b. Essay II. Ch. V., Selden Society, (m) See ante, p. 176. iv. 110. G G 9, 51G OF COPYHOLDS. and these were described, with extreme minuteness, in the manorial extents or surveys, which were drawn up for the f^nidance of the lord, but on the evidence of the villagers themselves (o). The possession of a tenant in villcnage appears to have been protected in the manorial court against all persons other than the lord (p). And in many cases the lords submitted to such dealings with lands holden of them in villenageas showed or founded a custom of hereditary succession to the tenancy, or alienation by the tenant (q). Growth of the The law of copyhold tenure seems to have grown up law of copy- ,., , iiiit r ^ j • hold tenure, as the customs, which regulated tlie liolaing oi land in villenage, developed into rights, and personal bondage died out. Copyhold tenure appears to have gained ground with progress varying according to the customs and circumstances of particular manors and districts. Commutation of the labour services for money rents was doubtless one of the chief causes of the change from tenure in villenage to copyhold tenure ; and this com- mutation appears to have been made at different periods in different parts of the country (/•). The tenure came to be called copyhold, because the tenants had no other evidence of title, save copies of the Court rolls {s). For the customs relating to the holdings of the tenants in villenage were proved by the entries made in the rolls, which formed the records of the Court rolls, proceedings of the Manorial Court (zJ). These records are the Court rolls, which alone can furnish evidence of the custom, by virtue of which the copyholder claims (o) Vinogradoff, Villainage, 212 310. —215, 278, "2^7— 300, 355. (s) Litt. s. 75. (p) Ante, \). 17, n. (n). (t) See Seebohm's account of (q) Vinogradoff, Villainage, 165 the Court Rolls of the Manor of lt)7, 172; Rot. Ilund. li. 403, Windsloiv during the reign of 669, 768. 770, 771 ; Ramsey Car- Edward III. ; Eng. Vill. ('om- tulary (Rolls Series), i. 372, 411, niunity, pp. 20—32; Vinogradoff, 416, 432, 477. Villainage, 173, 374 ; Seldea (r) Vinogradoff, Villainage, 139, Society, iv. 112. 167—172, 178 — 188, 216, 306 — OF COPYHOLDS. ^i^ his estate ; and copies of the entries made therein were ^iven to the tenants and kept bj them as muniments of title (u). Originally, as we have seen, the whole village community was represented in one Manorial Court (a?). But according to later law (y), the Court Baron of a manor, in which the freeholders were suitors and judges (s), is distinguished from the Court held for the customary tenants ; the latter being called a Customary Customary Court, and the lord only, or his steward, being judge tlierein. Littleton, who wrote in the reign of Edward IV., Littleton's ^ ' account of describes (a) tenant by copy of Court roll as holding copyhold lands in fee simple, fee tail, or for life at the will of viuenage. the lord, according to the custom of the manor, in virtue of an immemorial custom within that manor, that lands should be so held. He shows how such tenants may liave estates of inheritance by the custom, though they have no freehold at common law (b) ; and describes the manner in which it is customary for them to alienate their holdings (c). Littleton, however, also mentions {d) tenure in villenage as being most properly when a villein lioldeth of a lord, to whom he is a villein, certain lands according to the custom of the manor, or otherwise, at the will of the lord, and to do to his lord villein service, as to carry out the dung of his lord and spread it on the lord's land, and such like. And he says that some free men hold their tenements according to tlie custom of certain manors by such services ; and their tenure is also called tenure in villenage, and yet they are not villeins ; for no land holden in villenage, or villein land, nor any custom arising out of the land, shall ever make a free man villein. It appears from this passage, that Cm) Co. Litt. 58 a. (a) Sect. 7.3. (x) Ante, p. 515. (b) Sects. 76, 77, 81, 82. (y) Co. Litt. 58 a; 2 Wat. Cop. (c) Sects. 74, 78, 79. 4, .5 ; 1 Scriv. Cop. .5, 6, 3d ed. [d) Sect. 172. (Z) Ante, pp. 50, 5.3- 518 OF COPYHOLDS. in Littleton's time the word villanus or villein had almost entirely lost its old meaning (e), and was gene- rally used to signify a bondman (/). It may also be inferred from Littleton's treatise that, in his time, copyhold tenure had partially, but not altogether, superseded tenure in villenage. With the extinction of personal bondage after Littleton's day {g), the term tenure in villenage seems to have become obsolete ; and the tenure itself has survived only in the form of copyhold tenure. Copyhold estates. Copyholds of inheritance. The estates for which land may be holden in copy- hold tenure, and tlie modes of alienation thereof and succession thereto, are the outgrowth of local customs, which in many cases are doubtless of great antiquity (A). In these matters the law is now determined by the custom of each particular manor. In those manors, in which it was the custom that the heir of a tenant in villenage should be admitted to succeed to his ancestor's holding, the interest of the copyholders developed into customary estates of inheritance analogous to freehold estates. Such estates descend, not to the heirs at com- mon law, but to the customary heirs (^) ; that is, to those relations of a deceased tenant, who by the custom of the manor have from time immemorial been admitted to succeed to his holding as his heirs. Sometimes the customary course of descent is analogous to the course of descent prescribed by law in the case of freeholds. Villeins re- (d) See ante, pp. 610, 514 (/) Littleton (sects. 181—188), describes villeins as being either rerjardarit or in ffross. Villeins regardant were annexed to a , . manor, and would pass bv a con- gardaut or in ^gyance thereof ; for the "transfer gross. ^f villeins in gross a deed was always required. It may be in- teresting to the student of analy- tical jurisprudence to note that a villein was a purely incorporeal hereditament; see Litt. sects. 175, Ibl— 1S5; Co. Litt. 121 b; aide, ]). 478. (f/) See 3 Hallam, Midd. Ages, 271; Smyth, De Republica An- glorum, 107, 108, ed. 1583; Doctor & Student, Dial. II. Ch. XVIIL (fi) See Pollock, Land Laws, App. C. ; Elton, Origins of Eng- lish History. Ch. VIII.; Elton, Custom and Tenant Right, App. (i) Doe d. Garrod v. GarrodL 2B. & Ad. 87. OF COPYHOLDS. 5^9 But in many cases quite a different course of descent is prescribed by the custom of the manor {k). The memory of the time when the tenant's lieir was admitted to succeed by virtue of a custom only, and not as of right, is preserved l)y the fine, which tlie lord is gene- rally entitled to exact on the heir's admission. And the form of transfer by favour of the lord is also pre- served in the mode of alienation of such estates ; for the copyholder cannot convey his estate directly to another, but must sio'retider his holding to his lord, who will tlien admit the alienee to be his tenant as the cus- tomary services on payment at the customary fine (Z). In the Midland and South-Eastern counties the pre- Copyholds for vailing customs have admitted of copyhold estates of inheritance analogous to freehold estates. But in some manors within those counties, and in other parts of the country (wi), the copyhold tenant is admitted to hold for his own life onlj', or for the lives of himself and another or others, or for a terra of years only. In such cases, he may, by virtue of an immemorial custom, have the right either to nominate his successor, or to renew the lives or the term on payment of a certain fine: but otherwise he will have no right of renewal (w). It was long before the estates of copyholders were Progress of secured to them by clearly defined rights, which could mentoT copy. bo enforced in the King's Courts (o), instead of by l^j'^'^^'g''® custom. Ill the reign of Edward III. a case occurred in which the entry of a lord on a tenant by coj»y of Court roll M'as adjudged lawful, because the tenant did not do his services, by which he broke the custom of il) See 2 Wat. Cop. App. III., 3rd ed. ; Watkins on Copyholds, 4th ed. ; Re Smart, 18 Ch. D. 4th ed. Vol. 1. pp. 02, n., '71, n., 165. 122, u., 372—374; Vol. II. p. [I) Litt. s. 74; see Vinogradoff, 214, n., and App. III.; Elton, Villainage in England, 371 et seq. Custom and Tenant Right, pp. 31, (m) Chiefly in the West of 32, (13—72, and App. C. England. (0) Ante, p. 9 and u. (n) See 1 Scriv. Cop. 422—427, 520 ^F COPYHOLDS. the manor {p). This seems to show that the lord could not, at that time, have ejected his tenant without cause {q). In the reign of Henry VI. it was said that a tenant by copy of Court roll should have a remedy in Chancery against his lord who ousted him (r). And in the reign of Edward IV. the right of the copyholder to enjoy his customary estate, as against his lord, was struggling into definite recognition at law. For Little- ton says that the lord cannot break the custom, by which the copyhold tenant enjoys his estate (5), and may in some case be barred by the custom in an action of trespass against him {t). While other judges suggested that a copyholder might have an action of trespass against a lord who unjustly deprived him of possession {u). These opinions ultimately j)revailed (a?). As against other persons than the lord, the estate of the copyiiolder seems to have been earlier secured to him, as of right. But he was not protected by the King's writ, for he could only assert his rights in the lord's Court by proceedings in the nature of real actions according to the custom of the manor (^). And he could not appeal from the judgment of the lord to the King's Courts of Law ; but his only remedy against the false judgment of the lord was in the nature of a petition in Chancery (s). Copyholders' rights were finally secured in the reign of Elizabeth, when it was decided {a) that a copyholder might lecovcrposses- \p) Yenr Book, 42 Edw. III. Fitz. Abr. tit. Faux Judsment, 2o, pi. it. pi. 7; Year Book, 2 Hen. IV. 12, (q) 4 Rep. 21 b. pi. 49 ; ] Hen. V. 11, pi. 24 ; 4 (;■) Fitz. Abr. tit. Subpoena, Rep. 21 b. ; Litt. s. 76; 1 Scriv. pi. 21 ; Andrews v. Hulse, 4 K. Cop. bC)2 et seq. 3rd ed. & J. 392. (z) See Fitz. Abr. vhi svp. ; is) Litt. ss. 77 (of which the Year Book, 14 Hen. IV. 34, pi. latter half is cf doubtful authen- 51 ; 4 Rep. 30 b. ; Pattishul's ticity), 82— b4, 137. cas", 4 Yin. Abr. 385; Edward^ (t) Sect. 82. case. Lane, 98 ; Ash v. Rogle, 1 (w) Year Book, 7 Edw. IV. 18, Vern. 367; Co. Litt. 60 a; 1 pi. 16; 21 Edw. IV. 80, pi. 27. Scriv. Cop. 582, 3rd ed. (x) Co. Cop. s. 9; Bac. Uses, (a) Melwich v. Later, 4 Rep, 20. 26 a ; see 1 Scriv. Cop. 553 et seq., (j/) See ante, p. 516 ; 13 Ric. II. 3rd ed. OF COPTHOIiDS. 521 sion of his holding, from his lord as well as from a stranger, in an action of ejectment, which lie could bring at common law. For this action was in form founded upon a lease for a year made by the copyholder, which was good at common law, and the ejectment of the lessee after entry (p). Copyhold estates thus acquired the essential quality of ownership ; and, as we have seen, are now included in what is called real property, as well as freeholds (c). (6) Ante, p.l7l,n. (g). c) Ante, pp. 2, 27. 522 OF COPYHOLDS. CHAPTER I. OF ESTATES IN COPYHOLDS, Estates in copyhold. An estate at wiU. The lord is actually seised of all the copyhold lands of his manor. With regard to the estates \vliic]i may be holden in copyholds, in strict legal intendment a copyholder can have bnt one estate ; and that is an estate at will, the smallest estate known to tiie law, being determinable at the will of either parly. For though custom has now rendered copyholders independent of the will of their lords, yet all copyholds properly so called, are still ex- pressly stated, in the Court rolls of manors, to be holden at the will of the lord (a) ; and, more than this, estates in copyhold are still liable to some of the incidents of a mere estate at will. We have seen that in the thirteenth century the occupants of land in villenage, however much they may have been protected from disturbance by force of custom, were regarded by the law of the King's Court as mere tenants at the will of the freeholder of a manor, iiaving no independent right of their own to the possession of their holdings; and further that it was considered that the lord was seised in his demesne of all land occupied by his tenants in villenage (b). In other words, the lands held by such tenants, who afterwards came to be called copyholders, still remained part and parcel of the lord's manor; and the freehold of these lands still continued vested in the lord. And this is the case at the present day with regard to all copyholds. The lord of the manor is actually seised of all the lands in the possession of his copyhold tenants (c). He has not a mere incorporeal seignory (a) 1 Walk. Cop. Scriv. Cop. 605. (6) Ante, p. 514. 44, 45; 1 (c) Watk. 4th ed.) Descents, 51 (59, OF ESTATES IN COPYHOLDS. 523 over these as he has over his freehold tenants, or those who hold of him lands, once part of the manor, but which were anciently granted to be held fur estates in fee simple by free tenure {d). Of all the copyholds he is the feudal possessor ; and the seisin he thus has is not without its substantial advantages. The lord having a legal estate in fee simple in the copj^hold hitids, possesses all the rights incident to such an estate {e), controlled only by the custom of the manor, which is now the tenant's safeguard. Tims he possesses a right to all The lord has a , . , , \ ^ \ I _c\ 11 11 right to mines mines and inineraLs under the lands (/ ), and also to all and timber. ihnher growing on the service, even though planted by the tenant (g). These rights, however, are somewhat interfered with by the rights which custom has given to the copyhold tenants ; for the lord cannot come upon the lands to open his mines, or to cut his timber, without the copyholder's leave. And hence it is that timber is so seldom to be seen upon lands subject to copyhold tenure (A). Again, if a copyholder should gi-ant a lease Lease of of his copyhold lands, beyond the term of a year, without his lord's consent, such a lease would be a cause of for- feiture to the lord, unless it were authorized by a special custom of the manor {i). For such an act would be im- posing on the lord a tenant of his own lands, without the authority of custom; and custom alone is the life of all copyhold assurance {k). So a copyholder cannot Waste. {d) Ante, p. 4*r8. line, and their luxuriant growth {e) Ante, p. 72. on the other. 8rd Rep. of Keul (/■) 1 Watk. Cop. 333; 1 Scriv. Property Commissioners, p. 15. Co{). 25, 508. See Bowser v. (i) 1 Watk. Cop. 327; 1 Scriv. Maclean, 2 De G., F. & J. 415; Cop. 544; Doe d. Jiobinson v. Eardley v. Granville, 3 Ch. D. BouKfidd, 6 Q. B. 492. 826. {k) *By the licence of his lord, * Lease of {g) 1 Watk. Cop. 832 ; 1 Scriv. a copyholder may grant a lease copyholds by Cop. 499. for any term warranted by the licence of the (h) There is a common proverb, licence. Such a lease takes effect lord. "The oak scorns to grow except at common law out of the seisin on free land." It is certain that of tlie freeholder of the manor, in Sussex and in other j)arts of who cannot, thei'efore, authorize England the boundaries of copy- a longer lease than is warranted holds may be traced by the entire by his own estate in the manor, abseucc of trees on one side of a or some power given to him by a '.34: OF COPYHOLDS. commit any waste either voluntary, by opening mines, cutting down timber or pulling down buildings or per- missive, by neglecting to repair. For the land, with all that is under it or on it, belongs to the lord : the tenant has nothing but a customary right to enjoy the occupation ; and if he should in any way exceed this right, a cause of forfeiture to his lord would at once accrue (Z). Copyholders are thus placed in a far less advantageous position than freeholders as regards the right of free enjoyment (m). Customary freeholds. A peculiar species of copyhold tenure prevails in the north of England, and is to be found also in other parts of the kingdom, particularly within manors of the tenure of ancient demesne (ji) ; namelj^, a tenure by copy of Court roll, but not expressed to be at the will of the lord. The lands held i)y this tenure are deno- minated customary freeholds. This tenure has been the subject of a great deal of learned discussion (o) ; but the Courts of law have now decided tiiat, as to these The freehold lands, as Well as pure copyholds, the freehold is in is in the lord. , ' , , ^ . , "^ ' , „ the lord, and not m the tenant {p). Customary freeholds afford another instance of the classifying action of a general law imposed on tenures of different origin and history (q). On manors of ancient demesne, customary tenants, who have not the freehold, appear settlement or by statute. By the Settled Land Act, 1882 (stat. 45 & 46 Vict. c. 38, s. 14), a tenant for life under a settlement may grant to a tenant of copyhold or customary land, parcel of a manor comprised in the settlement, a licence to make any such lease of that land, or of a specified part thereof, as the tenant for life is by this Act empowered to make of freehold land (ante, p. 114). See Williams's Convey- ancing Statutes, 314—317. (I) 1 Watk. Cop. 331; 1 Scriv, Cop. 526. See I>oe d. GruU v. Earl of Turlington, 5 B. & Ad. 507. (m) Ante, pp. 2, 85. (n) Britt. 164 b, 165 a. See ante, p. 57. (o) 2 Scriv. Cop. 665. (p) Stephenson v. Bill, 3 Burr. 1273; BurrelL v. Dodd, 3 Bos. & Pul. 378; Doe d. Beay v. Hunt- ington, 4 East, 271; Doe d. Cook V. Danvers, 7 East, 299; Thomp- son V. Hardinge, 1 C. B. 940. {q) Ante, pp. 14, 15, 51, 57. OF ESTATES IX COPYHOLDS. 52; to be the successors of former tenants in pure villenage ; a class found on the ancient demesne of tlie Crown, as well as those who held by the privileged villein tenure called villanum socagium {r). The tenures of the Nortli have a history of their own {rr). And the so-called cus- tomary freeholders of the Northern counties appear to be the successors of those who, before the union of England and Scotland, held land by doing services for the pro- tection of the border (s), and to whom long custom had secured an acknowledged tenant-right in their hold- ings {t). On lands held by copy of Court roll, though not expressly at the will of the lord, the right to mines and timber belongs to the lord in tlie same manner as on other copyhold lands (w). Neither can the tenants generally grant leases without the lord's consent {x). The lands are, moreover, said to be parcel of the manors of which they are held, denoting that in law they belong, like other copyholds, to the lord of the manor, and ai*e not merely held of him, like the estates of the freeholders (y). In law, therefore, the estates of these tenants cannot, in respect of their lords, be regarded as any other than estates at will, though this is not now actually expressed. If there should be any customary freeholds in which the above cha- Freehold in racteristics, or most of them, do not exist, such may with good reason be regarded as the actual freehold (r) Ante, pp. 65 and n. {k), Rawlins, 1 East, 409; Manning's 419; Bract, fo. 7, 209 a; Britton, Exch. Practice, 359, 363, 2nd ed. ; liv. 3, eh. 2, §§ 11,12;F. N.B. Third Rep. of Real Prop. Commrs., 12, 14; Vinoijradoff, Villainage 20; Elton, Custom & Tenant in England, 112—122. Right, 32 et seq., and App. E. (rr)':^&e an article on Nor- (w) 3 Burr. 1277, arguendo; thunibrian Tenures by Professor Doe d. Meay v. Huntinyton, 4 Maitland, English Historical Re- East, 271, 273; Brown v. j'imvlins, view, V. 625. 7 East, 409; Duke of Portland y . («; See Kicolson's Border Laws, Hill, L. R., 2 Eq. 765. xxxiii. and App. No. 3. (x) Doe v. Danvers, 7 East, 299, (t)Co. Cop. s. 32; Moore, 588; 301,314. Champian v. Atkinson. 3 Keb. 90 ; (y) Burrell v. Dodd, 3 Bos. A Duke of Somerset v. France, Stra. Pu'l. 378, 381; Doe v. Danvers, 7 654, 657 ; Doe d. Jieay v. Hunt- East, 320, 321. ington, 4 East, 288 ; Brown v. 52G OF COPYHOLDS. estates of the tenants. The tenants would then possess tlie rights of other freeliolders in fee simple, suhjeet onlj' to a ciistomarj mode of ahenation. That snch a state of things may, and in some cases does, exist, is the opinion of some very eminent lawyers (s). But a re- currence to first principles seems to show that the ques- tion, whether the freehold is in the lord or in the tenant, is to be answered, not by an appeal to learned dicta or conflicting decisions, but by ascertaining in each case whether tlie well-known rights of freeholders such as to cut timber and dig mines, are vested in the lord or in the tenant. Copyholders, when ad- mitted, in a similar position to freeholders having the seisin. Fines. It appears then, that with regard to the lord, a copyholder is only a tenant at will. But a copyholder, who has been admitted tenant on tlie Court rolls of a manor, stands, with respect to other copyholders, in a similar position to a freeholder who has the seisin. The legal estate in the copyholds is said to be in such a person in the same manner as the legal estate of freeholds belongs to the person who is seised. The necessary changes which are constantly occurring of the persons who from time to time are tenants on tiie roils, form occasionally a source of considerable profit to the lords. For by the customs of manors, on every change of tenancy, whether by death or alienation, fines of more or less amount become payable to the (2) Sir Edward Coke, Co. Litt. 59 b; Co. Cop. sect. 32, Tracts, £. 58; Sir Matthew Hale, Co. itt. 59 b, n. (1) ; Sir W. Black- stone, Considerations on the Question, &c. ; Sir John Leach, Bingham v. Woodgate, 1 Russ. & Mylne, 32; 1 Tamlyn, 138. Tenements within the limits of the ancient borough of Kirby- in-Kendall, in Westmoreland, appear to be an instance; Busker app., Thompson, resp., 4 C. B. 48. The freehold is in the tenants, and the customary mode of con- veyance has always been by deed of grant, or bargain and sale without livery of seisin, lease for a year, or inrolment. Some of the judges, however, seemed to doubt the validity of such a custom. See also Ferryman^ s case, 5 Rep. 84; Passingham, app., Pitty, resp., 17 C. B. 299; Wadmore v. Tollar, 6 Times L. K. 58. OF ESTATES IN COPYHOLDS. 527 lord. By the customs of some manors the fine pa^'able was anciently arl)itrary ; but in modern times, fines, even when arbitrary by custom, are restrained to two years' improved value of the land after deducting quit rents {a). Occasionally a fine is due on the change of the lord; but, in this case, the change must be by the act of God and not by any act of the party (b). The Customary tenants on the rolls, when once admitted, hold custo- gous to" mary estates analogous to the estates which may be *''^'^'^° • holden in freeholds (c). These estates of copyholders are only quasi freeholds ; but as nearly as the rights of the lord and the custom of each manor will allow, such estates possess the same incidents as the freehold estates of which we have already spoken. Thus there may be Estate for copyhold estates in fee simple, in tail, or for life only ; and some manors admit of no other than life estates, the lives being continually renewed as they drop {d). And in those manors in which estates of inheritance are allowed, a grant to a man simply, without expressly extending the benefit thereof to his heirs, will confer only a customary estate for his life {e). But, as the cus- toms of manors are very various, in some manors the words " to him and his," or "to him and his assigns," or " to him and his sequels in right," will create a customary estate in fee simple, although the word heirs (or the words in fee simple after the year 18S1) may not be used (/). The same free and ample power of alienation, which Estate in fee 11 • r • 1 • _c 1 n 1 1 1 simple. belongs to an estate in tee simple in ireenolcl Jancls, ai)pertains also to the like estate in copyholds. The liberty of alienation inter vivos appears, as to copyholds, to have had little, if any, precedence, in point of time, over the liberty of alienation by will. Both were, no (a) 1 Scriv. Cop. 384. (e) Co. Cop. s. 49, Tr. p. 114. (J) 1 Walk. Cop. 285. Sec ante, pp. 123, 177, 260. (c) See «?!<«, p. 518. (/) 1 VVatk. Cop. 109; see (d) See ante, p. 519. a^iie, pp. 177, 259. 52S Estate tail in copyholds. The Statute De donis. Tenants in viUenase OF COPYHOLDS. doubt, at first secured merely by local custom, which subsequently ripened into a right {g). An estate tail in copyholds stands upon a peculiar footing, and has a history of its own, which we shall now endeavour to give (A). This estate, it will be re- membered, is an estate given to a man and the heirs of his body. With regard to freeholds, we have seen that, In an early period of our history, a right of alienation appears gradually to have grown up, empowering every freeholder, to whose estate there was an expectant heir, to disinherit such heir, by gift or sale of the lands. A man, to whom lands had been granted to hold to him and the heirs of his body, M^as accordingly enabled to alien the moment a child or expectant heir of his body was born to him ; and this right of alienation at last extended to the possibility of reverter belonging to the lord, as well as to the expectancy of the heir («*) ; till at length it was so well established as to require an Act of Parliament for its abolition. The Statute De donis {k) accordingly restrained all alienation by tenants of lands which had been granted to themselves and the heirs of their bodies ; so that the lands might n(^t fail to descend to their issue after their death, or to revert to the donors or their heirs if issue should fail. This statute was passed avowedly to restrain that right of alienation, of the prior existence of which the statute itself is the best proof. And this riglit, in respect of fee simple estates, was soon afterwards acknowledged and confirmed by the Statute of Quia emjttores {I). But during all this period, [g) Litt. ss. T3— 84; Co. Litt. 59 ; 1 Scriv. Cop. 151, 175, 176, "04, 349; Vicogradoff, Villainage in England, 166, 172, 173, 371— 878. (h) The attempt here made to explain the subject is grounded on the authorities and reasoning of Mr. Serj. Scriven. (1 Scriv. Cop. 67 et seq.). Mr. Watkins sets out with right principles, bat seems strangely to stumble on the wrong conclusion. (1 Watk. Cop. chap. 4.) (/) Ante, pp. 73-76, 102, 10.3, (k) 13 Edw. 1. c. 1 ; ante, p. 104. {I) 18 Edw. I. c. 1. OF ESTATES IN COPYHOLDS. 529 tenants in villenage were in a very different state from anciently in a the freeholders, wlio were the objects of the above statue tronr° statutes (?rt). Tenants in villenage were generally bound ^''^'^^o^'^^rs. to labour on tlieir lord's demesne, as the condition of remaining in the occupation of tlieir holdings; and tliey were often in a state of personal bondage (n). Copyhold estates, however customary, were not fully recognized as rights, when the right of alienation was established in the case of freeholds (o). The right of an ancestor to bind his heir ( p), with which right, as we have . seen (^), the power to alienate freeholds commenceii, never belonged to a copyholder (r). And, until the j^ear 1S33, copyhold lands in fee simple descended to the customary heir, quite unaffected by any bond debts of his ancestor by which the heir of his freehold estates might have been bound (s). It would be absurd, there- fore, to suppose that the right of alienation of co])yhold estates arose in connexion with the rigiit of freeholders. The two classes were then quite distinct. The one were poor and neglected, the other powerful and consequently protected (t). The one were considered to hold their tenements at the will of their lords ; the other main- tained a right of alienation in spite of them. The one had no other security than was afforded by the force of local custom ; the other could appeal to the laws of the realm. (m) See ante, pp. 39, 40, 415 (t) The famous provision of — 422. In the preamble of Magna Charta, c. 29, — " Nullus the Statute De donis, the tenants lihe?' homo capiatur vol imprisone- are spoken of as feoffees, and as tur aut dissesiatur de aliquo libero able by deed and feoffment to bar tenement© suo, &c., nisi per legale their donors, showing that free- judicium parium suorum vel per holders only were intended. And legem terrie. Nulli vendemus, in the statute of Quia emptores nulli negabimus, aut differemus freemen are expressly mentioned. rectum vel justiciam," — what- (n) See ante, pp. 511 — 518. ever classes of persons it may (c^) See ««<«, p. 513. have been subsequently construed {p) Ante, p. 319. to include — plainly points to a iq) Artte, \iY>. 1^—1Ci. distinction then e'xisling between (r) Eylet y . Lane and Pers, Cro. free and not free. Why else Eliz. Z'ici. should the word iiher have beeo (s) 4 Rep. 22 a. used at all ? W.R.P. H H 530 OF COPYHOLDS. Now, with regard to an estate given to a copyholder and the lieirs of his body, the lords of different manors appear to have auted differently, — some of them permit- tin"- alienation on issue being born, and others forlndding it altogether. And from this difference appears to have arisen the division of manors, in regard to estates tail, into two classes, namely, those in which there is no custom to entail, and those in which such a custom exists. In manors in which there is no custom to entail, a gift of copyholds, to a man and the heirs of his body, will give him an estate analogous to the fee simple condi- tional which a freeholder would have acquired under such a gift before the passing of the Statute De donis (u). Before he has issue, he will not be able to alien ; but alter issue are born to him, he may alienate at his pleasure (x). In this case the right of alienation ap- ruowed'^"^'^ pears to be of a very ancient origin, having ariten from the liberality of the lord in permitting his tenants to stand on the same footing in this respect as freeholders then stood. As to miinors where there is no custom to entail. Alienation When aliena- tion was not allowed. A custom to entail was established. But, as to those manors in which the alienation of the estate in question was not allowed, the history ap- pears somewhat different. The estate, being inalien- able, descended, of course, from father to son, according to the customary line of descent. A perpetual entail was thus set up, and a custom to entail established in the manor. But in process of time the original strict- ness of the lord defeated his own end. For the evils of such an entail, which had been felt as to freeholds after the passing of the Statute De donis (y), became felt also as to copyholds (s). And, as the copyholder advanced in importance, different devices were resorted (m) Ante, pp.102, 103; Doe d. Menard v . Simpson, 4 New Cases, 333; 3 Man. & Gran. 929. (a;; JJoe d. Spencer v. Clark, 5 Barn. & Aid. 458. {y) Ante, p. 104. {z) 1 Scriv. Cop. 70. OF ESTATES IN COPYHOLDS. 53]^ to for the purpose of effecting a bar to the entail ; and in different manors, different means were held sufficient for this purpose. In some, a customary recovery was Customary suffered, in analogy to the common recovery, by which ^" an entail of freeholds had been cut off (a). In others, the same effect was produced by a preconcerted for- Forfeiture feiture of the lands by the tenant, followed by a re-grant *° re-gran . from the lord of an estate in fee simple. And in others, a conveyance by surrender, the ordinary means, became sufficient for the purpose ; and the presumption was, that a surrender would bar the estate tail until a contrary custom was shown (Z»). Thus it happened that in all manors, in which there existed a custom to entail, a right grew up, empowering the tenant in tail, by some means or other, at once to alienate the lands. He thus ultimately became placed in a better position than the tenant to him and the heirs of his body in a manor where alienation was originally permitted. For, such a tenant can now only alienate after he has had issue. But a tenant in tail, where the custom to entail exists, need not wait for any issue, but may at once destroy the fetters by which his estate has been attempted to be bound. The beneficial enactment before referred to (c), by which fines and common recoveries of freeholds were abolished, also contains provisions applicable to entails of copyholds. Instead of the cumbrous machinery of a Entails now- customary recovery or of a foifeiture and re-grant, it sub- surrender, stitutes, in every case, a simple conveyance by surren- der (d), the ordinary means for conveying a customary estate in fee simple. When the estate tail is in re- mainder, the necessary consent of the protector {e) may be given, either by deed, to be entered on the Court rolls (a) Ante, p. 108. ante, p. 109. (b) Gooldv. White, Kay, 683. (d) Sect. 50. (c) Stat. 3 & 4 Will. IV. c. 74; (e) See ante, p. 113. H H 2 532 OF COPYHOLDS. of the manor (/), or by the concurrence of the protector in the surrender, in which case the memorandum or entry of the surrender must expressly state that such consent lias been given {g). Estate 7)«r It Will be remembered that, anciently, if A,, a free- "n Spyhoids. liolder for life, granted his land to B. simply, without mentioning his heirs, and B. died first, the first person who entered after the decease of B. might lawfully hold the lands during the residue of the life of A. (A). And this general occupancy was abolished by the Statute of Frauds. But copyhold lands were never subject to any such law (i). For the seisin or feudal possession of all such lands belongs, as we have seen {k), to the lord of the manor, subject to the customary rights of occupation belonging to his tenants. In the case of copyholds, therefore, the lord of the manor after the decease of B. would, until lately, have been entitled to hold the lands during the residue of A.'s fife ; and the Statute of Frauds had no application to such a case (/). But now, by the Wills Act of 1837 (m), the testamentary power is extented to copyhold or customary estates pu7' autre vie (w); and the same provision, as to the application of the estate by the executors or administrators of the grantee, as is contained with reference to freeholds (o), is extended also to customary and copyhold estates {p). The grant of an estate pur autre vie in copyholds may, however, be extended, by express words, to the heirs of the grantee {q). And in this event the heir will, in case of intestacy, be entitled to hold during (/) Sect. 51. {m) Stat. 7 Will. IV. & 1 Vict. (g) Sect. 52. c. 26. (A) Ante, p. 144. (n) Sect. 3. (i) Doe d. Foster v. Scott, 4 B. {o) Ante, p. 145, & C. 706; 7 Dow. & Ryl. 190. (;>) Sect. 6. (k) Ante, p. 522. (?) 1 Scriv. Cop. 64; 1 Watk. U) 1 Scriv. Cop. 63, 108; 1 Cop. 303. Watk. Cop. 302. OF ESTATES IN COPYHOLDS. 533 the residue of the life of the cestui que vie, subject to the debts of his ancestor the grantee (r). Until the year 1833, copyhold lands were not liable ■'^I'enation , , . » , ^ "^ , 1 , / X , , for debt. to be taken to satisfy the tenant s debts {s), except in the event of his bankruptcy, to which traders only were then liable (t). And the Crown had no further privilege than any other creditor (u). But in 1833 customary- hold and copyhold estates in fee simple were made assets for the payment of all the debts of the deceased tenant, as well as his freeholds {x). Still copyiiolds could not lie taken in execution of a judgment against the tenant until 1838 ; when the Act for extending creditors' remedies enabled the sheriff to deliver execution, under the writ of elegit, of lands of copyhold or customary tenure, as well as of freehold lands (y). By the same Act judgments were made a charge on the debtor's lands of copyhold or customary tenure (s) ; though not as against purchasers, unless duly registered (a). But purchasers of copyholds, without notice of any judg- ment affecting them, appear to be protected by the clause in a subsequent Act (J), which provides that, as to purchasers without notice, no judgment shall bind any lands otherwise than it would have bound such purchasers under the old law. And the Acts of 1860, 1804: and 1888, which further reduced the lien of judgments, and of which an account has been given in the chapter on Creditors' Rights, apply to copyholds as well as freeholds (c). Copyholds now vest in the Bankrapccy, (?■) Stat. 7 Will. IV. & 1 Vict. Act, copyholds were not assets c. '2G, s. 6. even for payment of debts, in («) 4 Rep. 22 a; 1 Watk. Cop. which the heir was expressly 140; 1 Scriv. Cop. 00. bound; 4 Rep. 22 a. (<) Ante, pp. 20, n. (t), 254. (y) Stat. 1 & 2 Vict. c. 110, (w) Owen, 37; 7 Mod. 38, case s. 11 ; amie, pp. 308— 310. 48; IL V. £udd, Parker, 192, 195; (z) Sect. IS. Manning's Exchequer Practice, (a) Ante, pp. 308, 309. 42 2nd ed. (b) Stat. 2 & 3 Vict. c. 11, s. 5; ,x) Stat. 3 & 4 Will. IV. c. 104, ante, p. 309. aide, [)p. 320—322. Before this (c) Ante, pp.310— 313. 534: OF COPYHOLDS. trustee for the creditors on the bankruptcy of the Trustee for tenant {d). But where any part of the property of the need uot be bankrupt is of copyliold or customary tenure, or is any aduutte . jjj,^ propcrtj' passing by surrender and admittance or in any similar matter, the trustee is not compellable to be admitted to the property, but may deal with the same m the same manner as if it had been capable of being and had been duly surrendered or otherwise con- veyed to such uses as the trustee may appoint ; and any appointee of the trustee shall be admitted or otherwise invested with the property accordingly (e). Estates EstaUs tail, tail and for life in copyholds are now liable to aliena- tion for the judgment debts or on the bankruptcy of the tenant to the same extent as like estates in free- holds (/). Descent of an The desccut of an estate in fee simple in copyholds is sample in governed by the custom of descent which may happen to copyholds. prevail in the manor ; but, subject to any such custom, the provisions contained in the Act for the amendment of the law of inheritance {ff) apply to copyhold as well as freehold hereditaments, whatever be the customary course of their descent (h). As, in the case of freeholds, the lands of a person dying intestate descend at once to his heir (^), so tiie heir of a copyholder becomes, immediately on the decease of bis ancestor, tenant of the lands, and may exercise any act of ownership before the ceremony of his admittance has taken place (k). But as between himself and the lord, he is not com- pletely a tenant till he has been admitted. (d) Stat. 46 & 47 Vict. c. 5'2, (.^) Stat. 3&4 Will. IV. c. 106. 8S. 20, 168. (h) See JSe Smart, 18 Ch. D. (e) Stat. 46 & 47 Vict. c. 52, 165. 8. 50, sub-s. 4. The former {i) Ante, p. 91. enactments relating to this sub- {k) 1 Scriv. Cop. 857; Right iect were stats. 12 & 13 Vict. c. d. Taylor -v. Banks, 3 Bar. & Ad. 106, s. 209; 24 & 25 Vict. c. 134, 664; King v. Turner, 1 My. & K. s. 114; and 32 k 33 Vict. c. 71, 456; Doe d. Perry v. Wilson, 5 s. 22. Ad. & Ell. 321. (/) Ante. pp. 326—328, OF ESTATES IN COPYHOLDS. 535 The teinire of an estate in fee simple in copyholds Tenure, involves, like the tenure of freeholds, an oath of fealty Fealty, from the tenant (l), together with snit to the customary Suit of Court.. Court of the manor. Escheat to the lord on failure of Escheat heirs is also an incident of copyhold tenure. And before the abolition of forfeiture for treason and felon}' (w) the lord of a copyholder had the advantage over the lord of a freeholder in this respect, that, whilst freehold lands in fee simple were forfeited to the Crown by the treason of the tenant, the copyholds of a traitor escheated to the lord of the manor of which they were held (?i). Rents (o) also of small amount are not un- Rent, frequent incidents of the tenure of copyhold estates. And reliefs {p) may, by special custom, be payable by Relief, the heir (al- biac, L. R., 10 Ex. 172. (e) 2 Watk. Cop. 129 (/) 1 Watk. Cop. 272, 277. ((/} Jope V. Morshead, 6 Beav, f Heriot 213. custom. 538 OF COPYUOLDS. 1841 (A) this jurisdiction was extended to the partition of copyholds as well as freeholds. Act for com- The rights of lords of manors to fines and heriots, certlliiMiiano- I'Gnts, reliefs and customary services, together with the riui rights. Jord^s interests in the timber growing on copyhold lands, have been found productive of considerable in- convenience to copyhold tenants, without any sufficient corresponding advantage to the lords. An Act of Parliament (i) was accordingly passed in the year 1841, by which the commutation of these rights and interests, toirether with the lord's rights in mines and minerals, if expressly agreed on, has been greatly facilitated. The machinery of the Act is, in many respects, similar to that by which the commutation of titlies was effected. The rights and interests of the lord are changed, by the commutation, into a rent charge varying or not, as may be agreed on, with the price of corn, togethei- with a small fixed fine on death or alienation, in no case exceeding the sum of five shillings {k). By the same Enfranchise- Act facilities were also afforded for the enfranchisement °^^°*' of copyhold lands, or the conveyance of the freehold of such lands from the lord to the tenant, whereby the copyhold tenure, with all its incidents, is for ever destroyed (Z). The principal object of these enact- ments was to provide for the case of the lands being in settlement, or vested in parties not otherwise capable of at once entering into a complete arrangement ; but no provision was made for compulsory enfranchisement. The Copyhold Subsequently, however. Acts wei-e passed to make the fs58' aud^' enfranchisement of copyholds compulsory at the instance 1887. (Ih) Stat. 4&5 Vict. c. 35. s. 85. 32 Vict. c. 80; 50 & 51 Vict. c. See also stat. 13 & 14 Vict. c. 60, 73 ; 52 & 53 Vict. c. 30. s 30 (k) Stats. 4 & 5 Vict. c. 35, {%) Stat. 4 & 5 Vict. c. 35, s. 14; 15 & 16 Vict. c. 51, s. 41. amended by 6 & 7 Vict. c. 23; 7 {I) Stat.s. 4 & 5 Vict. c. 35, & 8 Vict. c. 55: 15 & 16 Vict. ss. 56 et seq.; 6 & 7 Vict. c. 23} c. 61; 21 & 22 Vict. c. 94; 31 & 7 & 8 Vict. c. 5.5, ss. 4, 5. OF ESTATES IN COPFHOLDS. 539 either of the tenant or of the lord (?/*). If the enf ran- Compulsory chisement be made at the instance of the tenant, the ment°^ '^^' compensation is to be a gross sum of money to be paid before completion of the enfranchisement; and where the enfranchisement is effected at the instance of the lord, the compensation, unless the parties otherwise agree, or the tenant elect to pay a gross sum before completion, is to be an annual rent-charge issuing out of the enfranchised lands, but redeemable by the tenant thereof for the time being (n). Provision is also made for charging the enfranchised lands with the cost of en- franchisement (o). Enfranchisements under these Acts are irrespective of the validity of the lord's title (/>). They are now effected by an award of enfranchisement, confirmed by the Board of Agriculture (q). But the Saving of curtesy ,dower or f reebench of persons married before the dower'and enfranchisement shall have been completed, is expressly ^'■^*^^^°<='^» saved (/') : and all the commonable rights of the tenant and of com- continue attached to his lands, notwithstanding the rights, same shall have become freehold (. Vict. c. 51, s. 34. Vict. c. 51, 8. 7; see 21 & 22 («) Stats. 4 & 5 Vict. c. 35, Vict. c. 94, s. 12. 8. 81 ; 15 & V) Vict. c. 51, s. 45. (o) Stats. 15 & 16 Vict. c. 51, (t) Stat. 15 & 10 Vict. c. 51, s. 32 ; 21 & 22 Vict. c. 94, ss. 21 s. 48. See also stat. 21 & 22 Vict. tt seq.; 50 & 51 Vict. c. 78, 8. 23. c. 94, s. 14. ip) Kerr v. Fawson, 25 Beav. 540 OF COPYHOLDS. franchised ; and in making valuations for compensa- tion, the value of escheats shall not be taken into con- Heriots, &c. sideration (w). The same Act also provides for the extinguishment, at the instance of either lord or tenant, of any heriot, quit-rent or other manorial incident, to which any land of (whatever tenure) is liable (x). The Enfranchise- enfranchisement of copyholds may be also made, irre- meut by , i ^ j ' agreement, spectively of the Copyliold Acts {>/), where all parties are sui juris and agree thereto, by a simple conveyance of the fee simple from the lord to his tenant (3). And Bytenantfor under the Settled Land Act, 1882 {a), the tenant for life of a manor may sell and convey the freehold and inheritance of any copyhold or customary land, parcel of the manor, either with or without the mines and minerals thereunder, so as to effect an enfranchisement. (■m) Stat. 50 & 51 Vict. c. 73, ment of copyholds in Middlesex SS. 4, 5 ; passed liJth Sept , 1887. or Voikshire must be duly re- (x) Stat. 50 & 51 Vict. c. 73, gistered ; A', v. Jiegistrar of 'Deeds s. 7, vepluciiig 21 & 22 Vict. c. 94, for Middlesex, 21 Q. B. 'l). 555; s. 7, and 15 & 16 Vict. c. 51, ante, pp. 242—244. s. 27. (a) Stat. 45 k 46 Vict. c. 38, iy) Stat. 15 & 16 Vict. c. 51, ss. 3, 20 ; see Williams's Con- s. 55. veyancing Statutes, 295, 296, (s) 1 Watk. Cop. 362; 1 Scriv. 321. Cop. 653. Deeds of enfranchise- CHAPTER n. OF THE ALIEN ATIOr^ OF COPYHOLDS. The mode in which the alienation of copyholds is at present effected, so far at least as relates to transactions inter vivos, still retains much of the simplicity, as well as the inconvenience, of the original method in which tlie alienation of these lands was first allowed to take place. The copyholder surrenders the lands into the hands of liis lord, who thereupon admits the alienee. For the purpose of effecting these admissions, and of Customary informing the lord of the different events happening within his manor, as well as for settling disputes, it was formerly necessary that his customary Court, to which all the copyholders were suitors, should from time to time be held. The copyholders present at this Court were called tlie homage ^ a word equally used to denote Homage, the body of freeholders present at a Court Baron {a). In order to form a Court, it was formerly necessary that two copyholders at least should be present Cb). But, in Courts may . 1 1 IT (•/->. I • 1 now be holden modern tmies, the holdmg of Courts liavmg degenerated without the into little more than an inconvenient formality, it has anv^c'opy- been provided by the Copyhold Act of 1841, that '^«^'^•^'•• Customary Courts may be holden without the presence of any copyholder ; but no proclamation made at any such Courts is to affect the title or interest of any person not present, unless notice thereof shall be duly served on him within one month (c) : and it is also provided, (a) Ante, pp. 515, 517 ; 1 Scriv. (c) Stat. 4 & 5 Vict. c. 85, Cop. 7. 8. 86. (6) 1 Scriv. Cop. 289. )42 OF COPYHOLDS. Court rolls. Steward. that wliere, by the custom of any manor, the lord is authorized, with the consent of the homage, to grant any couimou or waste lands of the manor, the Court must be duly summoned and holden as before the Act {d). No Court can lawfuly be held out of the manor; but by immemorial custom, Courts for several manors may be held together within one of them (e). In order that the transactions at the Customary Court may be pre- served, a book is provided, in which a correct account of all the proceedings is entered by a person duly authorized. This book, or a series of them, forms the court rolls of the manor. The person who makes the entries is the steward ; and the court rolls are kept by liira, but subject to the right of the tenants to inspect them (/). This officer also usually j)resides at the Court of the manor. Grants. Before adverting to alienation by surrender and admittance, it will be proper to mention, that, when- ever any lands, which have been demisable time out of mind by copy of court roll, fall into the hands of the lord, he is at liberty to grant them to be held by copy at his will, according to the custom of the manor, under the usual services {g). These grants may be made by the lord for the time being, whatever be the extent of his interest (A), so only tiiat it be lawful : for instance, by a tenant for a term of life or years. But if the lord instead of granting the lands by copy, should once make any conveyance of them at the common law, though it were only a lease for years, his power to grant by co})y would forever be destroyed (^). The steward, or his deputy, if duly authorized so to do, may also make grants, as well as the lord, whose (d) Stat. 4 & 5 Vict. c. 35, . 91. {e) 1 Scriv Cop. 6. (/) Ibid. 587, 588. (^) 1 Watk. Cop. 23; 1 Scriv. Cop. 111. ih) Doe d. Bayer v. Strickland, 2 Q. B. 792. (i) 1 Watk. Cop. 37. See too Stat. 60 & 51 Vict. c. 73, s. 6. OF THE ALIENATIOX OF COPYHOLDS. 543 servant he is (j). It was formerly doubtful whether the steward or his deputy could make grants of copy- holds when out of the manor Ik). But bv the Copyhold Grants ma^v -,. . ■Ill i" 1 T f "°^^ ^^ made Act 01 1841 (t), it IS provided that the lord or any out of the manor, or the steward, or deputy steward, may grant "^°°'^" at any time, and at any place, either within or out of the manor, any lands parcel of the manor, to beheld by copy of court roll, or according to the custom of the manor, which such lord shall for the titne being be authorized and empowered to grant out to be held as aforesaid ; so that such lands be granted for such estate, and to such person only, as the lord, steward, or deputy shall be authorized or empowered to grant the same. When a copyholder is desirous of disposing of his Alienation lands, the usual method of alienation is by surrender of ^ ^"^""^^ the lands into tlie hands of the lord (usually through the medium of his steward), to the use of the alienee and his heirs, or for any other customary estate which it may be wished to bestow. This surrender generally takes place by the symbolical delivery of a rod, by the tenant to the steward. It may be made either in or out of Court. If made in Court, it is of course entered In Court, on the court rolls, together with the other proceedings ; and a copy of so much of the roll as relates to such surrender is made by the steward, signed by him, and stamped like a purchase deed ; it is then given to the purchaser as a muniment of his title {?n). If the sur-Out of Court, render should be made out of Court, a memorandum of the transaction, signed by the parties and tlie steward is made, in writing, and duly stamped as before (n). (J) 1 Watk. Cop. 29. the stamp duty on a memorandum (/{;) Ibid. 30. of a surrender if made out of (/) Stat. 4 & 5 Vict. c. 85, Court, or on the copy of court roll, B. 87. if made in Court, is tiie same as (m) A form of such a copy of on the sale or mortgage of a free- court roll will be found in Ap- hold estate; but if not made on pendix (G). a sale or mortgage, the duty is (n) Bv the Stamp Act, 1891, ]0«. Stat. 54 & 55 Vict. c. 89, 5i4 OF COPYHOLDS. Presentment, now unneces- sa;y . Nature of surrenderee's right until admittance. In order to give effect to a surrender made out of Court, it was formerly necessary that due mention, or presentment, of the transaction, should be made by the suitors or homage assembled at the next, or, by special custom, at some other subse(}uent Court (o). And in this manner an entry of the surrender appeared on the court rolls, the steward entering the presentment as part of the business of the Court. But by the Copyhold Act of 184:1, it is provided that surrenders, copies of which may be deliveretl to the lord, his steward, or deputy steward, shall l)e forthwith entered on the court rolls ; which enti-y is to be deemed to be an entry made in pursuance of a presentment by the homage {p). So that in this case, the ceremony of presentment is now dispensed with. When the surrender has been made, the surrenderor still continues tenant to the lord, until tlie admittance of the surrenderee. The surrenderee acquires by the surrender merely an inchoate right, to be perfected by admittance {q). This right was formerly inalienable at law, even by will, until rendered devisable by the Wills Act, 1837 (/•) ; but, hke a possibility in the case of freeliolds, it may always be released, by deed, to the tenant of the lands {s). Surrender to A Surrender of copyholds might always be made by a wife"^^ ^^ ^ '^^" ^^ ^'^*^ "^® ^^ ^^^ wife, for such a surrender is not a direct conveyance, but operates only through the instru- Surrender of mentality of the lord {t). And a valid surrender might wife^"^^^**^ at any time be made of the lands of a married wotuan, ' 1st schedule, tit. Copyhold and St. John Mildmay, 5 B. & Ad. Custoinarj Estates, replacing stat. 254 ; Doe d. \\inder v. Lawes, oo t. oA ir:„* „ 97, to the same 7 Ad &E.195. (;0 7 Will. IV. & 1 Vict. c. 26, 83 & 34 Vict (0)1 Watk. Cop. 79; 1 Scriv. Cop. 277. ( p) Stat. 4 & 5 Vict. c. 35, 8. b9. (O) Doe d. Tofield v. Tofield, 11 East, 246; Hex v. Dariie Jane («) Kite and Queinton's case, 4 Rep. 25 a; Co. Litt. 60 a. (t)Co. Cop. s. 35; Tracts, p. 79. OF THE ALIENATION OF COPYHOLDS. 