yi''-:ii: ??■?:> THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW PKINCIPLES LAW or REAL PROPERTY, INTENDED AS J^ FIRST BOOK THE USE OF STUDENTS IN CONVEYANCING. BY JOSHUA WILLIAMS, ESQ., OF LINCOLN'S INN, ONE OF HER MAJESTT'S COUNSEL. (^igljilj ^bition. LONDON: H. SWEET, 3, CHANCERY LANE, FLEET STREET, Hato ISooftseller anli ^utlis^er; HODGES, SMITH AND CO., GRAFTON STREET, DUBLIN. 1868. T LONDON : FEINTED BY C. ROWORTH AND SONS, NEWTON STREET, W.C. ADVERTISEMENT TO THE EIGHTH EDITION. In this Edition the alterations which have taken place in the law since the publication of the last Edition have been incorporated in the text. 3, Stone Buildings, Lincoln's Inn, Avgust, 1868. PREFACE TO THE FIRST EDITION. The Author had rather that the following pages should speak for themselves, than that he should speak for them. They are intended to supply, what he has long felt to be a desideratum, a First Book for the use of students in conveyancing, as easy and readable as the nature of the subject will allow. In attempting this object he has not always followed the old beaten track, but has pursued the more difficult, yet more interesting, course of original investigation. He has endea- voured to lead the student rather to work out his knowledge for himself, than to be content to gather fragments at the hand of authority. If the student wishes to become an adept in the practice of conveyancing, he must first be a master of the science; and if he would master the science, he should first trace out to their sources those great and leading principles, which, when well known, give easy access to innumerable minute details. vi PREFACE , The object of the present work is not, therefore, to cram the student with learning, but rather to quicken his appetite for a kind of knowledge which seldom appears very palatable at first. It does not profess to present him with so ample and varied an entertainment as is afforded by Blackstone in his "Commentaries;" neither, on the other hand, is it as sparing and frugal as the " Principles" of Mr. Watkins; nor, it is hoped, so indigestible as the well-packed " Compendium" of Mr. Burton. This work was commenced many years ago; and it may be right to state that the substance of the intro- ductory chapter has already appeared before the public in the shape of an article, " On the Divi- sion of Property into Real and Personal," in the " Jurist" newspaper for 7th September, 1839. The recent Act to simplify the transfer of property has occasioned many parts of the work to be re- written. But as this Act has so great a tendency to bewilder the student, the Author has since lost no time in committing his manuscript to the press, in hopes that he may be the means of bringing the minds of such beginners as may peruse his pages to that tone of quiet perseverance which alone can enable them to grapple with the increasing difficulties of PREFACE. Vll Real Property Law. From the elder members of his profession he requests, and has no doubt of ob- taining, a candid judgment of his performance of a most difficult task. To give to each principle its adequate importance, — from the crowds of illus- trations to present the best, — to write a book read- able, yet useful for reference, — to avoid plagiarism, and yet abide by authority, — is indeed no easy matter. That in all this he has succeeded he can scarcely hope. How far he has advanced towards it must be left for the profession to decide. 3, New Square, Lincoln's Inn, 29th November, 1844. TABLE OF CONTENTS PAGE INTRODUCTORY CHAPTER. Of the Classes of Property 1 PART I. OF CORPOREAL HEREDITAMENTS 13 CHAP. I. Of an Estate for Life 16 CHAP. II. Of an Estate Tail 33 CHAP. III. Of an Estate in Fee Simple 58 CHAP. IV. Of the Descent of an Estate in Fee Simple 94 CHAP. V. Of the Tenure of an Estate in Fee Simple 112 CHAP. VI. Of Joint Tenants and Tenants in Common 128 CHAP. VII. Of a Feoffment , 136 X CONTENTS. PAGE CHAP. yiii. Of Uses and Trusts 1 50 CHAP. IX. Of a Modern Conveyance 172 CHAP. X. Of a Will of Lands 195 CHAP. XI. Of the mutual Rights of Husband and Wife 214 PART II. OF INCORPOREAL HEREDITAMENTS 229 CHAP. I. Of a Reversion and a Vested Remainder 231 CHAP. II. Of a Contingent Remainder 252 CHAP. III. Of an Executory Interest 278 Section 1 . Of the Means by which Executory Interests may BE created 278 Section 2. Of the Time within which Executory Interests must arise 305 CHAP. IV. Of Hereditaments purely Incorporeal 309 CONTENTS. XI PAGE PART III. OF COPYHOLDS 336 CHAP. I. Of Estates in Copyholds 340 CHAP. II. Of the Alienation of Copyholds 359 PART IV. OF PERSONAL INTERESTS IN REAL ESTATE 373 CHAP. I. Of a Term of Years 375 CHAR TI. Of a Mortgage Debt ^^7 PART V. OF TITLE 426 Appendix (A.) ^^^7 Appendix (B.) ■*53 Appendix (C.) ^^^ Appendix (D.) 489 Appendix (E.) 495 Appendix (F.) -^06 Appendix (G.) ^^^ Index ^^^ INDEX TO CASES CITED. Abernethy, Boddington v. Acocks D. Phillips . . Ackroyd v. Smith Adams, Doe d. Barney r. . Rowley v. V. Savage . . Smith V. PAGE . 371 235 , 315 410 . 383 303 . 372 395 24 300 . 439 395 57,64 261 . 330 Ainslie v. Harcourt Albans, Duke of St., i;. Skipwith Albany's case Aldborough, Lord, v. Trye . . Allan V. Backhouse Allen V. Allen .. Festing v. ,. Alston t). Atlay Ambrose, Hodgson and Wife v. 203 Amcotts, Ingilby r. .. .. 267 Amey, Doe v. . . . . 81 Amherst, Earl of, Duke of Leeds v. ■. • . .. 25 Andrew t). Motley .. .. 200 Andrews f. Hulse . . .. 339 Annesley, Tooker r. .. ..25 Anon. .. •• .. 85 Anson, Lord, Winter D. .. 418 Anstey, Saward t). . . .. 320 Archer's case .. .. .. 254 Armitage, Earl of Cardigan v. 14 Armstrong, Tullett t;. .. 90,216 Arnold, Cattley v 29 Arthur, Vyvyan », .. .. 383 Ashton V. Jones .. . . 71 Aston, Yates v 422 Atherstone, Nickells ?;. .. 395 Atkinson v. Baker . . . . 20 Atlay, Alston r. .. .. 330 Att.-Gen. v. Lord Braybrooke . • 276 »i. Chambers .. 314 ti. Floyer .. ..299 D. Hallett .. 277 — Casberd v. . . . . 85 V. Glyn .. .. 71 V. Hamilton .. 134 V. Lord Middleton 276 -• V. Parsons ,114, 337 PAGE Att-Gen. w. Sibthorpe .. 276 V. Sitwell . . 330 v. Smythe .. ..276 Audley, Jee v. .. .. 53 Austin, Webb v 381 Aveline t). Whisson .. 148 Awdry, Cloves t). .. .. 291 B. Backhouse, Allan t>. .. .. 395 Bonomi r. .. 14 Few i>. .. ..317 Baggett t;. Meux .. .. 216 Bagot v. Bagot.. .. .. 23 Bailey t) Ekins .. .. 76 ■ Keppel V. .. .. 383 Bainbridge, Hall v. .. 144 Baird v. Fortune .. .. 315 Baker, Atkinson v. .. 20 1). Gostling .. ..393 Thornborough v. . . 372 Banks, Right d. Taylor v. . . 353 Barber, Mackintosh V. .. 303 Barkers. Barker .. ..218 Re 299 Payne t). .. .. 451 Barlow t). Rhodes .. .. 315 Wright I' 286 Barnes v. Mawson . . . . 487 Barnett, Muggleton v. . . 96, 447 Barrett D. Rolph .. .. 393 Barrington v. Liddell . . . . 308 Barrow «. Wadkin . . .. 160 Bartholomew, Drybutter v. . . 8 Bartle, Doe d. Nethercote v. 349 Bartlett, Rose v 389 Bassett, Upton v. .. .. 74 Bates V. Johnson . . . . 425 Baxter, Mainwaring v. . . 50 Beale «. Symonds .. .. 160 Bearpark w. Hutchinson .. 321 Beaufort, Duke of, v. Mayor, &c., of Swansea. . .. 314 Beaufort, Duke of, v. Phillips. . 81 INDEX TO CASES CITED. PAGE Beaumont v. Marquis of Salis- bury 392 Beavaii v. Earl of Oxford . . 82 Bell, Consett v. .. ..25 Bellamy u. Sabine . . .. 87 Bennet w. Box . . .. .. 163 V. Bishop of Lincoln 332 Bennett v. Reeve .. ..468,471 Benson i;. Chester .. .. 477 Bentley, Poole ?;. .. .. 379 Berridge V. Ward .. .. 313 Beverley, case of the Provost of 248 Bewitt, 'Whitfield ^J 23 Bewley, Noel v. .. ..272 Bi^gs, Mestayer y. .. 317 Bingham i;. Woodgate .. 344 Bickett I'. Morris .. .. 314 Bird D. Higginson .. .. 378 Birkbeck, Cort w. .. .. 488 Blackall, Long «; 306 Blackburn, Harrison t). .. 176 D. Stables.. .. 261 Blackmore, Mathew «;. .. 422 Blagrave, Powys v. . . . . 24 Blake, Perrin i; 205,245 Shrapnell r. .. .. 415 Bligh V. Brent . . . . 8 Bliss, Dean of Ely i; 437 Blissett, Chapman t). .. 275 Blood, Creagii v 395 Blunt, Griffith i 306 Blythe, Westbrook v 390 Boddington v. Abernethy . . 371 Boen, Yates u. . . .. ..64 Bolton, Lord, iJ. Tomlin .. 378 Bond D. Rosling .. .. 378 Bonham, Farley «.. . .. 226 Bonifaut y. Greenfield .. 302 Bonomi «;. Backhouse ..' 14 Boothby, Tunstall v 90 Boraston's case .. .. 255 Borman, Scarborough v. 90, 216 Bosanquet, Williams »;. .. 382 Bousfield, Doe d. Robinson v.. . 341 Bovey's, Sir Ralph, case .. 400 Bower t). Cooper .. .. 159 Bowker y. Burdekin .. 144 Bowie's case .. .. ..25 Bowler, Matthew t). .. 419 Bowser v. Colby .. ..236 V, Maclean .. 341 Box, Bennet D. . . .. .. 163 Brace v. Duchess of Marlbo- rough 80, 425 Brandreth, Lucas I'. .. .. 19 Brandon v. Robinson 89, 90, 216 Braybrooke, Lord, Att.-Gen. v. 276 Brent, Bligh v 8 PAGE Bridge v. Yates .. ..131 Bridgewater, Welden v. , . 477 Bridgman, Sir Orlando . . 477 Briggs t). Sowry .. .. 391 Bristow V. Warde . . , . 266 Brocklehurst, Wardle D. .. 315 Brogden, Humphries w. .. 14 Brookes, Millership t). ,. 144 Broughton v. James .. .. 308 Brown, Caldecott t). .. 31 Cattlin i; 264 Scratton V. .. .. 314 Willis j; 187 Browne D. Browne. . .. 261 Brownlow, Pate v. .. . . 477 Brudenell v. Elwes .. 50, 264 Brummell v. Macpherson . . 384 Brydges j;. Brydges ., 169 Buckeridge t'. Ingram.. .. 8 Buckland «;. Pocknell .. 419 Buckley, Earl of Stafford v. , . 41 V. Howell .. 298 Burdekin, Bowker V. .. .. 144 Burdett v. Doe d. Spilsbury 287 Burges, Hare v. . . . . 394 II, Lamb .. .. 25 Burgess v. Wheate .. 18, 160 Burlington, Earl of, Doe d. Grubb V 342 Burreili). Dodd .. ..342,343 Burroughes, Wrighty... .. 237 Burt, Edwards y. .. •• 440 Busher, app., Thompson, resp. 344 Bustard's case .. .. 428 Buttery t>. Robinson ,t .. 320 Butts, Trower « 261 Byron, Doe d. Wyatt v. . . 236 Cadell v. Palmer . . . . 50, 306 Caldecott y. Brown .. ..31 Calmady y. Rowe .. .. 314 Calvin's case .. .. ..63 Cann, Ware v, .. . . 18 Canning «. Canning .. .„ 98 Cardigan, Earl of, v. Armitage 14 Carleton v. Leighton . • . . 267 Carr v. Lambert . . . . 477 Carter, Parker t' 219 Casberd r. Attorney-General 85 Cattley v. Arnold . . . . 29 Cattlin V. Brown .. . . 264 Cattling, Wills v 393 Challis V. Doe d. Evers .. 264 Chamberlain, < ox ^'. .. 291 Chambers, Attorney-General v. 314 INDEX TO CASES CITED. XV PAGE Champion, Edwards v. . . 57 Chandless, Hall r 145 Chapman I'. Blissett .. 275 V. Gatcombe .. 33-4 'i\ Tanner .. 418 Charlesworth, JManners v. . . 134 Cheetham, Lloyd w. .. .. 90 Cherry t'. Heming.. .. 148 Cheslyn, Pearce t'. .. •• 379 Chester, Benson v.. • .. 477 Bishop of, Fox v. . . 332 r. Willan.. .. 132 Cheyne, Eccles v. . . . . 203 Chichester, Rawe v. . . 395 Cholmeley t). Paxton .. .. 25 Cockerel) v. . . 297 Chudleicrh's case .. 154,254 Clark, Doe d. Spencer t). .. 349 Clarke, Doe t; 261 y. Franklin.. ..227.294 Clay t;. Sharpe 414 C\egg V. Fishvvick .. .. 395 Clements 2). Sandaman .. 92 Clere's, Sir Edward, case 291 Clifton, Doe d. Hurst v. ..411 Cloves D. Awdry .. .. 291 Cockerell y. Cholmeley ..297 Colby, Bowser v. .. .. 236 Cole, Doe d. Ware v. .. 174, 233 t). Sewell .. ..263,264 V. West London and Crys- tal Palace Railway Company Coles, Hunt V. . , Colles t). Evanson .. Collins, Doe d. Clements v. . . Eddleston v. Colt, Pratt V. .. Colvile V. Parker .. Complin, Goddard v. > Consett V. Bell Cooch V. Goodman Cooke, dein.. Hibbert v. Cooper, Bower v. . • Davies v. V. Emery . . ■ V. France V. Stephenson 13 165 391 .. 13 371 .. 163 74 .. 424 25 .. 148 14 .. 31 159 .. 439 .431,410 .. 453 442 .. 392 Copper Miners' Company, Wood 1 170 Coppinger D. Gubbins .. 24 Corbet's, Sir Miles, case .. 480 Corder w. Morgan .. .. 414 Cornwallis, case of Lord . . 354 Corrie, Preece z;. .. .. 392 Conv. Birkbeck .. ..488 Cottee V. Richardson . . 392 PAGE Court, Earl of Sefton v. . . 472 Courtenay, Doe d. Earl of Egre- mont V. .. . . . . 394 Cousins u. Phillips.. .. 239 Coventry, Earl of. Hay v. 50, 264 Cowell, Vickersy 420 Cowley, Earl, f. Wellesley .. 23 Cox D. Chamberlain .. 291 Doe rf. Bastowr. . . .. 376 Crachroode and Foiston's case 487 Creagh v. Blood . . . . 395 Crump d. Woolley v. Norwood 124 Curling «. Mills .. ..378 Curtis D. Lukin .. .. 308 V. Price 250 Cuthbertsoni). Irving .. 410 D. Dallaway, Hyde «. .. .. 436 Dallingham, Lady of Manor of, Regina v. . . . . . • 369 Dalton, Re 64 Damerell v. Prothero .. 355, 486 Danvers, Doe d. Cook v. 342, 343 Darby, Right d. Flower v. 376, 377 Darke, Tutton v. .. .. 235 Davall t'. New River Company Davies v. Cooper Doe d. Dixie v. Jones V. V. Wescomb Davison v. Gent Dawes ';. Hawkins.. Day, Duberley t). Doe d. Parsley v. Jeffs, V. .. V. Merry Death, Smith v. De Beauvoirj;. Owen De Burgh, Lock v. De Moleyn's case . . Dee, Parker v. . . Dendy, Simpson y.. . Dennett v. Pass Dennison, Lucas z). . . Dent V. Dent 31 Dering, Moneypenny v. 264, 265 Dickin u. Hamer .. .. 223 Dimes v. Grand Junction Canal Company .. .. .. 366 Dixon, Doe d. Crosthwaite i>. 98 y. Gayfere.. .. .. 419 Dodd. Burrell v 342,343 Dodds t). Thompson .. .. 320 Doe V. Amey . . . . 81 d. Barney y. Adams .. 410 d. Nethcrcote v. Bartle 364 160 439 376 400 25 395 313 394 409 170 25 300 437 29 80 76 313 323 436 XVI INDEX TO CASES CITED. PAGE 341 . 287 Doe d. Robinson v. Bousfield d. Spilsbury, Burdett v. . d. Grubb v. Earl of Bur lington d. \A'yatt v. Byron . . d. Evers, Challis v. d. Spencer v, Clark . . V. Clarke . . rf. Hurst !;. Clifton .. rf. Were V. Cole.. 174,233 d. Clements v. Collins . . 13 d. Earl of Egremont v. Courtenay .. .. 394 d. Bastow V. Cox . . 376 d. Cook V. Danvers 342, 343 d. Dixie i;. Davies . . d. Parsley v. Day d. Crosthwaite v. Dixon d. Curzon v. Edmonds d. Bloomfield v. Eyre d. Davies v. Gatacre d. Fisber v. Giles d. Muston V. Gladwin d. Walker v. Groves .. d. Riddell v. Gwinnell d. Harris v. Howell . . d. Reay v. Huntingdon 342 236 264 349 261 411 376 409 d. Baker v. Jones d. Duroure v. Jones d. Wigan v. Jones . • d. Barrett v. Kemp d. Garnons v. Knigbt d. Winder v. Lawes . 436 290 270 410 386 379 372 282 342, 343 386 .. 63 292 .. 313 144 . 362, 369 d. De Rutzen v. Lewis . . 386 d. Roylance i;. Lightfoot 409 d. Johnson v. Liversedge 435 d. Lusbington v. Bisbop of Llandaff' .. .,334 d. Roby V. Maisey . . 410 d. Brune v. Martyn .. 140 d. Biddulpb V. Meakin 14 d. Twining v. Muscott . . 366 Nepean v. . . , . 435 d. Christmas v. Oliver . . 267 d. Freestone v. Parratt 217 d. Lloyd V. Passingham.. 156 d. Mansfield v. Peach 286 d. Pring v. Pearsey . . 313 rf. Flower V. Peck .. 386 d. Blight?;. Pett .. ..400 d. Church v. Pontifex 317 d. Biddulpb v. Poole . . 394 d. Starling v. Prince. . 194 d. Griffith V. Pritcbard .. 65 d. Hayne and bis Majesty V. Redfern .. ..122 d. Molesworth t». Sleeman 487 PAGE Doe d. Pearson v. Ries . . 379 d. Dixon v. Roe . . 235 d. Lumley v. Earl of Scar- borough . . . . 267 d. Foster v. Scott . . 346 d. Strode t). Seaton .. 381 d. Blesard v. Simpson 349 d. Clarke v. Smaridge . . 377 d. Gutteridge v. Sowerby 363 d. Shaw V. Steward . . 394 d. Rayer v. Strickland 360 d. Reed v. Taylor ..139 d. Lord Downe v. Thomp- son .. .. ..410 d. Tofield V. Tofield . . 362 d. Bover ^'. Trueman . . 365 d. Lord Bradford v. Wat- kins .. .. .. 377 d. Leach v. Whittaker 363 d. Gregory v. Whichelo.. 99 457, 466 d. Perry v. Wilson . . 353 d. Daniell v. WoodrofTe .,194 Donne v. Hart .. ., 394 Dowman's case. . .. .. 25 Downing College, Flack v. 371 Downshire, Marquis of, t>. Lady Sandys . . . . . . 25 Drake, Souter t; 432 Drybutter v. Bartholomew . . 8 Duberley t). Day .. .. 394 Du Hourmelin «. Sheldon .. 160 Duke, Sheppard y... .. 437 Dumpor's case . . . . 263, 384 Dungannon, Lord, Ker v. . . 308 Dunne V. Dunne .. .. 31 Dunraven, Lord, v. Lewellyn 114, 313, 467, 478, 480, 482, 486, 488 Dunstan v. Tresider . . 488 Dyke v. Rendall . . . . 226 E. Eccles 11. Cheyne Eddleston v. Collins Edmonds, Doe d. Curzon HilU. .. Edwards v. Burt V. Champion Ex parte Nanny v. Palmer v. II. Tuck. . Egerton v. Massey . . Ekins, Bailey v. Elwell, Wainewright v. Elwes, Brudenell t;. .. 203 371 .. 436 394 .. 440 57 ,. 119 413 ,. 392 308 .. 272 76 .. 364 50, 264 INDEX TO CASES CITED. XVH PAGE Elworthy, Tanner v 395 Ely, Dean of, v. Bliss . . 437 Emery, Cooper u. .. 431,410 Ennismore, Lord, Phipps v. 89 Evans, Greenwood «. .. 395 Siggersv... •• •• iJ09 Evanson, CoUes u. .. .. 391 Exton V. Scott 144 Eylet V. Lane ard Pers . . 348 Eyre, Doe d. Blomfield v. .. 290 U.Hanson .. .. 413 Faithful, Warman t) 379 Farebrother, Wodeliouse i'. 170 Farley v. Bonham . • • . 226 Faulkner, Johnson v. . . 320 V. Lowe •• ..181 Fenwick, In the Goods of. . 200 Fernandes, Hemingway «. .. 382 Ferrers, case of Earl • . 8 Festing ti. Allen .. •• 201 Few D. Backhouse . . .. 317 Fishwick, Clegg V. .. •• 395 Fitch D. Weber .. .. 63 Flack t;. Downing College .. 371 Flarty j;. Odium .. .. 90 Fletcher v. Fletcher .. .. 144 Flight V.Gray .. •• 170 Floy er. Attorney- General «. .. 299 Flyn, Nash v 144 Foiston and Crachwoode's case 487 Follett i'. Moore . . . . 420 Forster, Honey wood r. .. 367 Fortune, Baird f. .. ..315 Fox 1). Bishop of Chester.. 332 France, Cooper v. . . . • 453 Franklin, Clarke u. ..227,294 Freeman t). Phillipps .. .. 488 Fryi). Noble .. 218,227,294 Futvoye, Kennard V. .. 