545 by her husband and herself ; she being on such surrender separately examined, as to her free consent, by the steward or his deputy (w). By the Vendor and Par- chaser Act, 1S74 {x), where any copyhold hereditament shall be vested in a married woman, as a bare trustee (s), Married she may surrender the same as if she were a feme sole, trustee. And under the Married Women's Property Act, 1 8S2 (a), Copyholds, a married woman may dispose of copyholds, which wife's separate belong to her as her separate property by virtue of that ^^"^^"^ ^' Act, in the same manner as if she were a feme sole. When the surrender has been made, the surrenderee Admittance, has, at any time, a right to procure admittance to the lands surrendered to his use; and, on such admittance, he becomes at once tenant to the lord, and is bound to pay him the customary fine. This admittance is usually taken immediately (h) ; but, if obtained at any future time, it will relate back to tiie surrender ; so that, if the surrenderor should, subsequently to the surrender, have surrendered to any other person, the admittance of the former surrenderee, even though it should be subsequent to the admittance of the latter, will completely displace his estate (g). Formerly a steward was unable to admit A<^mittance \ ' •' niay now be tenants out of a manor (d) ; but, bv the Copyhold Act had out of 1111.1 i" 1 • the manor. of 1841, the lord, his steward, or deputy, may admit at any time, and at any place, either within or out of the manor, and without holding a Court ; and the admission is rendered valid without any presentment of the sur- render, in pursuance of which admission may have been granted {e). (u) 1 Watk. Cop. 63. (c) 1 Watk. Cop. 103. (x) Stat. 37 & 38 Vict. c. 78, (d) Doe d. Leach v. WMttaker, s. 6. .5 B . & Ad. 409, 435 ; Doe d. {z) ?>eQ ante, p. 366 n. (r). Gutteridge v. Sowerhij, 7 C. B., (a) Stat. 45 & 46 Vict. c. 75, N. S. 599. ss. 1 (sub-s. 1), 2, 5;. see ante, (e) Stat. 4 & 5 Vict. c. 35 pp. 363— .",66. SS. 88, 90. (h) See Appendix (G). W.R.P. I I 546 OF COPYHOLDS. Alienation by TliG alienation of copyholds by will was formerly effected in a similar manner to alienation inter vivos. It was necessary that the tenant who wished to devise his estate should first make a surrender of it to the use of his will. Ilis will then formed part of the surrender, and no particular form of execution or attestation was necessary. The devisee, on the decease of his testator, was, until admittance, in the same position as a sur- renderee (/). By a statute of Geo. III. (g), a devise of copyholds, without any surrender to the use of the will, was rendered as valid as if a surrender had been made (A). The Wills Act of 1837 requires that wills of copyhold lands shall be executed and attested in the same manner as wills of freeholds {i). But a surrender to the use of the will is still unnecessary ; and a sur- renderee, or devisee, who has not been admitted, is now empowered to devise his interest (j). Formerly, the devisee under a will was accustomed, at the next Customary Court held after the decease of his testator, to bring the will into Court ; and a presentment was then made of the decease of the testator, and of so much of his will as related to the devise. After this present- ment the devisee was admitted, according to the tenor of the will. But under the Copyhold Act of 18il, the nowunneces- mere delivery to the lord, or his steward, or deputy steward, of a copy of the will, is sufficient to authorize its entry on the court rolls, without the necessity of any presentment ; and the lord, or his steward, or deputy steward, may admit the devisee at once, without holding any Court for the purpose (k). Presentment of vrill. sary. (/) Wainewright v. Elwell, 1 Mad. 627; PUtlips v. Phillips, \ My. & K. 649, 664. (g) 55 Geo. III. c. 192, 12th July, 1815. {%) Doe d. Nethercote v. Bartle, 5 B. & Aid. 492. [i] Stat, r Will. IV. & 1 Vict. c. 26, ss. 2, 3, 4, 5, 9 ; see ante, p. 2feO; Garland v. Mead, L. R., 6 Q. B. 441. ij) Sect. 3. [k) Stat. 4 & 5 Vict. c. 35, ss. 88, 89, 90. OF THE ALIENATIOX OF COPYHOLDS. 547 Sometimes, on the decease of a tenant, no person if no person comes in to be admitted as his heir or devisee. In this tance, the case the lord, after making due proclamation at three seize'"*^ consecntive Courts of the manor for any person having ?^<'«*'?"«- right to the premises to claim the same and be admitted thereto, is entitled to seize the lands into his own hands quousque, as it is called, that is, until some person claims admittance (I) ; and by the special custom of some manors, he is entitled to seize the lands absolutely. But as tills rio;ht of the lord mlojht be very preiudicial Provision in ^ . . ''i , . ^ :\ , favour of to infants, married women, and lunatics entitled to infants, mar- admittance to any copyhold lands, in consequence of [unatTcs™*"' their inability to appear, special provision has been made by Act of Parliament for the vicarious admission of such persons, securing to the lord his proper fine, and prohibiting any absolute forfeiture of the lands for the neglect or refusal of any infant, married woman or lunatic so found by inquisition to come in and be ad- mitted, or to pay the fine imposed on admittance {m). Although mention has been made of surrenders to the statute of "^ Uses docs use of the surrenderee, it must not, therefore, be supposed not apply to that the Statute of Uses (ji) has any application to copy- *^°^^ ° ^' hold lands. This statute relates exclusively to freeholds. The seisin or feudal possession of all copyhold land ever remains, as we have seen (o), vested in the lord of the manor. Notwithstanding that custom has given to the copyholder the enjoyment of the lands, they still remain, in contemplation of law, the lord's freehold. The copy- holder cannot, therefore, simply by means of a surrender to his use from a former copyholder, be deemed, in the words of the Statute of Uses,in lawful seisin for such estate (l)\ Watk. Cop. 234; 1 Scriv. & W. 832, 842; Dimes''^. Grand Cop. 355; Doe d. Bover v. True- Junction Canal Company, 9 Q. B. man, 1 Barn. & Adol. 736. 469, 510. (m) Stats. 11 Geo. IV. & 1 (n) Stat. 27 Hen. VIII. c. 10; Will. IV. c. 65, ss. 3—9; 53 are<«, p. 164. Vict. c. 5, ss. 116, 125, 126. See (o) Ante, p. 522. Doe d. Twining v. Muncott, 12 M. I I 2 548 OF COPYHOLDS. Trusts. Settlements. as lie has in the nse; for the estate of tlie surrenderor is customary only, and the estate of the surrenderee cannot, consequently, be greater. Custom, however, has now rendered the title of the copyholder quite independent of that of his lord. When a surrender of copyholds is made into the hands of the lord to the use of anj^ person, the lord is now merely an instrument for carrying the intended alienation into effect; and the title of the lord, so that he ha lord de facto, is quite immaterial to the validity either of the surrender or of the subsequent admittance of the surrenderee (^). But if a surrender should be made for one person to the use of another upon trust for a third, the High Court of Justice would exercise the same jurisdiction over the surrenderee, in compelling him to perform the trust, as it would in the case of freeholds vested in a trustee. And when copy- hold lands form the subject of settlement, the usual plan is to surrender them to the nse of trustees, as joint tenants of a customary estate in fee simple, upon such trusts as will effect, in equity, the settlement intended. The trustees thus become the legal copyhold tenants of the lord, and account for the rents and profits to the persons beneficially entitled. The equitable estates which are thus created are of a similar nature to the equitable estates in freeholds,of which we have already spoken {q)\ Separate use. and a trust for the separate use of a married woman might be created as well out of copyhold as out of free- Equitable hold lands (r). An equitable estate tail in copyholds may be^arred may be barred by deed, in the same manner in every by deed. respect as if the lands had been of freehold tenure {s). But the deed, instead of being inrolled in the Court of Chancery or the Supreme Court (^), must be entered on the court rolls of the manor {u). And if there be a protector, and he consent to the disposition by a distinct (y)l'Watk. Cop. 74. (q) Ante, p. 209 et seq. (?•) See ante, pp. 359—362. («) See ante, pp. 109, 216. it) Stat. 3 & 4 W^iU. IV. c. 74, s. 53. See ante, p. 109. (u) Sect. 53. It has been de- cided, contrary to the prevalent OP THE ALIENATION OF COPYHOLDS. 549 deed, such deed must be executed by him either on, or anj' time before, the day on which the deed barring the entail is executed ; and the deed of consent must also be entered on the court rolls (x). Upon the death of a sole trustee of copyholds, being the tenant on the court rolls, his estate, if of inheritance, does not devolve upon his personal representatives, according to the law now governing the devolution of a similar interest in free- holds, but will pass to his heir or devisee {y). As the owner of an equitable estate has, from the Equitable nature of his estate, no legal rights to the lands, he is not be surren°° himself a copyholder. He is not a tenant to the lord : this ^^''®*^- position is filled by his trustee. The trustee, therefore, is admitted and may surrender ; but the cestui que trust cannot adopt these means of disposing of his equitable interest (s). To this general rule, however, there have Exceptions, been admitted, for convenience sake, two exceptions. The first is that of a tenant in tail whose estate is merely equitable : by the Act for the abolition of fines Tenant of and recoveries (a), the tenant of a merely equitable est'ate tail estate tail is empowered to bar the entail, either by en?aii'r deed in the manner above described, or b}' surrender in surrender. the same manner as if his estate were legal {h). The second exception relates to married women, it being provided by the same Act (c) that whenever a husband Husband and and wife shall surrender any copyhold lands in which render wife's" she alone, or she and her husband in her right, may estate.^^^ impression, that the entry must 37 Ch. D. 312, 40 Ch. D. 14. be made within six calendar (z) 1 Scriv. Cop. 2(52. No fine months. Honeywood v. Forster, can be exacted by tlie lord in M. R., 9 W. R. 855; 30 Beav. 1; respect of any devolution of the Gibbons v. Snape, 32 Beav. 130; equitable estate; Hall v. Mrom- Green, v. Patermn, 32 Ch. D. 05. ley, 35 Ch. D. 642. (X) Stat. 3 & 4 Will. IV. c. 74, (a) Stat. 3 & 4 Will. IV. c. 74, a 53. s. 50 (y) Stat. 50 & 51 Vict. c. 73, (J) See ani!«, p. 531. 8. 46, repealing 44 & 45 Vict. c. (c) Stat. 3 & 4 Will. IV. c. 74, 41, 8. 30, as to copvholds ; see s. 90. ante, p. 178 ; lid Mills' Trust, 550 OF COPYHOLDS. have any equitable estate or interest, the wife shall be separately examined in the same manner as she would have been, had her estate or interest been at law instead of in equity merely {d) ; and every such surrender, when such examination shall be taken, shall be binding on the married woman and all persons claiming under her ; and all surrenders previously made of lands similarly circumstanced, where the wife shall have been separately examined by the person taking the surrender, are thereby declared to be good and valid. But these methods of conveyance, though tolerated by the law, are not in accordance with principle ; for an equitable estate is, strictly speaking, an estate in the contemplation of equity only, and has no existence anywhere else. As, therefore, an equitable estate tail in copyholds may pro- perly be barred by a deed entered on the court rolls of the manor, so an equitable estate or interest in copyholds belonging to a married woman was more properly con- veyed by a deed, executed with her husband's concur- rence, and acknowledged by her in the same maimer as if the lands were freehold (e). And the Act for the abolition of lines and recoveries, by which this mode of convej'auce is authorized, does not require that such a deed should be entered on the court rolls. If a married woman's equitable estate in copyholds belong to her for her separate use, or as her separate property under the Married Women's Property Act, 1882, she may dis- pose thereof in the same manner as if she were a ferae sole(/). Remainders. Copyliold estates admit of remainders analogous to those which may be created in estates of freehold (g). And when a surrender or devise is made to the use of any person for life, with remainders over, the admission- (d) See ante. p. 544. ( f) See ante, pp. 359—366. (e) Stat. 3 & 4 Will. IV. c. 74, (a) See ante, pp. 394, 410. s. 77. See ante, p. 354. OF THE ALIENATION OF COPYHOLDS. 55J of the tenant for life is the admission of all persons having estates in remainder, unless there be in the manor a special custom to the contrary (A), A. vested estate in remainder is capable of alienation by the usual mode of surrender and admittance. Contingent Contingent remainders of copyholds have always liad this advantage, that they have never been liable to destruction by the sudden determination of the particular estate on which they depend. The freeliold, vested in the lord, is said to be the means of preserving such remainders until the time when the particular estate would regularly have expired (^'). In this respect they resemble contingent remainders of equitable or trust estates of freeholds, as to which we have seen that tiie legal seisin, vested in the trustees, preserves the remainders from destruction {Jc). But if the contingent remainder be not ready to come into possession the moment the particular estate would naturally and regularly have expired, such contingent remainder will fail altogether (I): unless it should have been created after the Act of 1877 amending the law as to contingent remainders {m), and would have been valid, if created as an executory limitation ; in which case it will be preserved by the Act, which extends to liereditaments of any tenure. In other respects the creation of contingent remainders of legal and equitable estates in copyholds appears to be governed by the same rules as are applicable to similar interests in freeholds {?i). Executory devises of copyholds, similar in all respects Executory devises. {h) \ Watk. Cop. 276; Boe d. 1 Watk. Cop. 190; 1 Scriv. Cop. Winder v. Lawes, 7 Ad. & E. 477; PickersgiU v. Grey, 30 Beav. 195; Smith v. Glasscock, 4C. B., 352. N. S. 357; h'andjield v . Kandfield, (k) Ante, p. 430. 1 Drew & S. 310. See, however, {I) Gilb. Ten. 266; Fearne, as to the rever.sioner, lieg. v. Lady Cont. Rem. 320. of the Manor of Daltingham, 8 Ad. (m) Stat. 40 & 41 Vict. c. 33; & E. 858. see ante, pp. 333, 378. (i) Fearne, Cont. Rem. 319; («) ^Tjile, pp. 401—473. 552 OF COPYHOLDS. to executory devises of freeholds, have long been per- mitted (o). And directions to executors to sell the copyhold lands of their testator (which directions, we have seen {p), give rise to executory interests) are still in couinion use; for, when such a direction is given, tlie executors, taking only a power and no estate, have no occasion to be admitted ; and if they can sell before the lord has had time to hold his three Customary Courts for making proclamation in order to seize the land quousqiie (q), the purcliaser from them will alone require admittance by virtue of his executory estate which arose on the sale. By this means the expense of only one admittance is incurred; whereas, had the lands been devised to the executors in trust to sell, they must first have been admitted under the will, and then have surrendered to the purchaser, who again must have been admitted under their surrender. And in a case, where a testator devised copyholds to such uses as his trustees should appoint, and subject thereto to the use of his trustees, their heirs and assigns for ever, with a direction that they should sell his copyholds, it was decided that the trustees could make a good title without being admitted, even although the lord had in the niean- time seized the land quousque for want of a tenant {r). Lord not But it has been decided that the lord of a manor accept a sur- is uot bouud to accopt a Surrender of copyholds i7iter 7h'osto1h\k- vivos, to such uses as the surrenderee shall appoint, lug uses. ^„(j^ jfj default of appointment, to the use of the sur- renderee, his heirs and assigns (.§). This decision is in accordance with the old rule, wliich construed surrenders of copyholds in the same manner as a conveyance of (o) 1 Watk. Cop. 210. and see TJie Queen y. Corhett, 1 E. («) Ante, p. 455. The stat. 21 k B. S86; The Queen v. Wihion, Hen. VIIL c. 4 applies to copj-- 3 B. & S. 201. holds ; Ptppercorn v. Wayman, 5 («) Flack v. The Master, Fel- De Gex & S. 230; ante, p. 456. lows and Scholars of Downing (q) See ante, j). 547- College, C. P., 17 Jur. 697; 13 (/•) Glass V. Richardson, 9 Hare, C. B. 945. 698; 2 De Gex, M. & G. 658 ; OF THE ALIENATION OF COPYHOLDS. 553 freeholds inter vivos at common law {t). If, however, the lord should accept such a surrender, he will be bound by it, and must admit the apj)ointee under the power of appointment, in case such power should be exercised (u). With regard to the interest possessed by husband Husband and and wife in each other's copyhold lands, the husband Married was entitled to the whole income of his wife's land p^"pe'r"y ^ct during her coverture, unless the land were settled on ^^'^*^- trust for her separate use {x). But the Married Women's Property Act, 1870 (y), provided that when any copy- hold or customary property should descend upon any woman married after the passing of that Act, as heiress or co-heiress of an intestate, the rents and profits of such property should, subject and without prejudice to the trusts of any settlement affecting the same, belong to such woman for her separate use. And under the Married Women's Property Act, 1S82, Wife's sepa- . , . -IT 1 1111 ''^'''^ property. a married woman is entitled to have and to hold any copyhold land, which belongs to her as her separate property under that Act, and the rents and profits thereof, in the same manner as if she were a feme sole (s). A special custom appears to be necessary to entitle a husband to be tenant by curtesy of his wife's copyholds (a). A special custom also is required to Curtesy, entitle the wife to any interest in the lands of her hus- band after his decease. Where such custom exists, the wife's interest is termed herfreehench • and it generally Freebench. consists of a life interest in one divided third part of the lands, or sometimes of a life interest in the en- {t) 1 Watk. Cop. 10s, nO; 1 (x) 1 Walk. Cop. 273, 335, 4th Scriv. Cop. 178. ed. See ante, pp. 35.'!, So9. (u) The King v. The Lord of the (y) Stat. 33 & 34 Vict. c. 93, Manor of Oundle, 1 Ad. & E.' 283 ; s. 8; passed 9th Aug. 1870. See Jioddington v. Ahernethy, 5 B. & ante, p. 3'J2 and n. (o). C. 776; 9 Dow. & Rv. 02fi ; 1 's) See ««(!«, pp. 36.?— 36fi. Scriv. Cop. 226, 229; ' Eddleiton (a) 2 Watk. Cop. 71. See as V. CuUins, 3 De (iex, M. & G. 1. to freeholds, ante, p. 353, 554 OF COPYHOLDS. tiretj (b) ; and, like dower under the old law, freebench is paramount to the husband's debts {c). Freebench, however, usually differs from the ancient right of dower in this important particular, that whereas the widow was entitled to dower of all freehold lands of which her husband was solely seised at any lime ^wrmg the cover- ture (<7), the right to freebench does not usually attach until the actual decease of the husband {e), and it may be defeated by a devise of the lands by the will of the husband {f). Freebench, therefore, is in general no impediment to the free alienation by the husband of Manor of his coDvliold lands, without his wife's concurrence. To Cheltenham . , isanexcep- tliis rulc the important manor of Cheltenham forms an exception ; for, by the custom of this manor, as settled by Act of Parliament, the freebench of widows attaches, like the ancient right of dower out of freeholds, on all the copyhold lands of inheritance of which their hus- bands were tenants at any time during the coverture {g). Dower Act. The Act for the amendment of the law relating to dower (A) does not extend to freebench ii). 'to (61 1 Scriv. Cop. 89. {g) Doe d. Mddell v. GwinneU, (c) Spyer V. Hyatt, 20 Beav. 1 Q. B. 682. 621. (h) Stat. 3 & 4 Will. IV. c. 105; ((/) Ante, p. 367. ante, p. S70. (e) 2 Watk. Cop. 73. {i) Smith v. Adams, 18 Beav. if) Lacey V. Mill, L. R., 19 499; 5 De Gex, M. & G. 712. Eq! 346. AMERICAN NOTES. ' Copyholds. — The law of copyholds has no application in the United States. PART lY. OF PERSONAL INTERESTS IN REAL ESTATE. The subjects which have hitherto occupied our atten- tion derive a great interest from the antiquity of their origin. We have seen that the difference between free hold and copyhold tenure has arisen from the distinction which prevailed; in ancient times, between free tenure and tenure in villenage {a) ; and that estates of free- hold in lands and tenements owe their origin to the ancient feudal system (b). The law of real property, in which term both freehold and copjhold interests are included, is full of rules and principles to be explained only by a reference to antiquity ; and many of those rules and principles were, it must be confessed, much more reasonable and useful when they were first insti tuted then they are at present. The subjects, however, on which we are now about to be engaged, possess little of the interest which arises from antiquity ; although their present value and importance are unquestionably great. The principal interests of a personal nature derived from landed property, are a term of years and a mortgage. The origin and reason of the personal Term of nature of a term of years in land have been already ^^"'"®' attempted to be explained (c) ; and at the present day, leasehold interests in land, in which amongst other things all building leases are included, form a subject (a) Arde, pp. IG. 51, -"ll. (c) Ante, pp. 16—20, 27, 28. (b) Ante, pp. lii— 15, 49—51, 556 OF PERSONAL INTERESTS IN REAL ESTATE. sufficiently iinportant to require a separate considera- Mortgage. tion. The personal nature of a mortgage was not clearly established till long after a term of years was considered as a chattel (d). But it is now settled that every mortgage, whether with or without a bond or covenant for the repayment of the money, forms part of the personal estate of the lender or mortgagee {e). And when it is known that the larger proportion of the lands in this kingdom is at present in mortgage, a fact gene- rally allowed, it is evident that a chapter devoted to mortgages cannot be superfluous. It may be pointed out that mortgages, as well as leaseholds (f), are included in personal estate as passing to the executor or administrator, without reference to the question whether they are things specifially recoverable. As will be seen further on, the estate of a mortgagee may have the quality and incidents of real estate at law, but will nevertheless form part of his personal estate in eqiiitt/ (g), (d) Thornhorougli v. Baher, 1 {e) Co. Litt. 208 a, n. (1). Cha. Ca. 263; ' 3 Svvanst. 623, (/) Ante, pp. 25, 28. anno 1075; Tabor v. Tabor, 3 (^) JwfJe, pp. 193, 213. Swanst. 036. CHAPTER I. OF A TERM OF YEARS. At tlie present day, one of the most important kinds of chattel or personal interests in landed property is a term of years, by which is miderstood, not the time merely for which a lease is granted, but also the interest acquired by the lessee. Terms of years may practically be considered as of two kinds: first, those which are Two kinds of created by ordinary leases, which are subject to a yearly ^^™g° rent, which seldom exceed ninety-nine years, and in respect of which so large a number of the occupiers of lands and houses are entitled to their occupation ; and secondly, those which are created by settlements, wills, or mortgage deeds, in respect of whicli no rent is usually reserved, which are frequently for one thousand years or more, which are often vested in trustees, and the object of whicli is usually to secni'e the payment of money by the owner of the land. But although terms of years of different lengths are thus created for different purposes, it must not, therefore, be supposed that a long term of years is an interest of a different nature from a short one. On the contrary, all terms of years of whatever length f)0sses3 precisely the same attributes in the eye of the law. The consideration of terms of the former kind, or a tenancy at those created by ordinary leases, may conveniently be"' preceded by a short notice of a tenancy at will, and a tenancy by sufferance. A tenancy at will may be ^^^f ^*<'«"' created by parol («), or by deed ; it arises when a person ^^^' ^^^■• (a) Stat. 29 Car. II. c. 3, a. 1. ;58 OF PERSONAL INTERESTS IN REAL ESTATE. Emblements. Cestui que trust teuaut at will. Tenancy by sufEerance. JLmericnn note 3, p» 596. lets land to another, to hold at tlie will of the lessor or person letting {h). The lessee, or ]>erson taking the lands, is called a tenant at will ; and, as he may be turned out when his landlord pleases, so he may leave when he likes. A tenant at will is not answerable for mere permissive waste (c). He is allowed, if turned out by his landlord, to reap what he has sown, or, as it is legally expressed, to take the emblements [d). But as this kind of letting is very inconvenient to both parties, it is scarcely ever adopted ; and, in construc- tion of law, a lease at an annual rent, made generally without expressly stating it to be at will (e), and with- out limiting any certain period, is not a lease at will, but a lease from year to year (/), of which we shall presently speak. As we have seen {g), the Courts of law considered one in possession of land as cestui que trust to be merely the tenant at will of his trustees (A) ; although he might have been absolutely entitled in equity. A tenancy by sufferance is when a person, who has originally come into possession by a lawful title, holds such possession after his title has deter- mined. Lease from year to year. Atnerican note 3, pp. S96, 597. A lease from year to year is a method of letting very commonly adopted : in most cases it is much more advantageous to both landlord and tenant than a lease at will. The advantage consists in this, that both land- lord and tenant are entitled to notice before the tenancy can be determined by the other of them (i). By the (h) Litt. s. 68 ; 2 Black. Comm. 145. (c) Harnett v. Maitland, 15 M. &. W . 257. (d) Litt. s. 68 ; see Graves v. Weld,bB. & Ad. 105. («) Doe d. Bastow v. Cox, 11 Q. B. 122; Doe A. Dixie -v. Davies, 7 Ex. R. 89. {f) Might d. Flower v. Darhy, 1 T. Rep. 159, 163. {g) Ante, p. 215. (A) EarL of Pomfret v. Lord Windsor, 2' Ves. sen. 472, 481. See Melting v. Leak, 16 C. B. 652. (i) As to the effect of an as- signment of his interest by a tenant from year to year, see Allcock V. Moorhouse, 9 Q. B. D. 366. OF A TERM OF YEARS. 559 common law, this notice mnst be given at least half a year before the expiration of the current year of the tenancy {j) ; for the tenancy cannot be determined by one only of the parties, except at the end of any number of whole years from the time it began. So that, if the tenant enter on any quarter day, he can quit only on the same quarter day : when once in possession, he has a right to remain for a year ; and if no notice to quit be given for half a year after he has liad possession, he will have a right to remain two whole years from the time he came in : and so on from year to year. But in Agricultural , ,• /■ " /. 1 ■,-.. Holdings the case ot a tenancy from year to year oi a holding, (England) to which the Agricultural Holdings (England) Act, ' 1883 {k), applies, a 3'ear's notice, expiring with a year of tenancy, is now required, 'in order to determine the tenancy, by the 33rd section of the Act; unless the landlord and tenant of the holding by writins: under their hands agree that this section shall not apply ; in which case a half year's notice will be snfficient. This section, however, does not extend to a case where the tenant is adjudged bankrupt, or has filed a petition for a composition or arrangement with his creditors (l). Under the same Act {f?i), a landlord may give a tenant from year to year notice to quit part only of his holding if the notice be given with a view to the use of the land for any of the improvements specified in the Act, and it be so stated in the notice ; the tenant having the option, by counter notice in wiiting within twenty-eight days, to accept the same as notice to quit the entire holding. This Act does not apply to any holding which is not either wholly agricultural or wholly pastoral, or in part (p Hight d. Flower v. Darhy, ("England) Act, 1875, repealed by 1 i'. R. 150, 103; and see Doe d. tiie Act of 18S3, contained similar Lord, Bradford v. WatH/is, 7 provisions ; see stat. 38 & S'J Vict. East, 551. c. i>-2, ss. 51, 54—58. (k) Stat. 46 & 47 Vict. c. 61 ; (m) Stat. 46 & 47 Vict. c. 61, see Jiioiow v. Teal, 15 Q. B. D. s. 41. The Act of 1875 contained 403, 601. similar provisions; see stat. 38 & [I) The Agricultural Holdings 39 Vict. c. y-!, ss. 52, 54—58. 560 OF PERSONAL INTERESTS IN REAL ESTATE. agricultural and as to the residue pastoral, or in whole or in part cultivated as a market garden ; or to any holding let to the tenant during his continuance in any otHce, appointment, or employment held under the land- lord (n). A lease from year to year can be made by parol or word of mouth (p), if the rent reserved amount to two-thirds ^t least of the full improved value of the lands ; for if the rent reserved do not amount to so much, the Statute of Frauds declares that such parol lease shall have the force and eJSect of a lease at will only (jj). A lease from year to year, reserving a less amount of rent, must be made by deed ( q). The best way to create this kind of tenancy is to let the lands to hold " from year to year " simply, for much litigation has arisen from the use of more cu-cuitous methods of saying the same tiling (r). Lease for a number of years. A.nierican note 4, p. 598. A lease for a fixed number of years may, by the Statute of Frauds, be made by parol, if the term do not exceed three years from the making thereof, and if the rent reserved amount to two thirds, at least, of the full improved value of the land {s). Leases for a longer term of years, or at a lower rent, were required, by the Statute of Frauds («!), to be put into writing and signed by the parties making the same, or their agents there- unto lawfully authorized b}' writing. But a lease of a separate incorporeal hereditament was always required to be made by deed {u). And the Act of 1845 to (n) Stat,. 46 k 47 Vict. c. 61, s. 54. The Act of 1875 applied to agricultural and pastoral hold- ings of two acres and upwards in extent ; see stat. 33 & 39 Vict, c. 92, 8. oS. (o) Legg v. Hachett, Bac. Abr. tit. Leases CL. 3); S. C. nom. Legg v. Strudwick, 2 Salk. 414. {p) 29 Car. II. c. 3, ss. 1, 2. (^)Stat. 8 & 9 Vict. c. 106, s. 3. (;■) See Bac. Abr. tit. Leases and Terms for Years (L. 3) ; Doe d. Clarke v. Smaridge, 7 Q. B. 957. (s) 29 Car. II. c. 3, s. 2; Lord Bolton V. Tomli/i, 5 A. & E. 856. (t) 29 Car. II. c. 3, s. 1. (ii) Bird V. Higqinson, 2 A. & E. 696; 6 A. & fi. 824; S- C. 4 Nev. & Man. 505. See ante, pp. 30, 31, 383. OF A TERM OF YEARS. 555^ amend the law of real property provided that a lease, Leases in , 1 1 , 1 • ... ,. , , writinn; now required by law to be in writing, ot any tenements or required to be hereditaments, shall be void at law^ unless made by ^^ ^^^'^' deed (a?). But such a lease, althouirh void as a lease '*""'':''■""• ^ ' ' O note it, /». for want of its being by deed, may be good as an^^*'* agreement to grant a lease, tot res magis valeat quam pereat {y). And since the Judicature Acts took effect (s), it has been held that a tenant in possession of land under an agreement for a lease, which he might enforce specifically in equity (a), is to be treated in every Court as if he were tenant of the land at law upon the terms of the agreement {IS). A tenant under a mere agreement in writing {c) is thus placed prac- tically in the same position as if ho had a lease by deed. It does not require any formal words to make a No formal lease for years. The words commonly employed are Required to " demise, lease, and to farm let ; " but any words indi- ^^^^ a lease, eating an intention to give possession of the lands for a determinate time will be sufficient {o« d. Walker v. Groves, 15 East, 244; Doe d. Pearson v. Hies, 8 Bing. 178; S. C. 1 Moo. & Scott, 259; Warman v. Faithfull, 5 B. & Ad. 1042; Gheslyn, 4 A. & E. 225. (/) By the Stamp Act, 1891, leases, with some exceptions, are subject to an ad valorem duty on the rent reserved as follows : — Where the yearly rent shall not ex- ceed £5 Shall exceed £5 and not exceed £10 10 „ 15 15 „ 20 20 „ 25 „ 25 „ 50 50 „ 75 75 „ 100 And where the same shall exceed £100, then for every £50, and also for anj- fractional part of £50 If the term does not exceed 35 Years or is indefluite. 1 1 2 2 5 7 10 5 If the term being definite exceeds 35 Years, but does not exceed 100 Years. £ «. d. 3 6 9 12 15 1 10 2 5 3 1 10 If the term being: definite exceeds 100 Years. £ s. d. 6 12 18 1 4 1 10 3 4 10 6 3 And any premium which may be paid for the lease is also charged with the same ad valorem duty as on a conveyance upon the sale of lands for the same consideration. The counterpart bears a duty of five shillings, unless the dutj* on the lease is less than five shillings, in which case the counterpart bears the same duty as the lease; and if not executed by the lessor, it does not require any stamp denoting that the proper duty has been paid on the original. Agreements for leases for any term not exceeding thirty-five years are subject to the same dutv as leases. Leases of furnished houses or apartments for any term less than a year, where the rent for such term exceeds 25i!., are subject to a duty of half-a-crown. And any lease of a dwelling-house or part thereof for any definite term not exceeding a year, at a rent not exceeding the rate of 10^. per annum, is now chargeable with the stamp duty of one penny only. Covenants in a lease to make improve- ments or additions to the property do not subject it to any additional dutv. See stat. 54 & 55 Vict. c. 39, ss. 75—78, and 1st schedule, tit. Lease, replacing 33 & 34 Vict. c. 97, ss. 96—100, and schedule, tit. Lease. OF A TERM OF YEARS. 563 There is no limit to the number of years for which a lease may a lease may be granted ; a lease may be made for 99, any number 100, 1,000, or any other number of years; the only °^'^^*'^^' requisite on this point is, that there be a definite period There must of time fixed in the lease, at which the term granted fixeV/oTthe must end {g) \ and it is tliis fixed period of ending ®°^'°^" which distinguishes a terin from an estate of freehold. Thus, a lease to A. for his life is a conveyance of an^"?<'r/'""^ ' ■' note 0, p, estate of freehold, and must be carried into effect by ''^*- the proper method for conyeying the legal seisin; but a lease to A. for ninety-nine years, if he shall so long live, gives him only a term of years, on account of the absolute certainty of the determination of the interest granted, at a given iixne fixed in the lease. Besides the fixed time for the term to end, there must also be a time fixed from which the term is to begin ; and this time may, if the parties please, be at a future period (A), Thus, a lease may be made for 100 years from next a term may Christmas. For, as leases anciently were contracts commence*' at between the landlords and their husbandmen, and the*^"^"''*^ *^°^®' interests of tenants for years were treated as laying outside the law of freehold estates (^), no objection was made to the tenant's right of occupation being deferred to a future time. When the lease is made, the lessee does not become Entry, complete tenant by lease to tlie lessor until he has entered on the lands let {JS), Before entry, he has no estate, but only a right to have the lands for the term by force of the lease (Z), called in law an interesse termini. Meresse But if the lease should be made by a bargain and sale, Bargain and or any other conveyance operating by virtue of the^^'®- (g) Co. Litt. 45 b; 2 Black. {k) Litt. s. 58; Co. Litt. 46 b; Comm. 14-3. Miller v. Green, 8 Bingh. 92 ; (A) 2 Black. Comm. 143. ante, pp. 232, 233. (i) See a»<«, pp. 16— 21, 27, 28, {I) Litt. s. 459; Bac. Abr. tit. 70, 71. Leases and Terms for Years (M). J J 2 564 OF PERSONAL INTERESTS IN REAL ESTATE. Statutes of Uses, the lessee will, as we have seen (m), have the whole term vested in him at once, in the same manner as if he had actually entered. The circumstance, that a lease for years was anciently nothing more than a mere contract, explains a curious point of law relating to the creation of leases for years, which does not hold with respect to the creation of any Lease for greater interest in land. If a man should by indenture estoppel. lease lands, in which he has no legal interest, for a term of years, both lessor and lessee will be estopped during the term, or forbidden to deny the validity of the lease. This might have been expected (n). Bat the law goes further, and holds, that if the lessor should at any time during the lease acquire the lands he has so let, the lease, which before operated only by estopped, shall now take effect out of the newly-acquired estate of the lessor, and shall become for all purposes a regular estate for Exception, a term of years (o). If, however, the lessor has, at the Jessorhasany time of making the lease, any interest in the lands he interest. j^^.^^ g^^^j^ interest only will pass, and the lease will have no further effect by way of estoppel, though the interest purported to be granted be really greater than the lessor had at the time power to grant (p). Thus, if A., a lessee for the life of B., makes a lease for years by indenture, and afterwards purchases the reversion in fee, and then B. dies, A. may at law avoid his own lease, though several of the years expressed in the lease may be still to come; for, as A. had an interest in the lands for the life of B., a terra of years determinable on B.'s life passed to the lessee. But if in such a case the lease was made for valuable consideration. Equity would (m) Atite, p. 236. Austin, 7 Man. & Gr. 701. (») See ante, p. 180. (p) Co. Litt. 47 b; EM r. (o) Co. Litt. 47 b ; Bac. Abr. Saunders, 4 B. & C. 529; Doe d. tit. Leases and Terms for Tears Strode v. Seaton, 2 C. M. & R. (0); 2 Prest. Abst. 211; Wehb v, 728,730. OF A TERM OF TEARS. 555 oblige the lessor to make good the terra out of the interest he had acquired {q). As we have seen, a tenant for a term of years has Ownership of 1 • 1 • 1 . 1 1 T /. tenant for Jong enjoyed a true property m his holding ; for he has years. the right to maintain or recover possession of his land during the term against all others, including his land- lord (r). He also enjoys the right of free disposition of his holding, either by parting with his wliole interest therein, which is termed an assignment, or by granting Assignment, an estate for a shorter terra tiian his own, which is called an underlease it). But he may deprive himself Underlease. of the power of exercising this right by agreement with his landlord. Thus his lease may have contained a -^"""i: ''"'** «' note 4 ) pji. covenant by him not to assign the demised premises ''^*' ^^^' without his landlord's licence; iu which case he will be prevented from assigning, though not from underletting them without licence {u). Or he may have covenanted not to assign or underlet without licence, which will prevent either mode of disposition {x). With regard to the right of free enjoyment, it appears that, in the absence of express agreement, a tenant for years is properly in the same position as a tenant for life {y). (q) 2 Prest. Abst. 217. The old opinion was that a tenant (r) Ante, pp. 2, 17, 18, 71, n. for years was liable for permissive {g)\ 3 Black. Comm. ch. xi, xii ; as well as voluntary waste ; Litt. Bac. Abr. Trespass (C. 2). s. 71 . But in modern times (t) Bract. 11 b, 826 a; Perk. conflicting opinions have been s. 91 ; Co. Litt. 46 b ; Shep. expressed on this point ; Heme Touch. 268 ; Bac. Abr. Leases v. Bemhow, 4 Taunt. 764 ; Yel- (L S); Church v. Brown, 15 Ves. lowly v. Gower, 11 Ex. 274, 293, 258, 264; Cruise, Dig. iv. 88, 89, 294: Wood.house v. Walker, 5 4th ed . ; Buckland v. Papillon, Q. B. D. 404, 406, 407 ; Davies L. R., 1 Eq. 477, 2 Ch. 67. v. Davies, 38 Ch. D. 499, 503, (u) Crveoe A. Blencowev . Bughy, 504; Ee Cartwright, ^\ Ch. D. 2 W. Bl. 766 ; 15 Ves. 265. 532. As we have .seen, it has fx) See 15 Ves. 265; Bain v. now been decided that a tenant Fothergill, L. R., 7 H. L. 158; for life is not liable for permis- Woodfall, Landlord & Tenant, sive waste; ante, p. 110. And ch. xvii. s. 2, p. 679, 14th ed. on principle this decision should iy) Ante, pp. Vil — 129 ; Co. govern the case of a tenant for Litt. 53, 54 a ; 2 Inst. 144, 145, years : though it may be pointed 299; 2 Black. Comm. 144, 283. out that, anciently, tenants for • 5(5G OF I'EUSONAL INTERESTS IN HEAL ESTATE. But in ])racticc, the rights nnd liabilities of a tenant for years in respect of his enjoyment of the demised premises are almost always regulated by express agreement. Thus in agricultural leases the tenant generally enters into covenants as to the modeof cultivation of the land ; in leases of houses, he usually covenants to repair, and sometimes to paint them also. Covenants restricting the use of the jiremises, as not tocai-ryon certain trades thereon, or to use the same as a private dwelling-house only, are also met with (s). Rent and Leases for years taken for the purpose of occu- Te^ases.^"*^ ^° pation are usually made subject to the payment of a yearly rent {a) ; and, as we have seen, they generally contain certain covenants by the lessee, amongst which a covenant to pay the i-ent is always included. Thus a lease is a matter partly of transfer of property, partly of contract. As a matter of contract, the lessee's cove- nant to pay rent and his other covenants remain con- stantly binding on him during the whole term, notwith- standing any assignment which he may make {h). On life and years were equally in the usually life-owners ratlier than f position of farmers, while in farmers; see ante, pp. 2, n. {b), modern times tenants for life are 3, n. (/), 49, n. (e), 125, 126. (z) Here it may be mentioned that, under an agreement to take a lease with "the usual" covenants, or without specifying the covenants, the lessor can, as a rule, insist on the insertion in the lease of no other covenants by the lessee than covenants (1) to pay rent, (2) to pay taxes, except such as are expressly payable by the lessor, (3) to keep and deliver up the premises in repair, and (4) to allow the lessor to enter and view the state of repair. Leases for particular purposes (as farm- ing, mining or public-house leases) should contain, besides, such cove- nants and clauses as are usually inserted in similar leases by the custom of the trade or the district. In the absence of express stipulation, the lessor is entitled to have a condition of re-entry on non-payment of rent, but not on breach of covenant. And the lessor is only bound to enter into the usual qualified covenant for quiet enjoyment. See Davidson, Prec. Con v., vol. v. pt. i. pp. 50 — 54, 3rd ed. ; Hampshire V. Wickens, 7 Ch. D. 555, 5R1; Jie Anderton db Milner's Contract, 45 Ch. D. 476. (a) Ante, p. 388. for the rent, after assignment, {]>) And the lessee remains liable even without an express covenant OF A TERM OF YEARS. 567 a sale of leasehold land by the lessee, the purchaser is therefore bound to enter into a covenant to indemnify the vendor against non-payment of the rent and non- observance of the covenants of the lease (c). And the assignee of a lease is bound so to indemnify the lessee, even without such a covenant (cc). The assignee, as such, is hable to the landlord for the rent which may be unpaid, and for the covenants which may be broken during the time that the term remains vested in liim, although he may never enter into actual possession {d), provided that such covenants relate to the premises let (e) : and a covenant to do any act upon the premises, as to build a wall, is binding on the assignee, if the lessee has covenanted for himself and his assigns to do the act (/'). But a covenant to do any act upon premises not comprised in the lease cannot be made to bind the assignee (a). Covenants which are binding; on the Covenants n \if ' ^ ^ in which run assignee are said to ru7i with the land, the burden of such with the land, covenants passing with the land to every one to whom the term is from time to time assigned. But when the assignee assigns to another, his liability ceases as to any future breach (A). In the same manner the benefit of covenants relating to the land, entered into by the lessor, will pass to the assignee ; for, though no contract has been made between the lessor and the assignee to pay it : but in such a case the C. 589: Moule v. Garrett, L. R. lessor will be barred from suing 5 Ex. 132. the lessee for rent, if he accept (d) WiUiams v. Bosanquet, 1 the assignee as his tenant. This Brod. & Bing. 238; 3 J. B. Moore, is no bar to his suing the lessee 500. on express covenants. See Wal- (e) As do, for example, the ker's case, 3 Rep. 22, 24 ; Barnard covenants specified in note (s) to V. Godscall, Cro. Jac. 309; Marsh p. 566, ante. V. Brace, ih. 334; Brett v. Cum- (/) Spencer's case, 5 Rep. 16 a; berland, ih. 521; Bacheloitr v. Hemingway \. Fernandes, 13 Sim. Gage, Cro. Car. 188; Norton v. 228. See MinshuH v . Oakes, 2 H. Aeklane, ih. 580; Mills v. Auriol, & N. 793, 809. 1 H. Hi. 433, 443, 445; 4T. R. 94, (g) A'eppel v. Bailey, 2 My. & 98; Mayor of Swansea v. 7'homas, K. 517. lOQ. B.D. 48; Bayntonv. Morgan, (h) Taylor v. Shum., 1 Bos. & 22 Q. B. I). 74. Pul. 31 ;' Ro^vley v. Adams, 4 M. (c) Sug. V. & P. 37, 14th ed. & Cr. 534. ice) Burnett v. Lynch, 5 B. & 563 OF PERSONAL INTERESTS IN REAL ESTATE. individual!}^, jet as the latter has become the tenant of the former, a lyrimty of estate is said to arise between them, by virtue of which the covenants entered into, when the lease was granted, become mutually binding, and may be enforced by the one against the other {%). This mutual right is also confirmed by an express clause of the statute before referred to ih)^ by which assignees of the reversion were enabled to take advantage of condi- tions of re-entrj" contained in leases (^). By the same statute also, the assignee of tlie reversion is enabled to take advantage of the covenants entered into by the lessee with the lessor, under whom such assignee claims (/tz), — an advantage, however, which, in some cases, he is said to have previously posses-^ed (n). And with regard to leases made after the year 18S1, the Conveyancing Act of 1881 contains further enact- ments {o) annexing the rent reserved and the benefit of the lessee's covenants, having reference to the sub- ject-matter of the lease, to the immediate reversionary estate in the land and gi\'ing a remedy for such rent and covenants to the person entitled, subject to the term, to the income of the same reversionary estate ; also laying the obligation of the lessor's covenants, with reference to the subject-matter of the lease, upon the immediate reversionary estate and the person entitled thereto, so far as the lessor has power to bind them ; and allotting the like advantage and liability to every part of the reversionary estate, in the case of severance thereof. rro7-:so for The payment of the rent and the observance and i-e-entry. (i) 3 Rep. 23 ; Stevenson v. 817. Lambard, 2 East', 575, 580; Sugd. [n) Vyvyan v. Arthur, 1 Barn. Vend. & Pur. 478, note, 3rd ed. & Cress. 410, 414. (yfc) Stat. 32 Heu. VIII. c. 34, (o) Stat. 44 & 45 Vict. c. 41, s. 2. ss. 10, 11; see Williams's Con- (^) ^«. OF A TERM OF YEARS. 5C9 perforniiiiice of the covenants are usually fui-tlier secured bj a proviso or cMnditiou for re-entry {p). Tlie proviso f;"trs for re-entry, so far as it relates to the non-payment of ^^^' ^'^" rent, has been already adverted to {q) ; it enables the landlord or his heirs (and the statutes above men- tioned (/') enable his assigns), to re-enter on the pre- mises let, and repossess them as if no lease had been made. The landlord, his heirs or assigns, could formerly, on non-observance of any covenant, at once re-enter in the same way under the proviso for re-entry on breach of covenant {s). And, as a rule, the tenant could obtain no relief in equity against a forfeiture for breach of covenant, other than a covenant to pay money {t). A condition for re-entry on breach of covenant thus became a very serious instrument of oppression in the hands of the landlord, when the property comprised in the lease was valuable and the tenant had by mere inadvertence committed some breach of covenant {u). But now, by the Conveyancing Act of 1S81 (a?), a right of re-entry or forfeiture under any proviso or stipulation in a lease [y) for a breach of any covenant or condition in a lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice specifying the pai-ticnlar breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case requiring the lessee to make compensation in money for the breach, and (p) See ante, p. 566, n. fe). (x) Stat. 44 & 45 Vict. c. 41, Iq) Aide, p. 389, s. 14; see Williuins's Convevanc- (r) Stats. 32 Hen. VIII. c. 34; ing Statutes, 114—119. 'This 44 & 45 Vict. c. 41, ss. 10, 14 Act repealed stats. 22 & 23 Vict. (sub-s. 8); ante, p. 391. c. 35, ss. 4—9; 23 & 24 Vict. c. («) Doe d. Mudon v. Gladwin, 126, s. 2; which had given power 6 Q. B. 953; Davis v. JSurrell, to the Courts, under certain con- 10 C. B. 821. ditioiis, to relieve against a for- {t) Jlill V. Barclay, 18 Ves. 56; feiture for breach of a covenant Notts V. Gibbon, 3 I)rew. 681 ; or condition to insure against Barrow v. Isaacs, 1891, 1 Q. B. fire. 417 ; see Barafnrd v. Creasy, 3 (y) See sect. 14, sub-s. 3 ; Giff. 075; Bargent v. Thomson, 4 Swain v. Ayres, 21 Q. H. 1), Giff. 4V3. 289. {u) See note (»), ante. 570 PERSONAL INTERESTS IN REAL ESTATE. the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satis- faction of the lessor, for the breach (s). And the Court is authorized, on the application of the lessee (a), to grant relief against such a forfeiture, if and upon such terms as tiie Court, under the circumstances of the case, shall think lit. Tliese provisions apply to all leases, whatever their date, and have effect notwithstanding any stipulation to the contrary. But they do not affect the law relating to re entry or forfeiture, or relief in case of non-payment of rent (J). Nor do they apply to a covenant or condition against the assigning, under- letting, parting with the possession or disposing of the land leased (c) ; or to a condition for forfeiture on the bankruptcy of the lessee (d), or on the taking in execu- tion of the lessee's interest; or, in the case of a mining- lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof. Effect of licence for breach of covenant. At common law, the proviso for re-entry on breach of covenants was the subject of a curious doctrine ; that if an express licence were once given by the landlord for the breach of any covenant, or if the covenant were, not to do a certain act without licence, and licence were once given by the landlord to perform the act, the right of re-entry was gone for ever (e). The ground of this doctrine was, that every condition of re-entry was entire and indivisible ; and, as the condition had been waived (a) See JVorth London dtc. Co. v. Jacques, 49 L. T. 659 ; Jacques V. Harrison, 12 Q. B. D. 136, 165 ; Greenfield v. Hanson. 2 Times L. II. 876 ; Skinners' Co. V. Knight, 1891, 2 Q. U. 542. (a) See sect. 14, sub-s. 3; Burt V. Gray, 1891, 2 Q. B. 98. {b^ Afde, pp. S89, 300. (c) Barrow v. Isaacs, 1891, 1 Q. B. 417. (d) Ex parte Gould, Be Walker, 13 Q. H. D. 454. (e) Dumpor's case, 4 Rep. 119; Brummell v. Macpherson, 14 Ves. m. OF A TERM OF YEARS. 