421' Gale, Griffiths « 203 Gann, The Freefishers of Whit- stable «... .. .. 314 Garland u. Jekyll .. .. 338 Lester w. .. .. 89 Garnett, Riley v. .. ..261 Gatacre, Doe d. Davies v. 270 R.P. PAGE Gatcombe, Chapman «. .. 334 Gathercole, Hawkins v. .. 90 Gayfere, Dixon v. .. •• 419 Gee, the Queen «. .. .. 314 t). Smart .. .. •• 170 Gennys, Ex parte .. .. 165 Gent, Davison y. .. .. 395 V. Harrison . . • • 25 Gerrard, Grugeon «. .. •• 144 Gibbons t). Snape .. .. 367 Gibbs, Wells «. .. ..81 Gibson, Thibault u. .. 419 Gidding r. Gidding .. •• 395 Giles, Doe rf. Fisher t), .. 410 Gimson, Worthington r. .. 315 Gladwin, Doe d. Muston v. 386 Glass u. Richardson .. ..371 Glasscock, Smith v. . . 369 Glyn, Attorney-General w. .. 71 Goddard t;. Complin .. 424 Goodman, Cooch V. .. •• 148 Goodright d. Burton v. Rigby 45 Goold, M'Carthy « 90 U.White .. .. 350 Gordon v. Graham . . . . 425 D. Whieldon .. 217 Gostling, Baker r. .. .. 393 Gower, Yellowly v. . . 24 Grafton, case of Duke of .. 52 Graham, Gordon v. . . 425 «;. Graham .. •• 144 Grand Junction Canal Com- pany, Dimes t). .. •• 366 Grange, Hill v. .. •• 472 Grant, Ex parte .. •• 21 V. Mills 418 Graves v. Weld . . . . 27, 376 Gray, Flight v 170 Grazebrook, Rogers d. . • 409 Greaves V. AVilson •• ..421 Green D. James .. •• 410 Miller « 320,380 Re 390 Grey, Pickersgill V. .• •• 370 Greenfield, Bonifaut r. .. 302 Greenwood ?>. Evans .. .• 395 Griffith V. Blunt .. •• 306 Wynne V. •• •• 291 Griffiths I'. Gale .. •• 203 Grose t'. West .. .. •• 313 Grosvenor, Lord, v. Hampstead Junction Railway Company Groves, Doe d. Walker v. Grugeon v. Gerrard Gubhins, Coppinger v. Gurney v. Gurney . . Gwinnell, Doe d. Riddell v. . . b 13 379 144 24 199 372 xvni INDEX TO CASES CITED. H. PAGE Hackett, Legg ». •• •• 377 Hadleston v. Whelpdale .. 395 Haggerstoii f. Hanbury .. 193 Haiirh, Ex parte .. ..418 Hale r. Pew .. .. 266 Halford r. Stains .. .. 308 Hall ?;. Bainbridge .. 144 r. Chandless .. .. 145 Keech t; 410 ». Waterhouse .. ..216 Hallett, Attorney-General v. 277 Hanier, Dickin v. .. .. 223 Hamilton, Attorney-General r. 134 Hampstead Junction Railway Company, Lord Grosvenor v, Hanbury, Haggerston y. Handcock, Jolly y. .. H anson. Eyre v. V. Keating' . . Harcourt, Ainslie v. .. Harding v. Wilson Hardinge, Thompson v. Hare v. Burges Hargreave, Scholes i;. . . Harnett v. Maitland Harris r. Piigh Harrison v. Blackburn , Gent tJ. N orris v. Rooper v. 13 193 441 .. 413 394 .. 395 315 .. 342 394 .. 477 376 .. 165 176 .. 25 29 .. 330 394 .. 393 119 .. 198 313 .. 90 50, 264 .. 90 Hart, Donne i; Hatch, Holford I). Hatchell, Morgan v. Hatfield v. Thorp Hawkins, Dawes v. V. Gathercole Hay V. Earl of Coventry Heald v. . . Haygarth, Taylor V. .. 160 Hayward, Williams u. . . .. 393 Heald v. Hay .. .. 90 Helps u. Hereford ., .. 267 Heining, Cherry u.. . .. 148 Hemingway D Fernandas .. 382 Hereford, Helps t). .. 267 Hertford, Marquis of. Lord Southampton c. .. .. 308 Hibbert v. Cooke .. .. 31 Hiern v. Mill 87 Higginson, Bird v. .. 378 Hill, Duke of Portland v. .. 343 V. Kdmonds . . . . 394 e. Grange.. .. .. 472 t». Saunders .. .. 381 Stephenson v. .. 342, 343 Woolf ?; 25 PAGE Hinchcliffe v. Earl of Kinnoul 315 Hobson, Stansfield n. .. .. 436 Hodgkinson w. Wyatt .. 419 Hodffson and Wife v. Ambrose 203 Hogan V. Jackson .. Hoi ford V. Hatch Holland, Rawley v. Holmes, Poultney v. .. V. Prescott . . Honeywood v. Forster.. Hook V. Hook Hopkins v. Hopkins .. Hopkinson, Rolt v. Horlock V. Smith Horn V. Horn . . Horner v. Swann Hovenden, Majoribanks v. Howell, Doe d. Harris v, Buckley V. . . , 19, 62 .. 393 303 .. 392 261 .. 367 124 155, 275 425 .. 31 213 .. 300 286 .. 282 298 .. 144 314 339 14 165 Hughes, Rann v. Hull and Selby Railway, re Hulse, Andrews v. Humphries?;. Brogden Hunt V. Coles ., Huntingdon, Doe d. Reay 342, 343 Hurst V. Hurst 413 Hutcliinson, Bearpark y. .. 321 Hyatt, Spyer v. .. .. 372 Hyde D. Dallaway .. .. 436 Iggulden V. May . . . , 394 Ingilby t). Amcotts .. .. 267 Ingram, Buckeridge i;. .. 8 Irving, Cuthbertson f. .. 410 Isaac, re . . . . . . 21 Isherwood V. Oldknow .. 237 Ives' case . . . . .. 394 Jackson, Hogan .. .. 19,62 Lane v. , . . . 82 Gates d. Hatterley v. 131 Pitti) 266 James, Broughton v. , . 308 Green t). .. ..410 «. Plant .. .. 315 Romilly v 278 Jee j;. Audley .. .. 53 Jeffs t). Day 170 Jekyll, Garland t) 338 Jenkin i'. Vivian . . . . 478 John, Lewis V. •• .. 418 IJsDEX TO CASES CITED. XIX PAGE Johnson, Bates v. .. 425 V. Faulkner 320 V. Johnson .. .. 203 Shaw V. ,. t 405 Johnston, Salkekl u. .. .. 437 Jolly V. Hanilcock .. 441 Jones, Ashton v. .. 71 V Davies 400 Doe d. Baker v. . . .. 38G Doe d. Duroure v. ■ 63 Doe d. Wigan v. .. .. 292 j;. Jones .. 227, 395, 424 V. Robin . . .. 487 Roe d. Perry v. 267 V. Smith . . .. 418 V.Tripp 425 i;. Williams .. 81 Youle V. 182 Jope V. Morshead .. 355 Jordan, Whitbread v. 418 Keating, Hanson «. .. .. 394 Keech «. Hall .. .. 410 Kemp, Doe d. Barrett t). .. 313 Kennard v. Futvoye . . 424 Kenworthy f. Ward .. .. 131 Keppel t). Bailey .. .. 383 Ker u. Lord Dungannon .. 308 Kerr v. Pawson • • • • 358 King, The, v. Lord of the Manor of Oundle 371 The, V. Lord Yarborough 314 U.Smith .. ..85, 165 V.Turner.. .. .. 353 Vanderplank v. 265, 266 Kinnoul, Earl of, Hinchcliffe v. 315 Kirkus, Porter w. .. .. 391 Kite and Queinton's case .. 362 Knight, Doe d. Garnons v. 144 Knowles, Stroyan D. .. •. 14 Lamb, Burges v. .. • • 25 Lambert, Carr i;. .. •• 4^77 Lampet's case .. •• 267 Lane v. Jackson • • • • 82 and Pers, Eylett v. . . 348 Thomas V. .. •. 13 Langford v. Selmes 392, 393 Lansley, Major V. .. .. 215 Law V. Urlwin .. .. 400 Lawes, Doe d. Winder v. 362, 369 Leak, Melling v 376 PAGE Leeds, Duke of, v. Earl Amherst 25 Legg u. Hackett.. .. 37i' V. Strudwick . . . • 377 Leighlon, Carleton v. . . 267 Leman, Millet y. •• •• 312 Leon, ilollason y. •• 378 Lester v. Garland . • . • 89 Lewis, Doe . Watson Roach V. Wadham Robertson v. Norris Robey, Trulock v. . . Robin, Jones v. Robinson, Buttery t) Brandon v. . . 89, 90, Roe d. Earl of Berkeley v. Arch- bishop of York . . Doe d. Dixon v. .. d. Fox, Marston v. . . f/. Perry I). Jones Rogers v. Grazebrook V. Taylor RoUason v. Leon . . 424 369 144 395 303 23 292 432 122 395 471 369 226 362 314 353 322 315 392 371 71 287 287 429 , 451 7 379 45 353 377 261 160 3-26 291 214 436 487 320 216 394 235 200 267 409 14 378 xxu INDEX TO CASES CITED. Rolph, Barrett v. Rolt V. Hopkinson Romilly v. James Hooper v. Harrison Rose V. Bartlett Rosling, Bond v. .. Rosslyn, re Lady, trust Rous, Llewellyn v. Rowbothain v. Wilson Rovve, Calmady v. . . Rowley v. Adams . . Rudall, Warren v. Russell V. M'CuUoch V. Russell . Webb V. PAGE . 393 425 . 278 330 . 389 378 . 308 . 29 14 314 . 383 . 24 421 . 418 239 Sabine, Bellamy w. .. ..87 Salisbury, Marquis of, Beau- mont V, .. .. . • 392 Salkeld, Johnston «;. .. 437 Sandaman, Clements i;. .. 92 Sandys, Lady, Marquis of Downsliire v. . . . . 25 Saunders, Hill t;. .. .. 381 V. Merryweather 410 Savage, Adams t). .. .. 303 Lockyer v. .. 89 Saward v. Anstey . . . . 320 Scarborough u. Borman .. 90,216 ■ Earl of, Doe d. Lumleyy. .. •• .. 267 Scarisbrick v. Skelmersdale 308 Scholes V. Hargreaves . . 477 Scoones f. Morrell .. .. 313 Scott, Exton V 144 Doe ); and, as to such words as have a technical import more comprehensive than their ordinary meaning, it is very seldom that such extensive import is alone relied on ; but the meaning of the parties is generally explained by the additional use of ordinary words. (^^) As farm, meadow, pasture, &c. ; Shep. Touch. 93, 94. ] C OF CORPOREAL HEREDITAMENTS. CHAPTER I. OF AN ESTATE FOR LIFE. It seldom happens that any subject is brought fre- quently to a person's notice, without his forming con- cemino- it opinions of some kind. And such opinions carelessly picked up are often carefully retained, though in many cases wrong, and in most inadequate. The subject of property is so generally interesting, that few persons are without some notions as to the legal rights appertaining to its possession. These notions, however, as entertained by unprofessional persons, are mostly of a wrong kind. They consider that what is a man's own is what he may do what he likes with ; and with this broad principle they gene- rally set out on such legal adventures as may happen to lie before them. They begin at a point at which the lawyer stops, or at which indeed the law has not yet arrived, nor ever will; but to which it is still continually approximating. Now the student of law must forget for a time that, if he has land, he may let it, or leave it by his will, or mortgage it, or sell it, or settle it. He must humble himself to believe that he knows as yet nothing about it ; and he will find that the attainment of the ample power, which is now pos- sessed over real property, has been the Avork of a long period of tune ; and that even now a common pur- chase deed of a piece of freehold laud cannot be ex- plained without going back to the reign of Henry VIII. («), or an ordinary settlement of land without (rt) Stat. 27 IIcu. VIII. c. 10, tlic Statute of Uses. OF AX ESTATE FOR LIFE. 17 recourse to the laws of Edward I. (i). That such should be the case is certainly a matter of regret. History and antiquities are, no doubt, interesting and delightful studies in their place ; but their perpetual intrusion into modern practice, and the absolute ne- cessity of some acquaintance with them, give rise to much of the difficulty experienced in the study of the law, and to many of the errors of its less studious practitioners. The first thing then the student has to do is to Absolute get rid of the idea of absolute ownership. Such an °^'^^^'' ^P- idea is quite unknown to the English law. No man is in law the absolute owner of lands. He can only hold an estate in them. The most interesting, and perhaps the most ancient An estate for of estates, is an estate for life ; and with this we shall ^ ^' begin. Soon after the commencement of the feudal system, to which, as we have seen, our laws of real property oAve so much of their character, an estate for life seems to have been the smallest estate in con- quered lands which the military tenant was disposed to accept (c). This estate was inalienable, unless his lord's consent could be obtained (d). A grant of lands to A. B. was then a grant to him as long as he could hold them, that is, during his life, and no longer (e) ; for feudal donations were not extended beyond the precise terms of the gift by any presumed intent, but were taken strictly (/) ; and, on the tenant's death, (J) Stat. 13 Edw. I. c. 1, De Blackstone (2 Black. Com. 55) Denis Conditionalibus to which and by Butler (Co. Litt. 191 a, n. estates tail owe their origin. (1), vi. -4). (c) Watk. Descents, 107 (113, {d) Wright's Tenures, 29 ; 2 4th ed.) ; 1 Hallam's Middle Ages, Black. Com. 57. 160. There seems no good rea- (e) Bracton, lib. 2, fol. 92 b, son to suppose that feuds were at par. 6. any time held at will, as stated by (/) Wright's Tenures, 17, 152. R.P. C OF CORPOEEAL HEREDITAMENTS. the lands reverted to the lord or grantor. If it was intended that the descendants of the tenant should, at his decease, succeed him in the tenancy, this intention was expressed by additional words of grant ; the gift being then to the tenant and his heirs, or with other words expressive of the intention. The heir was thus a nominee in the original grant ; he took every thing from the grantor, nothing from his ancestor. So that, in such a case, " the ancestor and the heirs took equally as a succession of usufructuaries, each of whom during his life enjoyed the beneficial, but none of whom possessed, or could lawfully dispose of, the direct or absolute dominion of the property " (g). The feudal system, however, had not long been introduced into this country before the restriction on alienation began to be relaxed (A). Subsequently, by a statute of Edward I. {i), the right of every freeman to sell at his own pleasure his lands or tenements, or part thereof, was expressly recognized; at a still later period the power of testamentary alienation Avas be- stowed {k), until, at the present day, the right to dis- pose of property is not only established, but has become inseparable from its possession (/). Moreover, the old feudal rule of strict construction has long since given Avay to the contrary maxim, that every grant is to be construed most strongly against the grantor {m). Yet so deeply rooted are the feudal principles of our Blackstone's reason for the estate 191 a, n. (1), vi. 6. being for life— that it shall be (/) Stat. 18 Edw. I. c. 1. construed to be as large an estate (/.;) By stat. 32 Hen. VIII. c. 1, as the words of the donation will as to estates in fee simple, and by bear (2 Black. Com. 121 ) — is stat. 29 Car. II. c. 3, s. 12, as to quite at variance with this rule of estates held for the life of another construction. person. See 1 Jarm. on Wills, 54, ig) Co. Litt. 191a,n. (l),vi. 5; Isted.; 49,2ndcd.; 55,3rd ed. Burgess \.W]ieate,l\fm.B\&c\i. (Z) Litt. sect. 360 ; Co. Litt. 133. 223 a; Ware v. Cann, 10 Barn. (Ji) Leg. Hen. I. 70; 1 Reeves's & Cress. 433. Hist. Eng. Law, 43, 44 ; Co. Litt. (?«) Shep. Touch. 88. OF AN ESTATE FOR LIFE. 19 law of real property, that, in the case before us, the ancient interpretation remains unaltered ; and a grant A grant to to A. B. simply now confers but an estate for his confeVronlVa life («), which estate, though he may part with it if he life estate. pleases, will terminate at his death, into whosesoever hands it may have come. The most remarkable effect of this antiquated rule This rule has „ , . . « often defeated has been its frequent defeat ol the mtentions ot un- testators' learned testators (o), who, in leaving their lands and intentions. houses to the objects of their boimty, were seldom aware that they were conferring only a life interest ; though, if they extended the gift to the heirs of the parties, or happened to make use of the word estate, or some other such technical term, their gift or de\dse included the whole extent of the interest they had power to dispose of. " Generally speaking," says Lord Mansfield (p), "no common person has the smallest idea of any difference between giving a horse and a quantity of land. Common sense alone would never teach a man the difference ; but the distinction, which is now clearly established, is this :— If the words of the testator denote only a description of the specific estate or land devised, in that case, if no words of limitation are added, the devisee has only an estate for life. But if the words denote the quantum of interest or property that the testator has in the lands devised, then the whole extent of such his interest passes by the gift to the de\'isee. The question, there- fore, is always a question of construction, upon the words and terms used by the testator." Such ques- tions, as may be imagined, have been sufficiently numerous. Happily by the act of parliament for the (?0 Lift. sect. 283; Co. Lift. 42 1st ed.; 219, 2nd ed.; 247, 3rd ed., a; 2 Black. Com. 121; Lucas \. and the cases there cited. Brandreth, 28 Beav. 274. {p) In Hogan v. Jaehson, (<;) 2 Jarnaan on Wills, 170, Co^\^^. 306. C 2 20 OF CORPOEEAL HEREDITAMENTS. amendment of the laws Avith respect to wills (q), a construction more accordant with the plain intention of testators is noAV o-iven in such cases. An estate piu* autre A'ie. General occu- pant. Special occu- pant. Statute of Frauds. If the owner of an estate for his own life should dis- pose thereof, the new owner will become entitled to an estate for the life of the former. This, in the Norman French, with which our law still abounds, is called an estate pur autre vie{r) ; and the person for whose life the land is holden is called the cestui que vie. In this case, as well as in that of an original grant, the new owner was formerly entitled only so long as he lived to enjoy the property, unless the grant were ex- pressly extended to his heirs ; so that, in case of the decease of the new owner, in the lifetime of the cestui que vie, the land was left without an occupant so long- as the life of the latter continued, for the law would not allow him to re-enter after having parted with his life estate {s), No person having therefore a right to the property, anybody might enter on the land ; and he that first entered might lawfully retain possession so long as the cestui que vie lived {t). The person who had so entered was called a general occupant. If, however, the estate had been granted to a man and his heirs during the life of the cestui que vie, the heir might, and still may, enter and hold possession, and in such a case he is called in laAv a special occupant, having a special right of occupation by the terms of the grant (m). To remedy the evil occasioned by pro- perty remaining without an owner, it was provided by a clause in a famous statute passed in the reign of (). Formerly also, when a tenant (^) Stat. 11 Geo. n. c. 19, s. 15, 1 Swanst. 