571 once, it conld not be enforced again. So far as this reason extended to the breach of any covenant, it was certainly intelligible ; but its application to a licence to perform an act, which was only prohibited when done without licence, was not very apparent (/"). This rule, which was well established, was frequently the occasion of great inconvenience to tenants ; for no landlord could venture to give a licence to do any act, which might be prohibited by the lease unless done with licence, for fear of losing the benelit of the proviso for re-entry, in case of any future breach of covenant {g). But in 1859 this inconvenient doctrine was removed by Lord St. Leonards' Act (A) ; and the giving of any such licence no longer prevents the enforcement of the landlord's right of re-entry for any breach of covenant not autho- rised or avoided by the licence. This Act, however, Waiver of a brGtich of failed to provide for the case of an actual waiver of a covenant. breach of covenant. On this point the law stood thus. The receipt of rent by the landlord, after notice of a breach of covenant committed by his tenant prior to the rent becoming due, was an implied waiver of the right of re-entry {i) ; but if the breach was of a con- implied tinning kind, this implied waiver did not extend to the"'"^'''^' breach which continued after the receipt ilc). An im- breach. " plied waiver of this kind did not destroy the condition of re-entry {I) ; but an actual waiver had this effect. (f) 4 Jarman's Conveyancing, ance, on events which were not by Sweet, 377, n. (e). contemplated at the time of its ' (g) The only method to be creation. See 2 Prest. Conv. adopted in such a case was, to 199. create a fresh proviso for re-entry (A) Stat. 2'2 A 23 Vict. c. 35, on any future breach of the cove- ss. 1, 2. By stat. 8 & 9 Vict, nantsj a proceeding which was of c. 99, s. 5, the doctrine ceased to course attended with expense. extend to licences granted to the The term would then, for the tenants of Crown hinds, future, have been determinable li) Co. Litt. 211 b; Price v. on the new events stated in the Woi-wood, 4 H. & M. 512. proviso ; and there was no objec- (k) Doe d. Muston v. Gladwin, tion in point of law to such a 6 Q. B. 953 ; Doe d. Baker v. course ; for a term, unlike an Jones, 5 Ex. 498. estate of freehold, may be made {I) Doe d. Flower v. Peck, 1 B. determinable during its coutinu- & Ad. 428. od OF PERSONAL INTERESTS IN REAL ESTATE. waiver. Actual Few landlords therefore were disposed to give an actual waiver. This inconvenience was met by a subsequent Act {m\ providing that in future any actual waiver by the lessor, in any particular instance, of the benefit of any covenant or condition in any lease, should not be deemed to be a general waiver of the benefit of any such covenant or condition, unless an intention to that efiect should appear. reversion. Severance of At common law too, a grantee of the reversion of part of the property comprised in a lease could riot take advantage of a condition of re-entry or other con- dition contained in the lease ; as if a lease Iiad been made of three acres, reserving a rent n])on condition, and the reversion of two acres were granted, the rent might be apportioned but the condition was destroyed, "for that it is entire and against common right" (w). The law on this point was partially altered by Lord St. Leonards' Act, which provides (o), that where the reversion upon a lease is severed, and the rent is legally apportioned, the assignee of each part of the reversion shall, in respect of the apportioned rent belonging to him, have tiie benefit of all conditions of re-entry for non-payment of the original rent. It will be observed that this enactment does not affect conditions of re- entry on breach of covenants ; also, that it can only take effect, if the rent be legally apportioned. Rent can only be legally apportioned by the consent of the tenant to the apportionment, or by the verdict of a jury (/;). But with regard to leases made after the year ISSl, the common law rule is altogether abolished by the Conveyancing Act of 1881 (r/), which provides that every condition or right of re-entry and every other (m) Stat. 23 & 24 Vict. c. 38, s. 3. s. 6. (/>) Bliss V. Colling. 5 B. & A. in) Co. Litt. 215 a. See as to 87- GOO. As chattels, leasehold estates have always been liable to alienation for the tenant's debts, both during his life in execution of a judgment against him (J), and after his death (c). On a judgment against a tenant for years, his term may be seized and sold by the sheriff as a chattel under the writ of fieri facias {d). And by the old law, execution might be had under the writ of elegit {e) of the whole of a debtor's term, as a chattel, or of half of it, as land (/"). But at common law, judg- ments were no more binding on lands held for a terra of years than on other chattels (g) ; which, by the Statute of Frauds, were not bound by judgments until a writ of execution was actually in the hands of the sheriff or his officer (A). By the Act of 1838 extending (2) Rose V. Bartlett, Cro. Car. 292; see ante, pp. 21, 22. (a) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 2(3. See Wilson v. Eden, 5 Exch. 752; 18 Q. B. 474; 16 Beav. 153; Prescott v. Barker, * Exoneration L.. R., 9 Ch. 174* Stat. 22 & 23 of executors and adminis- trators of lessee. Vict. c. 35, s. 27, contains a pro- vision for the exoneration of the executors or administrators of a lessee from liability to the rents and covenants of the lease, similar to that to which we have already' referred with respect to their liability to rents-charge in con- veyances on rents-charge ; see ante, p. 494, n. (y); He Green, 2 De Gex, F. & J. 121. (b) Bac. Abr. Execution (C. 2, 4). (c) Ante, pp. 19, 20. (d) 4 Rep. 74; Tai/lor v. Cole, 3 T. R. 292 ; see Doe d. Hugho V. Jones, 9 M . & W. 372 ; ante, p. 308. (e) Ante, p. 308 and note {7i). {/) 8 Rep. 171; Bac. Abr. Execution (C. 2). (ff) 8 Rep. 171 ; Shirlei/ v. Watts, 3 Atk. 200. (A) Stat. 29 Car. II. c. 3, s. 16. See Williams on Personal Property, 70, 13th ed. OF A TERM OF YEARS. 575 creditors' remedies, lands held for a term were made liable to judgments against the tenant in the same manner as freehold lands {i) : but as against purchasers without notice of any judgments, such judgments were to have no further effect than they would have had under the old law (^■). And the before-mentioned Acts of iS60, 186i and 1888, reducing the lien of judgments, apply to leaseholds equally with freeholds (/). By the common law, terms of years are not bound by the Crown debts, tenants' debts to the Crown, until award of execution against him [m). And purchasers of terms are now further protected by the before-mentioned provision of the Crown Suits Act of 1865 {n). Terms have always been liable to alienation for debt on the tenant's bank- Bankruptcy. ruptcy (o). But as leases for years, by reason of their rent and covenants, are sometimes more burdensome than profitable, under the old bankrupt law, a bankrupt's term did not vest in his assignees (who occupied a position similar to that of the present creditors' trustej) without their acceptance of it (p). As we have seen, under the Bankruptcy Act, 1883 (q), when a debtor is adjudged bankrupt, the whole of his property vests at once in the trustee for the purposes of the Act. But the trustee may, within the time and pisciaimer of _ -^ ' leaseholds by under the conditions specified in the Act, disclaim any trustee in , , £• 1 I 1 1 • 1 . , bankruptcy. part ot the property 01 the bankrupt which consists of land of any tenure burdened with onerous covenants, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the pay- (i) Ante, pp. 310, 311. writ, (^) Stat. 2& 3 Vict. c. 11, s. 5; (I) Ante, pp. 812—314. Wedbrook v. Blythe, 3 E. & B. \m) Fieetwood's case, 8 Rep. 737. And if leaseholds should be 171; 13 Price, 059; Chitty, Pre- considered to be goods within the rogative of the Crown, 2b4, 297, meaning of stat. 19 & 20 Vict. 298. c. 97, s. 1; then a purchaser with- (n) Ante, p. 325. out notice was thereby protected, (0) Ante, pp. 317, 313. if lie acquired title at any time (p) Uac. Abr. Bankrupt (F). before an actual seizure under the [q) Ante, p. 318. 576 OF PERSONAL INTERESTS IN REAL ESTATE. ment of any sura of money {r). In the event of a dis- claimer by the trustee of the bankrupt's leasehold property, the Court may, under tiie conditions specified in the Act, make an order vesting the same in any other person entitled thereto (s). Underlease. Underlease for the whole term. No distress cau be made. It has been mentioned {ss) that a tenant for years may, unless restrained by express covenant, make an assignment of his whole term, or an underlease for any part thereof. Any assignment for less than the whole term is in effect an underlease {i). On the other hand, any assurance purporting to bean underlease, but which comprises the whole term, is, by the better opinion, in effect an assignment {ic). It is true that in some cases, where a tenant for years, having less than three years of his term to run, has orally agreed with another person to transfer the occupation of the premises to him for the rest of the term, he paying an equivalent rent, this has been regarded as an underlease, and so valid {x), rather than as an attempted assignment which would be void, formerly for want of a writing (//), and now for want of a deed (s). It is, however, held that no distress can be made for the rent thus reserved [a). But if a (?•) See Stat. 46 & 47 Vict. c. 52, s. 55, amended by 53 & 54 Vict. c. 71, s. 13 ; Bankruptcy Rules, 1890, No. 69; W. N. 13th Dec. 1890. As to the previous law, see stats. 32 & S3 Vict. c. 71, s. 23; 12 & 13 Vict. c. 106, s. 145; 6 Geo. IV. c. 16, s. 75; Bac. Abr. Bankrupt (F). (s) Stat. 46 & 47 Vict. c. 52, 8. 55, sub-s. G, amended bv 53 & 54 Vict. c. 71, s. 13; A'e Finley, 21 Q. B. D. 475; Re Morgan, 22 Q. B. D. 592; Ee Smith, iix parte Hepburn, 25 Q. B. D. 536. (ss) Ante, p. 565. {t) See Sugd. Concise Vendors, 482; Cottee v. Richardson, 7 Ex. Rep. 143. (m) Palmer v. Edwards, 1 Doug. 1S7, n.; Farmenter v. Webber, 8 Taunt. 593; 2 Prest. Conv. 124; Thorn v. Woolcombe, 3 B. & Ad. 586; Lana/ord v. Selmes, 3 K. & J. 220, 227; Beaumont v. Marquis of Salis- bury/, 19 Beav. 198, 210; JJeardma/i V. IVilson, L. R., 4C. P. 57. (x) Poulteney v. Holmes, 1 Strange, 405; Preece v. Corrie, 5 Bing.''27; Pollock v. Stacy, 9 Q. B. 1033. (y) Stat. 29 Car. II. c. 3, s. 3; ante, p. 543. {z) Stat. 8 & 9 Vict. c. 106, s . 3 ; ante, p . 543. (a) Bac. Abr. tit. Distress (A) ; V. Cooper, 2 Wilson, 375; Preece v. Corrie, 5 .Bing. 24 ; Pascoe V. Pascoe, 3 Bing. N. C. OF A TERM OF YEARS. tenure be created, the lord, if he have no estate, must at least have a seigniory (h), to which the rent would by law be incident ; and being thus rent service, it must by the common law be enforceable by distress (c). The very fact, therefore, that no distress can be made fur the rent by the common law, shows that there can be no tenure between the parties. And, if so, the attempted disposition cannot operate as an underlease (d). If, however, the disposition be by deed, and be executed by the alienee, it h.as been decided that the reservation of rent may operate to create a rent-charge (e), for which the owner may sue {/"), ami which he may assign, so as to entitle the assignee to sue in his own name (g). And if this be so, there seems no good reason why, under these circumstacces, the statutory power of distress given to the owner of a rent seek (h) should not apply to the rent thus created (/). But on this point also opinions differ {k). If such a rent be created after the year 1881, it would appear to be recoverable by means (if the remedies conferred by the 41th section of the Con- veyancing Act of 1881 (l). Every underlessee becomes tenant to the lessee who No privity grants the underlease, and not tenant to the original lessor and the lessor. Between him and the underlessee, no jjrivit// is ""'^^''^'^^s'^s. said to exist. Thus the original lessor cannot maintain any action against an underlessee for any breach of the covenants contained in the origiruil lease (m). His (b) Ante, ^. 4:78. (I) Sea v. Cooper, 2 Wils. (c) Litt. sect. 213. 375 ; Lanqfurd v. Sdrn,es, 3 K . & {d) Barrett v. liolph, 14 M. & .). 2-JO; Siiutk x . Watttt, 4 Dreiv. W. 348, 352. 338; WilU v. Cattliny, 7 W . R. («) Ante, p. 4''i6. 448 ; liurton's Coinpeudium, pi. \f) Baker v. GoKtling, 1 Bing. Ull. N. fc. 19. _ (/) Stat. 44 & 45^Vict. c. 41; (a) Williams v. Ilayward, IE. ante, p. 397; see Williams's Coii- & E. 1040. ■ vevancing Statutes, 210, 217. (/t) Stat. 4 Gi-o. II. c. 28, s. 5; (m) Ilolford y . Hutch, 1 Dougl. ante, pp. 485, 488. 183. If, however, the lease con- (i) Pas^coe \ . Pascoe, 3 Bing. tain covenants restricting the use N. C. 905. of the land, an underlessee, being W.R.P. K K 578 OF PERSONAL INTERESTS IN REAL ESTATE. remedy is only against the lessee, or any assignee from Dorivative liini of the wliulo term. The derivative term, which is an estate vcstcd in the underlcssee, is not an estate in the interest term'^'" Originally granted to the lessee: it is a new and distinct term, for a different, because a less, period of time. It certainly arises and takes effect out of the original term, and its existence depends on the continuance of such term, but still, when created, it is a distinct chattel, in the same way as a portion of any moveable piece of goods becomes, when cut out of it, a separate cliattel personal. Husband's By tlic commou law, if a married woman were pos- wife'sterm at sessed of a term of years, her husband might dispose common aw. ^^ jj. ^^ ^^^^^ ^j^^^ during the coverture, either absolutely or by way of mortgage (n) ; and if he survived her, he became entitled to it by his marital right {o). But if he died in her lifetime, it survived to her, and his will alone was not sufficient to deprive her of it {jj). And Wife's eqiiit- if a trustee were possessed of a term of years on trust able interest ^ . , ., i i i i • -i in a term of lor a married woman, equity gave her hnsband similar years. rights over her equitable interest therein (q); subject Wife's equity Iiowcvcr to the assoi'tion by the wife of her equity to a to^asettie- settlement, or right to have a ])rovision secured for her- self and her children by settlement of the rents and ])rotits of the term, or part thereof, on trust for that purpose (/'). But if the trust were for the wife's sepa- rate use, she was entitled to enjoy and dispose of her held to have constructive notice ancins; Statutes. 374, 375, 452. of his lessor's title, may be re- (/') - Black. Comm. 434; 1 Rop. vstrained from contravening the Husb. & Wife, 173, 177; Doe d. covenants, under the doctrine per- Shaw v. Steward, 1 A. & E. 300. mitting restrictions as to the use (q) Donne v. Hart, 2 R. & M. cf land to be a burden on the land 360; l\e Bellamy, Elder v. Ptar- in equity; ante, p. 170; Patman son, 25 Ch. L). 620; see Luherly V. Ilartand, 17 Ch . D. 353; see v. Day, 16 Beav. 33; 16 Jur. Eall v. Ewin, 37 Ch. 1). 74. 581 . {ii) Hill V. Edmonds, 5 De Gex (r) Hanson v. Keating, 4 Hare, & S. 1103, 607. 1; see Williams on Tersonal Vvo- (0) Co. Litt. 46 b, 351 a; see perty, p. 486, 13th ed. ante, p. 353 ; Williams's Convey- OF A TERM OF YEARS. 579 interest as fully as if she were a feme sole (.§). And now, if a term of years or any eqnitable interest therein belong to a married woman as her separate property under the Married Women's Property Act, 1882, she will be entitled to hold and dispose of the same in the same manner as if she were a feme sole (t). In many cases landlords, particularly corporations, Renewable are in the habit of granting to their tenants fresh leases, either before or on the expiration of existing ones. In other cases a covenant is inserted to renew the lease on payment of a certain fine for renewal ; and this covenant may be so worded as to confer on the lessee a perpetual right of renewal from time to time as each successive lease expires {u). In all these cases Surrender 11 CI 1 i '"^ law. the acceptance by the tenant ot tlie new lease operates as a surrender in law of the unexpired residue of ^^^^ ^"tei'iV^. old term ; for the tenant by accepting the new lease ^*^*'* affirms that his lessor has power to grant it ; and as the lessor could not do this during the continuance of the old term, the acceptance of such new lease is a surrender in law of the former. But if the new lease be void, the surrender of the old one will be void also ; and if the new lease be voidable, the surrender will bu void if the new lease fail {x). It appears to be now (s) See aniet pp. 360 — 362. Williams's Conveyancing Statutes, The Married Women's Property 378, 38-2. Act, 1870 (stat. 33 & 34 Vict. (0 Stat. 45 & 46 Vict. c. 75, c. 93, a. 7, now repealed, see ss. 1 (sub-s. 1), 2, 5; ante, pp^ ante, p. 290), provided that, where 291 — 294; see Williams's Con- any woman married after the veyancing Statutes, 382, 383, 418, passing of the Act (9th Aug. 421. 1870) should during her marriage (u) Igguldcn. v. May, 9 Ves. become entitled to any personal 325; 7 East, 237 ; Hare v. Barges, property {which would seem to 4 K. & J. 45. include leaseholds) as next of kin (.c) lue's case, 5 Rep. 11 h ; Noe or one of the ne.\t of kin of an d. £arl of Berkelei/ v. Archbishop intestate, such property should, of IVr^," 6 East, 86; Doe A. Earl subject and without prejudice to of Egremont v. Courtmay, 11 Q. the trusts of any settlement 13. 702 ; Doe d. Bidduljjh v. Poole, affecting the same, belong to the 11 Q. B. 713. woman for her separate use. See K K 2 530 ^F PERSONAL INTERESTS IN REAL ESTATE. settled, nfter much difference of opinion, that the granting of a new lease to another person with the consent of the tenant is an implied surrender of the old term (y). Whenever a lease, renewable either by favour or of right, is settled in trust for one person for life with remainders over, or in any other manner, the benefit of the expectation or right of renewal belongs to the persons from time to time beneficially interested in the lease : and if any other person should, on the strength of the old lease, obtain a new one, he will be regarded in equity as a trustee for the persons bene- ficially interested in the old one (s). So the costs of renewal are apportioned between the tenant for life and remaindermen according to their respective periods of actual enjoyment of the new lease (a). Special provisions have been made by Parliament for facili- tating the jjrocuring and granting of renewals of leases when any of the parties are infants, idiots or hmatics {b) ; also for enabling trustees of renewable leaseholds to renew the lease?, and to raise money by mortgage to pay for such renewal (c). A statute of the year 1860 (d) made provision for facilitating the pur- chase by trustees of renewable leaseholds of the rever- sion of the land, when it belongs to an ecclesiastical corporation, and for raising money for that purpose by sale or mortgage ; also for the exchange of part of the lands, comprised in any renewable lease, for the rever- (y) See Lyon v. Jieed, 13 M. & horise, 2 V. & B. 65 ; Jac. 631 ; W. 285, 306; Creagh v. Blood, Greenwood v. Evans, 4 Bear. 44; S Jones & Lat. 133, 160; Mckells Jones v. Jones, 5 Hare, 440; V. Atherstone, 10 Q. B. 944; Badleston v. Whelpdale, 9 Hare, ir Bonnell v. Pope, 2> Hare, VOo ; 775; Ainslie v. Harcourt, 28 Davison \. 6^e«<, 1 H. & N. 744. Beav. 313; Bradford v. Brown- (z) Eawe v. Chichester, Ambl. John, L. R., 3 Ch! 711. 715- Giddings v. Giddings. 3 (J) Stats. 11 Geo. IV. & 1 WiH. Russ. 241; Tanner v. Elworthy, lY. c. 65, ss. 12, 14—18, 20, 21; 4 Beav. 487; Clegg v. Fishwick, 53 Vict. c. 5, ss. 116, 120—124. 1 Mac. & G. 294. See ante, pp. (c) Stat. 51 k 52 Vict. c. 59, ss. 212, 213. 10, 11. (a) White T. White, 5 Ves. {d) Stat. 23 & 24 Vict. c. 124, 554; 9 Ves. 560; Allan v. Bach- ss. 35—39. OF A TERM OF TEARS. 5g;I^ sion in other part of the same lands, so as thus to acquire the entire fee simple in a part of the lands instead of a renewable lease of the whole. As we have seen, capital money arising under the Settled Land Act, 1882, may be applied in purchase of the reversion or freehold in fee of any settled leasehold land ; and the tenant for life now has power to exchange any part of the settled land for other land {e). Before the year 1876 the tenant of an agricultural Compensation ITT 1 1 • 1 • c 1 • ^'^ tenants for holdmg had no right to exact compensation from his their im- landlord for . any improvements {/) which he might ^'^^ ™*^" *' have made during Ids tenancy ; except under an express agreement with the landlord or by virtue of the custom of the country where the holding lav {u). An Act of ^mer(Va»i 1875 (A) made provision for the compensation of tenants ^^^' of agricultural holdings for improvements made by them. But the operation of that Act might be ex- cluded by agreement between landlord and tenant {i) ; and in practice this was usually done. The Act was repealed by the Agricultural Holdings (England) Act, 1883 (^), which came into force on the 1st of January, 1884: (Z). Under the Act of 1883 (m),where the tenant (?i) of a holding, to which the Act applies (o), has made {€) Ante, p. 135, n. {k) Stat. 40 & 47 Vict. c. (U, If) As to the removal of build- amended by 53 & 54 Vict. c. 26. ings and fi.ictures erected bj a (/) Stat. 4G & 47 Vict. c. 01, tenant for agricultural purposes, s. 53. see Williams on Personal Pro- (jn) Sect. 1. perty, 22, 13th ed. (n) By sect. 61. in this Act (g) See Button v. Warren, 1 M. "tenant" means the holder of & \V. 466; notes to Wigglesworth land under a landloi'd for a term V. DaUiaon, 1 Smith, L. C. ; of years, or for lives, or for lives Woodfall on Landlord and Tenant, and years, or from year to year, oh. XX., sects. 4, 5, pp. 774, et {o) See sect. 54, ante, p. 463. seroperty, but they have also power at once to dispose of it for 1,000 3'ears to come, a power whicii is evidently almost as effectual as if they were enabled to sell the fee simple. Until the time of payment comes, the owner of the land is entitled on the other hand, to receive tiie rents and jjrofits, by virtue of tlie trust under which the trustees may be compelled to permit him so to do. So, if part of the rents should be required, the residue must be paid over to the owner ; but if non-payment by the owner appears that such a charge should as a landlord's charge, be registered iu the same manner OF A TERM OF YEARS )85 should render a sale necessary, the trustees will be able to assign the property, or any part of it, to any pur- chaser for 1,000 years without any rent. But until Tiie owner- , 1 J- 1 1 1 • c , ship of the these measures may be eniorceu, the owuership oi tlie land, subject land, subject to the payment of the money, remains i" menri-emains the same state as before. The trustees, to whom the '^^ 'before. term has been granted, have onlj' a chattel interest ; the legal seisin of the freeliold remains with the owner, and may be conveyed by him, or devised by his will, or will descend to his heir, in the same manner as if no term existed, the term all the while still hanging over the whole, ready to deprive the owners of all substantial enjoyment, if the money should not be paid. If, however, the money should be paid, or should not ultimately be required, different methods may be employed of depriving the trustees of all pov/er over the property. The first method, and that most usually adopted in modern times, is by inserting in the deed, by which the term is created, a proviso that the term shall cease, not only at its expiration by lapse of time, but also in the event of the purposes for which it is created being fully performed and satisfied, or becoming unnecessary, or incapable of taking effect {d). This Proviso for proviso for cesser, as it is called, makes the term endure BO long only as the purposes of the trust require; and, when these are satisfied, the term expires without any act to be done by the trustees : their title at once ceases, and they cannot, if they would, any longer intermeddle with the property. But if a proviso for cesser of the term should not be inserted in the deed by which it is created, there is still a miithod of getting rid of the term, without distui-bing the ownership of the lands which the term overrides. {d) Sec Sugd. Vend. & Pur. 621, Mth ed. 5SG OF PERSONAL INTERESTS IN REAL ESTATE. Terms are vised for securing portions. Any estate of freehold is a larger estate than a term of years. ilerger of the term. Surrender. The lands in such cases, it sliould be observed, may not, and seldom do, belon<)j to one owner for an estate in fee simple. The terms of which we are now speaking are most frequently created by marriage settlements, and are the means almost invariably used for securing the portions of the younger children ; whilst the lands are settled on the eldest son in tail. But, en the son's coming of age or on his marriage, the lands are, for the most part, as we have before seen (f), resettled on him for life only, with an estate tail in remainder to his unborn eldest son. Tiie owner of the lands is therefore probably only a tenant for life, or perhaps a tenant in tail. But, whether the estate be a fee simple, or an estate tail, or for life oidy, each of these estates is, as we have seen, an estate of freehold (/"), and, as such, in larger, in contemplation of law, than any term of years, however long. The consequence of this legal doctrine is, that if any of these estates should happen to be vested in any person, who at the same time is possessed of a term of years in the same land, and no other estate should intervene, the estate of freehold will infallibly swallow up the term, and yet be not a bit the larger. The term will, as it is said, be merged in the estate of freehold {g). Thus, let A. and B. be tenants for a term of 1,000 years, and subject to that term let C. be tenant for his life ; if now A. and B. should assign their term to C. (which assignment under such circumstances is called a surrender)^ C. will still be merely tenant for life as before. The term will be gone for ever; 3'et C. will have no right to make any disposition to endure beyond his own life. He had the legal seisin of the lands before, though A. and B. had the possession by virtue of their term ; now, he will have both legal seisin and actual possession during his life, and A. and B. will have completely given up all their interest in the (e) Ante, p. 111. (/) Ante, p. 70. (g) 3 Prest. Conv. aiitt, pp. 393, 426, 219. See OF A TERM OF YEARS, 587 premises Accordingly, if A. and B. should be trustees for the purposes we have mentioned, a surrrciider by them of their term to the legal owner of the land, will briuo- back the ownership to the same state as before. The Act to amend the law of real property [h) now pro- Surrenders , , . . . ^ . , . now to be by vides that a surrender in writing ot an interest m any deed, tenements or hereditaments, not being a copyhold inte- rest, and not being an interest which might by law have been created without writing, shall be void at law unless made by deed. The merger of a term of years is sometimes occa- -Accidental " merger. sioned by the accidental union of the term and the immediate freehold in one and the same person. Thus, if the trustee of the term should purcha-e the freehold, or if it should be left to him by the will of the former owner, or descend to him as heir at law, in each of these cases the term will merge. So if one of two joint holders of a term obtain the immediate freehold, his moiety of the term will merge ; or conversely if the sole owner of a term obtain the immediate freehold Jointly with another, one moiety of the term will merge, and the joint ownership of the freehold will continue, subject only to the remaining moiety oi:" the term (^). Merger being a legal incident of estates, formerly occurred quite irrespectively of the trusts on which they were held ; but equity did its utmost to prevent any injury being sustained by a cestui que trust, the estate of whose trustee might accidentally have merged {k). But the Judicature Act of 1873 (J) pro- vided that there should not, in future, be any merger by Qi) Stat. 8 & 9 Vict. c. 10(5, Chamhersv. Eingham, 10 Cb. D. s. 3, repealing stat. 7 & 8 Vict. 743. c. 76, s. 4, to the same effect. [I) Stat. 36 & 37 Vict. c. fiO, (i) air Ralph Bovei/s case, 1 s. 25, subs. 4. By stat. 37 & 38 Vent. 193, \'.ih\ Co. Litt. 186 a; Vict. c. b3, the former Act coiu- Burton's Compendium, pi. 900. menced on the 1st Nov. Ih75. (/fc) See 3 Prest. Con v. 320, 321 ; 5S8 OF PERSONAL INTERESTS IN REAL ESTATE. operation of law only of any estate, tliebeneti(;ial interest in which would not be deemed to be inei'iijed or ex- tinguished in equity. The law, though it did not "> recognize the trusts of equity, yet took notice in some few eases of property being held by one pei-son in right Estates held of another, or in autre droit, as it is called; and in ■ these cases the general rule was, that the union of the term with the immediate freehold would not cause any merger, if such union were occasioned by the act of law, and not by the act of the party. Tiius, if a term were held by a person, to whose wife the immediate free- hold afterwards came by descent or devise, such freehold, coming to the husband in right of his wife, would not have caused a merger of the term {m). So, if the owner of a term made the freeholder his executor, the terui would not have merged {n); for the executor is recog- nized by the law as usually holding only for the benefit of creditors and legatees ; but if the executor himself should be the legatee of the term, it seems that, after all the creditors have been paid, the term will still merge (o). And if an executor, whether legatee or not, holding a term as executor, should parclnue the im- mediate freehold, the better opinion is, that this being his own act, will occasion the merger of the term, except so far as respects the rights of the creditors of the testator (^^). The term There was formerly another method of disposing belli kept on of a term when the purposes for which it was cieated had been accomplished. If it were not destroy( d by a proviso for cesser, or by a merger in the freehold, it might have been kept on foot for the benefit of the {rn) Doe d. Blight v. Pett, 11 and Lord St. LeonGrd^s' comments A. & E. 842; Jones v. Davies, 5 on this case, Sugd. V. & F. 507, H. k N. 766 ; 7 U. & N. 507. 13th ed. (/i) Co. Litt. 338 b. (/)) Sugd. Vend. & Pur. 505, (0) 3 Prest. Conv. 310, 811. 13ih ed See Law v. Urkvin, 16 Sim. 377, foot. OF A TERM OF YEARS. 539 owner of the property for the tine being, A term, as we have seen, is an instrument of great power, yet easily managed ; and in case of the sale of the property, it might have been a great protection to the purchaser. Suppose, therefore, that, after the creation of such a term as we have spoken of, the whole property had been sold. The purchaser, in this case, often preferred having the term still kept on foot, and assigned b}' the trustees Assignment to a new trustee of his own choosing, in trust for himself, attend the his heirs and assigns ; or, as it was technically said, I'^^entance. in trust to attend the inheritance. The reason for this proceeding was that the former owner might, possibly, since the commencement of tlie term, have created some incumbrance upon the pi'operty, of which the purchaser was ignorant, and against which, if existing, he was of course desirous of being protected. Suppose, for in- Case of a stance, that a rent-charge had been granted to be issuing out of the lands, subsequently to the creation of the term : this rent-charge of course could not affect the term itself, but was binding onlj' on the freehold, subject to the term. The purchaser, .therefore, if he took no notice of the term, bouyht an estate, subject not only to the term, but also to the rent-charge. Of the existence of the term, however, we suppose him to have been aware. If now he should have procured the Consequeuce , 1 1 1 • 1 c 1 1 o*" '^ surrender term to be surrendered to Inmselt, the unknown rent- of the term. charge, not being any estate in the land, would not have prevented the union and mei'ger of the term in the freehold. The term would consequently have been destroyed, and the purchaser would have been left without any protection against the rent-charge, of the existence of which he had no knowledge, nor any means of obtaining information. The rent -charge by this means became a charge, not onlj- on the legal seisin, but also on the possession of the lands, and was said to be accelerated by the merger of the term {q). The (i v. Paige, 2 Pick. 71; Davis V. Thompson, 13 Me. 20S\ 214; Withers v. Larralee, 48 Me. 570. A tenancy from year to year, or a tenancy for another year on the terms of the former lease, is also implied when a tenant retains possession after the expiration of a definite term, with the assent of his landlord, either express or implied. In Haynes v. Aldrich, 133 N. Y. 287, 289, it is said that "the rule is too OF A TERM OF YEARS. 597 well settled to be disputed tliat where a tenant holds over after the expira- tion of his term the law will imply an agreement to hold for a year upon the terms of the prior lease; that the option to so regard it is with the land- lord and not witli the tenant, and that the hitter holds over liis term at his peril." iSee, also, Schuyler v. Smith, 51 N. Y. 309; Hemphill v. Flynn, 2 Pa. St. 144; Hull v. Myers, 43 Md. 446; Scott v. Beecher, 91 Mich. 590; Brown v. Kayser, GO Wis. 1; Providence Banlc v. Hall, 16 R. I. 154; Clinton Cloth Co. V. Gardner, 99 111. 151; Toller. Orth, 75 Ind. 298; Hammonv. Douglas, 50 Mo. 434; Gardner v. Com. of Dahota Co., 21 Minn. 33; 1 Kan. Gen. Stat. (1889), § 3611; \Vi.s. Ann. Stat. (Sanborn & Berryman), § 2187. In Connecticut it is provided by statute that no holding over by the lessee after the expiration of his lease shall be evidence of an agreement for a further lease. Gen. Stat. (1888), § 2967. Notice to quit. — Unless changed by statute, the common law notice of ^x months, ending with the expiration of the current year, is generally consid- ered necessary to terminate an estate from year to year. See Den v. Drake, 14 N. J. Law, 523; Barlow v. Waimcright, 22 Vt. 89, 94; Brown v. Kayser, 60 Wis. 1 ; Hall v. Myers, 43 Md. 446. In New York the statute, while pro- viding for notice to terminate estates at will and by sufferance, is silent as to estates from year to year, and the question has not been definitely settled by the courts. The result of the cases seems to be that, if the tenancy is one implied from holding over a definite term, or from possession taken under a verbal lease for longer than one year, it may be terminated by either party without notice. The original agreement is of itself a sufficient notice. But when the lease is by its terms for an indefinite period, the common law notice of six months, or at least a reasonable notice, is required. See Adams v. City of Cohoes, 127 N. Y. 175; Pari v. Castle, 19 How. Pr. 29; Pugsley v. Ailin, 11 N. Y. 494, 498; Reeder v. Sayre, 70 N. Y. 180, 186, 188. In Minnesota, under a similar statute, it has been held that, as regards notice to quit, tenancies from year to year are included in the term " estates at will.'' Hunter y. Frost, 4:1 Mmn. 1. In the states where estates from year to year are recognized by statute, a notice to quit is usually pro- vided. In Virginia six months' notice is required unless the premises are situated in a town, in which case three months is sufficient. Va. Code (1887), § 2785. In Colorado, Indiana, Kansas and West Virginia, the statutory notice is three months. Mills' Ann. Stat. (Col.), § 1976; Burns' Ind. Stat. (1894), § 7090; 1 Kan. Gen. Stat. (1889), § 3614; W. Va. Code (1891), chap. 93, § 5. lu Mississippi two months is required, and in Illinois and Missouri, sixty days. Miss. Ann. Code (1892), § 2544; 111. K. S. (Cothran's ed.), chap. 80, § 5; Mo. R. S. (1889), § 6370. The Michigan statute provides that " a notice to quit, given at any time, .«ihall be suffi- cient to terminate said lease at the expiration of one year from the time of the service of such notice." Howell's Ann. Stat. (Supp.), § 5774. 598 OF PERSONAL INTERESTS IN REAL ESTATE. * Leases requiued to be in writing. — In Maine, Massachusetts, New Ilampsliire, Verniout and Missouri, the first section of the Englisli Statute of Frauds has been substantially re-enacted; and all parol leases are declared to have the force and effect of leases at will only. Withern v. Larrahee, 48 Me. 570; Mass. Pub. Stat. (1882), chap. 120, § 3; N. H. Pub. Stat. (1891), chap. 137, § 12; Vt. R. S. (1880), § 1932; Mo. R. S. (1889), § 5182. But see note 3 {supra). The statutes of New Jersey and Pennsyl- vania are similar; but all leases not exceeding the term of three years from the making thereof are excepted from the operation of the statute and need not be in writing. N. J. Rev. (1877), 444, § 1; Brightly's Purdon's Dig. 830, § 1. But in the majority of the states the term for which a valid and enforceable lease may be created by oral agreement is reduced to one year. See Cal. Civ. Code (1886), § 1091; Mills' Ann. Stat. (Col.), § 2021; Dak. Comp. Laws (1887), § 8245; 111. R. S. (Cothran's ed.), chap. 59, § 2; 2*McClain's Ann. Code (Iowa), § 4915; 1 Kan. Gen. Stat. (1889), § 31G5; Ky. Gen. Stat. (Bullitt & Feland), chap. 22, § 1 ; 2 Howell's Ann. Stat. (Mich.), § 6179; Kelly's Minn. Stat. (1891), §§ 4230, 4232; Miss. Ann. Code (1892), §§ 2434, 4225; Neb. Comp. Stat. (1893), chap. 32, § 3; 2 N. Y. R. S. 134, I'SS, §§ 6-8 (8th ed. 2589, §§ 6-8); 1 Hill's Ann. Stat. (Oreg.), §§ 781, 785; Texas Civ. Stat. (Sayles), art. 2464; Va. Code (1887), § 2840; W. Va. Code (1891), chap. 98; Wis. Ann. Stat. (Sanborn & Berryman), §§ 2302, 2304; Wyo. R. S. (1887), § 1249. ^Leases required to be by deed. — The statutes of several states require all leases exceeding a specified term to be created by deed. This term is usually two, three or five years in the different states. « Leases op agricultural lands. — By the constitutions of New York and Michigiin, all leases of agricultural lands for a longer term than twelve years, in wiiich any rent or service of any kind is reserved, are declared to be void. Const, of N. Y., Art. I, § 14; Const, of Mich., Art. XVIII, § 13. In the Dakotas and California, leases of agricultural lands are limited to ten years, and leases of lots in towns and cities to twenty years. Dak. Comp. Laws (1887), § 2719; Cal. Civ. Code (1886), §§ 717, 718. ' Assignment and sub-letting. — The American law on this subject does not differ materially from the English. As stated in the text, a lessee may, unless restrained by express covenant, either assign his interest or grant an underlease for any period less than his own term. The form of the instru- ment by which the transfer is effected is immaterial. If any reversion, however small, remains in the orginal lessee, the transferee becomes merely an under-tenant; but if he conveys his whole term, although in only a por- tion of the premises, the transaction is in law an assignment. See, on the siibject generally, Stewart v. Long Mnnd B. R. Co., 102 N. Y. 601 ; Lee v. Payne. 4 Mich. 106, 117-120; Patten v. DeHhon, 1 Gray (Mass.), 325, 329- 331; Dartmouth Qollege v. Cloug\ 8 N. H. 22. The better opinion is that OF A TERM OF YEARS. 599 the reservation on the part of tlie original lessee of a right of entry for the failure to pay rent or the non-performance of other covenants does not con- stitute a reversion sufficient to convert an otherwise valid assignment into a sub-letting. Sexton v. Chicago Storage Co., 129 111. 318; Stewart v. Long Island R. R. Co. supra; Craig v. Summers, 47 Minn. 189; Smiley v. Van Winkle, 6 Cal. 605; contra, Dunlap v. Bullard, 131 Mass. 161. The dis- tinction between an assignment and a sub-letting is concisely stated by Judge Rapallo in Stewart v. Long Island R. R. Co. supra: " Where a lessee assigns his whole estate, without reserving any reversion therein in himself, a privity of estate is at once created between his assignee and the original lessor, and the latter has a right of action directly against the assignee, on the covenant to pay rent or any other covenant in the lease which runs with the land;..but if the lessee sublets the premises, reserving or retaining any such reversion, however small, the privity of the estate is not estab- lished, and the original landlord has no right of action against the sub- lessee, there being neither privity of contract nor of estate between them." ^Provisiox for re-entry. — In this country it is customary to insert in leases a condition that, upon the failure to pay rent or the ncra-performance of the other covenants of the lease, the lessor may re-enter the premises. It is generally provided by statute that if the tenant neglects or refuses to pay rent, the landlord may determine the tenancy upon giving a specified notice. See Stimson's Amer. Stat. Law, § 2054. But as a rule, unless the lease contains a condition of re-entry, the breach of a covenant gives the landlord merely an action for damages, but does not entitle him to termi- nate the lease. Vanatta v. Brewer, 32 N. J. Eq. 268; Spear v. Fuller, 8 N. H. 174; Johnson v. Gurley, 52 Tex. 222; Langley v. Boss, 55 Mich. 163; Be Lancey v. Oanong, 9 X. Y. 9, 20; Brown's Admr. v. Bragg, 22 Ind. 123. A breach of a condition of forfeiture or of re-entry does not avoid the lease but renders it voidable at the option of the lessor; and the acceptance of subsequently accruing rent with knowledge of the breach, or any other act on his part which recognizes the continuance of the tenancy, will amount to a waiver of the right to re-enter and an affirmance of the lease. Conger V. Duryee, 90 N. Y. 594; Smith v. Miller, 49 N. J. Law, 521 ; McKildoe v. Darracott, 13 Gratt. (Va.) 278; Rogers v. Snow, 118 Mass. 118; Webster v. Nichols, 104 111. 160; Garnhart v. Finney, 40 Mo. 449. The provision of the statute of 32 Hon. VIII, chap. 34, giving the grantees or assignees of a lessor the same remedies by action, entry or otherwise for the recovery of rent or the non-performance of other agreements in the lease that the lessor might have had, has been generally re-enacted in the United States See Cal. Civ. Code (1886), § 821; Dak. Com. Laws (1887), § 2775; III. R S. (Cothran's ed.), chap. 80, §14; Burns' Ind. Stat. (1894), §7099; Ky Gen. Stat. (Bullitt & Feland). chap. 63, art. 1, § 25; chap. 66, art. 3, § 7 Miss. Ann. Code (189-2), § 3539; 1 N. Y. R. S. 747, § 33 (8th ed., vol. iv, p 2459, § 23; N. J. Rev. (1877) Conveyances, § 79; Va. Code (1887), § 2781; 600 OF PERSONAL INTERESTS IN REAL ESTATE. W. Va. Code (1891), chap. 93, § 1 ; Wis. Ann. Stat. (Sanborn & Berrymau), § 2195. ' \Yriting REQurRED TO ASSIGN LEASE. — As a Tule tlie statutes of the different states require the same formality in the assignment of a lease as in its execution. '"Alienation for debt. — In this country an estate for years is generally regarded as personal property, and as such is subject to levy and sale on execution. BtiJil v. Kenyon, 11 Mich. 249; Ban' v. Doe, 6 Blackford (Ind.), 835; Dnhell v. Lynch, 4 W. & S. (Pa.) :;56 ; Kile v. Giehier, 114 Pa. St. 381; 1 Freeman on Executions (2d ed.), §§ 119, 172. '' Surrender. — A surrender, which is defined to be the yielding up of an estate for life or for years to the one holding the immediate reversion or remainder, may be effected either by express agreement or by operation of law. As a general rule, the statutes require the same formality in the execution of an express surrender as in the creation of the original lease. A surrender by operation of law is not within the statute of frauds, and may be implied from any acts which are inconsistent witii the continuance of the tenancy and indicate an intention to terminate it. As stated in the text, the acceptance of a new lease by a tenant before the expiration of his term, implies a surrender of the old lease. Donkersley v. Levy, 38 Mich. 54, 59, GO; Euyeart v. Davis, 17 Neb. 228, 235, 236; Hong w. Carpenter, 18 111. App. 555; Coleman v. Mallerly, 3 T. B. Monroe (Ky.), 221. If the new lease is invalid, it will not so operate ; and it is said that a surrender will not be implied when the circumstances are such as to indicate that uoue was intended. Coe v. Holly, 72 N. Y. 141; Van Rensselaer v. Penni- ma?i, 6 Wend. (N. Y.) 569; Flagg v. Doic, 99 Mass. 18, 21 ; Taylor on Land- lord and Tenant (8th ed.), § 512. A surrender in law may be also effected when, by agreement between the lessor and lessee, the former resumes actual possession of the premises, or substitutes another tenant in the place of the original lessee. And while a tenant cannot, by merely abandoning the premises, escape liability upon the covenants of the lease ; yet if the landlord afterward enter into unqualified possession, or relets tlie premises to otiier parties for his own benefit, he will be deemed to have accepted the surrender. Amory v. Kannoffshj, 117 Mass. 351, 354-357; Wallace v. Kennelly, 47 N. J. Law, 242 ; Welcome v. Hess, 90 Cal. 507 ; Ladd v. Smith, 6 Oreg. 316; Logan v. Anderson, 2 Doug. (Mich.) 101; Witmanx. Watry, 31 Wis. 638; Mattheics v. Tolener, 39 Mo. 115. And see Underhill v. Col- lins, 132 N. Y. 269; Auer v. Pemi, 99 Pa. St. 370. '- Compensation for improvements. — In the absence of express agree- ment, a tenant is not entitled to compensation for any improvements or re- pairs made by him on the demised premises. Kutter v. Smith, 2 Wall. 491; Wilson v. Scruggs, 7 Lea (Tenn.), 635, 640; Dunn v. Bagly, 88 N. C. 91 ; Mumford v. Brown, 6 Cowea (N. Y.), 475. CHAPTER II. OF A MORTGAGE OF LAND. We have seen (a) that a mortgage forms part of the personal estate of the mortgagee. We will now consider the nature of the interests in land, which are created bj' a mortgage. At the present day what is generally understood by the term mortgage is a conveyance of land or other property as security for the payment of money. Mortgages are most frequently made to secure the repayment of money borrowed by the owner of the property mortgaged ; in whicli case he incurs a debt, or personal obligation to repay out of whatever means he may possess (^) : unless, indeed, it should have been agreed that he should not bo under any personal liability of repayment (c). Such mortgages, however, usually include an express covenant for repayment. But in so far as a mortgage is a transfer of property, its object is to confer on the mortgagee a proprietary right, by exercising which he will be enabled to raise the money payable to him ; so that he shall have the means of securing himself from loss in the event of his debtor being personally unable to pay, or of attaining the desired end, where there is no personal liability to pay- ment. But though the object of a mortgage of land is nothing more than to pledge the land as security for a money payment, the form, which this transaction has usually assumed in modern English law, is such that (a) Arde, p. 556. (c) Mathew v. Blackmore, 1 H. (6) Bac. Abr. Mortgage (D) ; & N. 762. Yates V. Aston, 4 Q. B. 182. QQ2 «F PERSONAL INTERESTS IN REAL ESTATE. the interests of the parties are of a very complicated nature. For, as we shall see, a mortgagee of land occupies one position at law, and another m equity. Oriorin of term The origin Of the term mortgage appears in mot,ga(je. Qlanville {d), in whose time either land or goods might be pledged as security for a debt. A plcilge of land was effected by a conveyance thereof to the creditor to hold until the debt was paid, with an agreement either that the creditor should apply the rents and profits in reduction of the debt, or that he should receive them without any liability to account. In the latter case the transaction was called mortuum vadium (which in French is mart gage, whence mort- gage) ; because, although the debtor miglit redeem the land on pavmentof the principal sura, in the meantime it was dead or unprofitable to him. The object of the mortuura vadium was to give the creditor the profits of the land in lieu of interest ; the taking of which, under the name of usury, was anciently regarded as an unchristian abomination {e). But these ancient nietiiods of pledging land seem to have fallen out of use at an early date, and to have been succeeded by a more stringent contract, under which the land was given in pledge until a certain day fixed for payment, with a stipulation that on failure to pay at the appointed time the land should remain to the creditor in fee (/). Thus Littleton {g) describes a mortgage as a feoffment n2:)on (d) Glanv. lib. x. c. 6 — 8. hereditaments, or any estate or (e) See Plowden on Usury, interest ttiereiu, until all the laws Part I. Interest was first allowed ajrainst usury were repealed in by law bv stat. 37 Heu. VIII. 185-t. Any rate of interest to c. 9, by which also interest above which the parties may agree may ten per cent, was forbidden. By now be taken on a mortgage of Stat 13 Anne, c. 15 (12 Anne, lands. See stats. 5 & 6 Will. IV. St. 2, c. 1(5, in Ruffhead), the legal c. 41 ; 2 & 3 Vict. c. 37; 13 & 14 rate of interest was reduced to five Vict. c. 56; 17 & 18 Vict. c. ?0. per cent., which remained the (/) See Glan. x. 6, 7; Bract. highest rate of interest that could 2GS b; Madox, Form. Angl. Nos. be" lawfully taken upon the mort- 5150—562, 569, 579, 589. gage of any lands, tenements or {g) Sects. 332 et seq. OF A MORTGAGE OF LAND. Q03 condition that if the feoffor pay to the feoffee on a certain day a certain sum of money then the feoffor may re-enter. And he says that this is called a mort- gage because, if tlie feoffor do not [)ay, then the land pledged is taken from him for ever and so dead to him. We have seen however that the term mart gage had been used earlier in a different sense. Still Littleton's derivation may help the reader to remember the nature of the transaction now called a mortcra^e at law. For what is now called a mortgage of land is the conveyance thereof from one to another for an estate in fee, or other estate, which is to be determined or re- conveyed on condition of the payment of money by the former on a cert:iin day. And at law., if the condition Construction Till ' ^1 °f '1 mortgage be broken by non-payment oi the money at the ap-atiaw, pointed time, the estate of the person, to whom the land was so conveyed, becomes absolute, or discharged from the condition. So that, at law, he will be entitled to hold the land, as his own, for all the estate limited to him. For in the Courts of Law the parties were held to the terms of their bargain, by which the land was to be redeemed on a certain day, or if not, to be forfeited by the debtor [h). This strict construction of a mortgage appears to Relief given to have prevailed for a long time. But at length a equ'itl'.'^°"' '" mortgagor, who had failed to pay on the appointed day, obtained relief in the Court of Chancery against the forfeiture, which he had so incurred. It is not very clear when (i) or on what ground {k') this equitable (A) Bac. Abr. Mortgage fD); 125, &c.; 2 Cal. 5, 14, 15, 27, 33, Y. B. 22 Ken. VI. 57, pi. 7; 7 85, &c. ; and see Langford v. Edvv. IV. 3, 4, pi. 7, 10 ; Bro. Barnard (37 Eliz.) iind"£arnabi/ Abr. Condicions, 203; Litt. ss. v. Greene (9 Jac. I.) in Totliill, 332, 337. tit. Mortgage. (i) Suits for redeeming mort- (k) It would appear from what gages appear to have been brought is said by Sir G. Gary (Master in in Queen Elizabeth's reign ;" 1 Chancery, 1590— lori) that relief Cal. cxlv. 69, 71, 77, 79, 105, 111, was tirsl* given in cases of failure (504 OF PEKSOXAL INTERESTS IX REAL ESTATE. jurLsdiction was first exercised. But in the reign of Charles I. it was established as equity (/) that a inort- gao-or should be allowed to redeem his estate after the legal day of payment had gone by ; and the Court of Chancery, on application by the mortgagor after the time fixed for redemption had elapsed, would decree that the mortgagee should, on repayment of all that was due to him, reconvey the estate to the mortgagor (/w). Principles of The main princi|)les of equity in respect of the mgmongages' J'edemption of mortgages were settled in the reign of Charles II.; about the time when modern equity began to take shape as a system of rules resting upon prin- ciples evolved from precedent (/i). The first principle Equity of established was that of the morto;;ao-ur''s equity of re- deinptionj that is, that the mortgagor, or any one standing in his place, shall be admitted in equity to ]-edeem a mortgage after the day fixed by the contract for redemption is gone by, and the estate has become forfeited at law [o). It was further laid down as a American, orencral rule, subject to very few exceptions, that itote 1, p, ~ T J -y 1 ' ''■^^- wherever a conveyance of an -estate is originally in- tended as a security for money, whether this intention appear from the deed itself or by any other instrument or even by parol evidence (/>), it is alwaj-s considered in equity as a mortgage and redeemable ; even though there is an express agreement of the parties that it shall not be redeemable, or that the right of redemption shall be confined to a particular time, or to a particular to pay at the appointed time by IS ; Welclnn v. Eallison, ib. 91. accjt/e«<, or of some triBuiLC default, (;/) Ante,\i. 197. and was afterwards extended to (o) See Tarn v. Turner, 39 Ch. all cases of forfeiture of mortgaged D. 45G. land by failure to pay money when {)/) Prec. Cb. 526; England v. due; see Gary, 1. Codrivffton, 1 Eden, 109; Vernon (I) Ante, p. 193. v. Jldhell, 2 Eden, 110; 1 Coote (m) JIuw V. Figures, 1 Ch. Rep. on Mortgage, ch. iii. sect. 3. OF A MORTGAGE OF LAND. (5Q5 description of persons {q). In other words, it was established that no agreement of the parties to a mortgage, that the mortgage should not he redeemable according to the rules of equity, thould have any effect in equity (/'). This principle is t^hortly summed up in the phrase " once a mortgage, always a mortgage " {s). Furthermore, it was held that, in equity, the right of the mortgagee was to the money secured, and he held the land only as security for his money; so that in equity he had a mere chcwge for the amonnt due to him, even though he were absolute tenant in fee at law. It was therefore decided that the beuelit of a mortgage should go, along with the rest of the mortgagee's ])ersonal estate, to his executor or administrator, not his heir {i). And although at law the estate of a mortgagee in fee would go to his heir or devisee, yet in equity the heir or devisee was iield a mere trustee thereof for the executor or administrator {tt). Con- versely, in equity the mortgagor was regarded as the owner of the mortgaged land, subject only to the mort- gagee's charge; and the mortgagor's equity of re- demption was treated as an equitable estate in the land, of the same nature as other equitable estates (a?). These principles of equity became so well settled and Form of understood that no substantial change was made in the "guai^'^^^ °°"' Usual form of a mortgage. And at the present day, (q) Co. Litt. 205 a, note (T); I/ockorish, 25 Q. B. D. 176. As 1 Coote on Mortgage, cb. iii. to the sums wtiich the mortgagee sect. 2. may be allowed to charge for the (r) Price v. Perrie, 2 Freem. use of his money since the repeal 258 ; Salt v. Af'irquis of JS'orth- of the Usury Laws, see Mainland amptoii,, 1892, A. C. 1. Ujion v, i'pjohn, 41 Ch. D. 126. this principle it was held that any (.s) Lord Nottingham, C, New- attempt to fetter the equity of court v. Bonliain, 1 Vern. 7 ; redemption with any other con- Howard v. Harris, ih. 33. dition than the payment of piiii- (t) Thornhorough v. Baker, 1 cipal, interest and costs should be Cb. Ca. 283 ; 3 Swanst. 