337, and the learned explained by stat. 4 & 5 Will. IV. editor's note. c. 22, s. 1. See Ex parte Smyth, OF AN ESTATE FOR LIFE. 20 for life had a power of leasing, and let th^ lands ac- cordingly, reserving 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 en- titled () ; the true feudal reason of this construction is stated by Blackstone to be, that what was given to a man for his personal service and personal merit ought not to descend to any but the heirs of his person (c). But in our oAvn country it appears that, at any rate in the time of Henry II. (^d), collateral relations were admitted to succeed as heirs ; (J) "Wright's Tenures, 18. (c; 2 Black. Com. 221. {d) 1 Eeeves's Hist. Eng. Law, 108. OF AN ESTATE TAIL. 35 SO that an estate Avhich had been granted to a man and his heirs descended, on his decease, 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 mid the heirs of his body (e), making To the donee what was then called a conditional gift, by reason of the ^f yg^bo^^^'^^ condition implied in the donation, that if the donee died ^ conditional without such particular heirs, or in case of the failure of gift- such heirs at any future time, the land should revert to the donor (/). The most usual species of grant appears, however, to have been that to a man ajid his heirs gene- rally ; but, as the right of alienation seems to have arisen in the same manner with regard to estates granted in both the above methods, it will be desirable, in consider- ing the origin of this right, to include in our remarks as Avell an estate granted to a man a7id his heirs, as an estate confined to the heirs of the body of the grantee. In whichever method the estate might have been Two other granted, it is evident that, besides the tenant, there resteTthe^ex- were two other parties interested in the lands ; one, the pectant heir person who was the expectant heir of the tenant, and who had, under the gift, a hope of succeeding his an- cestor in the holding of the lands ; the other, the lord, who had made the grant, and who had a right to the services reserved during the continuance of the tenancy , and also a possibility of again obtaining the lands on the failure of the heirs mentioned in the gift. An alienation of the lands by the tenant might therefore, it is evident, defeat the rights of one or both of the above parties. Let us, therefore, consider, in the first place, the origin and progress of the right of alieua- (e) Bracton, lib. 2, cap. 6, fol. 290 b, n. (1), V. 1. 17 b ; cap. 19, fol. 47 a ; Co. Litt. (/) 2 Black. Com. 110. D 2 36 OF CORPOREAL HEREDITAMENTS. tion as it affected tlie interest of tlie expectant heir; and, secondly, the oi'igin and progress of this right as it affected the interest of the lord. Risht of alien- The right of an ancestor to defeat the expectation of 'J*^^;^j;^sainst j^-^ j^^-^ ^^^ ^^^ ^^j^^ established at the time of Henry II. For it appears from the treatise of Glanville, written in that reign (^), that a larger right of aliena- tion was possessed over lands which a man had acquired by purchase, than over those which had descended to him as the heir of some deceased person: and even over purchased lands the right of alienation was not com- plete, if the tenant had any heir of his own body (A); so that if lands had been given to a man and his heirs generally, he was able to disappoint the expectation of his collateral heirs, but he could not entirely disinherit the heirs sprung of his OAvn body. For certain pur- poses, however, alienation of part of the lands was allowed to defeat the heirs of his body; thus part of the lands might be given by the tenant with his daughter on her marriage, and part might also be given for religious uses (i). Such gifts as these were, however, as we shall presently see, almost the only kinds of alienation, in ancient times, which occasioned any serious detriment to the heir; and the allowing of such gifts may accordingly be considered as an im- portant step in the progress of the right of alienation. For, when lands were given to a daughter on her mar- riage, the daughter and her husband, or the donees in frank-marriage, as they Avere called, held the lands granted, to them and the heirs of their two ho^iGS free Frank-mar- from all manner of sej'vice to the donor or his heirs (a riagc. mere oath of fealty or fidelity excepted), until the fourth degree of consanguinity from the donor was passed (/i); ig) 1 Kceves's Hist. Eng. Law, (0 Glanville, lib. 7, c. 1 ; 1 223. Reeves's Hist. 104. (//) Ibid. 105. (70 Litt. sects. 17, 11), 20. OF AN ESTATE TAIL. 37 and when lauds were given to religious uses, the gran- tees in franhalmoirjn, as they were called, were for Frankalmcign. ever free from every kind of earthly or temporal ser- vice (/). Little or nothing, therefore, in these cases, remained for the heir of the grantor. But the other Other moi^cs modes of alienation which then prevailed were very different in their results, as well from such gifts as above described, as from the ordinary sales of landed property which occur in modern times. Keady money was then extremely scarce; large fortunes, acquired by commercial enterprise, were not then expended in the purchase of country seats. The auction mart was not then established; such a thing as an absolute sale for a sum of money paid down was scarcely to be met with. The alienation of lands rather assumed the form of perpetual leases, granted in consideration of certain services or rents to be from tune to time per- formed or paid. This method was, in feudal language, termed subinfeudation. In all the old conveyances, Subinfeuda- almost without exception, the lands are given to the ^^^'^' grantee and his heirs, to hold as tenants of the grantor and his heirs, at certain rents or services (?«) ; and when no particular service was reserved, it was under- stood that the grantee held of the grantor, subject to the same services as the grantor held of his superior (?) Litt. sect. 135. (lib. 7, c. 1) as to the descent of (wt) All the forms of feoffments lands which had been gi-anted by- given in Madox's Formulare An- a father to one of his younger sons, glicanum, with the exception of or by a brother to his younger Nos. 318 and 325, are in this brother, clearly show that grants form. No. 318 is a gift in frank- of land were then made by subin- almoign, and was afterwards con- feudation. Mr. Reeves's obser- firmcd by the son of the grantor vation (1 Hist. Eng. Law, 106, n. (see title. Confirmation, No. 119); (/«) ), that the reservation of ser- and No. 325 appears to have been vices was most commonhj made to a family transaction between a the feoffor, appears to be scarcely father and his son. The curious strong enough, questions mentioned in Glanville 38 OF CORPOREAL HEREDITAMENTS. lord (n). As, therefore, it cannot be supposed that gifts should be made without some fair equivalent, and as such equivalent, in the shape of rent or service, would descend to the heir in lieu of the land, we may fairly presume that alienation, as ordinarily practised in early times, was not so great a disadvantage to the The power of heir as might at first be supposed : and this circum- over the expec- stance may perhaps help to account for that which at tations of his ^^y j,^^g |g ^^ undoubted fact, that the power of an heirs becomes •' .„,.,. absolute. ancestor to destroy the expectation of his heirs, whether merely collateral or heirs of his body, soon became absolute. In whichever way the grant were made, whether to the ancestor and his heirs, or to him and the heirs of his hody, we find that by the time of Henry III. the heir was completely in his ancestor's power, so far as related to any lands of which the an- cestor had possession. Bracton, who wrote in this reign, expressly lays it down, that the heir acquires nothing from the gift made to his ancestor (o). The very circumstance that land was given to a person and his heirs, or to him and the heirs of his body, enabled him to convey an interest in the land, to last as long as his heirs in the one case, or the heirs of his body in the other, continued to exist. And from the time of Bracton, a gift to a man and his heirs generally has enabled the grantee, either entirely to defeat the ex- pectation of his heir by an absolute conveyance, or to prejudice his enjoyment of the descended lands by obliging him to satisfy any debts or demands, to the value of the lands, according to his ancestor's discre- tion. With respect to lands granted to a man and the heirs of his body, the power of the ancestor is not now so complete. The means by which this right of alien- (ji) Perkins's Profitable Book, 17 a. Nihil acquirit ex donatione sects. 529, 653. facta antecessori, quia cum dona- (o) Bracton, lib. 2, cap. (J, fol. torio non est feoffatus. OF AN ESTATE TAIL. 39 ation was in this case curtailed will appear in the account Ave shall now give of the origin and progress of the right of alienation as it affected the interest of the lord. The interest of the lord was evidently of two kinds; Alienation as 1 • • , . • ,1 . ^ ' 1 • « 4-1, ^ «^„ affecting: the his interest m the rent and services during the con- interests of the tinuance of the tenancy, and his chance or possibility lord. of again obtaining the land on failure of the heirs of his tenant. On the former of these interests, the in- Interest of the road of alienation appears to have been first made. ^'^^^^ J^^^^ ^^^_ The tenants, by taking upon themselves to make vices first grants of part of their lands to strangers to hold of themselves, prejudiced the security possessed by the lord for the due performance of the services of the original tenure. And accordingly we find it enacted in Magna Charta (p), that no freeman should give or sell any more of his land than so as what remained might be sufficient to answer the services he OAved to his lord. The original services reserved on any con- veyance were, however, always a charge on the land while in the hands of the undertenants, and could be distrained for by the lord {q) ; although the enforce- ment of such services was doubtless rendered less easy by the division of the lands into various ownerships. The infringement on the lord's interest, expectant on Infringement the failure of the heirs of his tenant, appears to have interest ex- been the last step in the progress of alienation. As pectant on \, ,. A o , , failure of the advantages of a free power of disposition became heirs. apparent, a ucav form of grant came into general use. The lands were given not only to the tenant and his heirs, but to him and his heirs, or to ivhomsoever he might wish to (jive or assign the land (r), or with other words expressly conferring on the tenant the power of ip) Chap. 32. sect. 674. iq) Perkins's Profitable Book, (?•) Bract, lib. 2, c. 6, fol. 17 b. 40 OF CORPOREAL HEREDITAMENTS. alienation (s). In this case, if the tenant granted, or underlet as it Avere, part of his land, then, on his decease and failure of his heirs, the tenant's grantee had still a right to continue to hold as tenant of the superior lord ; and such superior lord then took the place of landlord, which the original tenant or his heirs would have occupied had he or they been living {t). And if the tenant, instead of thus under- letting part of his land, chose to dispose of the whole, he was at liberty so to do, by substituting, if he thought fit, a new tenant in his own place {u). Grants of lands with liberty of alienation, as they became more frequent, appear in process of time to have furnished the rule by which all grants were construed. During the long and feeble reign of Henry III. this change to the disadvantage of the lord appears to have taken place ; for at the beginning of the next reign it seems to have been established that, in whatever form the The fact of grant were made, the fact of the existence of an ex- SanexStant pectant heir enabled the tenant to alienate, not only heir enables as against his heirs, but also as against the lord. If aUenate^ ° therefore lands were given to a man and his heirs, he could at once dispose of them {x) ; and if lands were granted to a man and the heirs of his body, he was able, the moment he had issue born — that is, the moment he had an expectant heir of the kind men- tioned in the gift — to alienate the lands. And the alienee and his heirs had a right to hold, not only during the existence of the issue, but also after their (5) Madox's Formwlare Angli- (.r) Perk. sec. C67— 670 ; Co. canum, Preliminary Dissertation, Litt. 43 a. If a tenant of a con- p. 5. The tendency towards the ditional fee had a right of alien- alienation of lands Avas perhaps ation on having issue bom, surely fostcredby the spirit of crusading; a tenant in fee simple must have see 1 Watkins on Co]iyholds, pp. had at least an equal right. See 149, 150. however Co. Litt. 43 a, n. (2); (f) Bract, ubi sup. Wright's Teniu-es, 155, note. (w) See Stat. 4 Edw. I. c. fi. OF AN ESTATE TAIL. 41 failure (?/). The original intention of such gifts was therefore in a great measure defeated; originally, on failure of the issue the lands reverted to the donor ; but now nothing was requisite but the mere birth of issue to give the donee a complete power of dispo- sition. The mere existence of an expectant heir having thus grown up into a reason for alienation, the barons of the time of Edw. I. began to feel how small was the possibility, that the lands, which they had granted by conditional gifts {z) to their tenants and the heirs of their bodies, should ever revert to themselves again ; whilst at the same time they perceived the power of their own families weakened by successive alienations. To remedy these evils, and to keep up that feudal system, which landlords ever held in high esteem, but on which the necessities of society ever made silent yet sure encroaches, it was enacted in the reign of Edw. I. by the famous statute De Donis Conditio- statute De nalibus (a), — and no doubt as was then thought finally '""*• enacted,— that the will of the donor, according to the form in the deed of gift manifestly expressed, should be from thenceforth observed ; so that they, to whom the tenement was given, should have no poAver to alien it, whereby it should fail to remain unto their own issue after their death, or to revert unto the donor or his heirs, if issue should fail. Since the passing of this statute, an estate given to Fee tail. a man and the heirs of his body has been always called (y) Fitzherbert's Abr. title For- 171. medon, G2, G5; Britton, 93 b, 94 a; (r) Ante, p. 35. Plowd. Coram. 240 ; 2 Inst. 333 ; («) Stat. 13 Edw. I. c. 1, called Co. Litt. 19 a ; Year Book, 43 also the Statute of "Westminster Edw. III. 3 a, pi. 13. Earl of the Second. Stafford v. Bucldeij, 2 Ves. sen. 42 or CORPOKEAL HEREDITAMENTS. Inconvenience of strict entails, Taltarum'g an estate tail, or, more properly, an estate in fee tail {feudiim talliatum). The wordyee {feudum) anciently meant any estate feudally held of another person (b) ; but its meaning is now confined to estates of inherit- ance, — that is, to estates which may descend to heirs ; so that ?ifee may now be said to mean an inheritance (c). The word tail is derived from the French word tailler, to cut, the inheritance being, by the statute De Donis, cut down and confined to the heirs of the body strictly {d) ; but, though an estate tail still bears a name indicative of a restriction of the inheritance from any interruption in its course of perpetual de- scent from father to son, we shall find that in fact the right to establish such exclusive perpetual descent has lono; since been abolished. When the statute besran to operate, the inconvenience of the strict entails, created under its authority, became sensibly felt : children, it is said, grew disobedient when they knew they could not be set aside ; farmers were deprived of their leases ; creditors were defrauded of their debts ; and innumerable latent entails were produced to de- jn'ive purchasers of the land they had fairly bought ; treasons also were encouraged, as estates tail were not liable to forfeitures longer than for the tenant's life(e). The nobility, however, would not consent to a repeal, which was many times attempted by the commons {f), and for about two hundred years the statute remained in force. At length the power of alienation was once more introduced, by means of a quiet decision of the judges, in a case which occurred in the twelfth year of the reign of King Edward IV. (y). In this case. {h) Bracton, lib. 4, fol. 2G3 b, par. 6 ; Selden, Tit. of Honour, part 2, c. 1, s. 23, p. 332; Wright's Tenures, p. 5. ic) Litt. s. 1 ; Co. Litt. 1 b, 2 a ; Wright's Tenures, p. 149. {d) Litt. s. 18 ; Co. Litt. 18 b, 327 a, n. (2); Wright's Tenures, 187; 2 Black. Com. 112. {e) 2 Black. Cora. 116. (/) Cruise on Kecoveines. (g) Taltarum's case. Year Book, 12 Edw. IV. 19. OF AN ESTATE TAIL. 43 called Taltarum's case, the destruction of an entail case, entails dc strove d was accomplished by judicial proceedings collusively taken against a tenant in tail for the recovery of the lands entailed. Such proceedings were not at that