628. void; .lenninf/a v. Ward, 2 Vern. (m) 2 Coote on Mortgage, ch. 52 well understood is the construction placed on a mort- gage in equity, so firmly established is the mortgagor's right to redeem after the time fixed for payment is cone by, that mortgage deeds are always drawn in the form indicated. All that is expressed is an immediate conveyance of the land to the mortgagee and the agreement for reconveyance on payment six months after ; and the real intention of the parties is left to be carried out by the operation of the rules of equity {y\ (_!/) The following duties are imposed, by the Stamp Act, 1891, stat. 54 & 55 Vict. c. 39, lepluciiig 33 & 34 Vict. c. 97, as amended by 51 Vict. c. 8, s. 15 and schedule : — Mortgage, bond, debenture, covenant (except a marketable security otherwise specially charged witli dutyj, and warrant of attorney to confess and enter up judgment : (1) Being the only or princii)al or primary security (other than an equitable mortgage) for the .. I) 8 .... 1 3 ') 2 6 ... 3 9 .... 5 .... 6 3 .... 7 6 OF A MORTGAGE OF LAND. CO' Let US now consider the inteiests of the inortgagee The estate , . ^ ,,,,., ^ of the mort- and mortgagor in tiie mortgaged land during the con-gagee. tinuance of the security. On execution of such a mortgage deed as has been described, the mortgagee acquires the fee simple and seisin of the hmd at law {z), and an immediate right of entry into actual pos- session («). A mortgagor remaining in possession is at payment or repayment of money not exceeding £ g. d. lO/. Exceeding 10?. and not exceeding \Lhl. ,, 25Z. ,, 5"/. „ 50/. „ 100^. ,, 100^. „ 150/. „ ISO?. „ 200?. 200?. „ 250?. ,, 250?. ,, 300?. „ 300?. For every 100?. and also for any fractional part of 100?. of such amount .... 2 6 (2) Being a collateral or auxiliary or additional or sub- stituted security (other than an equitable mort- gage), or b}' way of further assurance for the above-mentioned purpose where the principal or primary security is duly stamped: For every 100?. and also for any fractional part of 100?. of the amount secured 6 (3) Being an equitable mortgage : For every 100?. and any fractional part of 100?. of the amount secured .... 1 (4) Transfer, assignment, disposition, or assignation of any mortgage, bond, debenture, covenant (except a marketable security), or of any money or stock secured by any such instrument, or by any war- rant of attorney to enter up judgment, or by any judgment; For every 100?. and also for any fractional part of 100?. of the amount transferred, assigned or disponed, exclusive of interest which is not in arrear .... ...0 6 C The same duty as a And also where any further money is J principal security added to the money already secured j for such further { money. (5) Reconveyance, release, discharge, surrender, re- surrender, warrant to vacate, or renunciation of any such security as aforesaid, or of the benefit thereof, or of the money thereby secured : For every 100?. and also for any fractional part of 100?. of the total amount or value of the money at any time secured 6 (z) Ante, pp. 278, 279. Grazehrook, 2 Q, B. 805. If, how- fa) Doe d. L'ojflanee v. Light- ever, the mortgage deed contain foot, 8 M. h W. 553; Rogers v. an ex[)ress proviso (formerly com- COS OF PERSONAL INTERESTS IN REAL ESTATE. law in no bett(3r position than a tenant bj sufferance (J). The mortgagee may theret\ire oust him at his pleasure, either by entry, or, if he will not go out peaceably, by action. Antl if the moi'tgagee chooses so to assert his legal rights, the mortgagor will have no right to resist him either at law (c) or in equity (d) without paying the amount due on the mortgage {e). For the Courts of Equity wouhl never interfere to prevent a mortgagee from taking possession {/'). But if he do take posses- sion, he will become liable in equity to account very strictly, in case of subsequent redemption, for the rents and profits and for his management of the land (g) ; so strictly, indeed, that in jiractice a mortgagee avoids taking possession of the moi-tgaged land, save as a last resource. As we have seen (A), at law the estate of a mortgagee in fee passed on his death to his heir or devisee ; though in equity the heir or devisee was a mere trustee for the mortgagee's executor or adminis- trator, who became entitled to the money secured. But by the Conveyancing Act of 1881 (^'), on the death after that year of a sole mortgagee of any freehold estate of inheritance, his estate, notwithstanding any testamentary disposition, devolves like a chattel real npon his personal representatives. So that all the rights and obligations, mon, but now unusual), that the s. 1, provision was made for mortgagor shall remain in posses- staying the proceedings in any sion until the day fixed for pay- action of ejectment brought by a nient, tins will operate as a demise mortgagee, on payment by the bv the muitgagee to the mortgagor mortgatjor, being the defendant in for tlie term indicated, and the the action, of all principal, interest, latter will have a legal right to and costs; Doe d. Ilurfti v. Clif- possession until the term has ex- ton, 4 A. & E. 814. See also stat. pired; see Davidson, Prec. Conv. 15 & 16 Vict. c. 7fi, ss. 219, 'J20, Vol. II. Part II. pp. 43 — 45, 4th repealed (saving the jurisdiction cd.; 1 Smith L. C. 553 et seq., thereby conferred) by 46 & 47 9th ed. Vict. c. 49. (h) Notes to Keech v. Hall, 1 (/) 2 Mer. 359; 6 Pri. 503. Smith L. C. 665—568, 9th ed.; (g) 2 Seton on Decrees, 1076, ante, p. 462. 4th ed. (e) Doe d. Roby v. Maisey, 8 (h) Ante, p. 605. B. & C. 767. (i) Stat. 44 & 45 Vict. c. 41, (d) 6 Q. B. I). 359. s. 30; ante, pp. 271, 296. (e) By Stat. 7 Cieo. II. c. 20, OF A MORTGAGE OF LAND. 609 legal as well as equitable, of a sole mortgagee of free- holds now pass on his death to his executor or administrator. We l)ave seen that, daring the continuance of the ^he estate , 1 ^ • ,' 1 o^ ^^'^ mort- secnrity, the mortgagor s equity or redemption is in gagor. equity an estate in the mortgaged land {k). A mort- gagor's estate has generally the same incidents as any otlier equitable estate : but being subject to the mort- gagee's charge it is of course not so beneficial as the estate of one, for whom ]ai)d is held on a simple trust (/). Thus we have seen that a mortgagor's possession is not protected, even in equity, against the will of the mort- gagee (m). But if the mortgagor be allowed to remain in possession, he may take the profits for his own use without liability to account for them to the mort- gagee {n). So he retains generally the right of free enjoyment incident to his equitable ownership (o): nor will he be restrained from waste (/>), at the mort- gagee's instance, unless the latter show that the acts contemplated would impair the value of the security offered to him {q), or amount to wanton destruction (r). An equity of redemption is alienable at the mortgagor's pleasure or for his debts in the same way as any other equitable estate, which is not a simple trust estate (s). And the estate of a mortgagor in fee is real estate in equity and will pass as such to a devisee under his will {i), or will descend to his heir, if he should die intestate. Formerly, on the death of a mortgagor of land, the mortgage debt was primarily payable, like all other debts, out of his personal estate ; so that his (k) Ante, p. 605. (q) King v. Smith, 1 Hare, 239, {I) Ante, p. 210. 244. (m) Ante, p. 607. (r) Goodman v. Kine, 8 Beav. {n) 2 Coote on Mortgage, ch. 379. Ixi, sect. 2 ; 2 Setou on Decrees, (s) Ante, pp. 216—218, 328— 1075, 4th ed. 331; Lewin on Trusts, 797, SOO (0) Ante, p. 215. et s^q., 818, 827—829, 8th ed. {p) Ante, p. 127. {t) 3 Atk. 805. W. R. P. M. M. GIO OF PERSONAL INTERESTS IN REAL ESTATE. A.merlcan notf. '4, p. 633. lieir or devisee was entitled, as a rule, to have the land exonerated from the mortgage at the expense of the mortgagor's general personal estate (u). But this rule was reversed by an Act of 1S5-1-, commonly called Locke King's Act, and the Acts amending it (x). And now, nnder these Acts, a mortgagor's heir or devisee succeed- ing to his estate in the mortgaged land is not entitled to have the mortgage debt discharged out of the mort- gagor's personal or other real estate ; but the land so charged, as between the diffeient persons claiming under the deceased person, is primarily liable to the payment of all mortgage debts with which the same is charged : unless the mortgagor shall by will, deed oi* other document have signiKed a contrary or other intention (i/). So that now, as a rule, a mortgagor's heir or devisee must take the land sul)ject to the mort- gage (3), The rule established by these Acts does not affect the right of the mortgagee to obtain full pay- ment of the mortgage debt out of the personal estate of the mortgagor or otherwise (a). Mortgagor's power of leasing. As the mortgagor's equity of redemption is an estate (u) 2 Jarm. Wills, 031 et seq., 4th ed. ; Williams on Real Assets, 27. (,r) Stats. 17 & 18 Vict. c. 113; 30 & 31 Vict. c. 69; 40 & 41 Vict. c. 34. (y) Stat. 17 & 18 Vict. c. 113. And a general direction, that the debts or all the debts of a testator shall be paid out of his personal estate, is not to be deemed to be a declaration of an intention con- trary to or other than the rule established by Locke King's Act, unless such contrary or other in- tention be farther declared by words expressly or by necessary implication referring to all or some of the testator's debts charged by way of mortgage on any part of his real estate; stat. 30 & 31 Vict. c. Oy, s. 1. Nor is such contrary intention to be deemed to be signified by a charge of or direction for pa3-nient of debts upon or out of residuary real a!id personal or residuary real estate; stat. 40 k 41 Vict. c. 34; see Yi'e Fleck, 37 Ch. D. (577. {z) By stat. 40 & 41 Vict. c. 34, the rule of Locke King's Act is extended to the case of a mortgage or any other equitable charge (in- cluding anjf lien for unpaid pur- chase-money) on any land or other hereditaments, of whatever tenure, belonging to a testator or an in- testate ; unless, in the case of a testator, he shall within the mean- ing of the Acts have signified a contrary intention. See He Coch- croft, 24 Ch. I). 94, 100; Be Kershaw, 37 Ch. D. 674. (a) Stat. 17 & 18 Vict. c. 113. OF A MORTGAGE OP LAND. QH in the contemplation of eqnitj'^ only, it does not enable ^jj'f^'C"** him to create any legal estate or interest in the mort-''"'*^- gaffed land : not even a lease for any term however short (J). In some cases, however, there "was inserted in the mortgage deed, bv agreement between the parties, a power for the mortgagor to grant leases ; and such a power operated nnder the Statute of Uses in the same manner as a ])owor of leasing given to a tenant for life by a settlement (c). But under the Convey- ancing Act of 1881, if the mortgage be made after the year 1881, the mortgagor while in possession has power by virtue of that Act to make an ngricnltural or occupation lease for any term not exceeding twenty- one years, or a building lease for any term not exceed- ing ninety-nine years upon the conditions defined in the Act {(i). And any such lease made in compliance with these conditions will be valid as against the mort- gagee {e). When a mortgagor exercises this statutory power of leasing, the lessee obtains a term in the land valid at law in the same manner as the lessee of an equitable tenant for life obtains a legal term on an exercise of the power of leasing given by the Settled Land Act, 1882 (/}. But this statutory right of the mortgagor may be excluded or restricted by agreement between the parties expressed in the mortgage deed or otherwise in writing {g) ; and in ])ractice a stipulation {h) Doe d. Lord Downe y. But a lessee from the mortgagor ^ Thomj^soii, 9 Q. B. 1037; Lows may redeem the mortgage, and so V. Teljord, 1 App. Cas. 414. A prevent his ejectment by the lease made by a mortgagor, other- mortgagee ; Tarn v. Turner, 39 wise than under an express or a Ch. 1). 45f>. statutory power, is void as against (c) Ante, p. 360; Davidson, the mortgagee; and as against Free. Conv. Vol. II. Ft. II. 332, the mortgagor himself, his sue- 335, n., 4th ed. cessors in estate and the lessee, it (d) Stat. 44 & 45 Vict. c. 41, can only take effect legally by s. 18. estoppel. See are<«, p. 564; Keech (e) Metropolitan, dc, Building V. Hall, 1 Doug. 21; 1 Smith Society v . Smith, 22 (i. ]i. \). 10. L. C. 646. 9th ed. ; Alehorne \. ( f) Ante, p . 461 . Gomme, 2 Bing. 54; Webh v. (g) Stat. 44 & 45 Vict. c. 41, Austin, 7 Man. & Gr. 701 ; Cvth- s. 18, sub-s. 13. bertson v. Irving, 6 H. & N. 135. M M 2 G12 OF PERSONAL INTERESTS IN REAL ESTATE. is very often made that a mortgagor shall not exercise his statutory power of leasing, or tliat he shall not exercise it without the consent of the mortgagee. It is important for a mortgagee clearly to negative the mortgagors right to lease, should he wish to do so; for a contract to make or accept a lease under the statute may be enforced by or against every person on whom the lease would, if granted, be bindi.g (A). And the provisions of the Act are to be construed to apply, as far as circumstances admit, to anv letting, and to any agreement, whether in writing or not, for leasing or letting (i). But, if desired, express powers of leasing may still be given by the mortgage deed as before; and what is more, the mortgagor's statutory powers of leasing may be enlarged by the mortgage deed to any extent agreed on (k). A mortgagor's statutory powers of leasing may be applied to mort- gages made before the }ea,r 1882, by agreement in writing between mortgagor and mortgagee made after 1881 : but so nevertheless that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement {I). Actions by morto-agor. Americfin note 4) 2>. 633. A further consequence of the transfer of the legal estate to the mortgagee upon the occasion of a mortgage was that the mort2;ao;or was unable to brini; in his own name any action at law to recover possession of the land (m). But by the Judicature Act of 1873 (n), a mortgagor entitled for the time being to the possession or receipt pf the rents and profits of any land, as to which no notice of his intention to take possession, or to enter into the receipt of the rents and profits thereof, shall have been given by the mortgagee, may sue for (h) Sect. 18, sub-s. 12. (*) Sect. 18, sub-s. 17. {k) Sect. 18, snb-s. U. (I) Sect. 18, subs. 16. (m) Doe d. Marriott v. Edwards, 5 B. & Ad. 1065. (w) Stat, 36 & 37 Vict. c. 66, 8. 25, sub-s. 5. C13 OF A MORTGAGE OF LAND. such possession, or for the recovery of such rents and profits or to prevent or recover damages in respect of any trespass or other wrong relative thereto in his own name only, unless the canse of action arises npon a lease or other contract made by him jointly with any other person. Let us now consider what remedies the mortgagee Mortgagee's lias for obtaining the repayment of his loan. And hrst, ^^'"^^ at any time after the day fixed for repayment in the deed, he may call in his money, and in the event of non-payment may sue the mortgagor personally on the covenant contained in the mortgage deed. Secondly, he njay foreclose the mortgage. For altliough the Foreclosure. Courts of Equity allowed the mortgagor an equity of redemption after the day fixed for payment, they would not permit him to continue to hold the mort-^'"*^'*'"** '■ note o, pp. gaged land for an indefinite time after the mortgagee ^^^> *'^^- had applied to them to enforce repayment {p). To obtain foreclosure, it will be necessary for the mort- gagee to take proceedings (^>) against tlie mortgagor in the Chancery Division of the High Court (5'), claim- ing that an account may be taken of the principal and interest due to him, and that the mortgagor may be directed to pay the same, with costs, by a day to be appointed by the Court, and that in default thereof he may be foreclosed his equity of redemption (r). A day is then fixed by the Court for payment ; which day_, however, may, on the application of the mortgagor, good reason being shown (s), be postponed for a time. (0) 2 Coote on Mortgage, Ch. or enforcement of any mortgage, Ixxviii. charge or lien for not more th;in (fi) Formerly by suit or action, 500^. ; slat. 51 & 52 Vict. c. 43, now by originating summons ; s. 67. Rules of the Supreme Couit, Dec. (r) 2 Seton on Decrees, 1035, 1885, No. 21 (Order LV. r. 5 a); 4th ed. W. N. 2. Jan. 18S»>. (,v) Nanny v. Edwards, 4 Russ. iq) The County Courts have the 124 ; £yre v. Hanson, 2 Beav. jurisdiction of the High Court as 478. to the foreclosure or redemption (\l^ OF PERSONAL INTERESTS IN REAL ESTATE. Or, if the mortgagor should be ready to make repay- ment, before the cause is brought to a hearing, he may do so at any time previously, on making proper applica- tion to the Court, admitting the title of the mortgagee to the money and interest (t). If, however, on the day ultimately fixed by the Court, the money should not be forthcoming, an order will be made that the debtor do thenceforth stand absolutely foreclosed from all equity of redemption in the mortgaged premises {u). Such an order is considered to vest in the mortgagee for the first time the full beneficial title to the mortgaged land (a?); which he will thereafter be entitled to keep and deal with as his own. The Court may now order a sale of the mortgaged property in foreclosure ]>roceed- ings, instead of foreclosure (y). Tiiirdly, the mortgagee may take possession, as we have seen [s) ; though at the risk of incurring the equitable liabilities of a mort- gagee in possession. A mortgagee may pursue all these remedies at unce {a). Fourthly, a mortgagee may sell under his power of sale, if he have one. For in addition to the remedy by foreclosure, which, it will be perceived, involves the necessity of an application to the Court, it has long been usual to provide a more simple and less expensive remedy in mortgage transactions ; this is nothing more Power of than a power given by the mortgage deed to the mort- gagee, without further authority, to sell the premises, in case default should be made in payment. When such a power is exercised, the mortgagee, having the (<) Stat, r Geo. II, c. 20, s. 2. 345 ; 7 App. Cas. 235. («) 2 Seton on Decrees, 1080, Q/) Stat. 44 & 45 Vict. c. 41, 4th ed. But even a tin;il order s. 25 ; see Williams's Couvej'auc- for foreclosure is not absolutely inij Statutes, lfi2 et seq. conclusive, and tliore are circum- (z) Ante, p. G08. stances under which a mortgagor (a) 2 Coote on Mortgage, Ch. may be allowed to redeem after Ixiii. sect. 8; I.ochliart v. Jlard;/^ .such an order; see CamphM v. 9 Heav. 349 ; Farrer v. Lactjy Bolijland, 7 Ch. D. 1G6. Eartland c& Co., 31 Ch. D. 42. (X) Heath V. Pugh, 6 Q. B. D. sale. OF A MORTGAGE OF LAND. 6J5 whole estate in fee simple at law, is of course able to convey the same estate to the purchaser, and, as this remedy would be ineffectual, if tlie concurrence of the The mort- 1 • 1 1 1 1 • gagor'scon- inortgao;or were necessary, it was aecided tliat his currence concurrence cannot be required by the purchaser (b). requh-ed^ The mortgagee, therefore, is at any time able to sell ; but, having sold, he has no further liglit to the money produced by the sale than he had to the lands before they were sold. He is at liberty to retain to himself liis principal, interest and costs ; and, having done this, the surplus, if any, must be paid over to the mortgagor. By the Act commonly called " Lord Cranworth's Statutory Act " (hh), a power of sale was rendered incident to sale. every mortgage or charge made by deed executed after the passing of the Act on any hereditaments of any tenure, unless a contrary intention were declared by the deed. But it was nevertheless usual to insert an express power of sale in mortgage deeds, until this provision of Lord Cranworth's Act was repealed by the Conveyancing Act, 1881 (c). By the latter Act (cc), a mortgagee of any property, under a mortgage made hi/ deed after the year 1881, has a power of sale, when the mortgage money has become due, to the same extent as if the power had been expressly conferred by the mortgage deed. But a mortgagee shall not exercise this statutory power of sale unless and until (i) notice requiring payment of the mortgage-money has been served on the mortgagor or one of several mortgagors, and default has been made in payment of the mortgage- money, or of part thereof, for three montlis after such service ; or (ii) some interest under the mortgage is in (h) Carder v. Morgan, 18 Ves. liams's Conveyancing Statutes, 344; C/a>/ V Sharpe, Sugd. Vend. 137—140. & Pur. Appendix, No. XIII. p. (c) Stat. 44 & 45 Vict. c. 41, 109ti, llih ed. s. 71 ; see Williams's Convey- (bh) Stat. 23 & 24 Vict. c. 145 ancing Statutes, 137—141, 251— (passed 2Sth Aug. 1860), part 2; 253. see also sects. 32, 34. See Wil- {cc) Sect. 19. QIQ OF PERSONAL INTERESTS IN REAL ESTATE. arrear and unpaid for two months after becoming due ; or (iii) there has been a breach of some provision con- tained in the mortgage deed or in the Act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other tlian and besides a covenant for payment of the mortgage-money or interest tliercon {d). Power is expressly given by the Act to a mortgagee exercising his statutory power of sale to convey the property sokl by deed for such estate and interest therein as is the subject of the mortgage, freed from all estates, interests and rights to which the mortgage has priority {dd). The proper apphcation of the ])urchase money by the mortgagee is also provided for (e). Where a convey- ance is made in professed exercise of the power of sale conferred by the Act, the title of the purchaser is not to be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregu- larly exercised ; but any person damnitied by an un- authorized, or improper, or irregular exercise of the power, is to have his remedy in damages against the person exercising the power (_/"). All these statutory provisions respecting a mortgagee's power of sale may be varied or extended or entirely excluded by the terms of the mortgage deed {g). But it is now usual in practice to rely upon the statutory power of sale instead of insertino; express powei'S for the same purpose in mortgage deeds (A). {d) Stat. 44 & 45 Vict. c. 41, Williams's Conveyancing Statutes, ss. 20, 24; see Williams's Con- 149. veyancing Statutes, 144, 145, IGO. (./' ) Sect. 21, sub-sect. 2; see (<^(i) Sect. 21, sub-sect. 1; see Williams's Convej-ancing Statutes, Williams's Conveyancing Statutes, 147—149. 145 147. This does not enable {a) Sect. 19, sub-sects. 2, 3. an equitable mortgagee by dei'd (h) As to the question of the to convey the legal estate; He expediency of relying on statutory Hod'^on nnd Howe's Contract, o5 powers, see Williams's Convey- Ch. D. Ot)S. ancing Statutes, 141 — 144, 252, (e) Sect. 21, sub-sect. 3; see 253. OF A MORTGAGE OF LAND. 01' The same Convejaneinf^ Act contains provisions Mortgagee's enabling a morlgagee under a inortgige made by deed appoint" after 1881, in the absence of sti|nihition to the (contrary, ^^'^j'^^j^j^'^;^^. to ap])oint a receiver of the income of mortffaw'ed pro-?°^g'''*°'' ' ^ , o o £ leases. pert}-, but not before his statutory power of sale shall become exerciseable (i) ; also to insure against tire, under certain conditions, and to cut and sell timber, while in ])Ossession (k). A mortgagee in possession under a nioi'tgage made after 1881 is also empowered by the same Act, in the absence of stipulation to the contrary, to grant the same leases as a mortgagor in possession is thereby empowered to grant; and leases so granted will be good against all prior incumbrancers and the mortgagor {I). But, except under the statutory or an express power of leasing, a mortgagee of land is unable, before foreclosure, to make a lease, which will be un- conditionally binding on the mortgagor {m). If the mortgagor wish to pay off the mortgage after Mortgagor's the day fixed for payment is past, he must, as a rule, give to the mortgagee six calendar months' previous notice in writing of his intention to do so, and must punctually pay or tender the money at the expiration of the notice {n). For if the money should not be then ready to he paid, the mortgagee will be entitled to fresh notice ; as it is considered reasonable that he should have time afforded him to look out for another (i) Stat. 44 & 45 Vict, c. 41, p. 611. ss. 19, 24. The object of the (?») Hungerford v. Clay, 9 Mod. appointment of a receiver is to 1 ; Franklins'ki v. Ball, 83 Beav. ensure payment of the interest 560,563; Davidson, Free. Conv., out of the income of tlie mort- Vol. II. Pt. II. 335, S37, 4th ed. gaged property, without taking {n) Shraj)nM v. Blake, 2 Eq. possession. The receiver is bound Ca. Abr. 003, pi. 84; Smith v. to apply the income (after keeping Smith, 1891, 3 Ch. 550. But down outgoings) in payment of this rule does not apply where the the interest, but to pay the sur- just inference from the transaction plus to the mortgagor. is that the mortgage is merely {k) Sects. 19, 23; see Williams's temporary, as in the case of a Conveyancing Statutes, 137, 139 niortgaiie to bankers by deposit of — 141, "153—160. title deeds; Fitzgerald's Trustee (^) Sect. 18, sub-s. 2; ante, v. J[/eW««7i, 1892, 1 Ch. SSS. 618 OF PERSONAL INTERESTS IN REAL ESTATE. Re-convey- ance. investment. A mortgagor is, liowever, entitled, if he think lit, to pay the mortgagee six months' interest in advance, in lieu of notice (o). When the mortgagor has duly paid or tendered the money due from him, either after proper notice or with due interest in advance instead, he will be entitled to require the mortgagee to execute at his expense a reconveyance of the legal estate in the mortgaged land (p). And to enforce this right, or othersvise duly to enforce his equity of redemption, he may take proceedings (q) for redemption in the Chancery Division (r) against the mortgagee (-§). An order for sale may now be made in redemption as well as in foreclosure proceedings {t). Lapse of time may bar right to redeem. A.merican not'' 6, 21. 635. A mortgagor may, however, lose his equity of re- demption by lapse of time. For under the present Statute of Limitations {u), whenever a mortgagee has obtained possession of the land comprised in his mort- jrase, the morto^ag-or cannot bring an action to redeem the mortgage but within twelve {x) years next after the time when the mortgagee obtained possession, or next after any written acknowledgment of the title of the mortgagor, or of his right to redemption, shall have been given to him or his agent, signed by the mort- gagee {i/). And when the period limited by the Act is (o) Johnson v. Evans, W. N. 1889, p. 95. (p) See ante, p. 607, n., as to the stamp on a reconveyance. {q) Formerly by suit or action, now by originating summons; Rules of the Supreme Court, Dec. 1885, No. 21 (Order LV. r. 5 a); \V. N. 2 Jan. 1886. (r) Or in the County Court, if the amount be not more than 500/. ; see ante, p. 613, n. (q). («) 2 Seion on Decrees, 1040, 4th ed. (0 Stat. 4-1 & 45 Vict. c. 41, s. 25; see Williams's Convey- ancing Statutes, 162 et scq. In redemption as well as in foreclo- sure proceedings a mortgagee is entitled to be paid his costs and expenses; and will not be dis- allowed his costs without positive misconduct on his part, see 2 Seton on Decrees, 1057 et seq., 2nd ed. ; JVational Provincial Bank of England v Games^ 31 Ch. D. 582. (u) Stat. 37 & 38 Vict. c. 57, s. 7. (:c) Formerly twenty ; by stat. 3 & 4 Will. iV. c. 27, s. 28, and the previous rule of equity; 2 Coote on Mortgage, ch. Ixxiv. sect, 1. (y) See Hyde v. Dallaumy, 2 Hare, 528; Truelock v. Kobey, 12 OF A MORTGAGE OP LAND. 619 determined, the mortgagor's title to the land is ex- tinguished (2). So that when a mortgagee has been in possession for twelve years without giving the required acknowledgment, he becomes absohitelj entitled to the land. The time so limited for the mort^iajjor to redeem is not extended in the case of his being nnder any dis- ability, such as lunancy {a). In the same way a mort- Mortgagee's , . 1 , , , Til n • • /> 1 rights barred gagees rights may he barred by lapse ot tune, ir he by lapse of allow the mortgagor to remain in possession without*^™®" paying principal or interest and without acknowledg- ment of his title ; in which case he will be barred from taking possession twelve years after his right of entry accrued (J), and will be barred from taking foreclosure proceedings or suing for the money secured by a mortgage of land twelve years after his right of action accrued. But if the mortgagee obtain from the mort- gagor any payment of principal or interest, or any written and signed acknowledgment of his title or right, he will not be barred from any of his remedies until twelve years after the last of such payments or acknowledgments (c). And if the mortgagee, being out of possession, take foreclosure proceedings within due time, he will not be barred from takiny- or suino- for ' DO })OSsession, till twelve years from the date of the order for final foreclosure, Avhich first gave him the full Sim. 402; Lucas v . Dennison, 13 Harlock v. Ashlerry, 19 Cb. D. Sim. 584; Stansfield v. Hobson, 539; Hugill v. Wilkinson, Z'i Ch. Itj Beav. 23(5. D. 480. But if the mortgagee, or (z) Stats. 3 & 4 Will. IV. c. 27, the person standing in his place, s. 34; 37 & 38 Vict. c. 57, s. 9. should be under any of the dis- (a) Kinsman v. Eonse, 17 Ch. abilities mentioned in the Statute D. 104; Forster v. Patterson, ib. of Limitations when the right to 132. This IS different from the sue for foreclosure or possession rule of equity in force before 1833; first accrued, it appears that pro- see 2 Coote on Mortgage, ch. ceedings may be taken within Ixxiv. sect. 1. the further time now allowed in (b) Ante, p. fl07 . case of disability; see stats. 3 & (c) Stats. 3 &4 Will. IV. c. 27, 4 Will. IV. c. 27, ss. 16—18; 37 8s. 2, 14; 1 Vict. c. 28, 37 & 38 & 38 Vict. c. 57, ss. 3—5; and Vict. c. 57, ss. 8, 9; Wriron v. see next chapter. Vize, 3 Dru. & War. 104, 119; 620 OF PERSONAL INTERESTS IN REAL ESTATE. beneficial title to the land (d). The mortgagee's title to the land is extinguished when his remedies are barred (.^0^. (to) Davidson, Prec. Conv. Vol. (k) Re Hughes, W. N. 1884, II. Part II. pp. 113, 405, 4th ed. p. 53. (ft) AnU, p. 615. G22 OF PERSONAL INTERESTS IN REAL ESTATE. Mortgage of leaseholds. Equitable mortgages. Deposit of title deeds. Leasehold estates raaj be mortgaged by assignment of the term to the mortgagee, subject to a proviso for re-assignment on payment of the money advanced on a given day. But in such a case, as the mortgagee is assignee of the terra, he becomes liable to the landlord for payment of the rent and performance of the cove- nants of the lease {o). It is therefore usual, when the rent and covenants are onerous, to mortgage leaseholds by demise or underlease of the premises for a term less by a day or two than the term granted by the lease, witli a proviso for surrender of the term granted by the mortgage on payment of the amount lent with interest on the day appointed. In such cases the mortgagee does not become the landlord's tenant, and is not liable on the covenants in the lease (/?) : but his security is, of course, only the term created by the underlease by way of mortgage. A declai-ation is however often inserted in such mortgages that the mortgagor shall hold his reversion in the original term on trust for the mortgagee, subject to redemption. The statutory powers of sale and leasing will now be incorporated in a deed of mortgage of leaseholds, whether by assignment or demise, in the absence of provision to the contrary {q). Besides the mortgages already described, which give the mortgagee a legal proprietary right in the lands pledged to him, there are equitable mortgages (/•), by which lands are charged in equity only. Equitable charges arise upon the mortgage of an equity of re- demption (.9) or other equitable estate, or when the legal owner of lands pledges them by a signed writing without deed (/), or by deposit of the title deeds with the mortgagee. For, notwithstanding the stringent (0) Ante, p. 567. {p) Ante, p. 577. Iq) Ante, pp. 611, 615. (/•) See ante, p. 607, n., as to tbe stamp duty on equitable mort- gages. (s) See ante, pp. 605, 609. (t) See ante, pp. 174, 217, 245, 560, 561, 573. OF A MORTGAGE OF LAND. (J93 provision of the Statute of Frauds to tlic contrary (u\ Americmv it was held by the Court of Chancery that such a033. deposit, even without any writing, operated as an equitable mortgage (>f the estate of the mortgagor in the hinds comprised in the deeds {x). This doctrine still remains ; and the same doctrine applies to copies of Court roll relating to copyhold lands (?/), for such copies are the title deeds of copyholders. Another instance of an equitable charge is a vendor's "^^^ndor's lien. lien. For when lands are sold, but the whole of the^"'*'*''''''^'* ' tiote a, p. purchase-money is not paid, tlie vendor has a lien in*''^"^- equity on the lands for the amount unpaid, together with interest at four per cent., the usual rate allowed in equity {s). And the circumstance of the vendor liaving taken from the purchaser a bond or a note for the pay- ment of the money will not destroy the lien (a). But if the vendor take a mortgage of part of tlio estate, or any other independent security, his lien will be gone. If the sale be made in consideration of an annuity, it Sale for aauuity. appears that a lien will subsist for such annuity (J), unless a contrary intention be inferred from the nature of the transaction {c). A curious illustration of the anxiety of the Court of A stipulation Chancery to prev^ent any imposition being jjractised by interest ou the mortgagee upon the mortgagor occurs in the ptlnctuai pay- following doctrine: that, if money be lent at a given°^®°* '® ^°'°- (u) 29 Car. II. c. 3, ss. 1, 3 ; (z) Chapman v. Tanner, 1 Vern. ante, p. 164. 2G7; PoUex/en v. Moore, 3 Atk. (x) RuDsell V. Eussell, 1 Bro. C. 272; 3Jaclcreth v. Symmons, 15 C. 21)9. See Ex parte Haigh, 11 Ves. 328; Sugd. Vend. & Pur. Ves. 403. There must be an actual 070, 14th ed. deposit; Re Beetham, Ex, parte (a) Grant v. Mills, 2 V. & B. Brodtrick, 18 Q. B. D. 3S0; 3 30fi; Winter v. Lord Hanson, 3 Times L. R. 489. Russ. 488. (y) Whitbread v. Jordan, 1 You. {h) Matthew v. Bowler, 6 Hare, ACnll. 303; Lewis v. John, 1 C. 110. P. Coop. 8. See, however, Sugd. (c) BucTdand v. Pochnell, 13 Vend. & I'ur. 630, 13th ed.; Jones Rim. 49(5; Dixon v. Gayftre, 21 V. Smith, 1 Hare, 50; 1 Phil). 244. Beav. 118; 1 De G. & J. 055. (324 OF PERSONAL INTERESTS IN REAL ESTATE. rate of interest, with a stipulation that, on failure of punctual payment, such rate shall be increased, this stipulation is held to be void as too great a hardship on the mortgagor; whereas the very fame effect may Bnt a stipuia- \^q effectuallj accomplished by other words. If the diminish the stipulation be, that the higher rate shall be paid, but punctmd pay- on puuctual payment a lower rate of interest shall ment is good. ^^ accepted, such a stipulation, being for the benefit of the mortgagor, is valid, and will be allowed to be enforced (r/). Mnrtgaaesto The loan of money on mortgage is an investment trustees. frequently resorted to by trustees, when authorized by their trust to make such use of the money committed to their care: in such a case, the fact that they are trustees, and the nature of their trust, are usually omitted in the mortgage deed, in order that the title of the mortgagor or his representatives may not be affected by the trusts. It is, however, a rule of equity, that when money is advanced by more persons than one, it shall be deemed, unless the contrary be expressed, to have been lent in equal shares by each {e) ; if this were the case, the executor or administrator of any one of the parties would, on his decease, be entitled to Joint account rcccive lus share (/). In order, therefore, to prevent clause. |.j^g application of this rule, it was usual to declare, in all mortgages made to trustee.', that the money was advanced by them on a joint account, and that, in case of the decease of any of them in the lifetime of the others, the receipts of the survivors or survivor should be an effectual discharge for the whole of the money. And now by the Conveyancing Act of 1881 (g) (d) Strode r. ParHr, 2 Vcrn. Rop. 57; 1 Eq. Ca. Ab. 290; 816; 3 Burr. 1374; 1 Fonb. Eq. Vickers v. Cowell, 1 Bear. 529. 393. See Union Bank of London, (g) Stat. 44 & 45 Vict. c. 41, V. Ingram, 16 Ch. D. 53. s. 61; as to the effect of which, (e) 3 Atl{ 734; 2 A'es. sen. 258; seu Williams's Conveyancing Sta- 3 Ves. jun. 631. tutes, 238—240, 498. (/) Petty V. Sty ward, 1 Cha. OF A MORTGAGE OF LAND. 625 provisions having the effect of the joint acconnt clause previously usual are incorporated, in the absence of stipulation to the conti-arj, in every mortgage, obliga- tion for payment of money, and transfer of mortgage or , obligation made after the year 188 1, in which the money secured is expressed to be advanced by or oveing to more persons than one out of or as money belonging to them on a joint account, or which is made to more persons than one jointly, and not in shares. As the interest even of an equitable mortgagee is anJi'^^gnfient 1 !• Ill 1 1 » 1. debts a charge interest in land, it was held, under the Act extending on mon- creditors' remedies (A), that judgment debts against afiuerestin mortgagee were a charge upon his interest in tlie mort- *^® ^''"*^'*" gaged lands (^). But it was afterwards provided (^), ^X''^'''^** that where any mortgage should have been paid off^^^* prior to, or at the time of, the conveyance of the lands to a purchaser or mortgagee for valuable consideration, the lands should be discharged both from the judgment and Crown debts of the mortgagee. And by a later New statute, to which we have already referred (/), the lien of all judgments, of a date later than the 28th of July, 1864, was abolished. Mortgages are frequently transferred from one person Transfer of to another. The mortgagee may wish to be paid off, ^°^ S^ges. and another person may be willing to advance the same or a further amount on the same security. In such a case the mortgage debt and interest are assigned by the old to the new mortgagee ; and the lands which form the security are conveyed, or if leasehold assigned, by the old to the new mortgagee, subject to the equity of redemption which may be subsisting in the premises ; (h) Stat. 1 & 2 Vict. c. 110, s. 11 ; Greaves v. Wilso7i, <25 'Beav. 8. 13; ante, pp. 310, 380. 434. {i) liusxell V. M' CuUocJi, 1 Kay (i) Stat. 27 k 28 Vict. c. 112, & J. S13. ante, pp. 31-.^— 314. (k) Stat. 18 & 19 Vict. c. 15, W. R. 1'. N N ^26 OP PERSONAL INTERESTS IN REAL ESTATE. that is, subject to the right in equity of the mortgagor or his representatives to redeem the premises on pay- ment of the principal sum secured by the mortgage, with all interest and costs {/a). Mortgagee Under the Conveyancino; Act of 18S1 hi), a mort- niay be com- ^ .^ o \ /7 ^ pulled g^go^ entitled to redeem now has power to require a to transfer. i • , i i i ■ mortgagee, who is not and has not been m possession, instead of reconveyirig, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person ; and the mortgagee will then be bound to assign and convey accordingly. Mortgage of ^.s WO have Seen (o), the en iiity of redemption belonff- eqnitv of . , ^ ^' . , i i i • redemption, ing to the mortgagor may again be mortgaged by him; this may be either to the former mortgagee by way of further charge, or to some other person. In order to prevent frauds by clandestine mortgages, it is provided by an Act of William and Mary (p), that a person twice mortgao'ino' the same lands, without discovering the former mortgage to the second mortgagee, shall lose his equity of redemption. Unfortunately, however, in such cases the equity of redemption, after payment of both mortgages, is generally worth nothing. And if the mortgagor should again mortgage the lands to a third person, the Act will not deprive sucli third mortgagee of his right to redeem the two former mortgages (q). "When lands are mortgaged, as occasionally happens, to several persons, each ignorant of the security granted to the other, questions generally arise as to the priority of the various charges. Such cases frequently illustrate the advantage of a le/jal proprietary riglit, which (m) As to the stamp on a Conveyancing Statutes, 119 — 124. transfer, see ante, p. fiO? ; Wale (o) Ante, p. Ii22. V. Commigbioners of Inland Jie- (p) Stat. 4 & 5 Will. & Mary, ««w.M«, 4 Ex. D. 270. c. 18, s. 3; see Kennard v. i^M^- («) Stat. 44 & 45 Vict. c. 41, t-oj/e, 2 Gif . 81 . s. 15, amended bj stat. 45 & 46 (qt Stat. 4 & 5 WjIL & Mary, Vict. c. 39, s. 12; see Williams's c. 16, s. 4. OF A MORTGAGE OF LAND. 62' avails against all the world, over an equitable rig:lit, which avails not against purchasers for value without notice (/'). Tims the claim of a mortgagee, who lias oijtained the legal estate, will take precedence over any previous equitable charge, of which he had no notice, as well as over subsequent charges; and nothing short of connivance in fraud will deprive him of this advantage {s). So if a mortgagee having the legal estate make a further advance without notice of an intermediate mortgage, he has a first charge on the lands for the whole amount of his advances, which must be satisfied before the second mortgagee can receive anything thereout (^). And if a third or sub- Tacking, sequent mortgagee, who had no notice, when he took his security {u), of any but a first mortgage, can procure ^»»e^''c«»* a transfer to himself of the first mortgagee's legal estate, ^3^- he may tacTc, as it is said, his own mortgage to the first, and so postpone any intermediate incumbrancer (a?). But no claim of a mortgagee, who has secured the legal estate, will be preferred to a prior equitable charge, of which he had notice, when he advanced his money (y). As between themselves, equitable charges rank, as a rule, in the order in which they were created (s) : though one equitable mortgagee may be postponed to another, whose charge was subsequent to his own, on grounds of fraud or even of negligence {a). (r) See ante, pp. 2, 3, 71, 210, 463. An attempt was made to 211,603,607. abolish tacking by stat. 87 & 38 (s) See Hewitt v. Loosemore, 9 Vict. c. 78, s. 7, repealed bj 38 & Hare, 449 ; Forthern Counties of 39 Vict. c. 87, s. 129. England Fire Insurance Co, v. iy) Le Neve v. Le Neve, Arab. TFA%?, 26 Ch. D. 482. 436, 446; Birch v. Ellames, 2 {t) Goddard v. Complin, 1 Ch. Anst. 427. Ca. 119; Lloyd v. Attwood, 3 De (z) Jones v. Jonen, 8 Sim. 633; G. & J . 614, 656, 657. Wilmot v. Kke, 5 Hare, 14. (u) Subsequent notice is imma- (a) See National Provincial terial. Bank of England v. Jackson, 33 (x) Marsh v. Lee, 2 Vent. 337; Ch. D.'l; Union Bank of London Brace -v. Duchess of Marlborough, v. Kent, 39 Ch. L). 238; Farrand 2 P. W. 491 ; Bates v. Johnson, v. Yorkshire Banking Co., 40 Cb. Joh. 304 ; Taylor v. Russell, 1891, D. 182. 1 Ch. 8, affirmed, 8 Times L. R. N N 2 028 OF PERSONAL INTERESTS IN REAL ESTATE. Mortgages Mortgages or charges made by any deed or wi-iting Middlesex on land in Middlesex, Yorkshire or Kingston-upon-Hull, shire^"*^''' ought to be registered in the proper county i-egister as well as purchase deeds {h). Under the Middlesex Registry Act, if more mortgages than one be made of the same piece of land, they have priority according to the date of registration (c) ; with this exception, that the claim of a mortgagee, who has obtained the legal estate without notice of any previous equitable charge and has duly registered his mortgage, will be perferred to the claims of tiiose who may previously have obtained and registered merely equitable charges(^). But a mortgagee may be deprived of the priority given by this Act in consequence of the operation of the rule of equity already mentioned {e), which prevents a mort- gagee, who has had clear previous notice of a prior un- registered charge, from gaining any priority of interest, with regard to the equitable estate in the land, by priority of registration (/"). The registration of a con- veyance of land in Middlesex is not equivalent to notice of the conveyance {(/) ; so that the operation of tacking/ may be successfully performed by a third mortgagee of such land, if he have no notice of the second mortgage, notwithstanding that the second mortgage may have been registered (h). The provisions of the Middlesex Registry Act do not apply in the case of a mortgage of land in Middlesex made by deposit of title deeds without any written memorandum (^), or (6) See a«!!«, pp. 242, 243. Eq. 78,83. But if a man searches (c) See Neve v. Fennelt, 2 H. & the register, he will have uotice M. 170. (if registered conveyances. See (d) Morecoch v. Diclcins, Amb. Procter v. Cooper, 1 Jur., N. S. 678. 149. («) Ante, p. 243. (A) Bedford v. Bacchus, 2 Eq. if) See Holland v. Hart, L. R., Ca. Abr.' 615, Case 12; Cator v. 6 Ch. 678; Bradleij v. liiches, i) Coo%, 1 Cox, 182. Ch. D. 189. (i) Sampter v. Cooper, 2 B. & iq) Morecoch v. Dickins, Anib. Ad. 223, Wood, V.-C, A'eve v. 678: Malins, V.-C, lie Kusaell Pennell, 2 H. & M. 187; C. A., Koad Purchase Moneys, L. R., 12 Kettlewell v. Watson, 26 Ch. D. OF A MORTGAGE OF LAND. g29 of a vendor's lion for unpaid purchase-money {k). In all these respects the law was forinerW tlie same for land in Yorkshire as for land in Middlesex (l). But now, as we have seen (?;?), all assurances registered under the Yorkshire Hegistries Act, 18S4 {?i), shall have priority according to the date of registration, and no person shall lose any priority given by this Act merely in consequence of his having been affected with actual or constructive notice, except in cases of actual fraud. And it is enacted (o) that in any case in which priority or protection might, but for this Act, have been given or allowed to any estate or interest in lands by reason or on the ground of such estate or interest being protected by or tacked to any legal or other estate or interest in such lands, no such priority or protection shall, after the commencement of this Act (2?), be so given or allowed to any estate or interest in lands within the three ridings, except as against any estate or interest, which shall have existed prior to such com- mencement, and full effect shall be given in every Coui*t to this present provision, although the party claiming such priority or protection as aforesaid, shall claim as a purchaser for valuable consideration, and without notice. AVhere any lien or charge on any lands within any of the three ridings is claimed in respect of any unpaid purchase-money or by reason of any deposit of title deeds, a memorandum of such lien or charge may be 507. If tlie deposit of deeds be (m) Ante, p. 243. accompanied by any written docu- (n) Stat. 47 ik 43 Vict. c. 54, ment, charsring tlie land, tlie Act s. 12. Sect. 15 of this Act pro- applies, and the document ought vided that the registration of any to be registered ; j\'eve v. Peunell, instrument under tins Act should 2 H. & M. 170. be deemed to constitute actual (k) See C. A., Kettlewell v. notice thereof, but was repealed Watson, 26 Ch. D. 501, 507. by stat. 4S & 49 Vict. c. 2fi, s. 5. {I) WrigJdHon v. Hudson, 2 Eq. (o) Stat. 47 & 48 Vict. c. 54, '"a. Abr. 009, Case 7; lie Wight's s. 16. Mortgage Trust, L. R., 16 Eq. {j)) The Acl came into opera- 41 ; Credland v. Potter, L. R., 10 tion on the 1st January, 18b5. Ch. 8 ; KtttlewM v. Watson, 26 See sect. 2. Ch. D. 501, 507. 630 OF PERSONAL INTERESTS IN REAL ESTATE. registered under this Act, And no snch Hen or C'liar;ainst an assignee of the equity of redemption, unless he should have acquired a right of consolidation previously to the assignment of the equity of redem])tion (?/). The right of consolidation arose at the time when two or more mortgages made by the same mortgagor, or any of his predecessors in title, became vested in the same mortgagee and absolute at law (s). The right of a mortgagee to consolidate his securities Present law as is now partially abolished by the Conveyancing Act of tkiu!"^*" ^ ^' 1881 (a), which enacts that a mortgagor seeking to redeem any one mortgage, shall, by virtue of tliis Act, be entitled to do so without paying any money due under any separate mortgage made by him, or by any .person through whom he claiuis, on property other than that comprised in the mortgage which he seeks to redeem. But this provision apj)lies only if and as far as a contrary intention is not expressed in the mortgage deeds, or one of them • and only where the mort- gage-, or one of them, are or is made after the year 1881. The rules of equity as to consolidation of securities thus appear still to remain in force in all cases in which the mortgages sought to be consolidated by a mortgagee w'ere made before the year 1882, or in (x) Selby v. Pomfret, 1 J. & H. see Vint v. Padget. 2 De G. & J. 336; 3 De G., F. & J. 595; 611. Jlarter v. CoLinan, 19 Ch. D. 630, [z) Cummins v. Fletcher, 14 eS'J. C'.i. D. 69y. {y) White v. JliUacre, 3 T. & (a) Stat. 44 k 45 Vict. c. 41, C. Ex. 597, 608, 6tJ9 ; Jennings s. 17 ; see Williairus's Couvcy- V. Jordan, 6 App. Cus. 69f< ; auciug Statutes, 1'25— 128. llartur \ . Caiman, 19 CL. D. 630; 032 OF PERSONAL INTERESTS IN REAL ESTATE. which one of the mortgages, though made after 1881, M-as created by a deed expressing an intention to exchide the application of the above enactment (c). A declaration of such an intention is not unfrequently inserted in mortgage deeds. It follows, therefore, that no person can safely lend money on a second mortgage. For, in addition to the risks of some third mortgagee getting in and tacking the first mortgage (<;/), there is this further danger, that the first mortgagee may have previously acquired a right to consolidate with his security some other mortgage, by which property of the same mortgagor has been charged for more than its value, and may, by exercising this right, exclude the American socoud mortgatje le). The purchaser of an equity of note IS, tlie t? & \ / 1 ~\. J ^ American redemption is exposed to similar risks. Plence, it Tiorto'aa'e.'>, follows, that, in the words of an eminent judge, " It is i>p- 030-038 Q^ ^rQYy dangerous thing at any time to buy ec^uities of redemption, or to deal with them at all" {f). (c) Griffiths. Pound, 45 Ch. D. ing Statutes, 126—128. 553. (/') Wood, V.-C, Beeiior v. (r.--If a vendor of real estate has not been fully paid the purchase-money, he has a lien upon the land for the amount his due. Tlie lien will not arise, however, where he has received security for the pay- ment, nor will it where the circumstances are such as to preclude the notion that the parties expected the lien to exist.- See Sears v. Smith, 2 Mich. 243; Donovan v. Donovan, 85 Mich. 63; Toley v. McAllister, 9 Wis. 463; Boos v. Ewing, 17 Ohio, 500; Fi>^her v. Shropshire, 147 U, S. 133. The doctrine of the vendor's lien prevails in more than half in number of the states. See 2 Jones on Liens, § 1063 and notes. * Judgment debts not a charge on mortgagee's interest in lands. — In this country, the mortgage is generally regarded as personal property, and the mortgagee has no such interest in the real estate mortgaged, as would admit of a judgment against him creating a lien on such real estate. See Scott v. Mewhirter, 49 Iowa, 487, 489. '"Tacking of mortgages. — The doctrine of tacking is inconsistent with our recording laws, and has not been adopted in this country. See 2 Jones on Mortgages (4th ed.), | 1082. " Mortgages for future advances. — Mortgages given to secure future advances have been generally recognized and enforced in this country. As between the parties, such mortgages are subject to the same rules as mortgages in the ordinary form; but the courts have differed widely in settling the rights of subsequent purchasers and lienors. While the distinction is frequently lost sight of, it may be considered as settled, that when the mortgagee has entered into a binding agreement to make advances or assume future liabilities, the mortgage will remain a valid se- curity for all advances made or liabilities incurred in good faith, witliout regard to the claims of intervening incumbrancers with notice of the mort- gage. Brinhmeyer v. Browneller, 55 Ind. 487; Boswell v. Goodwin, 31 Conn. 74; Ladue v. By. Co., 13 Mich. 380, 397-493; Moronefs Appeal, 24 Pa. G36 OF PERSONAL INTEKESTS IN REAL ESTATE. St. 373; Alexandria Savings Inst. v. Thomas, 29 Gratt. 