period quite unknown to the English law, for the monks had previously hit upon a similar device, for the purpose of evading the statutes of Mortmain, by which open conveyances of lands to their religious houses had been prohibited ; and this device they had practised with considerable success till restrained by act of parliament (/O. In the case of which we are now speaking, the law would not allow the entail to be destroyed simply by the recovery of the lands en- tailed, by a friendly plaintiff on a fictitious title ; this would have been too barefaced ; and in such a case the issue of the tenant, claiming under the gift to him in tail, might have recovered the lands by means of a writ of formedon (J,), so called because they claimed Formedon. per formani doni, according to the form of the gift, which the statute had declared should be observed. , The alienation of the lands entailed was effected in a more circuitous mode, by judicial sanction being given to the following proceedings, which afterwards came into frequent and open use, and had some little show of justice to the issue, though without any of its reality. The tenant in tail, on the collusive action being A recovery. brought, was allowed to bring into Court some third person, presumed to have been the original grantor of the estate tail. The tenant then alleged that this third person had warranted the title ; and accordingly Warranty, begged that he might defend the title which he had so warranted. This third person was accordingly called on ; who, in fact, had had nothing to do with the matter ; but, being a party in the scheme, he admitted (/t) Statute of Westminster the Com. 271. Second, .13 Edw. I. c. 32; 2 Black. (/) Litt. ss. 688, 690. 44 OF COnrOEE^VL HEREDITAMENTS. Entail barred. The reversion barred. And remain- ders. tbe alleged warranty, and then allowed judgment to go against him by default. Whereupon judgment was given for the demandant or plaintiff, to recover the lands from the tenant in tail; and the tenant in tail had judg- ment empowering him to recover a recorapence in lands of equal value from the defaulter, who had thus cruelly failed in defending his title {k). If any such lands had been recovered under the judgment, they would have been held by the tenant for an estate tail, and would have descended to the issue, in lieu of those which were lost by the warrantor's default (/). But the defaulter, on whom the burden was thus cast, was a man who had no lands to give, some man of straw, who could easily be prevailed on to undertake the re- sponsibility; and, in later times, the crier of the Court was usually employed. So that, whilst the issue had still the judgment of the Court in their favour, unfor- tunately for them it was against the wrong person ; and virtually their right was defeated, and the estate tail was said to be barred. Not only were the issue barred of their right, but the donor, who had made the grant, and to whom the lands were to revert on failure of issue, had his reversion barred at the same time (?7i). So also all estates which the donor might have given to other persons, expectant on the decease of the tenant in tail without issue, (and Avhich estates are called remainders expectant on the estate tail,) were equally barred. The demandant, in whose favour judgment was given, became possessed of an estate in fee simple in the lands ; an estate the largest allowed by law, and bringing with it the fullest powers of alienation, as will be hereafter explained : and the demandant, being a friend of the tenant in tail, of {h) Co. Litt. 3G1 b; 2 Black. Com. 358. (I) 2 Black. Com. 360. {m) 2 Black. Com. 3C0; Cruise on Eccovcrics, 258. OF AN ESTATE TALL. 45 course disposed of the estate in fee simple according to his wishes. Such a piece of solemn juggling could not long have held its ground, had it not been supported by its sub- stantial benefit to the community ; but, as it was, the 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 of Common ^ . . , , . , recoveries, suffering common recoveries, maintamed their ground, and long continued in common use as the undoubted privilege of every tenant in tail. The right to sufier a common recovery was considered as the inseparable incident of an estate tail, and every attempt to restrain this right was held void(?«). Complex, however, as the proceedings above related may appear, the ordi- nary forms of a common recovery in later times were more complicated still. The lands were in the first place conveyed, by a deed called the recovery deed, to a person against Avhom the action was to be brought, and who was called the tenant to Wxe pracipe or writ(o). The proceedings then took place in the Court of Com- Tenant to the mon Pleas, which had an exclusive jurisdiction in all I'^'^^^l^'^- real actions. A regular writ was issued against the tenant to the prcecipe by another person, called the demandant ; the tenant in tail was then required by Demandant, the tenant to the prcecipe to warrant his title according to a supposed engagement for that purpose; this was called vouching the tenant in tail to warranty. The Voiiching to tenant in tail, on being vouched, then vouched to war- ^^^^^^ ^' {n) Mary Portingt on' s case, \0 pearcd to be executed before the Eep. 3G; Co. Litt. 224 a ; Fearne end of the term in which the re- on Contingent Remainders, 260 ; covery was suffered, 1 Prest. Con. 2 Black. Com. 116. 61, et seq.; Goodr'ujht d. Burton, {o) By Stat. 14 Geo. II. c. 20, v. liigby, 5 T. Rep. 177. Reco- commonly called Mr. Pigott's Act, veries, being in form judicial pro- it was sufficient if the conveyance ceediugs, could only be suffered to the tenant to the prtecipc ap- in term time. 46 OF CORPOREAL HEREDITAMENTS. ranty in the same way the crier of the Court, who was called the common vouchee. The demandant then craved 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; in consequence of which, judgment was given in the manner before mentioned, on which a regular writ was directed to the sheriff to put the demandant into pos- session (p). The proceedings, as may be supposed, necessarily passed through numerous hands, so that mistakes were not unfrequently made and great ex- pense was always incurred (§'). To remedy this evil, an act of parliament (r) was accordingly passed in the year 1833, on the recommendation of the commis- Recovevies sioners on the law of real property. This act, which abolished. i^ tJ^e wisdom of its design, and the skill of its execu- tion, 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 inrolled in the Court of Chancery (s) : by such a deed, a tenant in tail in possession is now en- abled to disj^ose of the lands entailed for an estate in fee simjile ; thus at once defeating the claims of his issue, and of all persons having any estates in re- mainder 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 (])) Cruise on Recoveries, eh. 1, of assurance." Stat. 3 & 4 Will, p. 12. IV. c. 74, drawn by Mr. Brodie ; (q) See 1st Report of Real Pro- 1 Hayes's Conveyancing, 155. perty Commissioners, 25. (s) The inrolment must be with- (?•) "An act for the abolition in six calendar months after the of fines and recoveries and for the execution, sect. 41. See sect. 74. substitution of more simple modes OF AN ESTATE TAIL. 47 claim of the issue, though it was inoperative as to the remainders and reversion. This assurance was a fine. A fine. Fines were in themselves, though not in their operation on estates tail, of far higher antiquity than common recoveries (#). They were not, like recoveries, actions at law carried out through every stage of the process ; but were fictitious actions, commenced and then com- promised by leave of the Court, whereby the lands in question were acknowledged to be the right of one of the parties (?<). They were called j^/ies from their haviug anciently put an end, as Avell to the pretended suit, as to all claims not made within a year and a day afterwards {lo), a summary method of ending all disputes, grounded on the solemnity and publicity of the proceedings as taking place in open Court. This power of barring future claims was taken from fines in the reign of Edward III. {x); but it was again re- stored, Avith an extension however of the time of claim to five years, by statutes of Richard III. (^) and Henry VII. {z) ; by which statutes also provision was made for the open proclamation of all fines several Pioclamations. times in Court, during which 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 neces- sary that it should be levied, as it was said, with pro- clamations. But now, by a recent statute (a), all fines heretofore levied in the Court of Common Pleas shall be conclusively deemed to have been levied with pro- clamations, and shall have the force and efiect of fines (t) Cruise on Fines, chap. 1. is accorded, that the plea of non- (w) 2 Black. Com. 348. claim of fines, which from hence- (w) Stat. 18 Edw. I. stat. 4 ; forth shall be levied, shall not be 2 Black. Com. 349, 3d4 ; Co. Litt. taken or holden for any bar in time 121a, n.