483, 489. If the mortgiigee is not under obligation to make advances, the mortgage is, nevertheless, a complete security for all advances made before he receives notice of subsequent liens or conveyances. Advances made after that time are subject to all incumbrances of which he had notice. In some states, the recording of a junior incumbrance is held to be sufficient to charge the mortgagee with notice within the meaning of this rule. Ladue v. By. Co., 13 Mich. 380, 397 409; Bank of Mont. Co.'s Appeal, 3G Pa. St. 170; Spader v. Lawler, 17 Ohio, 371. But, by the weight of authority, the mort- gagee will be secured in all advances made, before he receives actual notice of the existence of the subsequent incumbrance. Ackerman v. Hunsicker, 8.J N. Y. 43; Farr v. NicJiols, 133 N. Y. 327; Wn). The Crown is not bound by the Statutes of Limitation of 1833 and 1874 (n) : but by an Act of George III. (o) the rights of the Crown in all lands and hereditaments are barred after the lapse of sixty years. The title to purely incorporeal hereditaments, whether appendant, appurtenant or in gross, depends upon grant Prescription, or upou prescription from immemorial user, by which a (i) Sect. 33. (j) Stat. 3 & 4 Will. IV. c. 27, s. 34; Scott V. Mxon, 3 Dru. & War. 388 ; Sands to Thompson, 22 Ch. U. 614. {k) Former twenty; stat. 3 & 4 Will. IV. c. 27, s. 40. {I) Slat. 37 & 38 Vict. c. 57, s. 8; Sutton v. Sutton, 22 Ch. D. 511; Fearnside v. Flint, ib. 579. (w) Stat. 37 & 38 Vict. c. 57, s. 10. («) See Shelford's Real Pro- perty Statutes, 140, 141, 8th ed. ; Bac. Abr. Prerogative (E. 5, 7). (o) Slat. 9 Geo. III. c. 16, amended by 24 & 25 Vict. c. 62, and extended to the Duke of Cornwall bv 23 & 24 Vict. c. 53, and 24 & 25 Vict. c. 62, s. 2, and extended to Ireland by 39 & 40 Vict. c. 37. GF TITLE. (545 ^raut is implied. Tiie time of legal memory was long Legal since fixed at the beginning of the reign of King™^'""'^' Richard I., by analogy to the time which, by a statute of Edward I. (/?), was fixed for the limitation of the old writ of i'io;ht {(/). And in the absence of an express ^»'<'^'''^«»* grant, a man might either prescribe that he and his^^®- ancestors had from time immemorial exercised a certain right in gro.-s (r), or that he, being seised in fee of certain lands, and all those whose estate he had, had from time immemorial exercised as appendant or appur- tenant to their own lands certain rights, such as riglits of common or way, over certain other lands {s). In both of these cases proof of a user as of right, for twenty years or upwards, was formerly considered to afford a presumption of immemorial enjoyment {t). But this presumption might be effectually rebutted by proof that the enjoyment had in fact commenced within the time of legal memory (u) ; in which case the enjojanent for centuries would go for nothing. This is still the law with regard to prescriptions of the former kind, namely, prescriptions of immemorial user by a man and his ancestors (x). Rut with regard to presci-iptions of the latter kind, where the owner of one tenement, some- times called the dominant tenement, claims to exercise some right over another tenement, called the servient tenement, he may either still prove his rights as before (y), or he may have recourse to an Act of The Prescrip- William lY. (s), called the Prescription Act, which has '°° °' materially shortened the proof I'equired, in all cases where a recent uninterrupted user as of right can be (p) Stat, of Westminster the Cress. 64. First, 3 Edw. L c. 89. (u) See Jenkins v. Harvey, 1 (q) Litt. sect. 170; 2 Inst. 238; Cro., Mee. &. Rose. 894, 895. 2 HI. Com. 31. See ante, p. 105. (x) Shuttleworth v. Le Fleming, (r) Welcome v. Upton, t> Mee. ubi supra. & Wels. SS*); ,Shuttleworfh v. Le {y) wari-iclc v. QueerCs College, Fleming, 19 C. B., N. S. 087. (hiford, L. R., 6 Ch. 716, 728; (/() GatewarW s cane, C Rep. 59b. Aynsleyv. Glover, L. R., lOCIi. 283. . i}) Rex V. Joliffe, 2 Barn. & (s) Stat. 2 & 3 Will. IV. c. 71. 046 OF TITLE, Rights of coDimoD, < Rights of way, &c. Light Disabilities, &c. shown. By tliis Act no right of common or other profit or benefit, called in ]{iw-Frenc\\ projlt a prendre, to be taken and enjoyed from or upon land (except tithes, rent and services), shall, if actually taken and enjoyed by any person claiming right thereto without inter- ruption for thirty years, be defeated by showing only that it was first enjoyed prior thereto ; and if enjoyed for fcixty years the ri^ht is made absolute and in- defeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing (a). For rights of way and other easements, watercourses and the use of water, the terms are twenty and forty years respectively instead of tliirty and sixty years [h). And when the access and use of light for any dwelling-house, woi'kshop, or other building, shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasil)le, any local usage or custom to the contrary notwitlistanding, unless it shall appear that the same was enjoyed by some con- sent or agreement expressly made or given for that purpose by deed or writing (c). The periods mentioned are periods next before some action or suit in which the claim is brought in question ; and no act is deemed an interruption unless submitted to or acquiesced in for one year after the party interrupted shall have had notice thereof and of the person making or authorizing the same to be made (d). The time during which any person, otherwise capable of resisting any claim, shall be an infant, idiot, no7i compos mentis, feme covert or tenant for life, or during which any action or suit shall have been pending, and w^hich shall have been diligently prosecuted until abated by the death of any party (a) Sect. 1. (6) Sect. 2. (c) Sect. 3. ((i) Sect. 4; Bennison v. Cart- wright, 5 Best & Smith, 1 OF TITLE. (547 thereto, is excluded from the above periods, except when the claim is declared absolute and indefeasible (e); provided that in the case of ways and watercourses where tlie servient tenement shall bo held for term of life or years exceeding three years, the time of enjoyment of the way or watercourse during such term is excluded from the computation of the period of forty years, in case the claim shall, within three years next after the end or sooner determination of such term, be resisted by any person entitled to any reversion expectant on the determination thereof if). The Crown is expressly J^'s^^^s over . . . . Crown laDds. bound by the provisions of the Prescrij)tion Act re- specting j^ro^^fs a prendre, ways and water rights: but is not bound l)y those respecting light {g). The riglits ^bandou above mentioned may be lost by abandonment, of which non-user for twenty years or upwards is generally sufh- cient evidence, although a shorter period will suffice if an intent to abandon appear (A). Although the possession of land is attended with the ' advantages before described (^), yet mere possession is of course not conclusive evidence of a title good against all the w^orld. Some further proof or guarantee of title is required on a transfer of real property, unless the transferee is to take, without compensation, the risk of being ejected by some person, who has a better title. In ancient times, as we have seen, conveyances of land were principally made from a superior to an inferior, as from tiie great baron to his retainer, or from a father to his daughter on her marriage (k). The grantee became (e) Sect. 7. Eq. 279; 2 Ch. 478. For further (/') Sect. 8. See Symonds v. information as to the law of pre- Leaker, 15 Q. B. D. 629. scriptive rights, the reader is re- (g) Parry v. Eamts, 1891, 1 Ch. ferred to the author's Lectures on 658. Rights of Common and otluT I're- (A) Moore v. Jiawnon, 3 Barn. scriptive Rights, now puhlished. & Cres. 332. 339; The Queen v. (i) Ante, p. 639. CJiorley, 12 Q. B. 515, 519; (/fc) See an<«, p. 74. Vroxsley v. Lightowler, L. R., 3 G18 OP TITLE. Warranty. Warranty implied by word give. Express warrautv. tlie tenant of the grantor ; and if any consideration were given for the grant, it more frequently assumed the form of services or annual rent, than the immediate payment of a hirge sum ( f money {I). Under these circumstances, it may readily be supposed, that, if the grantor were ready to warrant the grantee quiet possession, the title of the former to make the grant would not be very strictly investigated; and this appears to have been the practice in ancient times; every charter or deed of feoffment usually ending with a clause of warranty, by which the feoffor agreed that he and his heirs would warrant, acquit, and for ever defend the feoffee and his heirs against all persons {m). Even if this warranty were not expressly inserted, still it would seem that tlie word give used in a feoffment, had the effect of an implied warranty ; but the force of such implied war- ranty was confined to the feoffor onlj^, exclusive of his heirs, whenever a feoffment was made of lands to be holden of the chief lord of the fee {n). Under an express warranty, the feoffor, and also his heirs, were bound, not only to give up all claim to the lands themselves, but also to give to the feoffee or his heirs other lands of the same value, in case of the eviction of the feoffee or his heirs by any person having a prior title {o) ; and this warranty was binding on the heir of the feoffor, whether he derived any lands by descent from the feoftur or not (p), except only in the case of the warranty com- mencing, as it was said, by disseisin ; that is, in tlie case of the feoffor making a feoffment with warranty of lands of which he, by that very act {q), disseised some (I) Ante, pp. 14, 52, 55, 75. (to) Bract, fo. 17 a. As we have seen, the obligation of war- ranty origijally formed part of the 'relation between feudal lord and tenant; and this obligation, in the days of subinfeudation, was a potent factor in the acquisi- tion by a tenant in fee of the right to alien as against his heir; ante, pp. 45, 74. («) 4 Edw. I. Stat. 3, c. 6; 2 Inst. 275; Co. Litt. 384 a, n. (1). (0) Co. Litt. 365 a. {■p) Litt. s. 712. iq) Litt. s. 704; Co. Litt. 371 a. OF TITLE. g49 person (r), in which case it was too palpable a hardship to make the heir answerable for the misdeed of his ancestor. But, even with this exception, the right to bind the heir by warranty was found to confer on the ancestor too great a power; thus, a husband, whilst tenant by the curtesy of his deceased wife's lands, could, by making a feoffment of such lands with warranty, deprive his son of the inheritance ; for the eldest so7i of the marriage would usually be heir both to his mother and to his father ; as heir to his mother he would bo entitled to her lands, but as heir of his father he was bound by his warranty. This particular case was the first in which a restraint was applied by Parliament to the effect of a warranty, it having been enacted (s), that the son should not, in such a case, be barred by the warranty of his father, unless any heritage descended to him of his father's side, and then he was to be barred only to the extent of the value of the heritage so descended. The force of a warranty was afterwards greatly restrained by other statutes, enacted to meet other cases (t) : and the clause of warranty havinac been Warranty no'^r ^ ' . . , . ineffectual. long disused in modern conveyancing, its chief force and effect were removed by clauses of two statutes of 1833, passed at tlie recommendation of the lieal Property Commissioners (u). The old warranty of title was better suited to the P™°.f °{ f'^'® , , .... required in transactions of the feudal times, in which it originated, modem times, than to modern dealings with land. When a transfer of land takes the form of a sale for a sum of money paid down and representing the full value of the land, it is obviously desirable to require 'proof of the vendors (r) Litt. 8S. G97, 698, 609, 700. Vaughan, 375; stafs. 11 Hen. (X) Stat. Edw. I. c. 3. VII. c. 20, 4 & 5 Anne, c. 3 {t) Stat. De donis, 13 Edw. I. (c. 16 in Ruffiiead), s. 21. C. 1, as construed by tiie judjjes; {u) Stats. 3& 4 Will. IV. c. 27, see Co. Litt. 373 b, u. (2); s. 39; 3 & 4 Will. IV. c. 74, s. 14. 650 OF TITLE. good title. Abstract of title. American note 3, p. 07(i. title before corajileting the sale, as well as a guarantee of compensation in case of liis title afterwards proving Vendor bound to be defective. It has been accordingly established in modern times that, on every sale of land, the vendor is bound to show a good title thereto (x). The proof so required is furnished by his giving evidence of the exercise of acts of ownership, particularly of the power of disposition, by himself or his predecessors over the land sold for a certain number of years back, and by deducing from previcnis disjxjsitions and devolution of the land a right in himself to the fee simple or other estate sold. A vendor of land is therefore bound to furnish at his own expense (y) to the purchaser an abstract of his title to the proj^erty sold. This abstract must contain a statement of the material parts of every deed, will, or other instrument, by which any disposi- tion of the property was made during the time for which title has to be shown ; it; must also contain a statement of every birth, death, marriage, bankruptcy, or other event material to the devolution of the estate contracted for (s). The vendor is further bound to verify tlie abstract by producing for examination by the purchaser or his solicitor the original deeds or documents abstracted, and the probates or office copies of the wills and otl)er documents, of which the originals cannot be produced; also by furnishing proper evidence of every fact material to title {a). But the j)urchaser, in the absence of stipulation to tlie contrary, must now bear the expense of producing all documents of title, which are not in the vendor's possession (6;, and of Verification of abstract. (x) Doe d. Grai/ v. Stanion, 1 M. & W. (595, 70i; Sug. V. & P. 16, 14tti ed.; Lymght v. Edwards, 2 Ch. D. 4911, 507; ElUs v. Rogers, 29 Cti. D. (361, 670, 672. (?/) Sug. V. & P. 406, Utii ed.; Bk Johnson d; Tustin, 30 Ch. D. 42. (z) See Sug. V. & P. Ch. XI. pp. 405 et sen., 14th ed.; 1 Dart V. & P. Ch. VIII. pp. 319 et seq., 6th ed . (a) Sug. V. & P. 406, 414 et seq., 429—432, 447—450, 14th ed.; 1 Dart V. & P. pp. 159, 160, 350 etseq., 470, 6th ed. (h) See He Willett and Argenti, 5 Times L. R. 476. OF TITLE. Q5j^ procuring all other evidence of title, which the vendor has nut in his possession (c). The purchaser also bears all the expense of the examination of the title-deeds by his solicitor (tZ). It is now a term of contracts for the sale of land, in the absence of stipulation to the contrary, that recitals, statements, and descriptions of facts, matters and jiarties contained in deeds, instru- ments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of such facts, matters and descriptions (e). This may, of course, save a vendor from the necessity of furnishing evidence, which he would otherwise be obliged to give. The vendor's obligation to show a good tide is to Length of show a good title according to the contract, i. e., such a a vendor"^ ^ title as he has contracted to give (/). The length of tX^'^°^ time for which title shall be shown is very frequently the subject of express agreement between buyers and sellers of land (g). But in the absence of stipulation to the contrary, a purchaser can now require title to be shown for the following periods. On the sale of a Freeholds «,-,,,, 111 1 Hi- 1 •! '*"'' copy- ireeliold {hj or copyhold estate, he can call lor the title holds. for the last forty years (i). But if the freehold sold should be laud, formerly of copyhold or customary (c) Stat. 44 & 45 Vict. c. 41, contain any misrepresentation as s. 3, sub-s. 6; see Williams's to facts wiihin the knowledge of Convej-ancing Statutes, 47— oO. the vendor, or it will not be ((/) See Sug. v. & P. 40(), 429, binding on the purchaser, iu case 430; Williams's Conveyancing specific performance of the con- Statutes, 47— :')0. tract is sought; ii'e Banister, (6) Stat. 37 & 38 Vict. c. 78, s. 2; Broad v. Munton, 12 Ch. D. 131; see Williams's Conveyancing Sta- ]\'e Mar.sh and Earl Granville, 24 tutos, 8—11. Ch. 1). 11. (/■) Lawrie v. Lees, 7 App. {h) Wliether of inheritance or Cas. 19. for life or lives; see ante, p. 70. (g) Any stijjulation restricting (i) Stat. 37 & 38 Vict. c. 78, the period, for which the pur- s. 1; see Williams's Conveyan- chaser would otherwise he entitled cing Statutes, 2; 1 Dait V. & to require title to be slunvii, must P. 334, Gth ed. be fair and explicit and must not # 652 OF TITLE. Leasehold for years. Adv^owson. tenure, which has been enfranchised (k), he will not have the right to call for the title to make the en- franchisement (I). On the sale of leaseholds for years, he can require an abstract and production of the lease, whatever be its date. And if the lease be not more tlian forty years old, he can call for the subsequent title under the lease to the date of the contract : but if the lease be more than forty years old, all the sub- sequent title he can require is the title for the forty years next before the contract (m). And he will not in eitlier case be entitled to call for the title to the free- hold, or to any leasehold reversion (?/-). Not less than one hundred years' title must be shown to an ad- vowson {o). Upon the sale of tithes or other property held under a grant from the Crown, the original grant must be shown, whatever be its date ; after which, it appears, the title for the forty years next before the contract is all that can be required {p). And upon the sale of a reversionary interest, its creation must be shown, whatever be its antiquity (q). Furthermore, if an abstract of title commence with an instrument of disposition, it must be such as will form what is called Good root of a good root of title ; that is to say, it must, as a rule, ^^^^ ^ " be an instrument dealing with the whole estate, legal and equitable, in tiie ])roperty sold, containing a de- scription by which the property can be identitied, and containing nothing to cast any doubt on the title of (k) Ante, pp. 538—540. (l) Stat. 4-4 & 45 Vict. c. 41, s. 3, sub-s. 2; see Williams's Convevancing Statutes, 31. (TO)'Sug. V. & p. 368, 370, 14tli ed.; Frend v. Buckley, L. R., 5 Q. B. 213; Stat. 37 & 38 Vict. c. 78, s. 1; 1 Dart V. & P. 294, 5lh ed.; Williams ou Real Property, 450, 13th ed. ; see Williams's Conveyancing Sta- tutes, 2, 3. (7i) Stats. 87 & 38 Vict. c. 78, s. 2; 44 & 45 Vict. c. 41, s. 3, sub-s. 1; see Williams's Convey- ancing Statutes, 4, 5, 29. (o)Suir. V. & P. 867, 14th ed.; 1 Dart V. & P. 293, 5th ed., 334, 6th ed.; Williams on Real Pro. perty, 449 — 451, 13th ed. ; see Williams's Conveyancing Sta- tutes, 2, 3. {■p) Sug. V. & P. 867, 14th ed.; 1 Dart V. & P. 295, 5th ed., 336, 6th ed. {q) 1 Dart V. & P. 294, 5th ed., 335, 0th ed. ; see Williams's Conveyancing Statutes, 3, 4. OF TITLE. 653 the disposing parties. If it be deficient m any of these particulars, the purchaser maj^ require further evidence to supi)ly the deficiency (r). For example, if tlie abstract commence with a will containing a general devise of the testator's real estate, under which the property sold is alleged to have passed, the purchaser will be entitled to require evidence of the testator's seisin (s). But a conveyance in fee on a sale or by way of mortgage is a good root of title. It is obvious that, /) Ante, pp. 367rf seq. Conv. 570—572, 612. 4tli ed. (A) /!«<«, pp. 86'«<««7. (k) Stat. 44 & 45 Vict. c. 41, {i) Sug. V. & P. 557, 558, 561, s. 5; sees. 2(vii). 14th ed. ; 2 Dart, V. k P. 798, ^56 OF TITLE. of making special conditions of sale restrictive of tiie purchaser's rights. As we have seen, a mortgagee's power of sale affords the best means of realizing liis security (Z); and he cannot safely accept a title, which is at all likely to hamper the exercise of his most efficient remedy. Here it may be pointed out that the relation of intending mortgagor and mortgagee is very different from that of vendor and purchaser, A vendor and purchaser of land are parties to a contract, which may be decreed to be specifically enforced, at the instance of either of them, under the equitahle juris- diction of the Court (m). Hence their respective rights are strictly defined from the mon)ent they Iiave signed the contract for sale (n). But it is not usual for mort- gagees t(^ bind themselves by contract in contemplation of making a loan on real security [o) ; and even if they were to do so, the Court will not specifically enforce an agreement to lend or borrow money {p). Proof of title Upon a coutract to grant a lease for a term of years, °|!^^°°g''^^^''g' *° the rule formerly was that the intended lessor might be called upon to show a good title, the grant of a lease being regarded as equivalent, in this respect, to the sale of a leasehold interest (q). But now, in the absence of stipulation to the contrary, the intended lessee has no right, under such a contract, to call for the title to the freehold (/•). Upon a contract for an icnderlease, however, the pro- posed lessee still has the right to call for an abstract and {I) Ante, p. 614. 175; Siehel v. Mosenthal, 30 («i) See Seton on Decrees, 128f), Beav. 371. 1h ed.; 2 Dart, V. & P. Ch. {q) Roper v. Coombes, 6 B. & XVIII. C. "534; Sug. V. & P. 367, n. (1), (n) See ante, pp. 214, 217, 14th ed. ; Stranks v. St. John, 561. L. R., 2C. P. 376. (o) Davidson, Prec. Conv. (/■) Stat, 37 & 38 Vict. c. 78, Vol. II. Part II. p. 104, n. (a), s. 2; Jones v. Watts, 43 Ch. D. 4th ed. 574. (_p) Rogers v. Challis, 27 Beav. OF TITLE. g5'j' production of the lease, under which his intending lessor holds, and of the subsequent or the last forty years' title thereunder, in the same manner as if he had contracted to buy the lease {s). But he has now no right, in the absence of stipulation to the contrary, to call for the title to any leasehold reversion expectant on any lease, under which his proposed lessor holds {t). The covenants and conditions, which can be required to be inserted in a lease, in the absence of special stipulation, have been already referred to (a). On the completion of any sale or mortgage of land, Title deeds. the purchaser or mortgagee becomes entitled to all documents of title, which relate exclusively to the n,"*/^',*"^" property dealt with (x) ; and these are always handed over to him. The possession of the title-deeds is of importaace the greatest importance; for if the deeds were not posse'ssion. required to be delivered, it is evidcDt that property might be sold or mortgaged over and over again to different persons, without much risk of discovery. The only guarantee, for instance, which a purchaser has that the lands he contracts to purchase have not been mort- gaged, is that the deeds are in the possession of the vendor. It is true that in the counties of M iddlesex Registratioa and York, registries have been established, a search in which will lead to tlie detection of all dealings with the property (y) ; but these registries, though existing in Scotland and Ireland, do not extend to the remaining counties of England or to Wales. Generally speaking, therefore, the possession of the deeds is all that a purchaser has to depend on : in most cases, this pro- tection, coupled with an examination of the title thej' disclose, is found to be sufficient : but there are certain circumstances in which the possession of the deeds can («) Ante, p. 658. (x) Sug. V. & P. 407, 433 (t) Stat. 44 & 45 Vict. c. 41, s. 14th ed. 13. (i/) Sue ante, pp. 242, 628. (u) Ante, p. 566, n. (z). W. R. P. p P 658 OF TITLE. Possession of affoi'd no SGCuritj. Thus the possession of the deeds *'u'^ird"'arnlr^^ "*^ Safeguard against an annuity or rentcharge areut-charge; prjy.^i^ig Qut of the kuds ; for the grantee of a reiit- nor against charge lias no right to the deeds (s). So the pos- bdnTr*^tcMlant SGSsion of the deeds, showing the conveyance to the for life only, vendor of an estate in fee simple, is no guarantee that the vendor is not now actually seised only of a life estate ; for, since he acquired the property, he may, very possibly, have married ; and on his marriage he may have settled the lands on himself for his life, with remainder to his children. Being then tenant for life, he will, like every other tenant for life, be entitled to the custody of the deeds (a) ; and if he should bo fraudulent enough to suppress the settlement, he might make a conveyance from himself, as though seised in fee, deducing a good title, and handing over the deeds; but the purchaser, having actually acquired b}' his purchase nothing more than the life interest of the vendor, would be liable, on his decease, to be turned out of possession by his children; for, as marriage is a valuable consideration, a settlement then made cannot be set aside by a sub- sequent sale made by the settlor. Against such a fraud as this the registration of deeds seems the only protection. In some cases, also, persons are entitled to an interest, which they would like to sell, but are pre- vented, from not having any deeds to hand over. (z) The late author once met with lands. The vendor, a person of an instance in which lands were, the highest respectability, was, as from pure inadvertence, sold as often happens, ignorant of the free from incumbrance, when in legal effect of the settlement lie fact they were subject to a rent- had siijned. The charge was for- charge, "which had been granted tunately discovered by accident by the vendor on bis marriage shortly before the completion of to secure the payment of the the sale. premiums of a policy of insurance (a) Sugd. Vend. & Pur. 445, on his life. The marriage settle- n. (] ), 14th ed.; Leathes v. Leathen, ment was. as usual, pix-pared l)y 5 Ch. 1). 221. Even an equitable the solicitor for the wife; and the tenant for life has been declared vendor's solicitor, who conducted entitled to the custody of the title the sale, but had never seen the deeds; Jie Burnahy's tStttled settlemeni, was not aware that ^iiaie*, 42 Ch, D. 621 . any charge had been made on the OF TITLE. 659 Tliu?, if lands be settled on A. for his life, with Difficulty in remainder to B. in fee, A. during his life will be en" rev^ersion, for titled to the deeds; and B. will find great difficnltj ^,i^e that in disposing of his reversion at an adequate price : "".rT®^^"/'"* '■ , . 11' sale Las been because, having no deeds to give up, he has no means made. of satisfying a purchaser that the reversion has not previously been sold or mortgaged to some other person. If, therefore, B.'s necessities should oblige him to sell, he will find the want of a registry for deeds the cause of a considerable deduction in the price he can obtain. It may here be remarked, that as few people Sale of would sell a reversion unless they were in difficulties, '^^'-'''''°"^* equity, whenever a reversion was sold, threw upon the purchnser the onus of showing that he gave tlie fair market price for it (l). But it is now provided that New enact- no purchase, made bond Jide, and without fraud or ™*^°* unfair dealing, of any reversionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground of undervalue (c). Again, if lands are subject to any mortgage made before the j-ear 1882, there may be a difficulty in deal- ing with them on account of the absence of title deeds. For a mortgagee under such a mortgage who has pos- Mortgagor session of the title deeds, cannot as a rule be com])elled spect deedT' to produce them for inspection, witliout being paid off {d). y" n°o^,*t*L*.^,'°" With regard, however, to mortsrafjes made after the except by *-3 ~ consent year 1881, it is enacted by a section of the Convey- ^3^^^^^^.^. ancing Act of 1881 (e), which has effect notwithstand- ™ent. (i) Lord Aldborovgh v. Trye, 7 Donegall, L. R., 5 Cli. 497; CI. & Fiu. 43(5; Davies v. Cooper, Sugd. Vend. & Pur. 435, 445, 5 My. & Cr. 270; Sugd. Vend. & UtB ed. See 1 Dart, V. k P. Pur. 278, 14th ed.; Edwards v. 475, 6th cd.; Seton on Decrees, i;«ri!, 2 De Ge.x, M. & G. 55. 1058, 4th ed. ; Davidson, Prec. (c) Stat. 31 Vict. c. 4. See Conv. Vol. II., Part II., p. 251, Lord Aylesford v. Morris, L. R., 4th cd. 8 Ch. 4S4; O" liorke v. Boliruj- («) Stat. 44 & 45 Vict. c. 41, hroke, 2 App. Cas. 814; Fry v. s. Ifi; see Williams's Conveyanc Laiie, 40 Ch. D. 312. ing Statutes, 124. (d) Chicheste'^ v. Marquis of p p 2 660 OP TITLE. ing any stipulation to the contrary, that a mortgagor, as long as his right to redeem subsists, shall, by virtue of that Act, be entitled, at his own cost, to inspect and make copies or abstracts of or extracts from the docu- ments of title relating to the mortgaged property in the custody or power of the mortgagee. Title deeds Where the documents of title relate, not only to the otSfud. land sold, but also to other property, which the vendor retains, he is entitled to retain the docnments (/), Whore the title-deeds cannot l)e delivered over to a purchaser, he is entitled to require the vendor to give Acknowiedg- 01' procure him a statutory written achiowledgment of ment of ri^ht j -g j-jo-ht to tlicir productiou, and to delivery of copies to production o r ' ./a of documents, thereof {g). When such an acknowledgment is given by a person, who retains possession of documents, it has the effect provided in the 9th section of the Conveyancing Act of 1881 (A) ; which is, shortly, to impose on every (/) Stat. 37 & 83 Vict. c. 78, see Davidson, Prec. Conv. Vol. II., s. 2. This rule does not apply to Part II., 238 etseq., 2^Z, 4th ed. the case of a mortgage, as to which {g) In such cases the purchaser was formerly entitled to a covenant for production of the title deeds: but now any liability to give such a covenant will be satisfied by the statutory acknowledgment. The purchaser was also entitled to require attested copies to be furnished to him, at the vendor's expense, of any documents, of which he was copies. entitled to a covenant for production, except instruments on record. But, though he is still entitled to have such attested copies, the rule now is that he must bear the expense of them himself. The statutory acknowledgment must also be prepared at the purchaser's expense, but the vendor must bear the expense of the perusal and execution thereof on behalf of and by himself and all necessary parties other than the pur- chaser. A purchaser is entitled to the statutory acknowledgment in respect of all such documents, not delivered to him, as are necessary to make a good title according to the contract; except documents (not being in the vendor's possession or power), of which the purchaser can obtain good evidence himself, as deeds of bargain and sale enrolled or copies of court roll. See Cooper v. Emerii, \ Ph. 388; Sug. V. •& P. 34, 44(5—450, 453, 14th ed ; stats. 37 & 38 Vict. c. 78, s. 2; 44 & 45 Vict. c. 41, ss. 3 (sub-s. 6), 9 (sub-s. 8); Williams's Conveyancing Statutes, 12—14, 48. (A) Stat. 44 & 45 Vict. c. 41. appears to require the same stamp See Williams's Conveyancing as an agreement; see ante., p. 218, Statutes, 94. A statutory acknow- n. (t). ledgment, unless given by deed, Attested OF TITLE. QQl possessor of the documents, during such time only as tliey remain in liis possession or control, an obligation to pro- duce them whenever reasonably required for proving or supporting the title of any person entitled to the benefit of the acknowledgment, and to deliver to him true copies of or extracts from them. This obligation will be en- forceable by, but at the expense of, the person to whom the acknowledgment is given, or any person, not being a lessee at a rent, having or claiming any estate, interest, or right through or under him, or otherwise becoming through or under him interested in or affected by the terms of any of the documents. The statutory acknow- ledgment does not confer any right to damages for loss or destruction of, or injury to the documents to which it relates (^). But, under the same 9th section of the Undertaking .-, . A ^ 100 1 'J* • • for safe Conveyancnig Act, Ibbl, ii a person retammg pos- custody of session of documents gives to another a written under- '^°"°^'^°**' taking for safe custody thereof, that will impose on every possessor of tlie documents, so long as he has possession or control of them, an obligation to keep them safe, whole, uncancelled and undefaced, unless prevented from doing so by fire or other inevitable accident (k). A purchaser entitled to require a statutory acknowledgment for production of documents would appear to be also entitled, as a rule, to require an undertaking for their safe custody (l). So that a vendor, who desires to limit his liability to that imposed by the statutory acknowledgment, should be careful to stipulate expressly that he will give no uiulertaking for the safe custody of any documents retained. Such a stipulation is usually made on sales by trustees. An acknowdcdg- (i) Stat. 44 & 45 Vict. c. 41, for safe custody. And the statu- s. 9, siib-s. r, . tory undertaking will now satisfy {k) Stat. 44 & 45 Vict. c. 41, any liability to give a covenant s. 9, sub-s. 9. for safe custody of documents. (I) The common form of the Seel Davidson, Prec. Con v. 222, covenant for production of title 4th ed.; stat. 44 & 45 Vict. c. 41, deeds in >i.se before 1882 (ante,]). a. 9, sub-s. 11; Williams's Coa- 652, a. {ijj ), included a covenant veyancing Statutes, lol, 102. 662 ®^ TITLE. ment of riglit to production of title-deeds, to take effect under the statute, must be given by the person who retains possession of the deeds ; and this will not necessiirily be the vendor. Thus, if part of an estate in mortgage be sold by the mortgagor with the con- currence of tlie mortgagee, the latter will be the person who retains possession of the title-deeds (m). In this case therefore the vendor, to satisfy his liability to the purchaser (/i), must, if he can, procure the statutory acknowledgment to be given by the mortgagee {o). But it will be no objection to the title, that the vendor is unable to procure for the purchaser a statutory acknowledgment from the person in possession of the title-deeds, if the purchaser will have an equitable right to their production independently of any acknowledg- ment (j>). It appears that, when part of an estate is sold and the vendor retains the title deeds, the purchaser will have an equitable right to their production in proof of his title, without any express agreement therefor [q). Search in When the lands sold or to be mortgaged are situated and Vork in either of the counties of Middlesex or York, search registries. ^^ made in the registries established for those counties, to discover if there be any registered assurance affect- ing the Imds, which has not been disclosed by the abstract (/•> ; and a memorial of the conveyance is of (m) See«7i<«, p. 657. (?) Fain v. Ayers, 2 S. & S. \ti) Ante, ^. m). 533, 535; Sug. V. & P. 445, (o) Under the practice before n. (1), 453, n. (1), 14th ed. 1882, a covenant for production (;•) Ante, pp. 242, 628. By of the title deeds should have stat. 47 & 48 Vict. c. 54, ss. 20 — been entered into by the person 23, 31, provision is made for entitled to their possession in ofBcial search in the A'orkshire respect of the lesral estate in the registers, and the issue of a cer- iand ; see Sug. V. k P. 453 and tificate of the result of such a n. (1;, 14ih ed.; 1 Dart, V. & P. search. Like provision as to 554, 55*i, 5lh ed. ; 1 Davidson, Middlesex is made by the Rules Pre'c. Conv. 590, 5'Jl, 4th ed. under the Land Registry (Middle- {p) Stat. 37 & 88 Vict. c. 78, sex Deeds') Act, 1891; W. N s. 2; see Williams's Conveyancing 13th Feb. 1892. Statutes, 12. OF TITLE. 6G3 course duly registered as soon as possible after its execution. As to lands in all other counties also, there are certain matters atTecting the title, of which every purchaser can readily obtain information. Thus, if any estate tail lias existed in the lands, the purchaser can always learn whether or not it has been barred ; for the Search for records of all fines and recoveries, by which the bar was veries, and formerly effected (s), arc preserved in the Public Record deeds*'*'^'"^ Office (t) ; and the deeds, which have been substituted for those assurances were required to be enrolled, for- mci'l}^ in the Court of Chancery (w), and since the year 1879 in the Central Office of the Supreme Court (v). Conveyances executed by married women under the Deeds provisions of the Act for the abolition of fines and re- ^y Q°arrLd^ coveries before the vear 1883 can also be discovered by jy^'^™^" ^f°l^ •' ■' the year 1883. a search in the index of the certificates of the acknow- ledgment of such deeds (a?), which is now kej)t at tlie same Central Office {y). So we have seen that search Search for is always made in the register of writs and orders orders afTect. affecting land, in order to discover if the land has been 'uf^tnden^^ taken in execution (s) ; also for registered pending actions, by which the purchaser or mortgagee would !)e bound ((^). Again, iudirments entered up before the Search for 1 /• T 1 ir,rtr\' 1 T 1 ^ r^ • judgments and 23rd of July, 1860, and debts to the Crown incurred Crown debts. before the 2nd of November, 18(i5, are charges on land, if duly registered; and if the vendor or mortgagor, or (#) yl«<«, pp. 108, ''O. Wilhams's Conveyancing Sta- {t) Established by stat. 1 & 2 tutes, '281—285. Vict. c. 92. (y) An official search for such iu) Ante, pp. V)'.\ 110. As to conveyances may be directed to fines and recoveries in Wales and be made and a certificate of the Cheshire, see stat. 5 & 6 Vict. result obtained ; see stat. 45 & c. 32. 415 Vict. c. 39, ss. 2, 7 ; Rules of {v) Stat. 42 & 43 Vict. c. 78, the Supreme Court, 1883, Ord. s. 5; Rules of the Supreme Court, LXl. r. 23; Williams's Convey- 1883, Ord. LXI. r. 9. An official ancing Statutes, 2ti2, 263, 268, seal cii for such deeds may now be 270, 273, 281—285, 477—479, 483, directed to be made, and a ceiti- 48fi. 490. 491. ficate of the result obtained ; («) Ante, pp. 313, 314, 330, Ord. LXI. r. 23; see Williams's 832. Conveyancing Statutes, 273, 274. (a) Ante, pp. 331, 332. {^£) Bee ante, p. 356. and n . {c) ; 6G4 OF TITLE. Search for Crown process of execution. Search for life aumiities. Search for Laud Cbarsires. Search in Court Rolls. Search for bankruptcy or iusolveucy ; and for deeds of arrange- ment. Practice as to searches. any former owner miglit have created such inenm- brances, they should be searched for (b). And wliere liability to the Crown may have been incurred after the 1st of November, 1865, the register of Crown writs or processes of execution should be searched (c). It is also usual to search the register of life annuities granted (otherwise than by marriage settlement or will) after the 25th of April, 1855 {d). On a sale or moi-tgage of agricultural land, it is desirable to search for land charges affecting the same and registered under the Land Charges, vfec, Act of 1888 {e) ; and also for land imj^rovement charges not so registered {/"). On the sale or mortgage of copyholds, the Court Rolls are always searched (g). Lastly, the bankruptcy of and vendor or mortgagor, or his insolvency prior to the Bankruptcy Act, 1861 {h), may be discovered by a search in the records of the Baidvrupt or Insolvent Courts ; and it is the duty of the purchaser's or mort- gagee's solicitor to make such search, if he has any reason to believe that the vendor or mortgagor is or has been in embarrassed circumstances («'). In such a case, search should also be made for any deed of arrangement, which may affect the land (k). Searches are usually confined to the period which has elapsed from the last purchase deed, — the search presumed to (J) Ante, pp. 310—315, 324, 32.^, 332. It IS not necessary to search for judgment or Crown debts against the names of trustees, or of mortgagees, who have been or are to be paid off; ^Vhitworth v. Gaugain, 1 Vh. 72S; aide, p. 523. (c) Ante, pp. 325, 332. (d) Ante, pp. 481), 487. Life annuities, which may have been charged on the land for money or money's worth prior to the ioth of August, 1854, may generally be discovered by a search amongst the memorials of such annuities; see ante, p. 466, n. {I). The lands charged, however, are not neces- sarily mentioned in the memorial. This search must now be niade in the Central Office; but at the present time it can rarely be neces.'sary. («) See ante, pp. 138, 139. {/) Ante, p. 139; as to these searches, see Elphinstone and Clark on Searches, 109 et seq. (g) Elphinstone and Claik on Searches, ifil; 1 Dart. V. & P. 454, 497, 5tb ed. ; 523, 6G0, 6th ed. (Al Ante, pp. 317—319. {i) Cooper v. Stephenson, 16 Jur. 424, 21 L. J., Q. b. 292. {k) Ante, p. 318. OF TITLE. GGl liave been made on behalf of the former purchaser being generally relied on as a sufficient guarantee against latent incuinbrauees prior to that tiuie (l). The bulk of the purchase money is never paid, on a^^y"^^^^^^ . "^ '■ purchase or sue of land {>n), nor is mortgage money usually mortgage advanced, until the title has been investigated in the coaveyauce. manner described (n), aud the necessary searches made. But if all these inquiries have been satis- factorily prosecuted, the transaction is then completed by conveyance of the land on the one hand, and pay- ment of the consideration money on the other. As a rule, a person bound to pay money to another will not be discharged from his liability by payment to the other's solicitor, unless the solicitor be expressly authorised to receive the money (o). But by the Con-P'^^V^^ptto ■^ ^ ^ _ •' vendor s or veyancing Act of 1881 (jj), where a solicitor produces a mortgagor's deed having in the body thereof or indorsed thereon a receipt for consideration money or other consideration, the deed being execnted or the indorsed receipt being (l) Williams on Real Property, S57, 1st ed. ; 4H5. 13th ed. ; El- phinstone and Claik on Searches, 50, 143, 149. As we have seen (ante, pp. 832, 333 i, in the case of matters, whereof entries are required or allowed by statute to be made iu the Central Office, or which may be entered in the re- gisters established by the Land Charges Act of 1888, official searches may be made, and a cer- tificate of the result obtained. And it is enacted that sucli a certificate shall be conclusive in favour of apurchaser. It appears, however, tliut such a certificate will merely be conclusive evid- ence, in favour of a purchaser, that there are no entries against the person named therein b;/ the deacriptinn therein applied to hlin. Hence jjrivate searches may be pre- ferred, as affording a butter oppor- tunity for tiacing entries aijainst the same person under a different description ; see the work last cited (which should be consulted on the subject of searches gene- rally), pp. lUO— ItiS. {m) On all sales by auction and many private sales, a deposit of a certain percentage of the pur- chase money is made, on entering into the contract, as a guarantee for its due performance ; see Howe V. Smith, 27 Ch. D. 80. («) Ante, p. 65 . (o) See Wilkinson v. Candlish, 5 Ex. 91 ; Vinei/ v. Chaplin, 2 l)e G. & J. 4G8, 477, 481; £onr- dillon V. Roche, 27 L. J., N. S. Ch. 681 ; Ex parte Swinhanks, 11 Ch. D. 525. {p) Stat. 44 & 45 Vict. c. 41, s. 56. Stat. 51 k 52 Vict. c. 59, s. 2 (altering the law as laid down in lie Bellnmi/ and Metropolitan, Board of Workx, 24 Ch. D. 387), now enables trustees so to autho- rize their solicitor to receive money due to them. GGG OF TITLE. Payment to trustees. Atnericati note Sf p. 676. Trustee's receipt for money, (!ecuri ties and other personal pro- ■perty, now a good dis- charge. signed by tlie person entitled to give a receipt for that consideration, the deed shall be sntheient authority to the person liable to pay or give the same for his paying or giving the same to the solicitor, without the solicitor producing any other authority in that behalf. Formerly it was a rule of ecpiity, that any person paying nKjuey or assigning other personal estate to a trustee thereof was bound to see tliat the same was duly applied pursuant to the trust, unless exempted from that obligation by the intention of the author of the trusts; which intention might be either expressly declared or implied from the nature of the trusts (): (8) Where a wife conveys and is expressed to convey as beneficial oicner, and the husband also conveys and is expressed to convey as beneficial otoner, then the wife is to be deemed to convey and to be expressed to convey by direction of the husband, as benefi- cial owner; and, in addition to the covenant implied on the part of the wife, there is also to be implied, first, a covenant on the part of the husband as the person giving that direction, and, secondly, a covenant on the part of the husband in the same terms as the covenant implied on the part of the wife {q). Cases in (Sect. 7, sub-sect. 4.) Where in a conveyance a person con- which cove- veying is not expressed to convey as beneficial owner, or as settlor, !''?" "ot^now "'" '^^ trustee, or as mortgagee, or as personal representative of a implied. deceased person, or as committee of a lunatic so found by in- quisition, or under an order of the Court, or by direction of a person as beneficial owner, no covenant on the part of the person conveying shall be, by virtue of this section, implied in the conveyance (r). (Sect. 7, sub-sect. 5.) In this section a conveyance includes a Copyholds. deed conferring the right to admittance to copyhold or customary land, but does not include a demise by way of lease at a rent, or any customary assurance, other than a deed conferring the right to admittance to copyhold or customary land («). Benefit of (Sub-sect. 6.) The benefit of a covenant implied as aforesaid implied cove- shall be annexed and incident to, and shall go with, the estate nant to run interest of the implied covenantee, and shall be capable of with the land. .ju • I. *i,.** •.* beinij enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested (<). (o) Sect. 7, sub-s. 1 (F) ; see 88—91. Williams's Conveyancing Sta- (r) See Williams's Conveyanc- tutes, 74, 7S, 87. ' ing Statutes. 91. {p) Sect. 7, sub-s. 2; see Wil- (s) See Williams's Conveyanc- liams's Conveyancing Statutes, ing Statutes, 92. 87, 88. ^t) See Williams's Conveyanc- ■ (q) Sect. 7, sub-s. 3 ; see Wil- ing Statutes, 92, 93. liams's Conveyancing Statutes, OF TITLE. 671 (Sub-sect. 7.) A covenant implied as aforesaid may be varied Covenant 01 extended by deed, and, as so varied or extended, shall, as "np'i^^d by far as may be, operate iu the like manner, and with all the like be'^var'ie'd^ incidents, effects and consequences, as if such variations or deed, extensions were directed iu this section (u) By means of the above enactments suitable covenants for title may be incorj)oral-ed in a deed of conveyance of freeholds or leaseholds upon a sale, mortgage or settlemetit, or in a deed of covenant to suri-ender copy- holds. But to accomplish this the exact expressions employed in the Act must be used ; otherwise no cove- nant will be implied. The use of statutory covenants for title will be illustrated in the next chapter. Formerlv some words used in conveyanciuir in them- }^°'"''3, . - ./ o formerly im- selves implied a guarantee of good title. Thus we have p'ying a seen (x) that the word ^?'ve implied a personal warranty ; goodTitk." and the word grant was supposed by some to imply a Give. warranty, unless followed by an express covenant, im- Grant. po?ing on the grantor a less liability [y). At common law too, an exchange and a partition between co- ^■^'^^<^nff^- parceners implied a mutual riglit of re-entry, on Partition. the eviction ot either of the jwrties from the lands ex changed or partitioned (s). And, by the former Reiristrv Grant bargain ^ , ' •/ s .. and seU, lu Acts for Yorkshire, the words grant, hargaln and sell, in bargain and a deed of hargain and sale of an estate in fee simple, in Yorkshire, inrolled in the Register Office, implied covenants for the quiet enjoyment of the lands against the bargainor, his heirs and assigns, and all claiming under him, and also for further assurance thereof by tlie same parties, unless restrained by express words {a). The word grant, by virtue of some other Acts of Parliament, also implies covenants for the title {b). But the Act to amend the u'c lawTfTeli property. (m) See Williams's Conveyanc- (a) Stat. 6 Anne, c. 62 (c. 35 ing Statutes, 93. i„ Rnffhead), ss. 30, 34; 8 Geo. II. (X) Ante, p. r,i«. / c. 6, s. 35. {y) See Co. Litt. 384 a, n. (T). (h) As in convevanccs hij com- («) Bmtard'a case, 4 Rep, 121 a. panics under the "Lands Clauses 672 OF TITLE, law of real property now provides tliat an excliange or a partition of any tenements or hereditaments made by deed shall not imply any condition in law ; and that the word give or the word (jrant in a deed shall not im])ly any covenant in law in rcc^pect of any tenements or hereditaments except so far as the word give or the word grant may by force of any Act of Parliament imply a covenant (c). The mere conveyance of a free- hold estate, therefore, does not now imply any covenant Covenant for title {d). Bnt if a man grant a lease of land for a lease. term of 3'ears, nsing the word demise or equivalent expressions, there will be implied on his pai't a cove- nant for quiet enjoyment of the land according to the lease so long as the lessor or any one deriving title fro^n him shall have any estate in the land (e). So that if the lessor's estate should come to an end during the term, without any act or default of his own, as by the death of a tenant for life, the lessee would be without remedy upon such an implied covenant (/'). Though if the lessor had no estate at all in the land comprised in the lease, which took effect merely by cetoppel (^), the lessee might then sue on the implied covenant in case of his eviction or failure to enter (li). If, however, the lease should contain an express covenant by the lessor for quiet enjoyment, limited to his own acts only, such express covenant, showing clearl}- what is intended, will nullify the covenant, which would otherwise be im- plied in law from the word demise or other words of Consolidation Act, 1845, stat. 8 (e) Spencer's case, 5 Rep. 17a; & 9 Vict. c. 18, s. 132; and in Shepp. Touch. 160. I(j5, 178; conveyances to the Governors of Bac Abr. Covenant (15;; Mostyn Queen Anne's Bounty, stat. 1 & v. Tlit West Mostyn Coal tfe Iron 2 Vict. c. 20, s. 22. Co., 1 C. P. D. 145. (c) Stat. 8 & 9 Vict. c. 106, (./') Adams v. Gibney, 6 Bing. s. 4, repealing 7 & 8 Vict. c. 76, 656. s. 6. The writer is not aware of (g) Ante, p. 564. any Act of Parliament by force (h) Holder v. Taylor, Hob. 12; of which the word give Implies a Style v. Bearing, Cro. Jac covenant. 73. {_d) See Co. Litt. 384 a, n. (1). OF TITLE. Q'jo lease (^). As lias been before mentioned (^•), a covenant so limited is all that an intending lessee can require to be inserted in a lease, without special stipulation. This covenant must still be set out at length, as no covenants for title are implied by the Convej^ancing Act in a demise at a rent, even though the statutory expressions be used {I). Some mention should here be made of the Acts which have been passed with a view to the simplification of titles and to facilitate the transfer of land. An Act has been passed "for obtaining a declaration of title" (yri!.). Act fnr m, . . 1 • • • 1 1 obtaining a ilus Act empowers persons claiming to be entitled to declaration of land in possession for an estate in fee simple, or claiming power to dispose of such an estate, to apply to the Court of Chancery, now represented by the Chancery Division of the High Court, by petition in a summary way for a declaration of title. The title is then investigated by the Court; and if the Court shall be satisfied that such a title is shown as it would have compelled an un- willing purchaser to accept, an order is made establish- ing the title, subject, however, to appeal as mentioned in the Act. This Act, though seldom resorted to, does not appear to have been repealed. Another Act of the same session is intituled " An A^ct to facilitate the Proof Act to facili- of Title to and the Conveyance of Keal Estates" (n). o'ftitie^'o and This Act established an office of land registry, and con- ^°°\Ytates. ''^ tained provisions for the official investigation of titles, and for the registrati n of such as appeared to be good and marketable. It has, however, now been superseded by the Land Transfer Act, 1875 (o), which provides («) The Land f r ^ c , A 1 • 1 ^^/ Transfer Act, that after the commencement ot that Act, whicn tookisTs. place on the 1st of January, 1876 (q), application for the registration of an estate under the former Act shall not (i) A^oke's case, 4 Rep. 80 b. («) Stat. 25 & 2(5 Vict. c. 53. (k) Ante, p. 566, n. [z). {o) Stat. 38 & 89 Vict. c. 87. {I) Ante, p. 070. ( p) Sect. 125. (to) Stat. 25 & 26 Vict. c. 67. (q) Sect. 3. W. R. P. Q Q (374 OF TITLE. be entertained. For the provisions of this Act reference should be made to the Act itself. Registration nnder this Act is optional, and its success has not been suffi- cient to justify any lengthened account of it in an elementary work like the present. When land is once registered under this Act, it ceases, if situate in Middle- sex or Yorkshire, to be subject to the county registry of deeds (r). Such is a very brief and exceedingly imperfect outline of the methuds adopted in this country for rendering secure the enjoyment of real property' when sold or mortgaged. It may perhaps serve to prepare the student for the course of study which still lies before him in this direction. The valuable treatises of Lord St. Leonards and of Mr. Dart on tiie law of vendors and purchasers of estates will be found to afford nearly all the practical information necessary on this branch of the law. The title to purely personal property depends on other principles, for an explanation of which the reader is referred to the author's treatise on the prin- ciples of the law of personal property. From what has already been said, the reader will perceive that the law of England has two different systems of rules for regulating the enjoyment and transfer of property; that the laws of real estate, though venerable for their antiquity, are in the same degree ill adapted to the requirements of modern society: whilst the laws of personal property', being of more recent origin, are pro- portionably suited to modern times. Over them both has arisen the jurisdiction of the Court of Chancery, by means of which the ancient strictness and simplicity of our real property laws have been in a measure rendered subservient to the arrangements and modifications of ownership, which the various necessities of society have (r) Sect. 127. OF TITLE. required. Added to this have been continual enact- ments, especially of late years, by which many of the most glaring evils have been remedied, but by which, at the same time, the symmetry of the laws of real property has been greatly impaired. Those laws cannot indeed be now said to form a system ; their present state is certainly not that in which they can remain. For tlie future, perhaps, the wisest course to be followed would be to aim as far as possible at a uniformity of system in the laws of both kinds of property ; and, for this purpose, rather to take the laws of personal estate as the model to which the laws of real estate should be made to conform, than on the one hand to preserve untouched all the ancient rules, because they once were useful, or on the othei-, to be annually plucking off, by parliamentary enactments, the fruit which such rules must, until eradicated, necessarily, produce. Q Q 2 67i 676 OF TITLE. AMERICAN NOTES. [The student is advised that all of the foregoing Part V that is statutory is of local application only.] ' Limitations of actions. — Statutes will be found in the different states limitino- the time within which actions for the recovery of realty must be brou i • i • . i • • " by him the said A. li. his heirs executors or adminis- " trators sufficiently indemnified against all estates in- " cumbrances claims and demands created occasioned " or made by him or any person claiming through or in " trust for him 4. For further " And FURTHER that he and every person having or assurance. a. ^ • • i. i. • ,. t • " xi • i "ciamnng any estate or interest m tlie said pi-emises " through or in trust for him will at all times at the cost "of the person or persons requiring the same execute "and do every such assurance and thing for the further "or more perfectly assuring all or any of the said pre- " mises to the use of the said C. D. his heirs and assigns "as by him or them shall be reasonably required. " In witness w^hereof the said parties to these pre- " sents have hereunto set their hands and seals the day " and year first above written." To the foot of the deed are appended the seals and signatures of the parties (/^^) ; and, on the back is Two witnesses endorsed an attestation by the witnesses, of whom it is very desirable that there should be two, though the deed would not be void even without any (n). And before 1882 it was the practice also to indorse on the back of the deed a further receipt for the purchase- Stamps money (o). On the face of the deed are impressed the proper stamps (^>). And if the land conveyed should (Z) The word that is here a Atkyns, 478; 3 Atk. 112; 2 pronoun Sand. Uses, 305, n- A. (118, n., (m) Ante, p. 185. 5th ed.); 3 Preston's Abstracts, («) 2 Black. Comin. 307, 378. 15. (o) This practice is of com- (p) Unstamped or insufficiently paratively modern date. See 2 stamped instruments shall not. OF THE PRESENT FORM OF A CONVEYANCE. (5g| be situate in Middlesex or Yorkshire, a memorandnm indorsement of the exact time of registration of a memorial of the dum of conveyance {pp) is indorsed thereon, with the proper ^^^'^''''*^'""' reference to the book and page of the register, where the entry is to be found. From the specimen before him, the reader will be Formal style struck with the stiff and formal style which charac- iustruments. terizes legal instruments ; but the formality to be found in every properly drawn deed has the advantage, that the reader who is acquainted with the usual order knows at once where to find any particular portion of the contents; and in matters of intricacy, which njust frequently occui-, this facility of reference is of incalcu- lable value. The framework of every deed consists but of one, two, or three simple sentences, according to the number of times that the testatum, or witnessing Testatum, part, "Now this Indenture witnesseth," is repeated. This testatum is always written in large letters ; and, except in criminal proceedings, be given in evidence or be available for any purpose whatever: but such iustruments may, as a rule, be received in evidence on payment of the proper duty and the appointed penalty; see stut. 54 & fS Vict. c. 39, ss. 14, 15, replacing 33 & 34 Vict. c. 97, ss. 15—17, and 17 & 18 Vict. c. 125, ss. 28, 29. Convey aiices on sale are now subject to ad valoretn stamps of one-half per cent., or five shillings per fifty pounds on the amount or value of the con- sideration for the sale, according to the table below. Where the amount or value of the consideration for the sale does not exceed £5 £0 (5 Exceed ,3 £5 and does not ': exceed £10 1 10 15 1 6 15 20 2 20 25 2 t) 25 50 5 50 75 7 t> 75 100 10 luO 125 () 12 6 125 1.50 15 150 175 17 6 175 200 200 225 2 (5 225 250 5 250 275 7 (i 275 300 10 300 For every £50, and i ilso for any fract ional uart of £50. of i such ami ount or value. . 5 See Stat. 54 & 55 Vict. c. 39 (The Stamp Act, 1891), ss. I, 54- and First Schedule, replacing 33 & 34 Vict. c. 97. {pp) Ante, p. 242. G82 OF TUE PRESENT FORM OF A CONVEYANCE. Habendum. Parties. Recitals Operative words Parcels. Habendum. Uses and trusts. Covenants. although there is no limit to its repetition (if circum- stances should require it), yet in the majority of cases, it occurs but once or twice at most. In the example above given, it will be seen that the sentence on which the deed is framed is us follows : — " This Indenture, " made on sucli a day between such parties, witnesseth, " that for so much monej' A. B. doth grant certain pre- " mises unto and to the use of C. D. and his heirs." After the names of the parties have been given, an interruption occurs for the purpose of introducing the recital ; and when the whole of the introductory cir- cumstances have been mentioned, the thread is re- sumed, and the deed proceeds, " Now this Indenture witnesseth." The receipt for the purchase-money is again a parenthesis ; and soon after comes the descrip- tion of the property, which further impedes the pro- gress of the sentence, till it is taken up in the hahendum, " To have and to hold," from which it iminterruptedl}' proceeds to the end. The contents of deeds, embracing as they do all manner of transactions between man and man, mnst necessarily be infinitely varied, and a simple conveyance, such as that we have given, is rare, compared with the number of those in which special circumstances occur. But in all deeds, as nearly as possible, the same order is preserved. The names of all the parties are invariably placed at the beffinnino;: then follow recitals of facts relevant to the matter in hand ; tlien a preliminary recital, stating shortly what is to be done ; then, the testatum, con- taining the operative words of the deed, or the words which effect the transaction, of which the deed is the witness or evidence ; after this, if the deed relate to ])roperty, come the parcels or description of the pro- perty, either at large, or by reference to some deed already recited ; then, the Iiahendum showing the estate to be holden ; then, the ut^es and trusts, if any ; and, lastly, such qualifying provisoes and covenants, as may be required by the special circumstances of the OF THE PRESENT FORM OF A CONVEYANCE. 683 case. Thi'onghout all this, not a single stop is to be No stops, found, and tiie sentences are so framed as to be inde- pendent of their aid ; for, no one would wish the title to his estates to depend on the insertion of a comma or semicohtn. The comniencement of sentences, and now and then some few important words, which serve as landmarks, are rendered conspicuous by capitals: by the aid of tliese the practised eye at once collects the sense; whilst, at the same time, the absence of stops renders it next to impossible materially to alter the meaning of a deed without the forgery being dis- covered. If the reader will turn to Appendix (A), lie will obsei-ve that the frame of the precedent given above is the same as that of the old release ; although in tlie former the clauses conveying the reversion, &c., and the title deeds are omitted as unnecessary {q), as well as the covenant that the vendor is seised in fee (r), and in the latter the conveyance is made to the old uses to bar dower (.s), and not simply to the ]>urchaser in fee. r>ut though the chief clauses of the modern deed of grant are in substance the same as those of the earlier release, it will be observed that in the above precedent no attempt is made to rival its elaborate superfluity of expression. The extreme luxuriance of language by which legal instruments were distinguislied {t) was in a great measure the outcome of the faulty system of remuneration formerly employed for conveyancing work. The labour of a lawyer is veiw diffei'ent from tliat of a copyist or printer ; it consists first and chiefly in acquiring a minute acquaintance wiih the princi])les gg^ OF THE PRESENT FORM OF A CONVEYANCE. of tlic law, then in obtaining a knowledge of the facts of any ])artienlar case which may be brought before hiin, and lastly, in practically ap]>lying to such case the principles he has previously learnt. I3tit, for the last and least of these items alone did conveyancers obtain any direct remuneration , for deeds were paid for by the length, like printing or copying, without any regard to the principles they involved, or to the intricacy or importance of the facts to which they might relate {n) ; and, more than this, the rate of payment was fixed so low, that no man of education could afford for the sake of it, first to ascertain what sort of instrument the cir- cumstances might require, and then to draw a deed containing the full measure of ideas of which words are capable (x). The consequence of this false economy on the part of the public was that certain well known and long established lengthy forms, full of synonyms and Common expletives, were current among lawyers as common forms^ and, by the aid of these, ideas were diluted to the proper remunerating strength ; not that lawyers actually inserted nonsense simply for the sake of in- creasing their fees ; but words, sometimes unnecessary in any case, sometimes only in the particular case iu which they were enj^aged, were suffered to remain, sanctioned by the authoiity of time and usage. The proper amount of vei'biage to a common form became well established and understood ; and whikt any (7/) By stat. 6 & V Vict. c. 73, veyancing bills were not strictly s. 37, the charges of a soli citur for taxable, they were always drawn business relating entiiely to con- up on the same principle of pay- veyancing were rendered liable ment by length, which pervaded to taxation or reduction to the the other branches of the law. established scale, which was then (x} When conveyancing bills regulated onl}' by leugtli. Pre- became taxable, the payment to a viousl}' to this statute, the bill of a solicitor- for drawing a deed was solicitor relating to conveyancing fixed at one shilling for every was not taxable, unless part of the seventy-two words, denominated bill was for business transacted in a. folio ; Richards's Book of Costs some Court of law or equity; (1S44), pp. 40S— 411 ; and the Beames on Costs, 17'i, 177, '.ind fees of counsel, though paid in ed. (1840). But although con- guineas, averaged about the same. form OF THE PRESENT FORM OF A CONVEVAXCE. 685 attempt tu exceed it was looked on as disgraceful, for a lung- time it was not materially diiuinislied. In the present century, however, the art of conveyancing did not escape the influence of the spirit of reform, which gave rise to the real property legislation of 1833 (?/), 1845 {2) and 1859-GO («). The exuberant verbiage of the old common forms was gradually weeded out; and after the introduction of the conveyance of land by simple grant (b), there was an increasing tendency on the part of conveyancers to eradicate superfluous words from their precedents. The old system of remuneration for conveyancing work remained substantially the same until 18S1 (c). Since that year the remuneration of Solicitors' T ., /• • 1 i.1 i i> Remuneration solicitors lor conve^'ancmg and other non-contentious Act, issi, business has been regulated upon new principles by the thereunder general order made under the Solicitors' Kemuneration Act, ISSl (d). Under the influence of the present (y) Ante, pp. 239, 240, 256, 356, 370, 640. (3) Ante, pp. 238, 427, 592. (a) Ante. pp. 571, 572, 615. {b) Ante, p. 238. (e) By Btat. 33 & 34 Vict. c. 28, ss. 4 — 15, 18, llie remuneration of .Kolicitors was first authorized to Ije tixed by agreement between themselves and their clients, and the otiicers taxing solicitors' costs were permitted to have regard to ihe .skill, labour and responsibility iuvolved. ((/) Slat. 44 & 45 Vict. c. 44, ss. 1 — 7. By this order, the re- muneration of solicitors in respect of business connected with sales, purchases and mortgages com- pleted, and with leases and agree- ments for leases (other than mining or building leases), and coureyanccs reserving rent, or agreements for the same, when the transaction sludl have been completed, is to be that prescribed in Schedule I. to the order. In respect of all other conveyancing and non-contentious business the remuneration is to be rej^ulated according to the previous system as altered by Schedule II. Schedule I. Remuneration contains scales of charges adjusted bvcommis- iipnn the principle of a commis- gJQ,^ (,p sinn or percentage upon the amount percentage of the purchase or mortgage money, or the rent reserved. Schedule II. prescribes such fees for instruc- tions for deeds, wills, and other documents as may be fair and reasonable, I'aises the allowance for drawing such documents to 2s. per folio, and specities certain other charges. The charges spe- cified in Schedule II. may be increased or diminished in extra- ordinary cases for special reasons. In all cases to which the scales prescribed in Schedule I. apply, a solicitor may, before undertaking any business, by writing under his hand, communicated to the client, elect that his remunera- tion shall be accoiding to the jirevious system as altered by Schedule II. ; but if no such election is made, his remuneration will be according to the scale prescribed by Schedule I.; see Ik^tcr v. Ikder, 34 Ch. D. 607. 686 OF THE PRESEXT FORM OF A CONVEYANCE. system of reinuneration and of the changes in practice caused by the operation of the Conveyancing Act of 1881, all nnnecessary clauses and expressions are now generally excluded from deeds. It must not be sup- posed, however, that legal instruments are now drawn without regard to precedent, or are altogether destitute of lengthy clauses. When parties desire to provide exhaustively for several possible events, as often occurs in the case of settlements and wills, it is rarely possible to be concise without the risk of inaccuracy. In such cases, the clauses inserted are fi-ecpiently based upon the old common forms, the best of which, though prolix, were marvellously accurate. And in all drafting due regard should always be had to the established forms, which have stood the test of long usage, and to which generations of conveyancers have contributed their skill and learning. Conveyance But to return to our practical illustration of the the^s'ist *^'^ conveyancer's craft ; ^ Let us now suppose that a simple isaT™''^'^' transaction of sale of land exactly similar to those, to which the deeds given above and in Appendix (A) relate, is to be completed at the present time. In drawing our conveyance, we may then rely on the following provisions of the Conveyancing Act of 1881 (e), which apply only to conveyances made alter the 3ist of December, 1881 (/) : Conveyance (Section 6, siib-spct. 1.) A conveyance of land shall be deemed of land passes to include and sliall by virtue of this Act operate to convey, die nltu^eVf" ^^''*^^ ^^^ land, all buildings, erections, fixtures, commons, easements hedges, ditches, fences, ways, waters, watercourses, liberties, th V^^^ "t privileges, easements, rights, and advantages whatsoever, apper- the time of conveyance. Under the same Act of 1881 muneration of the solicitor, to (sect. 8), it is competent for a such amount and in such manner solicitor and his client to enter as they may think fit, for any Agreement as into an agreement, which must busine.-is to which the Act relates. to remunera- be in writing signed by the person (e) Stat. 44 & i5 Vict. c. 41. tion. to be bound thereby, or by his (/) .Sects, (i (sub-s, 6), 7, (sub- agent iu that behalf, for the re- s. 8), 63 (subs. 3'. OF THE PRESENT FORM OF A COXVEYAXCE. ggY taining or reputpd to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof (g). (Section 6, sub-sect. 2.) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouse.s, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of, or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof (h). (Section 63, sub-sect. 1.) Every conveyance shall, by virtue of Conveyance this Act, be effectual to pass all the estate, right, title, interest, ,, ''^ P-^sses ' ^ , > a ' ' 'all the estate claim and demand which the conveying parties respectively and interest have in, to, or on the property conveyed, or expressed or in- °*^ ^he party tended so to be, or which they respectively have power to convey ^ ' ' in, to, or on the same (i). Sections 6 and 63 apply only if and as far as a contrary in- tention is not expressed in the conveyance, and have effect subject to the terms of the conveyance and to the provisions therein contained (k). (Section 7, sub-sect. 1.) In a conveyance there shall, in the Covenants by several cases in this section mentioned, be deemed to be included, P*'"*/ ^^^^fj' in>r implied m and there shall in those several cases, by virtue of this Act, be a conveyance implied, a covenant to the effect in this section stated, by the i" certain person [or by each person] who conveys, as far as regards the subject-matter or share of subject-matter expressed to he conveyed by him, with the person, if one, to whom the conveyance is made, [or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common,] that is to say : (A) In a conveyance for vduaUe consideration, other than a Case in which mortgage, the following covenant by a person who conveys and is covenants— expressed to convey as beneficial owner (namely) (?) : That, notwithstanding anything by the person who so conveys, for right to convey; (gi) See Williams's Conveyanc- ing Statutes, 242 — 244. ing Statutes, 60—69, 73. (k) Sect. 6 (sub-s. 4), 63, (sub- (h) See Williams's Conveyanc- s. 2). ing Statutes, 70, 73. (/) For covenants implied in (*) See Williams's Conveyanc- other cases, see ante, pp. 669, 670. 68S OF TUE PRESENT FORM OF A CONVEYANCE. for quiet eujoj-ment ; cumbrances [or any one tlirough wliom he derives title, otherwise than by jnirchase for value,] made, done, executed or omitted, or know- ingly suffered, the person who so conveys, has, [with the con- currence of every other person, if any, conveying by his direc- tion,] full power to convey the subject-matter expressed to be conveyed, [subject as, if so expressed, and] in the manner in which, it is expressed to be conveyed ; and that, notwithstanding anything as aforesaid, that subject- matter shall remaiu to and be quietly entered upon, received, and held, occupied, eujoyed, and taken by the person to whom the conveyance is expressed to be made, and any person deriving title under him, and the beuefit thereof shall be received and taken accordingly, without any lawful interruption or disturb- ance by the person who so conveys [or any person conveying by his direction,] or righfuUy claiming or to claim by, through, under or in trust for the person who so conveys, [or any person conveying by his direction, or by, through or under any one not being a person claiming in respect of an estate or interest subject, ■whereto the conveyance is expressly made, through whom the person who so conveys derives title, otherwise than by purchase for value] ; free from in- and that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all such estates, incumbrances, claims and demands [other than those subject to which the conveyance is expressly made,] as either before or after the date of the conveyance have been or shall be made, occasioned or suffered by that person [or by any person conveying by his direction,] or by any person rightfully claiming by, through, under, or in trust for the person who so conveys, [or by, through or under any person conveying by his direction, or by, through or under any one through whom the person who so conveys derives title, otherwise than by purchase for value] ; and further, that the person who so conveys, [and any person conveying by his direction,] and every other person having, or rightfully claiming any estate or interest in the subject-matter of conveyance, [other than an estate or interest subject whereto the conveyance is expressly made,] by, through, under, or in trust for the person who so conveys, [or by, through, or under any person conveying by his direction, or by, through, or under any one through whom the person who so conveys derives title otherwise than by purchase by value,] will from time to time and at all times after the date of the conveyance, on the request and at the cost of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the and for further assurance. OF TUE PRESENT FORM OF A COXVEYANCE. goA conveyance to tlie person to whom the conveyance is made, and to those deriving title under him, [subject as, if so expressed, and] in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required : (in which covenant a purchase for value shall not be deemed to include a conveyance in consideration of marriage) (m). In considering the above enactments, regard must be had to the following provisions of the interpretation clause of the Act: Sect. 2 (ii.) Land, unless a contrary intention appears, includes Interpretation land of any tenure, and tenements and hereditaments, corporeal °^ '''^™^*- or incorporeal, and houses and other buildings, also an undivided share in land : (v.) Conveyance, unless a contrary intention appears (n), includes assignment, appointment, lease, settlement or other assurance, and covenant to surrender, made by deed, on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property ; and convey, unless a contrary intention appears, has a meaning corresponding with that of conveyance. The reader will remember that, before the 6th section Reason for «,i , n ^ ., ,. ., use of ffene?'ai 01 the above Act came into operation, it was nnnecos- ?(;o/-(^6-. sary on a conveyance of land expressly to grant rights legally appurtenant thereto, although the practice was to include such rights in the general words {o) ; and that the only real use of general words in a conveyance was to grant, as rights or easements, advantages used in connection with the land conveyed as a matter of fact, without being rights legally appurtenant thereto (jt>). For example, suppose that a man has two plots of land, plot A. and plot B., and is accustomed to use for the benefit of plot A. an artificial watercourse carried (m) See Williams's Conveyanc- p. 670. ing Statutes, 74—82. The words (o) See ante, pp. 483, 484. enclosed vvithiti brackets [ J are (») Ante, pp. 488, 484; see those which arc not material to Williams's Conveyancing Statutes, the conveyance we are about to 65; Williams on Commons, 168 consider. — 170. {n) See sect. Y, sub-s 5, ante, W. R. P. K R (J9Q OF THE PRESExNT FORM OF A CONVEYANCE. over plot B., or a road over plot B. These advantages cannot be rights or easements appurtenant to plot A., for they are exercised over plot B.; and no man can have an easement over his own land. But if plot A. were to be sold alone and conveyed to a purchaser " together with all watercourses, ways and advantages therewith used and enjoyed," these words would operate to grant, as rights or easements, the advantages, in the nature of easements, at the time of conveyance as a matter of fact used over plot B. for the benefit of plot A., although the same never previously existed as of right or as legal easements (q). After removing from the 6th section of the Conveyancing Act all words, which add nothing to the law {r), we find this fact remaining, that by virtue of the Act a conveyance of land now operates to convey all advantages e?) joyed with the land at the time of conveyance. Having regard to this fact and to the established effect of similar expressions in the case of the old general words, it is considered that the object formerly sought to be effected by the insertion of general words in a conveyance, will now be attained by the operation of the enactment in question. It will be observed that the above section only operates to convey advantages enjoyed with the land conveyed at the time of convey- ance. Apparently it would not extend to grant, as rights, advantages enjoyed with the land conveyed at some previous time, but not proved to have been so enjoyed at the time of conveyance is). Estate chuse. The estate clause (<) was a relic of the old release, and was much more appropriate to the conveyance of {q) Watts V. Kelson, L. R., 6 23 Ch. 16*1; JTai/ V. Oxley, L. R., (r) See Williams's Conveyanc- 10 Q. B. 360; BarTcshire v. Orubh, ing Statutes, 61 et seq. 18 Ch. D. 616; see Williams's (a) See Williams's Conveyanc- Conveyancing Statutes, 65; Wil- ing Statutes, 68.69. liams on Commons, 315—319, {t) Ante, p. 679. OF THE PRESEXT FORM OF A CONVEYANCE. 091 land by lease and release than to a direct grant (w). It was nevertheless the practice, after the introduction of conveyance by grant, to insert an estate clause in ahnost every instrument of alienation, where the entire interest of the conveying parties was transferred, on the alleged Reason for J ,1 , ., , , , T use oi estate ground, that it was necessary to pass any ontstanaiug clause. particular estate or interest which might happen to be vested in any of the conveying parties, distinct from the estate or interest which such party purported to convey. It was admitted, however, that no such ground did exist, and that theckuse was wholly unnecessary (a?). Indeed, it was practically without effect ; for it was held. to be subservient to the intention of the parties as gathered from the terms of the conveyance (y). The enactment of the 63rd section of the Conveyancing Act (s) has removed every semblance of necessity for the use of an estate clause, which has at last been abandoned in practice. As the application of this section is declared to be subject to the intention of the parties as expressed in the conveyance (a), it does not appear necessary expressly to exclude its operation in conveyances,. such as leases (5), under which the whole estate of the conveying party is 7t.o( intended to pass. We now come to consider the incorporation into our Statutory » , , c i • 1 A 1 covenants conveyance ot the statutory covenants lor title. Accord- for title, ing to our suppositio)i, A. B., the vendor, purchased himself the land he is about to convey. He will, therefore, covenant as to his own acts only (c). If we turn to section 7, sub-sect. 1 (A), of the Conveyancing Act, 1881 {d), which is set out above (e), we may extract (u) Ante, pp. 187, 232—238. (z) Ante, p. 687. (x) Davidson's Free. Conv., (a) Stat. 44 & 45 Vict, c vol. i, p. 94, 4th ed. s. 63. sub-s. 2; ante, p. {!87. (i/) Hunt V. Remnant, 9 Ex. (6) See sect. 2 (v.); ante, p. 635; Hooper v. Harrison, 2 K. & {c\ Ante, pp. 667, 679. .]. 113; Neame v. Moorsom, h. R., (. 2-^0. 6. 7, sub-s 4; ante, p. 670. (r) Ante, p. 239. (n) Ante, p. 240. («) Ante, p. 680. (0) Ante. pp. 087, 692. Q2^ OF THE PRESENT FORM OF A CONVEYANCE. Receipt. It is no longer usual to indorse a receipt fur con- sideration upon a deed; for it is provided by the Con- veyancing Act of 1881 (t) that a receipt for consideration money or securities in the body of a deed executed after the year 1881 shall be a sufficient discharge, and that such a receipt, or an indorsed receipt, shall, in favour of a subsequent purchaser, be sufficient evidence of the payment or giviug of the whole amount of the con- sideration. Tiie above form of conveyance is certainly shorter than that previously given (w) ; and similar forms aie now generally adupted in piactice. But it can liardly be said that the rights and obligations of the parlies to a conveyance may be determined with increased accuracy or simplicity by a deed relying on the provisions of the Conveyancing and Law of Property Act, ISSl {x). The student, when he proceeds to practice drafting, should never forget that a deed is not an end in itself, but is only a means for ascertaining the rights and obligations of the parties thereto. His object should be to deiino those rights and obligations clearly and accurately, rather than briefly or even concisely. It is of course unnecessary that he should express what is clearly implied by law ; but not the least important part of liis task is to satisfy himself that the law clearly delines those rights and obligations for which he omits to provide. (i) Stat. 44 & 45 Vict. c. 41, present Work to consider the pro- ss. 54, 55; see Williams's Con- visions of this Act with reference vej'ancing Statutes, 227 — 230. to convej-ances more complicated The absence of an indorsed receipt than the above. As to the etfeci was formerly regarded as a sus- of this Act, generally, upon the picious circumstance. previous law and practice, tlie (m) Ante, p. 678. reader is referred to the Editor'* (x) Stat. 44 & 45 Vict. c. 41. " Conveyancing Statutes." It is beyond the scope of the APPENDIX (A.) Referred to, pp. i92, 360, 573, 582 Bargain and Sale, or Lease for a Year. (See p. 190.) This Indenture made the first day of January {a) [in the Date, third year of our Sovereign Lady Queen Victoria by the grace of God of the United Kingdom of Great Britain and Ireland Queen Defender of the Faith and] in the year of our Lord 1840 Between A. B. of Cheapside in the city of London Esquire Parties. of the one part and C. D. of Lincoln's Inn in the county of Middlesex Esquire of the other part WITNESSETH that the said A. B. in consideration of five Testatum, shillings {b) of lawful money of Great Britain to him i n Considera- hand paid by the said C. D. at or before the sealing and '°"" delivery of these presents (the receipt whereof is hereby acknowledged) 11 ath bargained and sold and by these Bargain aad presents Doth bargain and sell unto the said C. D. his^'^'®* executors administrators and assigns All that messiuige or tenement situate lying and being parcels, at &c. and commonly called or known by the name of &c. [here describe the premises] Together Avitli all and singular the houses outhouses General edifices buildings barns dovehouses stables yards gardens ^^°'''^** orchards lights easements ways paths passages waters watercourses trees woods underwoods commons and com- monable rights hedges ditches fences liberties privileges emoluments commodities advantages hereditaments and appurtenances whatsoever to the said messuage or tenement lands and hereditaments or any part thereof belonging or (a) The words within brackets were latterly omitted. (b) Ante, pp. 2u2, 257. 090 APPENDIX. in anywise ,i})pert;iining or with tlie same or any part thereof now or at any time heretofore nsually held used occupied or enjoyed [or accepted reputed taken or known as part parcel or member thereof] And the I'cvcrsion and reversions remainder and remainders yearly and other rents issues and profits of the same premises and every part thereof Habendum. To HAVE AND TO HOLD the Said messuage or tenement lands and hereditaments and all and singular other the premises hereinbefore bargained and sold or intended so to be with their and every of their rights members and appurtenances unto the said C. D. his executors adminis- trators and assigns from the day next before the day of the date of these presents for and during and until the full end and term of one whole year thence next ensuing and fully to be complete and ended. Reddendum. YIELDING AND PAYixG therefor the rent of one pepper- corn (c) at the expiration of the said term if tlie same shall be lawfully demanded To the intent and purpose that by virtue of these presents and of the statute for transferring uses into possessio)i the said C. D. may be in the actual possession of the same ]iremises and may thereby be enabled to accept and take a grant and release of the freehold reversion and inheritance of the same premises and of every part and parcel thereof to the said CD. his heirs and assigns to the uses and for the intents and purposes to be declared by another inden- ture of three parts already prepared and intended to be dated the day next after the day of the date hereof In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written. The Release. Date. This Indenture made the second day of January id) [in the third year of the reign of our Sovereign Lady Qiioen (c) Ante, p. 388. {(1) The words within brackets were latterly omitted. APPENDIX. (397 Victoria by the grace of God of the United Kingdom of Great Britain and IrelandQueenDefender of the Faith and] in the year of our Lord 184U BETWEEisr A. B. of Cheapside in the city of London Parties. Esquire of the first part C. D. of Lincoln's Inn in the county of Middlesex Esquire of the second part and Y.Z, of Lincoln's Lin aforesaid gentleman of the third part (e) WhePlEAS by indentures of lease and release bearing date Recital of the respectively on or abou t the first and second days of January the veudoi\ 1838 and respectively made or expressed to be made between E. F. therein described of the one part and the said A. B.of the other part for the consideration therein mentioned the messuage or tenement lands and hereditaments hereinafter described and intended to be hereby granted wi th the appur- tenances were conveyed and assured by the said E.F. unto and to the use of the said A. B. his heirs and assigns for ever And wheeeas the said A. B.hath contracted and agreed Recital of the with the said C. D. for the absolute sale to him of the sale, inheritance in fee simple in possession of and in the said messuage or tenementlandsand hereditaments hereinbefore referred toandhereinafterdescribed with theappurtenances free from all incumbrances at or for the price or sum of one thousand pounds Novr THIS INDEXTUKE WITNESSETH that for carrying the Testatum. said contract for sale into effect and in consideration of the ^ -a Considera- sum of one thousand pounds of lawful money of Great tiou. Britain to the said A. B. in hand well and truly paid by the said C. D. upon or immediately before the sealing and delivery of these presents (the receipt of which said sum Receipt, of one thousand joounds in full for the absolute purchase of the inheritance in fee simple in possession of and in the messuage or tenement lands and hereditaments hereinafter described and intended to be hereby granted and released (e) The reason why Y. Z. is If this should not be intenderl, made a party to this deed is, thiit the deed would be made between the widow of C. 1)., if married on A. I!, of the one i)art, and C. D. r)r before the 1st of January, 1834, of the other part, as iu the deed may be barred or deprived of her given, ante, p. 5G8. dower. See ante, jip. 447, 448. G9S APPENDIX. Operative words. Parcels- (leneral Words. with the appurtenances he the said A. B. doth hereby acknowledge and of and from the same and every part thereof doth acquit release and discharge the said 0. D. his heirs executors administrators and ass^igns [and every of them for ever by these presents]) He the said A. B. Hath granted bargained sold aliened released and con- firmed and by these presents Doth grant bargain sell alien release and confirm unto the said C. D. (in his actual possession now being by virtue of a bargain and sale to him thereof made by the said A. B. in consideration of five shillings in and by an indenture bearing date the day next before the day of the date of these presents for the term of one whole year commencing from the day next before the day of the date of the same indenture of bargain and sale and by force of the statute made for transferring uses into possession) and to his heirs (/) All that messuage or tenement situate lying and being at &c. commonly called or known by the name of &c. {here describe the premises] Together with all and singular the houses outhoascs edifices buildings barns dovehouses stables yards gardens orchards lights easements ways paths passages waters watercourses trees woods underwoods commons and com- monable rights hedges ditches fences liberties privileges emoluments commodities advantages hereditaments and appurtenances whatsoever to the said messuage or tene- ment lands hereditaments and ])remises hereby granted and released or intended so to be or any part thereof belonging or in anywise appertaining or with the same or (/) If the deed were dated at any time between the month of May, 1«41 (the date of the statute 4 & 5 Vict. c. 21 ; ante, pp 186, 192), and the first of January, 1845 (the time of the commence- ment of the operation of the Transfer of Property Act, ante, p. 192, n. {e) ), the form would be as follows :— " He the said A. B. " DoTii by these presents (being "a deed of release made in pur- "suauce of au Act of Parliament " made and passed in the fourth " vear of the reign of lier present "Majesty Queen Victoriii intituled " Au Act for rendering ii Jielease "as effectual for the Conveyance " of Freehold Estates u.s a Lea.-.o "and Release by the same Parties) "grant bargain .sell alien release "and confirm unto the said C. D. " and his heirs." As to the form in a deed of grant, see ants, p. 679. APPENDIX. QQQ iiuj part thereof now or at any time heretofore (f/) usually held used occupied or enjoyed [or accepted reputed taken or known as part parcel or member thereof] And the reversion and reversions remainder and remainders yearly and other rents issues and profits of the same premises and every part thereof And all the estate right title interest use trust inheritance Estate, property possession benefit claim and demand whatsoever both at law and in equity of him the said A. B. in to out of or upon the said messuage or tenement lands hereditaments and premises hereby granted and released or intended so to be and every part and jiarcel of the same with their and every of tlieir appurtenances And all deeds evidences and writings relating to the title And all deeds. of the said A. B. to the said hereditaments and premises hereby granted and released or intended so to be now in the custody of the said A. B. or which he canjjrocure without suit at law or in equity To HAVE AND TO HOLD the said messuage or tenement Habendum, lands and hereditaments hereinbefore described and all and singular other the premises hereby granted and released or intended so to be with their and every of their rights membin'3 and appurtenances unto the said C. D. and his heirs {h) To such uses upon and for such trusts intents and Uses to bar purposes and with under and subject to such powers provisoes declarations and agreements as the said C. D. shall from time to time by any deed or deeds instrument or instruments in writing with or without power of revocation and new appointment to be by him sealed and delivered in the presence of and to be attested by two or more ci'edible witnesses direct limit or ai)point And in default of and until any such direction limitation or appointment and so far as any such direction limitation or appointment if incomplete shall not extend To the use of the said C. D. (g) See ante, p. 690. not be intended to be barred, (k) If C. D. was not married instead of the next clause, tlie on or before the l.st of .January, form would simply be " To the 1834, or if, having been so mar- "use of t!ie said C. I), his heirs ried, the dower of his widow should " and assigns for ever." 700 APPENDIX. and liis assigns for and during the term of his natunil life without impeachment of waste And from and after the determination of that estate by forfeiture or otherwise in his lifetime To the use of the said Y. Z. and his heirs during the life of the said C, D. In trust nevertheless for him the said C. D. and his assigns and after the decease of the said 0. D. To the use of the said C. D. his heirs and assigns for ever. Covenants And the Said A. B. doth herebv for himself his heirs for title. T T . . " . executors and administrators covenant promise and agree with and to the said C. D. his appointees heirs and assigns ia manner following that is to say That for and notwithstanding any act deed matter or thing whatsoever by him the said A. B. or any person or persons lawfully or equitably claiming or to claim by from through under or in trust for him made done or committed That the to the Contrary (/) [he the said A. B. is at tiie time of the seised in fee. sealing and delivery of these presents lawfully rightfully and absolutely seised of or well and suiBciently entitled to the messuage ortenementslandshereditamentsand premises hereby granted and released or intended so to be with their appurtenances of and in a good sure perfect lawful absolute and indefeasible estate of inheritance in fee simple without any mannerof condition contingentproviso powerof revoca- tion or limitation of any new or other use or uses or any other matter restraint cause or thing whatsoever to alter change charge revoke make void lessen or determine the same estate That the And THAT for and notwithstanding any such matter or good right thing as aforesaid] he the said A. B. now hath in himself to convey. good right fuU powcr and lawful and absolute authority to grant bargain sell alien release and confirm the said messuage or tenement lands hereditaments and premises hereinbefore gran ted and released or intended so to be with their appurtenances unto the said C. D. and his heirs to the uses and in manner aforesaid and according to the true intent and meaning of these presents (i) See ante, p. 667. APPENDIX. 701 AxD THAT tl]e same messuage or tenement lands liereJita- For quiet ments and premises with their appurtenances shall and law- ^"J^y'"®^*' fully may accordingly from time to time and at all times hereafter be held and enjoyed and the rents issues and profits thereof received and taken by the said C. D. his appointees heirs and assigns to and for his and their own absolute use and benefit without any lawful let suit trouble denial hindrance eviction ejection molestation disturbance or interriiption whatsoever of from or by the said A. B. or any person or persons lawfully or equitably claimingorto claim by from through under or in trust for him And that (k) free and clear and freely and clearly ac- For freedom quitted exonerated and discharged or otherwise by him the brances°"'"' said A. B. his heirs executors or administrators well and sufficiently saved defended kept harmless and indemnified of from and against all and all manner of former and other [gifts grants bargains sales leases mortgages jointures dowers and all right and title of dower uses trusts wills entails statutes merchant and of the staple recognizances judgments extents executions annuities legacies payments rents and arrears of rent forfeitures re-entries cause and causes of forfeiture and re-entry and of from and against all and singular other] estates rights titles charges and incum- brances whatsoever had made done committed executed or willingly suffered by him the said A. B. or any person or persons lawfully or equitably claiming or to claim by from through under or in trust for him And moreover that he the said A. B. and his heirs and For further all and every persons and person having or lawfully claim- ing or who shall or may have or lawfully claim any estate right title or interest whatsoever at law or in equity in to or out of the said messuage or tenement lands heredita- ments and premises hereinbefore granted and released or intended so to be with their appurtenances by from through under or in trust for him or them shall and will from time to time and at all times hereafter upon every reasonable request ami at the costs and charges of the said C. D. his Ck) The word that is here a pronoun. assurance. 702 APPENDIX. appointees heirs and assigns make do and execute or cause or procure to be made done and executed all and every or any such further and other lawful and reasonable acts deeds things grants conveyances and assurances in the law what- soever for further better more perfectly and effectually grantingreleasingconveyingandassuringthe said messuage or tenement lands hereditaments and premises hereinbefore granted and released or intended so to be with their appur- tenances unto the said C. D. and his heirs to the uses and in manner aforesaid and according to the true intent and meaning of these presents as by him the said C. D. his appointees heirs or assigns or his or their counsel in the law shall or may be reasonably advised or devised and required [so tiiat no such further assurance or assurances contain or imply any further or any other warranty or covenant than against the person or persons who shall make and execute the same and his her or their heirs executors andadminis- tratoro' acts and deeds only and so that the person or persons who shall be required to make and execute any such further assurance or assurances be not compelled or compellable for making or doing thereof to go or travel from his her or tlieirdwellingor respective dwellings or usual place or places of abode or residence] IX AVITXESS, &c. On the back is endorsed the attestation and further receipt as follows : — Signed sealed and delivered by the within -named A. B. C. D. and Y. Z. in the presence of John Doe of London Gent. Richard Roe Clerk to Mr. Doe. Received the day and year first within written^ of and from the within-named C. D. the sum j of One Thousand Pounds being the considera- )■ £1000 tion within mentioned to be paid by him to | me. j (Signed) A. B. Witness John Doe. Richard Roe. APPENDIX (B). Referred to, p. 204. The case of Muggleton v. Barnett, was shortly as fol- lows {a): — Edward Muggleton purchased in 177:i certain copyhold projjerty, held of a manor in which the custom was proved to be, that the land descended to the youngest son of the person last seised, if he had more than one; and if no son, to the daughters as parceners; and if no issue, thent the youngest hr'other of t]ie2Jerso)ilastseised,ancl to the youngest son of such youngest brother. There was, how- ever, no formal record upon the rolls of the Court of the custom of the manor with respect to descents, but the custom was proved by numerous entries of admission. The purchaser died intestate in 1812, leaving two grand- daughters, the only children of his only son, who died in his lifetime. One of the granddaughters died intestate and unmarried, and the other died leaving an only son, who died in 1854 without issue, and apparently intestate, and who was the person last soised. On his death the youngest son of the youngest brothfr of the purchaser brought an ejectment, and theCourt of Excliequer, by two against one, decided against him. On appeal, this decision was con- firmed by the Court of Exchequer Chamber, by four judges against three. But much as the judges differed amongst themselves as to the extent of the custom amongst col- laterals, they appear to have all agreed that the act to amend the law of inheritance had nothing to do with the matter. The act, however, expressly extends to lands descendible according to the custom of borough English or any other custom; and it enacts that in every case descent (a) The substance of these ob- newspaper, 4 Jur., N. S., Part 2, serrations appeared in letters pp. 5, 56. to the editor of the "Jurist" j-Q^. APPENDIX. shall be traced from the purchaser. Under the old law, seisin made the stock of descent. By the new law, the purchaser is substituted in every case for the person last seised. The legislature itself has placed tliis interpretation upontho above enactment. A well-known statute, com- monly called the Wills Act {b), enacts, " that it shall he lawful for every person to devise or dispose of by his will, executed in manner hereinafter required, all real estate which ho shall be entitled to, either at law or in equity, at the time of his death, and 'which, ifnoti-o devised or disposed of, zvonld devolve ii2:)on the heir at law O'-cusfoinai'i/ heir of liim, or, if he became entitled hi/ descent, of his ancestor.'^ jSow theold doctrine o^posscssiofratris was this,— that if a purchaser died seised, leaving a son and daughter by his first wife, and a son by his second wife, and the eldest son entered as heir to his father, the possession of the son made his sister of the whole blood to inherit as his heir, in exclusion of his brother of the half-blood ; but if the eldest son did not enter, his brother of the half-blood wasentitled (IS heir to his father, the purcliaser. This doctrine was abolished by the statute. Descent in every case is to be traced from the purchaser. Let the eldest son enter, and remain ever so long in possession, his brother of the half- blood will now be entitled, on his decease, in preference to his sister of the whole blood, not as his heir, but as heir to his father {c). Let us now take the converse case of a descent according to the custom of borough English, and let the purchaser die intestate, leaving a son by his first wife, and a son and daughter by his second wife. Here it is evident that the youngest son has a right to enter as customary heir. He enters accordingly, and dies intestate, and without issue. "Who is the next heir since the statute? Clearly the brother of the half-blood, for he is the customary heir of the pur- chaser. Asthe common law, which is the general custom 'h) Stat. 7 Will. IV. & 1 Vict. Statutes, pp. 280, 281 (1st ed.); c. 2t5, s. 3, aide. p. 280. 267, 2i58 (2ud ed.). (c) See Sugdeu's Real Property APPENDIX, 705 of the realm, was altered by the statute, and a person became entitled to inherit who before had no right, so the custom of borougli English, and every. other special custom, being expressly comprised in the statute, is in the same manner altered ; and the stock of descent, which was for- merly the person last seised, is now, iu every case, the purchaser and the purchaser only. Suppose, therefore, that Edward Muggleton, the pur- chaser, who died in lbl2, had left a son by his first wife, and a son and daughter by his second wife, and that the youngest son, having entered as customary heir, died intes- tate in 1854, — who would be entitled ? Clearly, the elder son, as customary heir, being of the male sex, in preference to the daughter. Before the act the sister of the whole blood would have inherited, as customary heir to her younger brother, and the elder brother, being of the half- blood to the person last seised, could not have inherited at all; but since the act the descent is traced from the purchaser ; and the elder brother would, accordingly, be entitled, not as heir to his half-brother, but as heir to his father. The act then breaks in upon the custom. By the custom before the act the land descended to the sister of the person last seised, in default of brothers of the whole blood. By the act the purchaser is substituted for the person last seised, and whoever would be entitled as heir to the purchaspr, if he had just died seised, must now be entitled as his heir, however long ago his decease may have taken place. Let us put another case : Suppose the father of Edward Muggleton, the purchaser, had been living in 1854, when his issue faded. It is clear, that under the act the father would have been entitled to inherit, notwithstanding the custom. Here, again, the custom would have been broken in upon by the act, and a person would have been entitled to inlif^rit who before was not. Suppose, again, that the father of Edward Muggleton W. Li. p. g s Y06 APPENDIX. had been the purchaser, and that Edward Muggletcn was his youngest son, and that the estate, instead of being a fee simple, had been an estate tail. Estates tail, it is well known, follow customarj^ modes of descent in the same manner as estates in fee. The purchaser, however, or donee in tail, is and was, both under the new law and under the old, the stock of descent. The Courts appear to have been satisfied that in lineal descents according to the custom the youngest was invariably preferred. It is clear, therefore, that, when the issue of Edward Muggleton failed in 1854, the land would have descended to the plaintill as youngest; son of the next youngest son of the purchaser, although the plaintiff was but the first cousin twice removed of tlie person last seised. The change, however, which the act has accomplished is simply to assimilate the descentof estates in fee to that of estates tail. The purchaser is made the stock in lieu of the person last seised. It is evident, therefore, that upon the supposition last put, of the father of Edward Muggleton being the purchaser, although the estate was an estate in fee, the plaintiff would have been entitled as customai-y heir. The step from this case to that which actually occurred is very easy. Onfailureof the issueof the purchaser (whether after his decease or in his lifetime it. mattei's not), the heir to be sought is the heir of the purchaser, and not the heir of the person lust seised ; and if the descent be governed by any special custom, then the customary heir of the pur- chaser must be sought for. Who, then, was the customary heir of Edward Muggleton, the purchaser ? The case in Muggleton v. Barnett expressly states, that the land de- scends, if no issue, to the youngest son of the youngest brother of the person last seised, that is, of the stock of descent. There is no magic in the phrase " last seised." These words were evidently used in the statement of the custom as they would have been used before the act in a statement of the common law. It would have been said APPENDIX. that the land descends, for want of issue, to the eldest son of the eldest brother of the person last seised. It would have been taken for granted that everybody knew that seisin made the stock. The law, however, is now altered in this respect. The purchaser only is the stock. If Edward Muggleton had died without leaving issue, the plaintiff clearly would have been entitled. His issue fails after his decease; but so long as he is the stock, the same person under the same custom must of necessity be his heir. It was expressly stated in the case, that there was no formal record with respect to descents. This is important, as showing that the person last seised was mentioned in the statement of the custom simply in accordance with the ordinary rule of law, that the person last seised was the stock of descent prior to the act. If, however, there had been such a formal record, still Edward Muggleton, the purchaser, died seised. If he had not died seised, it might be said, according to the strict construction placed upon the records of customary descent, that the custom did not apply, and that his heir according to the common law was entitled {d). But in the present case the custom is expressly stated to be gathered from admissions only; and so long as t he person last seised was by law the stock of descent, it is evident that a statement of the custom, as applying to the person last seised, was merely a statement with reference to the stock of descent as tlien existing. The act alters the i-tock of descent, and so far alters the custom. It substitutes the purchaser for the person last seised, Avhatever may be the custom as to descents. It follows, therefore, that the plaintiff in Muggleton v. Barnett, being the customary heir of the purchaser, was entitled to recover. Since these observations were written, the following remarks have been made by Lord St. Leonards on the case of Mi.ggleion v. Barnett : — '* In the result, the Exchequer (recor6.edi\\\Q,t in Michaelmas term, 3 John, WalterdeWitifeld recovers his seisin of twenty acres of pasture and forty acres of wood belonging to his free tenement{t). (n) See those of the manor of (r) Stat. 18 Edw. I. c. 1. Wimbledon. («) Mad. Form. Ans;l. No. 288, (0) Bavvdwen's Translation of p. 178, No. 296, p. 182; No. 298, Domesday, Middlesex, ]>. 25. p. 1S2; No. 338, p. 257; No. 360, (») Sir II. Ellis's Introduction p. 274; No. 3ri2, p. 275; No. 364, to Domesday, vol. 1, pp. 103, 149, p. 276; No. 580, p. 328. n. (4). " (t) Abbreviatio Placitorum, p. (q) ' Sharon Turner's Anglo- 27. See also Hil. 4 John, p. 37. Saxons, vol. 2, pp. 555, 556. APPENDIX. 745 Tlic land was measured amongst the Saxons by hides and Hides and yai'd lands [virrjatce), of which four usually went to a hide. ^^' ''" "' Thus the Saxon Chronicle, in speaking of Domesday, says, — " So very narrowly, indeed, did he commission them to trace it out, that there was not one single hide nor yard land, nay, moreover (it is shameful to tell, though he thought it no shame to do it), not even au ox, nor a cow, nor a swine was there left, that was not set down in his writ '\u). A hide land was supposed to be as much arable land as would maintain a family. It was accordingly called familia by the Venerable Bede(2;), though in some rare cases the term 'Miide" appears to have been applied to l^asture and wood(?/). But amongst the Normans lands were measured by plowlands (carncatce) and oxgangspiowiands /7 /\i 1-1 Til, 1111 lud oxgangs. [oovafce), terms exclusively applicable to arable land, a plowland being as much as a plough could till, and an ox gang as much as an ox-team could til](z). A writ for an oxgang of marsh was held ill, " because an oxgang is always of a thing which lies in tillage "{a). Though, as Lord Coke observcs(Z'), "a plowland may contain a messuage, {n) Sax. Chro. Anno 1085, p. adds, "See infra, a like ca^se as to 289, TfigrarH's edit. The learned the unrertaiiity of vir^a^a." The translator puts '"yard of land," case referred to appears to be that which he explains to be the fourth mentioned by Lord Coke in Co., part of an acre ; but the expres- Litt. 69 a — "A fine shall not be sion is 5JT>t>e lanber, yard land, received df. and virgald Urrce, for which comprised several acres, the uncertainty : vide 39 Hen. VI. varying in different places. Gib- 8." But on reference to the Year son ri^ntly translates the passage Book it will be found that all thus : " ut ne unica csset hyda that was decided was, that if a aut virgata terroe." Gibson's Sax. grant was anciently made of two Chron., p. 186. virgates of land, on which two (x) Co. Litt. 69 a; Sir H. Ellis's messuages have since been built, Introduction to Domesday, vol. 1, and part of which has since beea p. 145, converted into meadow, pasture {v) Sir H. Ellis's Introduction and wood, the deed of grant must to Domesday, vol. 1, p 148. be pleaded in its terms, and the (z) Ibid. vol. 1, p. 156. Lord land demanded by the names Coke, however, says that an ox- appropriate to its present state gang was as much as an ox could of messuage, land, meadow, pas- till. ture and wood, the change being (a) Fitz. Abr. tit. Briefs, 241. alleged." And in Sheppard's The learned editor of Co. Litt. Touchstone, p. 12, 6om«a, and uir- erroneously .supposes that the writ gata are both mentioned amongst was held ill on account of the un- the proper terms to pass land by certainty of the term oxgang ; Co. fine. Litt. 69 a, a. iz). - And be further [h) Co. Litt. 69 &. 746 APPENDIX. Gain and tillage syuonymc Distress. Tithes. wood, meadow, find pasture, because that by them the plow- man and the cattle belonging to the plow are maintained." Gain and tillage were synonymous terms, gaigner signifying to till and qainnre tillage. So beasts of the plough and cattle, which tilled and manured theland, were exempt from distress if any other could be found(6'). And the ancient law with respect to tithe corresponded with this state of things. As a rule, every kind of produce was titheable. But notitlie was payable for grass used for the agistment or feeding of any cattle or sheep employed in the tillage or manurance of araljle land within the parish; because the parson thereby got better tithes from the arable land(f7). The pasture land was thus treated by law as subservient to the arable, and excused from tithe on the ground that it tended to make the arable land more profitable. The Statutes of Merton and West- minster the second. The statutesof Merton(e)andWestminsterthesccond(/) treat tenantsen titled to common appendant asa well-known class, the former speaking of them as feoffees, the latter as tenants or the lord's men. Both statutes relate only to common of pasture, that being a right, and the only right, always given by the law; and the latter statute expressly excepts common of pasture claimed by anyone in any other manner than of common rightheoughttohave, "nliomodo qudm de jure communi habere deheret^ By these statutes the lord was enabled to improve his wastes, provided he left sufficient common for the tenants. The lord's freemen. The tenants exercising these rightsof commonwereoften called generally the lord's freemen. Thus in the reign of King John, Amatiricus Comes Hehraicarum grants to a tenant as to his freeman, for his service and homage, a yard land, with a messuage to the same land belonging,andwith all its appurtenances, to hold of him and his heirs to the tenant and his heirs at a certain rent; "and I will," the (c) Com. Dig. tit. Distress (C); 2 Inst. 182. {d) 1 Eagle on Tithes, 289, 290. (e) Stat. 20 Hen. III. c. 4. (/■) Stat. 13 Edw. I. c. 46. And see stat. 3 & 4 Edw. VI. c. 3, s. 2. APPENDIX. Y47 deed proceeds, "that he sliall have common in my town of M. like h}y other freemen {sicut alii liberi mei hoinines)\\i woods and waters and pastures and ways and paths "(^). So in the second year of the reign of King John, the men of Prunlmll, in Sussex, complain that ihe abbot of Battle and the abbot of Robertsbridge had levied a fine in the King's Court of a certain marsh which belonged to their free tenement in Prunhull, of which their predecessors were seised as of right in the time of Henry the king's father(/i). So the men of Ormadan, to the number of forty, release to the abbess and convent of Dora their rights of common in certain ]ands(i). So, in the reign of King Henry III., Richard de Stoches grants to the monks of Bruerne certain lands in frankalmoigne, and also grants them common of pasture ivith the other men of the same fee {k). The men are mentioned generally, not ascertain particular tenants, but the whole of the tenants of that fee or feud. The fact that when "land " is spoken of in legal instru- Land means ments arable land is always understood, unless the contrary appears, shows the importance attached to arable land, and tends to prove that the tenants of the arable lands in a manor were not merely certain individual tenants, but were in ancient times all the tenants as a class. When every tenant held and lived upon arable land, nothing could be more natural than that by the word "land," arable land should be primarily understood. The exceptions to the rule, that common appendant is the Exceptions. common law right of every free tenant of a manor, depend simply on this, that the special nature of certain subjects of tenure renderscommon appendant inappropriate to their enjoyment. Common appendant was the right which every free tenantof arable land had, by Ihe common law, to de- pasture upon the lord's wastes all cattle subservient to the tillage and manurance of such land, namely, horses, kine {g) Mad. Form. Angl. No. 3U3, p. 83. p. i84. (h) Mad. Form. Angl. No. 841, {h) Abbreviatio Placitorum, p. i pp. 25b, 259. See also No. 3G1, 32. pp. 274, 275. (i) Mad. Form. Angl. No. 153, 748 APPENDIX. Commonable beasts. No common for a house. No common for ancient meadow. Lot mead. and sheep, which arc thence called common able beasts; and the number of beasts to be put upon the common was as many as were levnnt and couchnnt upon the land — that is, as many as the land was capable of maintaining ou it by its produce through the winter. Common appendant could not be claimed in respect of a house without any curtilage or yard; for it was truly said, "beasts cannot be rising and lying down on a house, unless it be on the top of the house "(/). But a cni-tilage was supposed to belong to a house or cottage unless the contrary appeared (;??). So commonappendan tcou Id not beclaimedinrcspectof ancient meadow or pasture; for the meadow and pasture itself helped todepasture the beasts which tilled and manured the arable land to which it belonged; and meadow and pasture didnotreqnire bea-ststo tillit. Thetenantwho had pasture land of his own would not require to jmt so many cattle on the lord's wiistes; andbycustom common appendant might be limited to a certain number of beasts(?^). Bat the fact that the tenant might feed his beasts elsewhere did not destroy his claim to common appendant(o); and even if arable land was converted into meadow or pasture, the right to common appendant still remained, for the land might be ploughed up again (/?). In some cases the meadow land was periodically allotted to the owners of the arable land in the manor, giving rise to an exceptional estate of inheritance peculiar to meadow land. The freehold was not in the lord, but in the tenants(^); and a feoffment by the tenant of the allotment for the time being allotted to him was sufficient to pass his interest in the whole of the mead(r). Meadow or pasture landisthen, from its nature, {V) 2 Brownlow, 101 ; Scholes v. HargreaveK, 5 T. Rep. 46; Benson V. Che&ter, 8 T. Rep. 39(). (ot) Com. Dig. tit. Common (B). (ji) 1 Rol. Abr. lit. Common (G), 4; Com. Dig. tit. Common (B). (0) Year Book, 17 Edw. III. 84 b ; 1 Rol. Abr. tit. Common (D), 8. {y) Tyrringh.am's case, 4 Rep. 3i5 b, 37 b; Carr v. Lambert, Law Rep., 1 Exch. 168. {(j) IVelden v. Bridgewater, Cro. Eliz. 421; Moor, 302; Co. hitt. 4 a; Rol. Abr. tit. Estate (C). See also Arch^ologia, vol. 33, p. 275; vol. 35, p. 470; Case and opinion of Sir Orlando Bridg- maii, 12 Jur.', N. S., pt. 2, p. 103; and see Pate v. Broumlow, 1 Keble, 876. (r) Co. Litt. 48 b. APPENDIX. 749 an exception to the ordinary rale wliich gives common iippL'udant of common right to every freehold. But such exceptions as these do but illustrate and confirm tlie rule, that of common right every freeholder isentiLledtocommon appendant in the lurd's wastes. The authorities above cited from Williams's Saunders, Willes's Reports, and Comyns' DigestC*-), are strictly in accordance wiih the principles above stated. And Lord Coke'sCommentaryon the Statute of Merton, whichiscited at length by the Court in the judgment in Lord Diuiraven v. Llewellyii{t), so far from shaking these authorities, evidently confirms them. The Court, however, says, that common appendant is not a common right of all tenants, but belongs only to each grantee, before the statute of Quia emptores, of arable land by virtue of his individual grant, and as an incident thereto, and is as much a pecicUar rfghf, of the grantee as one derived by express grant or by pro- scription. But the principle that common appendantisnot a peculiar right, but the common' right of all tenants, is not only asserted by the authorities above mentioned, and consistent with the language of the legislature and of ancient documents, but it has produced doctrines of law which are undeniable, and which turn solely on the dis- tinction thatthiskindof commonisof common right,whilst other kinds are not. These doctrines are two. First, Common ap- , T j_ • J! • I , .1 j> pendant need because common appendant is oi common rigiit, therefore not be pre- a man need not prescribe for it(?^). Lord Coke, who lays ^^"^'^'^ ^"'■• down this doctrine, had previously said that appendants are ever by prescription(;r). j\Ir. Hargrave, in his note, reconciles the two doctrines thus: that '•' as appendency cannot be without proscription, the former always implies the latter; and, therefore, if one pleads common appendant itis unnecessary to add the usual form of prescribing"(y). In other words, common appendant is not a peculiar right (s) Ante, p. 742. Brcv. 179, n. (b\. {t) Ante, p. 740. (j) Co. Lilt. l'2i b. (m) Co. Litt. 122 .a; Year Book, (,/) Co. Litt. 122 a, n. (2) 21 lieu. VI., 10 u; Fitz. Nat. Jeuhinv. Ftvian, Popham, 201. r5o APPENDIX. Common appendant shall be apportioned. Tyrringhatn' s case. belonging to each grantee, butacommon right belonging to all, and so well known to the law as such, thatitis sufficient in pleading merely to mention its name, without entering into a more minute description. Had it been a peculiar right belonging to each grantee, it won id have been neces- sarytosetitout, the tenunc claiming that he, and all those whose estate hehad,froni time immemorial used to place so many beasts of suchakind upon such a common. In this respect common appendant resembles the custom of gavel- kind and borough English, which are known tothelawand need not be particularlydescribed, whereas any otlier cus- tomary modeof descent requires to Leparticu]arlystated(z) Secondly, "If a man purchase part of the land wherein common appendant is to be had, the common shall be ap- portioned, Z><'6Y«////; butnotso of acom- nion appurtenant, orof any other common of what nature, soever "(a). Here common appendant is distinguished from all other kinds of common, on thesiin[)le ground of its being of common right ora right given by the law. Ti/ning ham's 6'rr5'e(Zi) turned on this distinction. The tenant there lost his common by claiming it as annexed to mejidow and pas- ture: whereby was understood ancient meadow and pasture, to which, as we have seen(c), common cannot be appendant. Common may, however, by a grant or prescription, be appurtenant to mQ'A(\.o\y n.'^A pasture; and such in this case it was held to be. The owner of part of the land over which thecommon wasclaimed, purchased the premises in respect of which it was claimed, and then demised them to the plaintiff, who put in two cows into the residue of the land over which the right of common had existed. The defendant, who was the farmer of the owner of this land, Avith a little dog drove out the cows; and it was held that he was justified in so doing. By the union of part of the land wherein the common was to be had with the premises in respect of which it was to be had, the entire right of common was destroyed, because it was merely common (s) Bac. Abr. tit. Customs (H). (a) Co. Liu. 122 a. (h) 4 Rep. 36 b. (c) Ante, p. 748. APPENDIX. 751 appurtenant. " Forusinuch as the Court resolved that the common was appurtenant andnot api)endant undao against common right , it was adjudged that by the said purchase all the common was extinct "id). Common appurtenant is <'ommon ^ ' , '■ ^ appurtenant agamst common right because it depends upon a special is "against" grant,eitherexpressedorimplie{lfromlong usage; andthe ri°trTir'^'^ Jaw accordingly allows it to fail altogether wlicneveritcan- notbeexercisedinits integrity. But common appendant, being of common right, a right common to every free- holder, is favoured by the law, and allowed to be appor- tioned on the union of the tenementsin respect of whichit is claimed, with part of the lands over which the right is exercised. Had the common been ajjpendantiw Tyrring- ham\s case, it is clear that the Court would have held the plaintiff justified in putting in an apportioned number of cattle on the residue of the lands over which the right of common originally existed. These considerations would probably be of themselves sufficient to show that the proposition laid down in books of authority,thatcommon appendantisthe common lawright of every tenant of freehold lands, is as accurate as any general proposition can be, and is not to be explained away intoanumberof distinct and peculiar grants, made only to certaintenants individually. TheCourtin LordDunraveti V. Z/e;f;e%?iassumesasafactthatsuch grants were actually made in the case before it, according to the explanation given by Lord Coke. And in many cases it maybe taken as historically true thatsuch grants were made. Butrights of common were far more important in ancient times.than they are at present(e), and in many places in England they appear to have existed long before the feudal rules of tenure were introduced by the Normans. Lot meads, in particular, were of Saxon or German rather than of Norman origin. And there is reason to believe that the rights of (C?) 4 Rep. 38 a. citorum, Mich. 4 John, p. 36; {e) See Mr. Beale's suggestive Trin. 4 John, p. 40; Easter, 7 & S Essay on Commons Preservation, John, p. 51. Essays, p. 109; Abbreviatio Pla- 752 APPENDIX. Common common over common field lands, about which the Court of Exchequer, iu the twenty-seventh year of the reign of Queen Elizal^eth, confessed themselves "at first altogeiiicr ignorant "(/), wcreatloastof Saxon, if not iu many cases of ancient British origin(/7). Agriculturists were not then Assart. very enterprising. An "assart," or reclamation of waste, was of rare occurrence^/i). The British cultivators were often left by the Saxon conquerors, and the Saxons by the Xormaiis; and each retained tlieirancient customs, which by degrees grew up into rights(^). The Norman lawyers applied as best tlu-y could the feudal rules of tenure to the state of things they found actually existing. The notions about property were then unripe(/(;). So long as a man could feed his horse or his cow on the waste, put his hogs into the woods to grub for acorns, and cut timber for fue or repairs, it was not of the slightest consequence to him whether the property in the wastes and woods was in himself or in somebody else. In Domesday, as we have seen, woods are usually measured only by the number of pigs they can feed. Many forests, moors and marshes, being f^uite unpro- fitable and often inaccessible, do not appear to have been taken into account. When it became necessary tliat they should have some legal owner, the lord of the manor was the only person in whom the ownership could be considered to vest. But the right of a tenant of arable land to put his cattle on the waste probably existed iu many cases quite irrespective of any actual grant. The tenant and his rights were there already, and the feudal law adapted itself to the existing circumstances, giving to the lord the property in the waste, and to the tenant the right of taking the herbage by the mouths of his cattle. if) Sif Miles Corbet's case, 7 tioned but rarely in Domesday. Rep. 5 b. Sir H. Ellis's Introductiou to {g) See Archmologia, vol. 34, Domesday, vol. 1, p. 102. p. Ill, vol. 37, p. 3So. See also (i) 1 Sharon Turner's Anglo- post, as to the Welsh custom of Saxous, 324, 325; 2 ib. 542, 543; co-tillage. The Saxon term "yard Palgrave's Rise and Progress of hind " IS, according to the author's the English Commonwealth, vol. experience, generally applied to 1, pp. 2(5, 27, 2s, 38, 77. lands in common fields. (k) See Palgrave, vol. 1, pp. 71 (A) Essarts, or assarts, are men- etseq. APPENDIX. The following passage from ]\Iaine's Ancient Law (/) Maine on illustrates the sort of change that probably took place. turl"°^^°'° Speaking of the rule of primogeniture, he says : — "The " ideas and social forms which contributed to the formation " of the S3"stem were unquestionably barbarian and archaic; " but as soon as courts and lawyers were called in to inter- "■pret and define it, the principles of interpretation which "they applied to it were those of the latest Roman juris- " prudence, and were therefore excessively refined and "■ matured. In a patriarchally governed society, the eldt'st " son may succeed to the government of (he agnatic group, "and to the absolute disposal of its property. But he is "not therefore a true proprietor. lie has correlative duties *' not involved in the conception of proprietorship,but quite "■ undefined and quite incapable of definition. The later " Eoman jurisprudence, however, like our own law, looked " ujjon nncontr(dled power over property as equivalent to '•' ownersh ip, and did not, and in fact could not, take notice " of liabiliiics of such a kind that the very conception " of them belonged to a period anterior to regular law. *'* The contact of the refined and the barbarous notion had " inevitably for its cifect the conversion of the eldest son " into legal proprietor of the inheritance. The clerical and "■ secular lawyers so defined his position from the first; but '• it was only by insensible degrees that the younger brother, "' from participating on equal terms in all the dangers and "enjoyments of his kinsman,sankintothepriest,the soldier *' of fortune, or the hanger-on of the mansion. The legal "revolution was identical with that which occurred on a *' smallerscale and inquite recenttimesthrough the greater *' part of the Highlands of Scotland. When called in to ** determine the legal powers of the chieftain over the " domains which gave sustenance to the clan, Scottish juris- " prudence liad longsince passed the point at which it could " take notice of the vague limit at icnis on completeness of " dominion imposed by the claims of the clansmen, and it " was inevitable therefore that it should convert the patri " mony of many into the estate of one." (/) P. 237, 1st edit. W. It. 1". V y r53 r54: APPENDIX. Wales. A change of a somewhat similaT nature appears to have taken }>hice in the ]iriucipality of Wales. The hind in dispute in the case of Lord Dunraven v. Llcioellyn was situate in the county of Ghimorgm in Wales. Wales, as is well known, was conqu(>red by King Edward the First, who by the S/afiiiuni WalUce, lO Edw. I., sometimes called the Statute of Rhuddlan, subjected a great part of it. prin- cipally the northern portion, to English law (;»). Before this time large tracts of land had doubtless been given to Englishmen, who vanquished the natives and took their lands. But the rest of Wales was governed by its own laws and customs, of whichcopiesand translations werepublished in the year 1841, under tlie direction of the Commissioners of Public Records. In one of tliesc it is thus provided: — " Three thingsthatarenottobedonewithout thepcrmission " of the lord and his court: building on a waste, ploughing " on a waste, and clearing wild land of wood on a waste;and " there shall be an action for theft against such as shall do " sOybecause evert/ wild and tvasfe belongs to the country and " kindred in common, and no one has a right to exclusive "possession of much or little of land of that kind " {n). Again, it is said that -'every habitation ought to have a " bye road to the common waste of the ' trev ' or vill " (o). So an oak, a birch or a wych elm could not be cut without the permission of the country and lord (;j); but any person might take fuel from a decayed or hollow tree {q). As land was inalienable,and descended equally amongstall the sons, the landowners in the same place were probably in most cases of kin to one another. Hume says in his History of England (r),spcaking of the timeof the conquest by Edw. I. — "The rude and simple manners of the natives, as well " as the mountainous situation of their country, hud made (m) See 1 Bl. Comm. 93, 94; No. 8, p. 525, fol. edit, by Record Hale's Hist, of Common Law, Commissioners, pp. 248 ^t seq.; 2 Reeves's Hist. (/;) Ibid. bk. 13, ch. 2, No. Eng. Law, eh. 9, p. 92. 238. (n) Cvrreithiau Cvmru, Welsh (q) Ibid. bk. 10, ch. 7, No. 9; Laws, bk. 13, ch. 2", No. 101, p. bk. 13, ch. 2, No. 102. G55, fol. edit, by Record Commis- (>•) Vol. 2, pp. 240, 241, 8vo. sioners. " edit. 1802. (0) Welsh Laws, bk. 9 ch. 25, APPENDIX. 755 " tlicniciiLirely neglect tillage and trust to pasturage alone " for their subsistence." This statement, however, appears too sweeping. The wars in which they were then engaged were more probably the caus3 of their neglect of tillage. Many of their ancient laws relate to agriculture; their lands appear to have been cultivated by a system of co- tillage, the land when ploughed being divided into twelve parts — the first for the ploughman,another to the irons (s), another to the driver, another to the plough, and the rest to theownersof the eight oxen that formed the tpam(^). Co- tillage of waste is elsewhere said to be one of the immu- nities of an innate Cymro or Welshman (?<), and without co-tillage it is gravely said no country can support itself in peace and social union (x). No trace appears, so far as the author has been able to dicover, of any mere right of common of pasture, according to the notions of English law. At the lime of the conquest, Llewellyn, the native prince, granted four "cantrevs,^' or four hundred trevs or vills,totheking, besidcsother lands; and in thedocument by which this grant was effected the king grants that all holding landsin thefourcantrevsand other lands aforesaid which our lord the king holds in his own hands (except those to whom the king shall refuse to do this favor), shall hold them as freely and fully as before the war they were accustomedto hold, and shall enjoy the same liberties and customs which before they were accustomed to enjoy ; so that they, who held of the prince, for the future shall hold those lands of the king and his heirs by the accustomed services (y). This grant was substantially carried out by the Statute of "Wales before mentioned. But tlie alteration made by the introduction of writs similar to those tlien used in England of necessity led to a system of law conformable {f) Compare 1 Ellis's Inti-orUic- No. 83, p. 051. fol. edit. tion to Dotnesday, )>. 26(5, where (x) Ibid. bk. 13, ch. 2, No. 40, it appears that certain tenants p. 038. were bound to furnish irons for {/// ArticMlorum pacis cum re^e the lord's ploujzhs. Angliie ratificatio per Lleweli- (t) The Venedotian Code, bk. 3, num principeni Wallire, a. d. 1277, ch. 24, par. 3, p. 153, fol. edit, by Rymer's Foedera, vol. 2, pp. 88 Record Commissioners. — 90. (u) Welsh Laws, bk. 13, ch. 2, 756 APPENDIX. to those writs. Amongst other writs specially introduced Writ of novel bj the statutes,was the writ of novel disseisin of common of common of pasture. This writ, as given by the statute, is in the fol- pasime. lowing fomi : "A. complains to us that B. and C. unjustlv '• and without judgment disseised iiim of common of pas- " ture, which belongs to his free tenement in such a vill, *'or another if the case requires it, after the peace pro- " claimed in Wales in the twelfth year of our reign "(2). This form of writ is similar to that given in Fitzherbert's Natura Brevinm (rT),and"lieth,"a3hosays," where aman **' hath common of i)asture ap[)endanfc or appurtenant to his " manor, or house or land, which he hath for term of life, " or in fee simple or in fee tail ; if he be disturbed of his " common, so that he cannot take it as he ought to do, he " shall have an assize of novel disseisin thereof." A Welsh- man, therefor-', who had been disturbed in hisenjoymentof the common wastes, would have had no r>-'medy but to sue out this writ. The remedr Thenatureof theremedjasccrtained to an English lawyer therijht the nature of the right. The common now belonged to the tenement. The refined distinctions beween appendant and appurtenant are not noticed in the writ, and were probably the work of a later age. But here was an incorporeal tene- ment only, belonging to a corporeal one. The writ, as Fitz- herbert remarks, does not say that the claimant is disseised of his freelwld^ as was done in the case of land, but only of his common of pasture belonging to his freehold {b). Here was an end of any claim to the soil of the waste. All the tenants who had been accustomed to put their cattle on the waste had their rights defined more accurately than before, but narrowed also to fit the definition. This appears to have been the actual origin of common appendantin most parts of the principality of Wales ; and if this be so, that right, in that country at least, has had its origin, not in a number of actual separate grants made by the lord to cer- {z) P. 866 of fol. edit, by Record (J) Fitz. Nat. Brer. vol. 2, Commissioners. p. 179. (a) Vol. 2, p. 179. APPENDIX. 757 taiu tenants, but in the adaptation of the ancient rights of the freeholders as a dass to the remedies prescribed by Enghsh law. The county of Glamorgan, in which the lands in dispute County of in the case of Lord Dmiraven v. Llewellyn wore situate, not gran fed does not appear to have been comprised in the grant made ^^' ^'leweiiyn. by Prince Llewellyn to King Edward I. (c). The lordship of this county appears to have been acquired by the Crown from Anne, Countess of Warwick, whose daughter mu-ried Richard, Duke of Gloucester,afterwards Richard III., King of England. Ann3, Countess of Warwick, was adrscendant of one Robert Fitzhamon, (a great lord and kinsman of William the Conqueror,) who acquired the lordship of Conqnereri by Glamorgan by conquest from the Welsh, in the fourth year hamon. of the reign of King William Rufus, and who gave the castle and manor of Ogmore to William de Loud res, knight, in reward for his services {d). And by a statute of the Subjected to reign of King Henry VIII. (t), it was provided that after England." the feast of K\\ Saints then next coming, justice should be ministered and executed to tlie king's subjects and inha- bitants of the said county of Glamorgan, according to the laws, customs and statutes of the realm of England, and after no Welsh laws, in such form and fashion as justice was ministered and used to the king's subjects within the three shires of North Wales. This statute jireserved the equal descent amongst all the sons then j^revalent in Wales (/), which, however, was abolished by a subsequent Act of the same reign {(j). In the case of L^ord Duuravcn v. Lleioelhjn, the lord who claimed the land in dispute as part of the waste tendered, as (c) See an interesting article on the political geography of Wales by Henry Salusbury Mil- man, Esq., in the Archseologia, vol. 38, p. 19. (d) Stradling's Winning of Glamorgan from the \Velsh, printed in Caradoc of Llancar- van's History of Wales, a. d. I Hi, pp. XXUl., XXVI., XXIX., X X X i . (t) Stat. 27 Hen. YIII. c. 2(i, s. 14. (/) Stat. 27 Hen. VIII. 0. 2i', s. 3.5. ((/) Stat. 34 & 35 Hen. VIII. c. 26, S3. 91, 128. 758 APPENDIX. we have seen, evidence of reputation — that so it was con- sidered by the commoners. This evidence was rejected, and the commoners were not considered as a body or class, because certain tenants only — namely, the tenantsof arable lands — have by law a right to common appendau t. I f, how- Modus, ever, the dispute had been between ilie rector of the parish and an occupier of arable land, with respect to a parochial modus payable in lieu of great tithe, evidence of reputation would liave been clearly admissible (Zj). And yet the ques- tion would have been one which did not concern every occupier of land in the parish, for the occupier of pasture land paid no great tithe. The tithe of agistment of pasture was asmall tithe only(/). This exception, however, arising as it didfrom the natureof the subji'ctof occupancy, didnot prevent the other occupiers from being treated as a class. So in the case of common appendant, the exceptions which \ arise from the nature of certain holdings should not pre- vent the claimants, who all claim under one common title — namely, a right given by the law itself — from being considered as a class of persons, witli respect to whose rights evidence of reputation is admissible. If the commoners who claimed common appendant for their commonable beasts had claimed by the custom of the manor a right to put on the waste beasts not commonable, such as geese and pigs, evidence of reputation would have Custom. been admissible on the ground that a custom was in dis- pute {Ic). But such evidence is admissible in the case of a custom solely on the ground that a custom affects a class or body of persons in a particular place {I). Can it be said that the commoners are less a class when the custom of the nianorcoincides with thecominon law, which is the general custom of the realm, than when it differs from it ? Extinguish- ment of rights. It may be said that common appendant at the present (h) White V. Lisle, 4 Mad. 214, Q. B. 589, 603, as explained in 225. Lord Dunra/veii, v. Llewellyn, ante, (i) 1 Eagle on Tithes, 44. p. 741. \k) Dnmerell v. Protheroe, 10 (I) Jones v. Robin, 10 Q. B. 581, Q. 1'.. 20; Prlcluird v. Poivell, 10 533,620,635. AITENDIX. day is comparatively rare, that many such rights have now become extinguished, and, that, supposing a single right to remain ina manor,oughtevidenceof reputation to be given in support of it? The answer is, that this depends upon the manner in whicli the claimant frames his claim. He may choose to rely on his continuous enjoyment of the right of common in respect of his tenement, or he may claim the benefit of the provisions, with liability to the limitations,of thePresrriptionAct(/H); buthewill not then be able to avail himself of the former exercise of similar rights in respect of other tenements holden of the same manor. If, however, he claim his common as appendant, there seems no reason why, in relying on a general right, he should not have the beneht of evidence of reputa- tion as to similar rights once existing but now extinct. Reputation is admissible as to the boundaries of a manor, and none the less though the numor as such lias ceased to exist(M). The cesser, theiefore, of anygenei'al rightought iiot to prevent the admission of evidence of reputation as to its former existence. The cases as to customs afford an Custoir.s analogy. If all the copyholds but one, parcel of a certain manor, should become extinct, the tenant of that one may, if he ])leases, allege a customary rightof common as belong- ing to that tenement only(o); but in that case he cannot adduce evidence of the enjoyment of a similar i-ight by other tenants of the same manor (p). He must prove the custom as he alleges it (q). He may, however, if he pleases, allege the right as belonging by custom to all the customary tenements of the manor {)•), and in that case evidence as to the other tenements will be admissible in his behalf; but at the same time hewill expose his claim to be met by evidence relating to any other tenement in the manorstauding in the same situation as his own (s). (m) Stat. 2 & 3 Will. IV. c. 7], ( />) Wilson v. Paffe, 4 E.sp. Tl . ante, p. 645. ((j) Duustan v. Tresider, 5 T. (n) Sted V. Prickttt, 2 Stark. Rep. 2. 4*53; Doe d. Moltsuxortk v. Slee- (?■) See Potter v. Korth, 1 Wms man, 9 Q. B. 298; and soe Barnes Saund. 346, 348; 1 Lev. 208. v^. MawKon, 1 Man. & Sel. V7. («) 1 Scriv. Cop. .')97, 3rd edit.; (o) Bac. Abr. tit. Copyhold (E) ; Cort v. Birkheck, 1 Doiiiiil C. D. his heirs and assigns for ever according to the custom of this manor. Now at this Court comes the said C. D, and jirays to be Admittance, admitted to all and singular the said customary or copy- jKild hereditaments and premises so surrendered to his use at this Court as aforesaid to whom the lord of this manor 762 APPENDIX. by the said steward grants seisin thereof by the rod To Uabeiuium, HAVE AXD TO HOLD the Said niessuagc hereditaments and jiremises with their appurtenances unto the said C. D. and liis heirs to be holdeu of the lord by copy of court roll at the will of the lord according to the custom in this manor by fealtv suit of court and the ancient annual rent or rents and other duties and services therefor due and of right accustomed And so (saving the riglit of the lord) the said C. D. is admitted tenant thereof and pays to tlie lord on Fine £60. such his admittance a fine certain of £50 and his fealty is respited. (Signed) John Doe Steward. INDEX. Abandonment, evidence of, 647. Abeyance, inheritance in, 41.3. Abstract of title, vendor bound to furnish an, 650, 676 now forty years suflBcient, 651. Accumulation, restriction on, 467, 477. Accretion, 506, 507. Acknowledgment of deeds by married women, 356, 550, 663. of title, 619, 640. 644. of right to production of documents, 660, 662. Actions, real and personal, 23, n., 71, n., 486. for recovery of possession, 17, 18, 49, n., 71, n. 105, 390, 519, 521^ 608, 612, 619, 639, n., 640, 653, 676. Administrator, 20, 494, 573, 574, n. of bare trustee, 167. of convict's estate, 345. of mortgagee, 608, 621. Administration of debtor's estate, 323. Admittance to copyholds, 519, 534, 545, 546, 550, 552, 620, 761. Advowson appendant, 481, 498. in gross, 497, 499, 500. of rectories, 498 — 500. agreements for resignation, 497. conveyance of, 499. of vicarages, 499. devolution of, 501. limitation of actions and suits for, 643. proper length of title to, 652. Affidavit of intestacy, registration of, 298. 764 INDEX. Agreemkxts. — See Contract. stamps on, 218, n. for resignation of benefice, 497. for lease, 134, n., 449, 561, 502, 012, 656. stamps on, 562, n. for sale, 217, 651, 656. Agricultural Holdings (England) Act, 1883; 559, 581 — 583. lands, restrictions upon leasing, 94. Agriculture, Board of, 170, 258, 493, 539. » Aids, 52, 66. Alien, 346, 347, n. property, rights of, 350, 351. Alienation, power of, inherent in ownership, 88, 395, 410. restraints upon, 94. exceptions to, 82—84, 89, 360. of real estate, 26, 45, 46, 73, 75, 395, 422, 444, 495. See Fee Simple, etc. involuntary, 86, 87, 97, 99, 307—333, 439, 494. by will, 26, 74, 77, n., 80, 81, 124, 145, 106, 203, 279, 2S3, 285-- 300, 423, 455—459, 491. under power unconnected with ownership, 444. of copyholds, 530, 533, 541—654. of leaseholds, 565, 573—570. encouraged by law, 410. opposed by feudal system, 423, 720. for debt after death, 336. Allotments, compensation, 581, n. Ancestor, power of, over expectations of heirs, 75. descent to, 92, 260—263, 265. Ancient demesne, tenure of, 65, 66, 515, 524. meadow, no common appendant to, 748. Annuities for lives, enrolment of memorial of, now unnecessary, 486. registration of, 486. search for, 487, 664. Anticipation, clause against, 360 — 363, 365. Appendant incorporeal hereditaments, 478—481, 644—647, 689. common appendant, 481, 044—647, 689, 738-760. Application of purchase-money, necessity of seeing to the, 615, 666. Appointment, powers of.— See Powers. Apportionment of rent, 143, 493, 572. of rent-charge, 493. of common app(!ndant, 750. INDEX. 765 Appropriation of rectories, 500. Appurtexaxces, 484. Appurtenant incorporeal hereditaments, 478, 483, 644 — 647, 689. rights of common and of way, 483, 644 — 647, 689, 751. Arms, directions for use of, 436. Arrangement, with creditors, 818, 664. • Arrears of rent or interest, recovery of, 644. Assart, 752. Assets, 105, 320, 331, 533, 564. equitable, 320. Assignee of lease liable to rent and covenants, 566 — 568, 622. of tenant for life, 119, n. Assignment of lease, 558, n., 565—567, 573, 598, 599, 600, 622. of chattel interest must be by deed, 573. of trust must be in writing, 217. to self and another, 241. of property for creditors, 318. of satisfied terms, 589 — 593. of underlease, 598, 599, 656. Assigns, 77, 82, 178, 494, 567. Assurance, further, 667, 669, 680, 688, 692, 701. Attachment, 195. Attainder, 54, 345. of tenant in tail, 120. abolition of, 60. Attendant terms, 589 — 593. Attestation of deeds, 441, 680. of wills, 280. of the exercise of powers, 441 — 443. Attested copies, 660, n. Attorneys' and Solicitors' Acts. — See stats. 33 & 34 Vict. c. 28, and 44 & 45 Vict. c. 44. Attornment, 392, 406, 407, 479. now abolished, 392. Autre droit, estates in, 588. 766 INDEX. B. Bakkruptct, 87, 317. insolvent estate of deceased debtor may be administered in, 323. of tenant in fee simple, 318, 323. of tenant in tail, 327. of cestui que trust, 330. of trustee, 330. of owner of land subject to rent-charge, 494 of leaseholder, 575. power of trustee in, as to copyholds, 534. exercise of powers in, 439. disclaimer of leaseholds by trustee in, *'75. search for, 664. Bargain and sale, 234—236, 245, 246, 563. of lands raised a use, 202. of the fee, 234. under the Statute of Uses, 234, 246. required to be enrolled, 235, 245. for a year, 236—238. of lands in Yorkshire, 245, n. by executors, 456. covenants implied by, 671. form of deeds, 695. Base fee, 114, 118. Bastardy, 61. Bedford Level registry, 244. Benefice with cure of souls, not chargeable, 89. sequestration of, 89, n. appointment to, 497. Benefices, feudal, 12, n. Beneficial owner, conveyance as, 669, 687, 692, Bequests to charities, restrictions as to, 95. BORDARII, 47. BoRouGH-English, tenure of, 65. Bracton, 9, 513. Breach of cevenant, waiver of, 571, 572. Building lease, 131, n., 132, 133, 611. land, ground rent on, 491. INDEX. 767 BtTiLDiNGS, where part of rea/ty and when personalty, S3. BoROAGE, tenure in, 50, 65, 80. alienation by will, 21), n. BuRGENSES, 50. C. Capacity in land, 340—349. Capital money under Settled Land Acts, 132—136, 139, 141. Capite, tenants in, 44, 46, n., 53 n. Central Office of Supreme Court, inrolment in, 83, n., 110, 113, 235, n., 313, 332, 487. search in, 332, 663, n. Certificate of official search of registers, &c., 332, 662, n., 663, n., 665, n. of acknowledgment by married woman, 357, n., 663, n. Cesser of a term, proviso for 585, 592. Cestui que use, position of, in Chancery and at law, 201 — 203. legal estate transferred to, 205, n. que trust, position of, in equity, 209 — 211, 215. is tenant at will at law, 215. que vie, 145. Chambers, 41. Chaxcert, Court of, jurisdiction of, 193, 194, 201, 207—209. process and procedure of, 195, 196. enforced uses, 201, 203, 434. transfer to High Court of Justice, 197. appointment of new trustees, 220, n. administration of estates of debtors, 320, 322, 323. power over guardians, 343. relieved lessees, 390. relieved defective execution of process, 442, 449. consent of, to infant's settlement, 341, 445. to disposal of minerals, 452. partition of copyholds, 538. interposition of, between mortgagor and mortgagee, 603, n., 623, 630. Chancery Division, matters assigned to, 198. administration of estates, 323. foreclosure proceedings, 613, n. action for redemption, 618, n. petition for declaration of title, 673. 768 INDEX. Chakity, conveyance to, 82 — 84. exemptions from Mortmain Act, 83, n., 84, n. inrolment of conveyances, 83, n. investment of funds, S3, n. alienation by, 348. Charter, 180. Chattels, real and personal, 25. real, 24, n., 25, n., 28, n., 31, 317, 556. property in, differs from property in land, 10, 11, 12, 22. not objects of feudal tennre, 15. recovery of, 18, n. a use of, 208. an equitable estate in, 213.. will of, 283. devolution of, 19—21, 25, 556. And see Term — Mortgage. Cheltenham, manor of, 554. Civil death, 126. Codicil, 285. Collateral relations, 101, 261. Collation, 497, n. Commendations, in feudalism, 13, n. Commissioners, Land Inclosure, 171, n. Real Property, 256. of Woods, &c., 61, n. of the Treasury, certificate of, 324, n. Committee of lunatic, 344. Common, rights of, 480. rights of in United States, 505. appendant, 481, 733—760. appurtenant, 483. in gross, 496. commonable beasts, 748. no common for a house, 748. ancient meadow, 748. appendant need not be prescribed for, 749. shall be apportioned, 750. appurtenant is against common right, 751. writ of novel disseisin, 756. the remedy ascertained the right, 756. extinguishment of rights, 647, 758. INDEX. 769 Common', metropolitan commons, 481. fields, 47, 48, G7, 480, 510, 752. of copyholds, 539. limitation of rights of, 646. Common, tenancy in, 1G9 — 171, 537. Common" forms, 684. Common Law, founded on custom, 9, n. conveyance. — See Coxveyance. rights opposed to equitable, 193, 198. construction of mortgage, 603. Community, tribal and village, 510. Commutation of tithes, 503. of manorial rights 516, 538. Companies, joint-stock, 348. Compensation for improvements, 581 — 583. power to charge holding with repayment, 583. Composition with creditors, 318. Concealed fraud, limitation in cases of, 642. Condition of re-entry for non-payment of rent, 389— 391,«566, n. formerly inalienable, 390. attached to the reversion, 391. severance of reversion, 572. on breach of convenants, 566, n, 568 — 572. effect of licence for breach of covenant, 570. effect of waiver, 571. Conditional gift, 102. conveyance, 602. surrender, 620. Confirmation, conveyance by, 191, 247. Consent of protector, 103. as to copyholds, 531, 548. Consideration, 84, 246, 325. required for simple contract, 181. on feoffment after the Statute of Uses, 179, 240. a deed said to import a, 131. receipt for, 679, 694. Consolidation of securities, 030, 632 W. R. P. U U 770 INDEX. Construction of wills, 1S;4, 2S7— 293. of law as to attendant terms, 592. of deeds, 123. of mortgage, 603. Contempt of Court, 195, n. Contingent remainders, 410 — 430. definition of, 415. origin of, 410 — il4, anciently illegal, 411, n. abolished, 411, n. example of, 415, 417, 418, 422. rules for creation of, 416—421, 468—474, 734—737. vesting of, 415, 418, 419. preserved by statute, 419, 427. conveyance of, 422, 423. formerly inalienable, 423. destruction of, 424—427, 330, 431, 432. trustees to preserve, 428, 429, n. of equitable estates, 429, 437, 735, n. of copyholds, 551. difference between executory interests and, 411, 433, 436, 458, 734. statutory changes regarding in United States, 431, 432. Contingent Remainders Act, 1877.— See Statute 40 & 41 Vict. c. 33, Contract, debts by simple, 88, 320—323. cannot bar estate tail, 116. in writing requires consideration, 181. for a lease, sale. — See Agreement. by married woman, 345, 363. by tenant to pay tithes, 503, n. as to compensation, 583, n. not to exercise powers, 138, 454. stamps on, 218, n. to mortgage not specifically enforced, 656. Conversion, equitable, 229. "" CoNVEYAiicE of freehold at common law, 174 — 188. modern, 232—247. in United States, 249, 250. form of a conveyance, 678—694. by feoffment, 175—179. bvdeed. 184, 185, 238, n., 239. bv fine and recovery, 78, n.. 103, n., 106, n., 110, n., 191. by lease and release, 191, 233, 337, 246. by confirmation, exchange or surrender, 191, 247. by vesting declaration or order, 222, 223. 463, by bargain and sale, 234—236, 245, 246, 695. INDEX. 771 Conveyance under powers, 247, 400. by surrender of copyholds, 531. by way of mortgage, G02, COG. fraudulent, 85, 2(31, 325, 337, 338. voluntary and for value, 84, 85. to uses, 2 to— 242, 246. to self, 241. to husband or wife, 357 n., 365, 544. by married women, 355—357, 35'.i, 361, 364, 545, 550, 578. by joint tenant and tenant in common, 170. by tenant for life, 136, 137. 217, 460. by executory devisee, for testator's debts, 461, n. by mortgagee, 616. of land passes advantages not strictly appurtenant, 484. passes all the estate and iuterest of party convey- ing, 687, GDI. of advowson, 499. of tithes, 502. on sale, stamps on, 681, n meaning of, in Convej-ancing Act (1881), 689. recording of, in U. S., 251 — 253. Conveyancing Acts. — See Stats. 44 & 45 Vict. c. 41 ; 45 & 46 Vict. c. 49. changes in form of conveyance rendeied possible by, 484, 686—689. Convicts, 345. Coparceners, 257, 273. descent amongst, 258, 709—722. Copyhold Acts, 1852, 1858 and 1887... 538. Copyholds, definition of, 509. origin of, 27, 48, 509. recovery of possession of, 27. growth of the law of copyhold tenure, 516. Littleton's account of the tenure, 617. extension of copyholders' rights, 515 — 519, 529, tenure of, 509, 622—527, 635-537. seisin in the lord, 522, 524. mines and timber on, 623, n., 524. when customary freehold, 524, 748. forfeiture of, 523, 524. for lives, 519, 527, 534. of inheritance, 518, 527, 534. estates in copyholds, 518. 522, 527—540. estate tail in, 528—532, 534. estate pur autre vie, 532. contingent remainders of, 550. U D 2 7 i J INDEX. Copyholds, execiit interests in, 551. held jointly and in common, 537. of married woman, 544, 547, 549, 553. customary recovery, 531. forfeiture and re-grant, 531. lease of by license of the lord, 523, n., 525. grant of, 542. seizure, quousque, 547. surrender of, 519, 531, 543—550, 620, 761. admittance to, 519, 534, 545, 546, 550, 552, 620, 761. remainders of, 550. alienation of, 530, 533, 541—554. subject to debts, 27, n., 533. power of trustee in bankruptcy as to, 534. commutation of manorial rights in, 516, 538. enfranchisement of, 538 — 540. by tenant for life, 540. mortgage of, 620, 623. will of, 546. descent of, 27, n., 534. curtesy and freebench of, 553. equitable estates in, 548 — 550. uses and trusts as to, 548. settlement of, 548. title on purchase of, 651. sale of land formerly copyhold which has been enfranchised, 652. Corporation, 82, n., 341, 347—349. land of, 32. right of, to hold and dispose of land as trustee, 351. Corporeal hereditaments, 29 — 31. now lie iu grant, 238. things, 4. Costs of protecting settled land, 136, n mortgagee's, 605, n., 618, n. purchaser's, 650, 660, n. of conveyancing, 684 — 686. COTARII, 47. Counterpart, stamp on, 562, n. Counties palatine. — See Palatine. County Courts, equity jurisdiction of, 224, 613, n., 618, n. order for recovery of tithe rent-charge in, 503. for charge of compensatioi; on holding, 583. Court, The Kings, 9, n., 513, 520. INDEX. 773 OouHT, suit of, 53, 50, 60, 535 customary, 517, 541. rolls, 509, 516, 542, 543. search of, 664. baron, 50, 53, n , 517. Court of Judicature, 197. — See i5uPEEMB Court of Judicature Acts. Court of Probate, 20, n., 283. of Chaucery. — See CHA.NCEay. Covenant defined, 17, n. to stand seised, 212, 246. iu void deed, 183. voluntary, not enforced in equity, 212. restrictive, 216, 577, n. to pay money to self and another, 241. on grant of rent-charge, 493. to indemnify lessee, 567. to surrender copyholds, 621, 668, n. to produce title deeds, 660, n. for title. 667, 679, 700—702. statutory covenants for title, 669—671, 687—689, 691—693. for quiet enjoyment, implied by certain words, 671 — 673. Covenants iu a lease, 566—572, 577, n.. Add. "usual," 566. running with the land, 567. re-entry on breach of, 566, n., 668 — 572. for title, 672. Creditors, conveyance to defraud, 85, 325. may witness a will, 2S3. specialty and simple contract, 87, 319 — 322. under judgment, 87, 307—317, 326, 438, 633, 574. in bankruptcy, 87, 318, 323, 327, 439, 533, 575. on debtor's death, 87, 319—323, 336, 337. in equity, 328—331, 338. of married woman, 354, 361. Crops, growing, 32, 33. at death of owner, go to whom, 33, 34. sale of, 34. Crown debts, 83, 324, n., 325, 327, 331, 575. search for, 332, 663, 664, n. forfeiture and escheat to tlie, 54, 61, n., 62, 346, n. limitations of rights of, 61, n., 644, 647. lands, 349, 482, 515. may reserve rent out of incorporeal hereditaments, 49<), n. 774 INDEX. CuRTEsr, tenant by, 353 — 353. of gavelkind lauds, 64, n., 354. as affected by the new law of inheritance, 854, n, 723 — 733. of equitable estates, 359, 3tJ2. of separate estates, 3G4, Add. of copyholds, 539, 553. of incorporeal hereditaments, 727, 729. in United States, 375, 37G. Custody of documents, undertaking for safe, 6G1. Customary court, 517, 541. devises, 455, n. heir. — See Heir. freeholds, 524 — 526. recovery, 531. Custom, 64, 80, 509, 51 ij, 530. heriot, 537, n. evidence of, 758, 759. Cy pres, doctrine of, 471. Damages, 24. Daughters, descent to, 91, 92. De Donis, Statute. — See Slat. 13 Fdw, I. c. 1. Death, civil, 12fi. gift by will in case of, without issue, 290. Debts, liabilty of fee simpk-, on charge by will, 294—296. 320, 322. in hands of devisee, 87, 97, 319. in hands of heir, 86, 97, 319. on bankruptcy and insolvency, 318. to judgment. Crown, specialty and simple con- tract. — See Judgment, &c. of estate tail, 326. of estate for life, 327. of equitable estates, 217, 328—331. of leaseholds, 574. of copyholds, 533. of mortgagee's interest, 625. of record, 324, n. mortgage, 501, 510, nn., 619, n. where trustees and e.vecutors may sell or mortgage to pay, 294 — 296. insolvent estate of deceased debtor may be administered in bank- ruptcy, 323. INDEX. 775 Debts, creditors who now stand in equal degree, 322. sale or mortgage for payment, of by executory devisees, 459, n. limit to the recovery of, 644, n. Declaration of title, act for, 673. Deed, 181—184. necessity and effect of, at common law, 181. parties to a, 183. execution by sealing and delivery, 182, 189 — 191. conditional as an escrow, 182. alteration or destruction of, 182, 183, n, 191. whether signing necessary to, 185. poll or indented, 1«3, 184. of grant, 31, 232, 238, n, 244. required to transfer incorporeal hereditaments, 31, 233, 247, 478, 497. to effect partition, 170. to evidence feoffment, 185, 245. for a bargain and sale of freeholds, 235. for exchange or surrender of freeholds, 247 for grant of rent-charge, 486. for assignment of leases, 573. where, for leases, 560, 561. re-surrenders, 587. of grant, conveyance of reversion by, 387, 393. disentailing, 109, 531, 548. n. search for, 663, n. Deeds, stamps on. — See Stamps. iurolment of. — See Ineolment. production and custody of. — See Title-Deeds. delivery of, 189—191. Demand for rent, 390 Demandant, 108. Demesne, meaning of, 43, a. the lord's, 47, 512. Demise, implies a covenant for quiet enjoyment, 672. Denizen, 346, n. Deposit of purchase-money, 665, n. of deeds, equitable mortgage by, 622, n., 628, n., 635. Descent of an estate in fee simple, 90, 92, 93, 254—272, 710. gradual progress of the law of, 91—93. stock of, 255, 256, 259, 265, 703—708. 776 INDEX. Descent, alterations in law of, 255, 261, 264, 265, 271, n., 370, 703, 719. to widow, 260. rules of, do not apply to personalty, 271. of an estate tail, 94, 120, 255—260, 710. of estate of tru.stee, 167, 219, u., 230, 231, 271, 549. of estate of mortgagee, 271, 60S, 621. to and from aliens, 346, 347, n. of estates of married woman, 355, 364. amongst co-parceners, 258, 709 — 722. of gavelkind lands, 63. of borough English lands, 65. of an equitable estate, 118, 213. of incorporeal hereditaments, 495. of tithes, 502. of copyholds, 27, n., 534. of real property in United States, 273—278. Detersiixable life estates, 141, 147. Devise. — See Will. Devises to charities, restrictions as to, 95. Disabilities, time allowed for, 619, n., 640, n., 646. Disclaimer, 91, 293. of power, 454. of property of bankrupt, 494, 495, n., 575. Distress, 73, 388, 389, n., 485, 496, n., 746. clause of, 488. statutory powers of distress, 485, 487, 489. for rent reserved by underlease, 576. for tithe rent-charge, 503, n. in United States, 507. Dockets, 310. Domesday Survey, 47, 511, 744. Dominant tenement, 645. Donative advowsons, 497, n. Donor and Donee, 101. DowEB, 366—372, 728. in United States, 377—381. incidents of, 367. of equitable estates, 368, 371. of gavelkind lands, 64, n., 368. of copyholds, 539, 554. released by fine, 367. INDEX. < i I Djwer, uuder old la'v independent of husband's debts, 363. old method of barring, 869. how barred in United States, 3T8— 380. under the Dower act, 870. barred by jointure, 370. declaration against, 287, 448. modern method of barring, 447. uses to bar, 448, 699. ac^'.^ii for, 372. action for in United States, 380, 381. bill of equity for, 372. formerly defeated by assignment of attendant term, 691. leases, by tenant in, 372. Draining, 138, 139, n, 478, 479. Drunken persons, capacity of, 343. Duplicate deed, stamp on, 681. E. Easemsnts, 483. grant of, by general words, 484, n., 679, 686, 689. limitations of right to, 648. equitable, 230. Ecclesiastical courts, jurisdiction over chattels, on death, 2'), n. over breach of faith, 201. over wills of personalty, 283. corporations, 348. Educational association, conveyance to, 84, n. Ejectment, action of, 71, n., 521. of mortgagor by mortgagee, 608, n. Elegit, writ of, 313, 308, n., 116, 574. Emblements, 142, 558. right to in United States, 151, 152. Enclosure. — See Inclosuke. Enfranchisement of copyholds, 538 — 540, 652. Enlargement of long terms, 593. Enrolment. — See Inrolment. Entail. — See Tail. Entireties, husband and wife taken by, 358, 376, 877. Entirety, 2.i8. tenancy by, in United States, 376, 377. 778 I.NDEX. Entry, by aud against feoffee, 175, n., 170, 178, n. required for other assurances, 187, 188. necessary to a lease, 233, 236, 5G3. right of, supported a contingent remainder, 425. power of, to secure a rent-charge, 489. statutory powers of entry, &c., 489. bar of right of, 619, 640. Equitable assets, 320. estate, 193—225, 627. origin of, 199—201. modern, 209, 211. real and personal, 213. creation of, 213, n., 217, 230. restrictions on, 216. alienation of, 21G, 217, 549, 609. title to, 224. contingent remainders in, 430, 473, "735, n. executory interests allowed in, 456. liable to debts, 217, 328—331. will of, 203,279, 455. descent of, 213, 218, 609. formerly no escheat of, 218. forfeiture of, 219. • curtesy of, 359. dower of, 368, 371, 448. limit to the recovery of, 642. of alien, 347, n. of wife, 359, n., 549, 578. — See Separate Estate. under agreement for a lease, 134, n., 449, 561, 564. under marriage articles, 214. under a contract for sale, 214. in a rent-charge, 488. in copyholds, 548 — 550. surrender of, 549. in mortgaged lands, 605, 609—612. tenant for life, 216. relief, 194, 196, 198, 210, 211, 300, 569, n., 603, nu. waste, 129. execution, 329, 330. jointure, 370. mortgage, 607, n., 616, n., 622, 628, n. lien, 623, 629. interest, through what court enforced, 229, 230. Equity, a distinct system, 193. meaning and rules of, 193, 196, 213. jurisdiction to enforce, 194 — 196, 201. rules of, now to prevail, 198. follows the law, 213. INDEX. 779 Equity, to a settlement, wife's, 359, u., 578. upon accidental merger, 587. of redemption, 603—605, 609, 619. charges on, 605, n., 618, n. mortgage of, 626. priority between mortgagees in, 627. consolidation allowed in, 630. courts of, in United States, 226 — 228. Escheat, 54, 56, 58, 60, 61, n., 62. of estate of trustee or mortgagee, 62, n., 219. law of escheat now applies to the equitable estate, 219. of a rent-charge, 496. of copyholds, 535, 539. Escrow, 182. EsTUAGE, 52, n. ESSARTS, 707. Estate, real and personal. 25 — 28, 556. of freehold, 70, 71. in fee, tail, life. — See Fees, &c. creation of must be in writing, 184. by deed, 185. limitation of an, 123—125, 176—178, 213, 238, 239, 286—292, 395, 527. legal, 203, 205, 224, 293. equitable, trust, 193, 225. — See Equitable; Trusts. by wrong, 178, n., 179. at will, 522. of wife. — See Wife. settled. — See Settled. determinable life, 141, 328. pur autre vie, 144—147, 328, 491, 532. in autre droit, 588. particular, 385, 394, 424. one person may have more than one, 396. in remainder. — See Remainder. in reversion. — See Reversion'. future, 410, 417, 434-— 436, 4.57, 563. estate arising by force of statute on execution of statutory power, 460,461. in incorporeal hereditaments, 490, 491, 495. copyhold, 518, 522, 527—540. of mortgagee and mortgagor, G07— 610, 621. clause, 679, 687, 690, 699. Estate Duty, 166, n., 272, 300, 475. Estates, legal and equitable undej reformed procedure, 231. Estoppel, lease by, 564. Estovers, right to in United States, 148-150. 780 INDEX. Evidence of title. — See Title. of reputation, 738. Exchange and entry, 187, 247. t of settled land, 118, 134—137, 450-453. implied effect of the word, G71. ExECUTio.x of a deed, 182. writ of, 23, n., 308, 312, 574, G(53. equitable, 329, 330. against land, 87, 308, 310, 312, 313, 335, 533, 574. Executors, rights and duties of, 20. may be witnesses, 283. leases for years devolve on, 19, 573, 588. take an interest in real estate vested in a sole trustee or mort- gagee, 167, 271, n., 549, 608, (521. devise of real estate independent of assent of, 294. where they may sell or mortgage to pay debts, 294 — 296. power to convey real estate contracted to be sold, 297. directions to, to sell laud, 455 — 457, 662. exoneration of, from, liability to pay rent-charges, 494, n. from rents and covenants in leases, 574, n. may hold in autre droit, 588. Executory devises. — See Executory Interest. statutory changes in some states, 463. interest, 433—466. definition of, 433. origin of, 455. creation of, under Statute of Uses, 434 — 440. by will, 455 — 458. compared with contingent remainder, 411, 433, 436, 458. bar of, 433, n. of equitable estates, 456. alienation of, 459, n. estates under statutory powers. 460, 461. limit to creation of, 464 — 467, 734. where preceded by estate tail, 466. executory limitations to take effect on failure of issue, 466. in copyholds, 551. Exemption of homestead, 153 — 163. Exoneration of mortgaged estate, 609, 610, nn. F. Farming leases, 125. Father, descent to, 260—262. his power to appoint a guardian, 342, n. INDKX. 781 Fealty, 52, n., 56, fiO, 119, 126, 388, 479, 535. Fee, meaning of term, 18, 43. tail.— See Tail. limited on a fee, 462. Feb Simple, Estate in, 6, 44, 70 — 93. creation of, 45, 46, 66, 124, 177, 213, 215, 239, 289. 292, 527. tenure of, .subinfeudation forbidden, 46. gives free enjoyment, 85, n. — See Freb Tendre. alienation of, 73 — 89. for debts, 86, 87, 307 — 326. by will, 80, n., 81. descent of, 90, 92, 93, 254—272, 534, 716. '•in fee simple," 239, 527. joint tenants of, 165, 166. equitable, 213, 214. in a rent-charge, 491 . in copyholds, 527, 534. enlargement of long term into fee simple, 598. Females inherit together, 257. postponement to males, 257, 262, 263. Feme.- See Wife. Feoffment, SO, 175—179, 648. delivery of possession required for, 174, 175, n., 176. entry required for, 176. words required for, 176. writing required for, 184. deed required for, 185. might create an estate by wrong, 178, 179. to uses, 199—202. effect of the Statute of Uses on, 179, 205. none of future estates, 417. by infants of gavelkind lands, 185, 245. by idiots and lunatics, 344, n. by corporation, 349, n. Feudal system, introduction of, 12 — 15. main features of, 13, n. change of tenure in, 26, 59 — 62. feudal system of land holding upon the continent of Europe, 12, n. difference in England, 13, nn. regarded grantee as talcing only a personal interest, 73, 393 tenancies become hereditary, 18, 44, 73. opposed to alienation, 423. 782 ^ INDEX. Feudum novum ut antiquum, 261. Fieri facias, writ of, 308, n., 574. t'iNE, feudal, 16. fines on lease, 133. conveyance by, 78, n., 103, n., 110, n., 187. search for, 663. formerly used, to convey wife's lands, 355 — 357. to release dower, 368. attornmen( could be compelled on conveyance by, 392. payable te lord of copyholds, 519, 526, 545, 549, n., 760. Fire, relief against forfeiture for non-insurance, 569, n. power to insure against, in mortgages, 617. Fixtures, 39. Foreclosure, 613, n., 619, n. court may direct sale of property instead of, 614. Foreshore, 483. Forfeiture, for treason, 54, 60, 104, 120. abolished, 60. for alienation into mortmain, 82, 83. for waste, 128, 524. for feoffment by wrong, 179, n. for conveyance to alien, 346, nn. for nonpayment of rent, 390, n., 569. for breach of covenants, 569, n., 570, Add. of copyholds, 523, 524, 531. of mortgagor's estate at law, 603, n. Form of a conveyance, 678 — 694. Frankalmoign, 58, 59, 66. Frankmarriage, 74. a conditional gift, 102. Fraud, concealed, limitation in cases of, 642. Frauds, Statute of.— See Statute 29 Car. II. c. 8. Free services, 16, 26, 51 — 58. tenure, 16, 43—67. recovery of, a'; common law, 16, 51, 71, n. incidents of, 44, 45, 51—57, 60. classification of, 51, alienation of, 19, 26, n., 45, 46, n., 73, n., 74, 80. descent of, 18, 19, 26, 74-76, 80. limits to the recovery of, 640—643. title on sale of, 651. INDEX. 783 Freebench, 539, 653. Freehold, 21, 25, 26, 70, 71, 142, 144.— See Free Tenure. copyhold estates are quasi, 525, 527. customary freeholds, 524—526. any estate of, is larger than estate for term of years, 70, 5S6. conveyance of. — See Conveyance. Freeholder, 43, 50, 71, n. Freemen, 50, 55, 514, 529, n., 746. Future estates, 410, 417, 434—436, 457, 563. G. Gavelkind, 26, n., 63, 64, n., 80. curtesy of gavelkind lands, G4, n., 354. dower of gavelkind lands, 64, n., 368. General residuary devisee, 286. words, 484 n., 679, 686, 689, 695. Gestation, period of, included in time allowed by rule of perpetuity, 465. Gift, conditional, 102. — See Conveyance. "to the heirs of " A, 413, n. confined to period of personal enjoyment, 99. Give, word used in a feoffment, 176. warranty formerly implied by, 648, 671, 672, n. Glamorgan, county of, 757. Glawille, 9. Goods. — See Chattels. Grand serjeantry, 54, 63. Grant, deed of, 31, 232, 239, 244, 678, 693, 696. an innocent conveyance, 244. proper operative word for a deed of grant, 244, 383. incorporeal hereditaments lay in, 81, 238, 478. corporeal hereditaments now lie in, 238. of easements, 689, 695. of copyholds, 542. implied effect of tiio word. 671, 672, 784 INDKX. CirRoss, incorporeal hereditaments in, 478, 485 — 504, 689. seignory in, 485. common in, 496. advowjiou in, 497, 499. prescription for exercise of rights in, 644 — 647. Guardian. 53, n., 56, 342, nn., 243, 350. H. Habendum, 679, 682, 693, 695, 699, 762, Halfblood, descent to, 92, 93, 264, 269. in United States, 275, 276. Heir, took land of inheritance, 18. term descending to, 20. anciently took entirely from grantor, 73. alienation as against, 74 — 76. power of ancestor over expectation of heirs, absolute, 75 — 76. is appointed by the law, 81 . bound by specialty, 87, 319. at law, 90, 717. expectant, 75, n. apparent, 90, 99. presumptive, 90, 99. is a word of limitation, 177, 286, 289, 399, 402. customary, 27, 518, 534, 704. in gavelkind, 63. in borough-English, 65. cannot disclaim, 91. is special occupant, 144, 145. "heirs" required to give a fee-simple, 123—125, 1, 213, 215, 239, 286—292, 527. "heirs of the body" required to give a fee tail, 1 S, 286—292. "heirs," use of word in United States, 148. devise to, 294. remainder to, 404, 405. gift "to the heirs of A.," 413, n. bound by warranty, 648, n. Hkreditaments, 21. corporeal, 29—31, 238. incorporeal, 29—31, 383, 478, 495, 493. personal, 28, n. Heriots, 535—537, 540. heriot service and custom, 537, n. Hides and yard lands, 745, n. High Court of Justice, 197. INDEX. 785 Highways, ownership of, 505. Homestead estate, 153 — 168. Homage. 52, 56, 541, 544. HoNODE, titles of, 504. House, meaning of, 40. in boroughs, 50. no common appendant to, 748. Hull registry, 242. Husband, right of, in his wife's lands, at common law, 352, 358, 539, 553, 578, 588, 594, n., 723. in equity, 359, 362, 578. Married Woman's Property Acts, 345, 363—365 545, 553, 579, n. Add. conveyance of wife's lands, 354—357, 359, 544, 549, 57^. and wife one person, 357, n., 365. could not convey to his wife, 358. unless by Statute of Uses, 358. made trustee for his wife, 360. holding over, is a trespasser, 355, n. appointed by, to his wife, 444. I. Ice, when realty and when personalty, 36. Idiots. — See Lunatic. Illegitimates, inherit from whom, 276. Immoveable property, 10, 11, '24. Implication, gifts in a will by, 291, 294. Improvements of settled land, 138 — 141. by leaseholder, 581, 583, 600. IXCLOSURE, 481. Commissioners, 171, n. Incorporeal hereditaments, 29—31, 233, 383, 478, 495, 498. not subject to tenure, 495. writing necessary to transfer 30, 233. title to, 644— C47. Incdmbrances, searches for, 139, 309, 311, n., 313—316, 318, 332, 486, n, 5C3, 628, n., 662—665. protection asjainst, by long term, 493, 589. money sufiicient to provide for, may now be pai in Cour on a sale, 655. covenant that estate is free from, 667—669, 680,688, 692, 701 _ W.R.P. V V 786 INDEX. Indentdue, 183. Indorsement on deeds, 680, 694, n. Induction, 497. IxFANT, capacity, 82, 300, 341. leasing and sale of infant's land, 170, n. guardianship of. — See Wardship. management of land during minority, 342, n. tenant for life, 343. marriage settlements, 341, 444, 445, n. feoffment by, 63, 185, 245. exercise of power by, 444, 445, n. executory devisee, conveyance by, 459, n. admission to copyholds, 547. Inheritance, law of. — See Descent. • words of, 73, 100, 123. 124, 176—178, 527. suspense of vesting, 413. trust of terms to attend the, 589 — 593. owner of, subject to attendant term, had a real estate, 591. Injunction, 195, 198, 216, 577, n. Innocent conveyance, 244. Inrolment of deeds barring estate tail, 110, 113, 216. of conveyance for charitable uses, 83, n. of bargain and sale, 235, n., 245, n. of memorial of annuities, 486, n. of deeds in the central office of the Supreme Court, 83, n., 110, 113, 235, n., 313, 332, 487. Insolvency, 318, 664. insolvent estate of deceased debtor may be administered in bankruptcy, 323. Institution, 497, n. Insurance, relief against forfeiture for non-insurance, 569, n. by mortgagee, 617. Intention, rule as to observing, in wills, 144, 287 — 293, 471. Interesse termini, 563. Interest, legal rate of, 602, n. stipulation to raise, void, 623. stipulation to diminish, good, 624. recovery of arrears of, 644. INDEX. 787 Intestacy, 20, 2(50, n., 254-272. registration in Yorkshire of affidavit of, 298. widow's charge on, 260. Ireland, leases by tenant for life in, 131, n., 132. Issue, effect of word, 177, 292. iu tail, bar of, 102—118, 216, devise to, of testator, 287. devise in case of death without, 290. executory limitations to take effect on failure of, 466. represent the ancestor, 92, 259, 720. meaning of word, 306. Joint account clause, 624. Joint stock companies, 348. Joint tenancy, 164 — 171. in United States and Canada, 172, 173. unities of, 164, 167, 169. alienation, 167, 168. devise, 166, 167. descent, 165, 166. partition, 169—171, 173. not subject to feudal incidents, 200. DO curtesy in, 353. no dower in, 368. of copyholds, 537. tenants, survivor pays duty, 166, n. trustees made, 166. release by, 167. Jointure, 111, 369. equitable, 370. Judgment debts, 87, 307-327, 326. lien of, now abolished, 312. satisfaction of, 311, n. what are included in, 312, n., 314., n. by consent, 315, n. in inferior courts, 316. in Middlesex and Yorkshire, 316. in counties palatine. 315, n. registry of. 310-316. as to equitable estates, 328-230. as to powers, 438. as to copyholds, 533. as to leaseholds, 574. against a mortgagee, 625. search for, 332, n., 063, 064, n. V V 2 788 INDEX. JiniGMEXT, lieu of iu United States, 334, 335. JiDiCATiRE.— See Supreme Court of Judicature Acts K. Kent, custom of, 64, 80. Kino is Lord Paramount, 7, 13, n., 44. King's Court, institution and history, 9, n., 513, 520. Knight's service, 13, 14, n., 16. abolished, 26, 59. incidents of tenure, 51 — 54. L. Land, meaning of, 32, 41, 689, 744. not the object of absolute ownership, 6. was given for services, 10. property in, differs from property in goods from physical dif- ferences, 10, 11, IS. and historical causes, 12 — 15, 18. action for recovery of, 17, 18, 51, n., 71, n., 105, 390, 519—521, 608, 612 summary proceedings for recovery of, 406. liability of, for debts.— See Debts. use of, restrictions as to, 96, 97. letting it on shares, 406. ' La:jd Commissioners for England, 171, n. registry office, 139, 583. Landlord, trustee, 583. is called a landowner though tenant for life, 3. Lapse, 286, 287. Law and equity, distinct systems, 193. now administered concurrently, 198. Lease, for a number of years. — See Term. for a year. 233, 236, 521, 695. for life, 125, 189, 387.— See Life. from year to year, 558- -560. by estoppel, 564. of settled land, 131, nn., 132—134, 448—450, 524, n. may be supported as an agreement, 134, 449, nn. statutory confirmation of previous, 449, nn., 450. for building, &c., 131, n., 132, 133. of infant's laud, 170, n., 343. INDEX. 789 Lease by tenant in tail, 117, 118. by corporation, 348. by husband of wife's lands, 355, n. by tenant in dower, 372. by copyholder, 523, n. by mortgagor and mortgagee, 610—612, 617. renewable. 679— 5S1. alienation for debt, fiOO. leases in writing to be by deed, 560, 561, 598. no formal words required in a, 561. agreements for, 501, 562, n. proof of title on, 656. stamps on, 562, n. — And see Term. when to be in writing, 598. of agricultural lands, 598. Lease and release, conveyance by, 187. with entry, 233. under the Statute of Uses, 236 — 233i an innocent conveyance, 244. form of, 695, 696. Leaseholds, 23, n., 71, 555, 557 — 560, 573, 574. And see Term. Legacies, charge of, 295, 296. limitation of suits for, 644. Legal doubts, 186. estate, 203, 205, 224, 293, 603, 627. memory, 645. instruments, formality of, 681. Lessor's title, 652, 656. Letting land on shares, 406. Liber sochemaunus, 50, 55, 513. LiBERUM teneiuentum, 16. Licexce to demise copyholds, 523 n. effect of licence for breach of covenants in a lease, 570. LiEX of judgments abolished, 312. of vendor, 610, n., 623, 629. Life, Estate for, 123 — 147. tenure of, 125, 126, 179. alienation of, 130. for debt, 365, forfeiture of, 126, 179. 790 INDEX. Life, Estate for, tenant of, restrained from waste, 127--129. entitled to emblements, 142. and apportioned rent, 143. and custody of deeds, 668, n. must concur to bar entail, 112—114, 531, 548. settled land, express power of leasing, 180, 448 — 450. statutory powers, 130 — 141. to whom given, 147. leasing, 131, n., 132—134, 449. nn. ^ sale and exchange, 134—137. conveyance, 136, 137. mortgage, 136, n. improvements, 138 — 141. can get costs of proceedings, 136, n. iu undivided share, 170, n. infant, 343. married woman, 366. if copyhold, 524, n., 540 determinable, 141, 147. joint, 164. equitable, 213, n., 216, 217. in annuities, 486. in a rent-charge, 490. in copyholds, 519, 527. renewable, 519, 527. Light, right to, 646, 687. Limitation' of estates, 123--125, 176—178, 213, 238, 239, 286—292,395, 527. words of, 125, n., 176—178, 286—292. 396, 399, 404, 527. of a vested remainder after a life estate, 396. remoteness of, 464 — 475, 734; statutes of, 618, 619, n., 640—644. Lis pendens, 331, 338, 339. search for, 332, n., 663. Littleton, 54, n. account of copyhold tenure, 517. Livery, heir suing out, 53, n. of seisin, 30, 175, 187, 245. in deed, 175, n. in law, 176. corporeal hereditaments formerly lay in, 30, 238. Locke King's Act, 610, n. London', custom of, 80. INDEX. 791 Lord, paramount and mesne, 7, n., 45, 46, 53, n., 62. alienation against, 76 — 79. demesne, 43, n., 47, 512. LcT mead, 748. Lunatic, US, n., 170, u., 223, 313, 314, n., 547. M. Maine, Sir Henry, on primogeniture, 753. Males preferred in descent, 256, 262, 263. Maneeia, 47, 48, 49, n., 511, 513. Manors, 47, 48—50, 509, 511, 513. lord's demesne, 47, 512. courts of, 50, 53, n., 515, 517, 541. seignory passes with, 479. several feoffments not required to pass, 176, n. rights of lords of, to wastes by side of commons, 482, commution of manorial rights, 516, 438. common appendant, 738. Manure, when post of realty, 36, 37. Marriage, lord's right of, 53, 56. of ward in socage, 56. articles, construction of, 214. settlements. — See Settlements. is valuable consideration, 246, revocation of will by, 284. rights arising on, 352 — 384. Married woman. — See Wife. Maternal ancestors, descent to, 262, 265. Meadows, 744, 748. Memorandum of satisfaction of mortgage on copyholds, 621. of charge on lands in Yorkshire, 629. Memory, legal, 645. Mercuetdm, 16, n., 514. Merger, 393, 426. of tithes in the land, 503. of rent-charge, 493, 503. of a long term, 586, 589. Messuage, 40. 792 INDEX. Middlesex, registratioa of conveyance, 242, n., 662, n., 681. of will, 297, 298, n. of judgment, 316. of mortgage, 628, 662, n. under Laud Transfer Act, 674. Mixes, 33. under settled land, 132-134, 452, 453, n. royal, 85, n. sale under powers reserving, 452. right of the lord of copyholds to, 523. Mixed actions, 23, 24, 71, n., 639, n., 640, n., 653. Modus decimandi, 643, n., 758. Monasteries, tithes in the hands of, 501, n. Monet to be laid out in land, 214. charged on land, limit to the recovery of, 644, n. Mortgage, 556, 601—632. American doctrines, 636—638 nature of, 601. origin of word, 602. interest on, 602, n., 623. stamps on, 606, n. construction of, in law, 603, 605. principles of equity as to, 604. present form of, 605. equity of redemption, 603—605, 618, 626. foreclosure of, 613, n. foreclosure of, in United States, 633, 634. repayment of, 617. for long term of years, 593, n., 620. equitable, 607, n., 616, n., 622, 635. of copyholds, 620. of leaseholds, 622. to trustees, 624. on joint account, 624. for payment of testator's debts and legacies, 294—296. for future debts and advances, 630, n., 635, 636. now primarily payable out of mortgaged lands, 610, nn. on lands inherited or devised, 638. transfer of, 607, n., 625. tacking, 627, n., 628, 635. registration in Middlesex or Yorkshire, 628. consolidation, 630—632, 636. proof of title on, 655. covenants for title on, 668, 671. absolute convevance may be held to be, 633. INDEX. 793 Mortgage, estate of, 004, 60S. devolution of estate of, 62, n., 271, 608. 621. must see to application for debts and legacies, 296. with notice, 243, 2y7, 298, n., 311, 628. bound by judgments, 310—315, 330. and lis pendens, 332, n. charges of, 605, n., 618, n. in possession, 608, 617. ejectment of mortgagor bj', 60S, n. foreclosure by, 613, n., 619, n. power of sale, 614 — 616. power to appoint receiver, insure and cut timber, 617, n. in possession. Statute of Limitations in favour of, CIS. rights barred by Statute of Limitations, 619, u. judgment against, 625, 635. may be compelled to transfer, 625. deeds in possession of, 659. limited covenant on conveyance as, 670. Mortgagor, estate of, 605, 609. devolution of estate of, 609. in possession, 607, n., 609—612. lease by, 610—612, 633. may sue in his own name, 612, 633. remedies of, 617—619. must give notice of intention to repay mortgage money, 617, a. limitation of bis right to redeem, 618, 635. inspection of deeds in possession of mortgagee, 659. covenants for title by, 067 — 671. Mortmain, 58, n., 82, 83, n., 199, 347. exemptions from Mortmain Act, 83, n., 84, n. MoRTDDM Vadium, 602. Mother, descent to, 263. guardianship of, 342. Moveables, 10, 11, 24. Municipal corporations, 348. N Name and arms, directions to assume, 436. Natural life, 120. 794 INDEX. Natl-ralization, 346, n. Act of 1870, 347. Norman Conquest, form of wealth after, 9. holding of land after, 12—14, 44. Notice of a trust, 202, 210. of a covenant, 216, 494. of unregistered assurance, 243, G28. will, 297—299. of an incumbrance, 311—313, 325, 627. from searching the register, 628, n. of breach of covenant, 569. by tenant for life, 132—134. to quit, 558, 559. for repayment of mortgage debt, 615, 617, n. Novel disseisin, writ of, 51, n., 756. Nuisance, 86. O. Occdpant, general and special, 145, 532. of a rent-charge, 490. Offices, not chargeable, 89, n., 504. Official searches of registers, &c., 332, 662, n., 663, nn., 665, n. Operative words, 679, 682, 695, 698, n. Order for sale by Chancery Division, 317, 614, 618. for administration in bankruptcy, 323. for foreclosure, 614, n OnTLAWEY, 126. Ownership, nature and incidents of, 2, 3. is exclusive though limited, 2. of laud, not absolute, 6. includes the right of alienation, 88. OxGANGS, 745, n. Palatine counties, jurisdiction to appoint trustees, 224, n. inrolment of deeds in, 245, u. judgments in, 315, n. INDEX. 795 Paramocnt, The Sovereign is Lord, 7, 13, n., 44, 61, n., 62. Parcels, 484, 679, 682. Parol, leases by, 557, 560. Particular estate, 3S5, 394, 424. Parties to a deed, 1S3. to a conveyance on sale, 682. Partition, 169—171, 258. of settled land, 452, 453, n. of copyholds, 538. implied effect of word, 671. Partition Act.— See 31 & 32 Vict. c. 40, amended by 39 & 40 Vict. c. 17. Pastoral holdings, 559. Pasture, common of, 480, 756. Paternal ancestors, descent to, 262, 265. Patron of a living, 497. Pensions and salaries not chargeable, 89, n. Per mie et per tout, 168. Perpetuitt, 112, 464—466, 469, 734—737. rule against, in United States, 476, 477. Persons, in law natural and artificial, 340. Personal property, 28, 31, 271, 556. — See Chattels— Term — Mortgage. actions, 23, n., 24, 124, n. things, 22, 24, n., 123, n. hereditament, 28, n. Peisonalty. C4. Petitions in Chancery, 194, 220, n., 673. Petttserjeanty, 57, 63. Pin money. 111. Piscary, common of, 490. Ploughlands. 745. Pond, description of, 41. 798 INDEX. Portions, terms of years for securing, 580. PossESSio fratris, old doctrine of, 704. PossSESSioN, advantage of, 178, 639. under conveyance, 80, 174, 175, n., 187, IBS, 255. under lease, 232, 236, 563. under grant of copyhold, 522. action to recover, 17, 18, 51, n., 71, n., 105, 390, 519—521, 608, 612, 619, 639, n., 040, 653. mortgagee's right to recover possession, 608, n. mortgagee in, 608, 617. mortgagor in, 007, n., 609—012. of title deeds, 658—600. Possibility of issue extinct, tenant in tail after, 115, 118. of an estate, 422. common and double, 420. assignable in equity, 423. Posthumous children, 418. Power, nature of, 130, 247, 444, 446. special, 448-453, 474, 584. statutory, 131, 137, 454, 460, 461, 611. 615, 017. regulated by statute in some states, 402, 463. in settlements, of leasing sale and exchange, 130, 131, n., 448 — 453, 5S4. (statutory) 131—141, 450, 452, 524, n.. 540. in mortgages, of leasing, 610 — 012, 617. of sale, 614—616, 621, 6i2. to appoint receiver, in sure and cut timber, 617, n. general, of ai)i)ointment, 247, 284, n., 357, n., 438—448, 453—455. liable to debts of appointor, 438, 439, n. execution of, compelled by creditors, 402. compliance with formalities of, 440—443. attestation of deed executing, 441. equitable relief on defective execution of, 442, 449. exercise of, by general devise, 444, 445, n., 462. by will, 284, 443, 445. in favour of a wife or husband. 444. by married woman, 444, 454. b}- infant, 444, 445, n. extinguishment of, 346, 454. suspension of, 346. succession duty on, 453. release and disclaimer of, 454. INDEX. 797 Precipe, tenant to the, 108. Premises, meaning of, 41. Prescription, 483, 644—647, 676, 740, 749, 759. Presentation, 497, n., 643. next, 500. Presentment of surrender of copyholds, 544. of will of copyholds, 546. Primogeniture, 3-2, 111, 112, 257, 273. Sir Henry Maine on, 753. Privity between lessor and assignee of term, 568. none between lessor and under-lessee, 577, n. Probate of will, 2S3. Proclamations of fine, 110, n. Production of documents, 650, 660, n. acknowledgment of right to, 660, n., 662. Professed persons, 126. Professional remuneration, 683—685. Profit a prendre, 646. Propertt, classification of, as corporeal or incorporeal, 4, n., 5. as regards rights, 4, n., 5. as moveable and immoveable, 21. different meanings of the word, 3. in lands and goods distinguished, 6. Protector of settlement, 113, 114, 531, 548. Pur autre vie, estate, 144 — 147, 153. liable to debts, 328. in a rent-charge, 491. in copyholds, 532. Purchase, meaning, 75, 255. when heir takes by, 75. deed, specimen of a, 666, 693. deed, stamps on, 681, n. money, application of, 615, 666, n. payment to solicitor, 665, n. 798 INDEX. PcRcnASER, descent traced from lust, 255, n., 256, 259, 265, 703—708. voluntary conveyances void as to, 84, 95, 96. takes an equitable estate, 202, 214. with notice of unregistered assurance, 243. Add. will, 297—299. annuity, 487. judgments binding on, 309—316, 329. lis pendens binding on, 331. without notice, protection of, 210, 216, 243, 297, 298, n., 311, 330, 533. 575, n., 642. protected by trust of long term, 589—593. must see to application for debts and legacies, 296. from crown debtor, 324, n., 325. from mortgagee, 616. relief against mistaken payment bj-, 451. what expenses to be borne by, 650. rights of, on an open contract, 649—671. Q. Quasi entail, 146. Quia Emptores, Statute of. — See statute IS Edw. I. c. 1. QniET enjoyment, covenant for, 667, 669, 671—673, 679, 688, 692, 701. QriT rent, 60, n. R. Rack-rent, 117, n., 142. Railway shares, personal property, 28, 29, n. Railways, rolling stock of, 38, 39. Real actions, 23, n., 24, 71, n., 486, 625, n., 627, n., 639, n., 653. things, 22, 24. property, 8, 27, 521. act to amend the law of. — See statute 8 & 9 Vict. c. 106. hereditaments, 25. Realty, 24, 25. what is and what personalty, 32 — 39. property annexed to or fitted for use upon, 37, 38. Receipt of trustees now discharges, 666, nn. for purchase-money, form of, 679, 694, 697. Receiver, 329. power to appoint in a mortgage, 617, n. of tithe rent-charge, 50-3. Recitals in deeds, 678. 682, 697. INDEX. 799 Recogxizaxces, 812, n. Record, debts of, 324, n. RecOiWetance, 607, n., 618. Recordixg of conveyances in United States, 251 — 253. Recovery, 105—111, 113, 115, 116, 187. customary, 581. search for G63. Rectories, advowsons of, 498 — 500. Reddendum, 696. Redemptiox, equity of, 603—605, 609, 618, 621, 626. action for, 603, n., 618, n. Re-extrt, condition of, 389—391, 566, n., 568—572, 599, 600. Register of judgments, 310, 311, n., 533, 663, n. of writs of execution, 312—316, 663. of crown debts, 325, n., 663, n. of lis pendens, 332, 663. vacation of, 314, n., 332, n. in palatine counties, 315, n. Middlesex and Y'orksbire. — See Middlesex, Yorkshire. Bedford Level, 244. of assignments for creditors, 318, 663. of annuities, 486, n. , 668, n. of rent charges, 139, 583, 663. Registration of title, 673. of conveyances in United States, 251 — 253. Regrant after forfeiture, 581. Release, proper assurance between joint tenants, 167. conveyance by,- 167, 187, 233, 237, 238, 246, 393. of powers, form of, 137, 422, 696. from rent-charge of part of hereditaments not an extinguishment, 493. Relief, 53, 56, 60, 535. Remainder, definition of, 103, 386. bar of, after an estate tail, 103, 107, 113, 114, 116. after estate for life, 179, 396. pur autre vie, 145. tail, 403. tenure of, 394, 397. definition of vested, 397. sou INDEX. Rkmaindeu, limitation of estates in, 395, 405. contingent. — See Coxtingent Rkmainder. of copyholds, 550. limit to the recovery of, ri41. Remoteness of limitation, 464 — 475, 734. rule against perpetuities, 404 — 466, 734. restriction on accumulation, 467. on gift over on failure of issue, 460. in the case of contingent remainders, 468—474, 734. in the case of special powers, 474. Remuneration, professional, 683 — 685. Renewable life estates, 519, 527. leases, 579 — 581. Rent, service, 57, 60, 3SS, 479, 492, 496, n., 566, n. rack, 117, n., 142. quit, 60, n. on grant \r fee, 57, 60. in tail, 119. for life, 125, 389. for years. 388—394, 566—572. on mining lease, 133. apportionment of, 143, 152, 493, 572. remedies for recovery of, 388—391, 566, n., 569. attached to the reversion, 392—394, 572. seek, 485, 489. of copyhold, 535, n., 540. limitations of actions and suits for, 643, n., 644. Rent charge, 486—496, 643. creation under the Statute of Uses, 487. estates in, 490, 491, 495. apportionment of, 493. cesser and escheat of, 493, 496. remedies for recovery of, 480, 488, 489, n., 493. under Settled Land Acts, 138, n. under Agricultural Holdings Acts, 583. search for, 664. tithe, 503. Representation, 92, 259, 720. Reputation, evidence of, 738. Residuary devise, 286, 305, 445. Resignation, agreement for, 497. INDEX. 801 Resulting trust to creditors, 228, 229. use, 206. Restraints upon alienation, 94. Reversion, 385—394. definition of, SSo. on a conditional estate, 102. on an estate tail, bar of, 103, n., 107, 113, 114, 116. on a lease for life, 29, 387—394. on estate pur autre vie, 145. on a lease for years, 29, 233, 386—394, 472, 476, 568, 572. on a sublease, 393, 576. oB renewable leaseholds, in settlement, 580. on mortgaged leaseholds, 622. lessor's covenants binding, 567. conveyance of, 233, 386, 387, 392. severance of, 572. liipit to recovery of, 641, 647 title to, 652, 659. Revocation, of wills, 284. Right, writ of, 105. River, soil of, 482, 505, 506. Road, soil of, 482. Roman equity, indirect influence of, 196, n., 197, n. Rules, technical, in construing a will, 124, 287 — 293. S. Sale, power of, in mortgages, 614 — 616, 621, 622. of settled lands, 130, 131, n., 134—137, 450—452. of infant's lands, 170, n., 348. of goods distrained, 389, n. of leaseholds, 567. . of underlease, 544. by tenant in tail, 117, 118. by tenant by curtesy, 355. by judgment creditor, 317. by the court instead of partition, 171. foreclosure, 614. redemption, 618. for payment of testator's debts, 294 — 29fi. rights of vendors and purchasers, 214, 649 — 671. contract for, 217, 651, n. Satisfaction of judgments, 311, n. W.K.P. W W S02 INDEX. Satisfied terms, 565^ 589 — 593. Scholastic logic, 420. Schools, sites for, 84, n. Scintilla juris, 437. SCOTAGE, 52, n. Seal, use of iu United States, 189. Sealed writings, 31, n., 180, n., 182, 680. Sea-shore, 483, 505, 506. Searches for incumbrances, &c., 139, 309, 311, n., 313—316, 318, 332, 486, n., 583, 628, n. 662—665. official, 332, 662, n., 663, nn., 665, n. Seigxort, 478. in gross, 485. Seisin, 30, 43, 175, 187, 387, 729. transfer of, required to be notorious, 416. under the Statute of Uses, 205, n., 234, 434 — 436. seisina facit stipitem, 255, 716. not in lessee, 232. 356. by marriage, 353, n. actual seisin required for curtesy, 354, 727 — 730. legal seisin required for dower, 368, 371, 728. of copyhold lands in the lord, 522, 524. Seizure quousque of copyholds, 547. Separate estate in equity, wife's, 359—362, 548, 549, 578. property under Married Woman's Property Acts, 362 — 365, 645, 553, 579, n. Sequestration of profits of benefice, 89, n. for contempt of Court, 195, n. Serjeaxtrt, grand, tenure of, 54, 63. petty, tenure of, 57, 63. Serti, 47, 514, n. Service, lord seized in, 45, n. Services, feudal, 10, 13, 14, 16, n., 48, 51—58, 55, n., 416, 512. a charge on the land, 76. indivisible, 77. heriot, 537, n. INDEX. 803 SJiRviENT tenement, 645. Settled land, leases, sale, exchange and improvement of, 130—141, 448— 452, 524, n., 540, 584. Settled Land Acts.— See stats. 45 & 46 Vict. c. 38 ; 47 & 48 Vict. c. 18; 50 & 51 Vict. c. 30; 52 & 53 Vict. c. 36; and 53 & 54 Vict. c. 99. Settlement, marriage, 74, 111, 199, 360. 435, 586, 669. by infants on marriage, 341, 444, 445, n. under the Statute of Uses, 241, 435. ^ voluntary and for value, 85, 228. fraudulent, 89, 326, n. of renewable leaseholds, 580. of copyholds, 548, nn. powers given by, 130, 131, 448—453, 474. protector of, 113. execution of, in equity, 214. conveyance of legal estate in, by tenant for life, 217, 460. equity to a, 359, n., 578. duty on succession under, 474, 475. covenant for title in, 669. Severalty, 169, 253. Severance of joint tenancy, 168. of reversion, 572. Shares and stocks, 28, 29, n. Shelley's case, rule in, 404, 398 — 405. in United States, 407—409. Sheriff, 17, 23, n. Signing of deeds, 181, 185, 441, 680. of wills, 280, 281. Simony, 500. Socage, tenure. 26, n., 42, 50, 55—57. derivation of word, 55. villanum socagium, 65, n., 66, 515. guardianship in, 56, 342, 343. incidents of, 56, 57. became the usual free tenure, 59, 60. devise of, 81, 279. SOCHEMANN'US, LiUER, 55, n., 513. w w 2 Soil of river, 482. of road, 482. 804 INDEX. Solicitor, roimiiieration, 6S4, n., 685, nn. payment of purchase-money to, 665. Sons, descent to, 256. Special powers, 448 — 453, 474. Specialty, heir bound by, 319 — 323. Specific performance, rights of purchaser, 656. Stamps ou agreements, 218, n. on declarations of trust, 218. on appointment of new trustees, 221, n. on vesting trust property, 223, nn. on purchase deeds, 681, n. on conveyances in consideration of annuities, 492, n. on presentation to ecclesiastical benefice, 497, n. ou surrender of copyholds, 543, n. on covenant to surrender copyholds, 668, n. on leases, 562, n. on agreements for leases, 562, n. on assignment of leases, 573, n. ou mortgages, transfer of mortgage, and securities for the payment of money, 606, n. on acknowledgment for production of title deeds, 660, n. Statutes, merchant and staple, 312, n. Steward of manor, 542. Stock of descent, 255, 256, 259, 265, 703—708. Stocks and Shares, 28, 29, n. Stops, none in deeds, 683. Subinfeudation, 45, 46. Succession duty, 166, n., 272, 299, n., 300, n., 453, 474. Sufferance, tenant by, 558, 596. Suit of Court, 53, 56, 60, 535. Summons, proceedings by, 220, n., 323, n., 613, n., 618, n. Supreme Court of Judicature Acts.— See Stats. 36 & 37 Vict. c. 66; 38 & 39 Vict. c. 77; 44 & 45 Vict. c. 68, and 47 & 4S Vict. c. 61. 197. INDEX. 805 Sderender of life interest, 187, 247, 427. of copyholds, 519, 531, 543—550, COS, n., 761. oa mortgage, 6'20. of married woiiiau, 544, 549. nature of surrenderee's right, 544 — 546. of a term of years, 393, 586, 587, 600. in law, 579. Survivors of joint tenants entitled to the whole, 166, n. of copyhold joint tenants do not require fresh admittance, 537. T. Table of descent, explanation of, 266. Tackixg, 627, n., 628, 635. Tail, Estate, 100—120. in America and Canada, 121, 122. derivation of word, 104. creation of, 102, 177, 213, 239, 2S6— 292, 527. general and special, 100, 115. male and female, 100. tenure of, 119, 120. — See Free Texure. was a conditional gift, 86, 102, 103. alienation of and barring the entail, 102 — 118, 531, 548. where concurrence of tenant for life necessary, 114, 11.5, 531. 548. where it cannot be barred, 115 — 117. for debt, 326. descent of, 100, 120, 255—260, 710. tenant of, 101, 109. povvers of leasing, sale and exchange, 117, 118. lunatic, 118, n. feoffment by, 179. after possibility of issue extinct, 115, 118. ex provi&ione viri, 116. granted for public services, 115, 118. quasi entail, 146. joint tenants in, 164. tenants in common in, 165. 1 AIL, equitable estate, 213, 214, 216. "in tail," "in tail male," "in tail female," 239. inrolment of disentailing deeds, 113, 548. no lapse of an estate, 287. constructive estate in a will, 288 — 292. in copyholds, 528—532, 534. equitable coi)yholds, 4.')2, n., 453, 545, n., 549. 806 INDEX. Taltaui\m*s case, 105. Tenant for a term of 3'ears. for life, 1 in fee tail, I copyhold, y &c. — See Term. in villcnage, | by curtesy, J at rack rent, 142. fur autre vie, 144, 147. in capite, 44, 46, n., 53, n. joint, 164—171, 537. in common, 169 — 171, 537. in severalty, 169. by elegit, 310. in dower, leases by, 372. at will, 522—557, 595, 596. by sufferance, 558, 596. from year to year, 558—560, 596, 597. of agricultural holding, 581, n. Tenements, 15, 21. 40. Ten'ure defined, 12. introduction of principle of, feudal, 12 — 15. classification of, 51. in particular places, 63 — 66. of an estate in fee, tail. — See Fee, Tail. fee, 16, 43—67. in villenage, 16, n., 17, n., 19, 47, 509—518. in burgage, 50, 57, 65, 80. socage. — See Socage. by knight's service. — See Knight's Service. b}' serjeanty, 54, 57, 62. of frankalmoign, 53, 59, 66. of ancient demesne, 65, n., 66. none of purely incorporeal hereditaments, 495. copyhold. — See Copyhold, customary freehold, 524. in United States, 63, 69. Term of Years, Estate for a, 555 — 594. nature and kinds, 5.')7. creation of, 561 — 564. where to be in writing, 184, 560. by deed, 185, 560. perfected by entry, 223, 226, 563. under powers in a settlement, 449, nn., 450. by estoppel, 564. is personalty and devolves among chattels, 19, 20, 2S, n., 573, is less than freehold, 70, 586. INDEX. 807 Term of Years, Estate for a. tenure of, 10, 232, 387—394, 556. forfeiture of, on feoffment, 179, n. on non-payment of rent, 390, 569. on breach of other covenants, 569, n., 570 (Add), alienation of, 241, 565—567, 573, n., 576. for debt, 574. by will, 573. mortgage of, 622. rent, 388—394, 566—572. covenants, 566—572, 672. proviso for re-entry, 389—391, 568—572. tenant of, position in early law, 17, 70, 232. can recover possession, 18. has not seisin, 232, 386. attornment by, 392. determinable on life, 147. renewable, 579 — 581. agricultural, 581 — 583. title on sale of, 652, 656. husband's rights to his wife's, 468, 588, 594, n. wife's separate estate in, 578, 579, n. equity to a settlement, 578. long terms for securing money, 584 — 594. attendant on the inheritance, 589, 593. by way of mortgage, 593, n., 620. enlargement of long term into fee simple, 593. Teetatdm, 679, 681. Thkllusson, Mr., will of, 467. Things real and personal, 22, 24, n. corporeal and incorporeal, 10. Tillage, 746, 755. Timber, 119, 127—129. on copyhold lands, 523, n. on mortgaged lands, 617. Time, unity of, in joint tenancy, 164, 167. within which an executory interest must arise, 464 — 467, 734. accumulation is allowed, 467. contingent remainder is allowed, 468 — 473, 734. limited by statutes of limitations, 618, 619, n., 640—644. Tithes, 501—503, 643, n., 652, 746, 748. Title, 630—675. founded en possession, 639, n. under Statutes of Limitation, 640 — 644. 808 INDEX. Title, by prescription, 644 — 647, 676. under ancient feoffment, 647 — 649. on modern sale, proof of, 649 — 651. length of, 651 — 654. root of, 652. incumbrances on, 654. on mortgage, 655. on contract to grant or assign a term, 656. searches, 662—665, 676. covenants for, 667—673, 676, 679, 687^689, 691—693, 700—702, act for obtaining a declaration of, 073. act to facilitate proof of, 673. Land Titles and Transfer Act.— See stat. 38 & 39 Vict. c. 87. Title deeds, destruction, &c., of, 183, n. mortgage b>' deposit of, 622, 635. importance of possession of, 657. who entitled to custody of, 658-660, 676. right to production and copies of, 660, n. statutory acknowledgment, 660, n., 662. undertaking, 661. pass with the land, 683, n. old clause of grant of, 699. Titles of honour are real property, 504. Traders, debts of deceased, 321. Transfer of land required to be notorious, 235. — See Conveyance. of mortgages, 607, n., 625. of property. Act to simplify. — See stat. 7 & 8 Yict. c. 76, Treason, forfeiture for, 54, 60, 104, 120, 219. abolition of forfeiture, 60. Trees, when realty and when personalty, 34. sale of, 34, 35. severed in law, 36. sale of product of, 36. Tribal Communitt, 510. Trustees, equitable jurisprudence over, 209, 210. vendors are, 215. under Settled Land Acts, 132, 134—136, 141, 313, to preserve contingent remainders, 428. of settlement, 450 — 452. married women, 366, 545. in bankruptcy, 318, 323, 494, 495. n., 534, 575. landlords, 583. made joint tenants, 166. descent of estate of trustees, 167, 219, n., 230, 231, 271, n., 549. INDl.X. 809 Trustees, failure of lioirs of, 62, n., 219. bankruptcy of, 330. vesting of trust estate in new trustees, 222—224. appointment of new, 220, n., 221, n., 231. retirement of, 222. where they may sell or mortgage to pay testator's debts or lega- cies, 295, n. estates of, under wills, 293. of copyholds, tenants to the lord, 548. mortgages to, G24. payments to, 065, n., 56t), nn., 676. covenants by, on a sale, 668. 670. Trcsts, 207—225. old forms of, 109. modern, 207—209, 211. special, 208, 210. implied and resulting, 212, 213. resulting to creditors, 228—229. constructive, 213, 218. creation and transfer of, 213, n., 217. notice of a trust, 202, 210. declarations of, stamp on, 218, u. in a will, 292. for alien., 317, n. of copyholds, 548. in respect of long terms, 584—593, 620. of reversion of mortgaged leaseholds, 622. for separate use. — See Separate Estate, Wife's. limitation in cases of express, 642, 644. See also Equitable Estate. Turbary, common of, 480. V. Unborx persons, gifts to, 464, 469 — 472, 734. Underlease, 390, n., 393, 565, 576—578. mortgage by, 622. sale and contract to grant, 656. Uxdertaki.vc for safe custody, 661. Unities of a joint tenancy, 164, 169, 537. User, immemorial, 645. abandonment bv non-, 647. S 1 INDEX. Uses, origiu of, 190—202, n. enforced in Chancery, 201, 203, 434. raised by bargain and sale, 202. alienation of, 203. effect of the Statute of Uses, 205—208. resulting, 20(3. special, 208. "to the use of," 206, 240. no use upon a use, 207. conveyance to, 240 — 242. doctrine of, applicable to w..is, 203, 279, 292. springing and shifting, 434 — 438, 552. examples of, 435, 436, 338. power to appoint a use, 338. to bar dower, 347, 699, n. in a rentcharge, 4S7. Uses, Statute of, 204.— And see 27 Hen. VIII. c. 10. does not apply to copyholds, 547. in United States, 228, 248, 249. Usury laws, repeal of the, 602, n. Vexdor, lien of, for unpaid purchase-money, 610, n, 623, 629, 635. covenants for title by a, 667 — 671. and Purchaser Act, 1874.— See Stat. 57 & 38 Vict. c. 78. rights of vendors and purchasers on sales, 214, 649 — 671 Vested remainder, 397 — 405. See, also. Remainder. Vesting Orders, 223, n., 224, 495, 576, 655. declaration vesting land in future trustees, 222, 223, n., 461. Vicarages, advowsons of, 499. ViLL^, 47, 510. Village Communities, 510. VlLLANUM SOCAGIUM, 6.5, n., 515. ViLLENAGE, tenants in, or villani, 47, 48, 510--516, 529, n. regardant and in gross, 518, n. tenure in, 16, n., 47, 43, 509- -51 8. at will only, unless supported by covenant, 17, a. devolution by custom, 19. subsequent growth of, 515, absolute {purum), 514. privileged, 728. INDEX. 811 ViLLEXAGIUM, 16, 509, D. ViRGATA, 512, n., 745, n. VoLCNTART convejaiice, 84, 95, 96, 228. agreements, 181 Vouching to warranty 106, 108. W. Waiver of breach of covenant in a lease, 571, 572. Wales, common appendant in, 754. Wardship, 53, n., 56, 59, n., 342, nn., 343. Warranty, 106, 648. formerly implied by word give, 648, 672, n. now eflfcctual, 649. Waste, by tenant in tail, 119. by tenant for life, 127—129, 216. by lessee, 558, 565, n. by mortgagor in possession, 609. by copyholder, 524. equitable, 129. land of manor, 48, 481, 738. strips by the roadside, 390, 482. in United States, 148, 149. Water, remedies for in United States, 150. description of, 41. limitation of right to, 646. rights passing on a conveyance, 686, 689. Way, rights of, 483, 507, 646, 686, 689. Widowhood, estate during, 141, 147. Wife, capacity of, 344, 355, 365. lands of, husband's rights at common law, 352—357, 553, 578, 588, 594, n., 723. equitable estate, 359, 578. equity to a settlement, 359, n., 578. separate estate in equity, 359—362, 548, 549, 578. separate property under Married Woman's Property Acts, 362 — 365, 545, 553, 579. separate property of, in United States, 373—375. rights in her husband's lands, 260, 366—372, 553. conveyance of her freehold, 355—357, 361, 364. restrained from aliL-nation, 89, 360—363, 365. liability for debts, 354, 361. 812 INDEX. WifE, contractor, 345, 363. will of, 355, 3fi2, 3()5. descent of property of, 355, 364. being trustee, 300, 545. powers of, under Settled Land Act, 18S2, 364. of intestate has a charge, 260. appointment in favour of, 444. powers given to, 444. release of, 454, n. surrender of copyholds to use of, 544. copyholds of, 544, 547, 549, 553. term of 3'ears belonging to, 578, 588, 594, n. Will, witnesses and signature, 280 — 284, 443, 546. how executed in United States, 301, 302. revocation, 284, 303, 304. revival of by destruction of subsequent one, 304. jurisdiction over probate, 283. registration in Middlesex and Yorkshire, 297, 298, n. of chattels, 19—21, 283. of real estate, 26, n., 74, 77, n., 80, n., 81, 124, 125, 279, 280, n., 283, 285—300. of socage and knight's tenure, 81, 279. of estate 2nir autrie vie, 145, 491, 532. of the use of land, 203, 279, 455. of joint tenant, 166, 167. of married woman, 355, 362, 365, n. of contingent remainder, 423. of copyholds, 546. of leaseholds, 573. whether escheat prevented by, 61, n. cannot bar estate tail, 116. construction of, 124, 287—293. now speaks from testator's death, 285, 304, 305. and passes all his interest, 125, 289. exercise of powers by, 284, n., 443, 445. uses and trusts in a, 292. charge of debts and legacies, 294 — 296, 320, 322. direction for payment of mortgage debt, 610, nn. devise in fee or tajl made liable to debts, 87, 319. devises and bequests to charities, restrictions as to, 95. lapsed devise, 286, 287, 305. residuary devise, 286, 305, 573. devise to issue of testator, 287. devise to heir, 294. devise or legacy to subscribing witness, £02, 303. devise to executors for sale, 455—457, 552. executory devise by, 455—459, 551. Will tenant at, 522, 557, 595. Wills Act.— See Stat. 7 Will. IV & 1 Vic. c. 26. INDEX. 813 Witnesses to a deed, 441, 680. to a will, 280—283, 443, 54G. to the exercise of powers, 441, 443. Words of limitation, 125, n., 176—178, 286, 289—292, 396, 399, 404, 527. Writ of elegit, 308, n., 313, 316, 574. registration of, 312 — 316, 663. of waste abolished, 128. for recovery of dower, 372. of partition, 169, 258. of novel disseisin, 51, n., 756. Writing, necessary on transfer of incorporeal property, 30. formerly unnecessary to a feoffment, 179. now required, 184, 245. nothing but deeds formerly called writings, ISO. contracts and agreements in, 181, 184. contracts for the sale of hereditaments required to be in, 217. leases and estates in hereditaments, 184, 185. trusts of hereditaments required to be in, 217. bargain and sale for a year required to be in, 237. Wrong, estate by, 178, n., 179, 639, n. Y. Yard land, 512, n., 745, n., 752, n. Year to year, tenant from, 558 — 560, 596, 597. Yorkshire, registration of conveyance, 242, n., 243, 662, n., 681. (Add.) of bargain and sale, 245, n. of will, 297, 298, n. of judgment, 316. of mortgage, 628, 662, n. under Land Transfer Act, 674. THE END. LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES _ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 856 718 2 S