(l). to come." {x) Stat. 34 Edw. III. c. 13, a (y) 1 Rich. III. c. 7. cmious specimen of the concise- (z) 4 Hen. VII. c. 24 ; see also ness of ancient acts of parliament. stat. 31 Eliz. c. 2. This is the whole of it : " Also it («) Stat. 11 & 12 Vict. c. 70. 48 OF COEPOREAL HEREDITAMENTS. Fines abolished. Settlements. with proclamations. A judicial construction of the statute of Henry VII. (b), quite apart, as it should seem, from its real intention ( c), gave to a fine by 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 VIII., which made the bar immediate (d). Since this time the efiect of fines in barring an entail, so far as the issue were concerned, remained unques- tioned till their abolition ; which took place at the same time, and by the same act of parliament (e), as the abolition of common recoveries. A deed inrolled in the Court of Chancery has now been substituted, as Avell for a fine, as for a common recovery. Although strict and continuous entails have long been virtually abolished, their remembrance seems still to linger in many country places, where the notion of heir land, that must perpetually descend from father to son, is still to be met with. It is needless to say that such a notion is quite incorrect. In families where the estates are kept up from one generation to another, settlements are made every few years for this purpose ; thus in^the event of a marriage, a life estate merely is given to the husband ; the wife has an allowance for pin money during the marriage, and a rent-charge or annuity by way of jointure for her life, in case she should survive her husband. Subject to this jointure, and to the payment of such sums as may be agreed on for the portions of the daughters and younger sons of the marriage, tlie eldest son who Q)) Bro. Abr. tit. Fine, pi. 1 ; Dyer, 3 a; Cruise on Fines, 173. (c) 4 Reeves's Hist. Eng. Law, 135, 138; 1 Hallam's Const. Hist. 14, 17. The deep designs attri- buted by Blackstone (2 Black. Com. 118, 3j4) and some others to Henry VII. in procuring the passing of this statute, are shown by the above writers to have most probably had no existence. {d) 32 Hen. VIII. c. 36. (0 3 & 4 Will. IV. c. 74. OF AN ESTATE TAIL. 49 may he horn of the marriage is made hy the settlement tenant in tail. In case of his decease without issue, it is provided that the second son, and then the third, should in like manner be tenant in tail ; and so on to the others ; and in default of sons, the estate is usually given to the daughters. By this means the estate is tied up till some tenant in tail attains the age of twenty-one years ; Avhen he is able, with the consent of the father, who is tenant for life, to bar the entail with all the remainders. Dominion is thus again acquired over the property, which dominion is usually exercised in a re-settlement on the next generation ; and thus the property is preserved in the family. Primogeniture, therefore, as it obtains among the Primogeniture. landed gentry of England, is a custom only, and not a right; though there can be no doubt that the custom has originated in the right, which was enjoyed by the eldest son, as heir to his father, in those days when estates tail could not be barred. Primo- geniture, as a custom, has been the subject of much remark (/). Where family honours or family estates are to be preserved, some such device appears neces- sary. But, in other cases, strict settlements, of the kind referred to, seem fitted rather to maintain the posthimious pride of present owners, than the welfare of future generations. The policy of the law is now in favour of the free disposition of all kinds of pro- perty; and as it allows estates tail to be barred, so it will not permit the object of an entail to be accom- plished by other means, any further than can be done by giving estates to the unborn children of living persons. Thus an estate given to the children of an (/) See 2 Adam Smith's Wealth rage extrait des Manuscrits de of Nations, 181, M'Culloch's edi- Bentham, par Dumont, torn. 1, tion; and M'Culloch's n. xix., vol, p. 307, a work of profound philo- 4, p. 441. See also Traites de sophy, except where a hardened Legislation Civile et Pcnale, ouv- scepticism makes it shallow. K.P. E 50 OF CORPOREAL HEREDITAMENTS. A perpetuity. unhorn c7i?'M would be absolutely void {g). The desire of individuals to keep up their name and memory has often been opposed to this rule of law, and many shifts and devices have from time to time been tried to keep up a perpetual entail, or something that might answer the same end (A). But such contrivances have invariably been defeated ; and no plan can be now adopted by which lands can with certainty be tied up, or fixed as to their future destination, for a longer period than the lives of existing j^ersons and a term of twenty-one years after their decease {i). When the estate tail is preceded by a life interest. The concur- rence of the first tenant for life required. "WTienever an estate tail is not an estate in posses- sion, but is preceded by a life interest to be enjoyed by some other person prior to the possession of the lands by the tenant in tail, the power of such tenant in tail to acquire an estate in fee simple in remainder ex- pectant on the decease of the tenant for life is subject to some limitation. In the time when an estate tail, together with the reversion, could only be barred by a recovery, it was absolutely necessary that the first tenant for life, who had the possession of the lands, should concur in the proceedings ; for no recovery could be suffered, unless on a feigned action brought against the feudal holder of the possession {k). This technical rule of law Avas also a valuable check on the tenant in tail under every ordinary settlement of landed property ; for, when the eldest son (who, as we have seen, is usually made tenant in tail) came of age, he found that, before he could acquire the dominion {g) Hay v. Earl of Coveniry, 3 T. Eep. 86; Brudenell v. Ehces, 1 East, 452. (A) See reame's Contingent Eemainders, 253, et seq. ; Mairi' waring v. Baxter, 5 Vcs. 458. (() Feamc's Contingent Re- mainders, 430, et seq. The period of gestation is also included, if gestation exist ; Cadell v. Pal- mer, 7 Bligh, N. S. 202. Ot) Cruise on Recoveries, 21. See however stat. 14 Geo. II. c. 20. OF AN ESTATE TAIL. 51 expectant on the decease of his father, the tenant for life, he must obtain from his father consent for the purpose. Opportunity was thus given for providing that no ill use should be made of the property (/;. When recoveries were abolished, the consent formerly required was accordingly still preserved, with some little modification. The act abolishing recoveries has established the office o^ protector, which almost always Protector, exists during the continuance of such estates as may precede an estate tail. And the consent of the pro- His consent re- tector is required to be given, either by the same deed remainders and by which the entail is barred, or by a separate deed, reversions. to be executed on or before the day of the execution of the former, and to be also inrolled in the Court of Chancery at or previously to the time of the inrolment ofthe deedwhich bars the entail (/70- Without such con- sent, the remainders and reversion cannot be barred («). In ordinary cases the protector is the first tenant for life, in analogy to the old law (o) ; but 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 per- sons, not exceeding three, to be together protector of the settlement during the continuance of the pre- ceding estates {p) ; and, in such a case, the consent of such persons only need be obtained in order to efiect a complete 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 to his own discretion {q). If he should refuse to con- The issue may sent, the tenant in tail may still bar his own issue ; q^j.^^J!^!'^ T^^^' as he might have done before the act by levying a consent. fine ; but he cannot bar estates in remainder or rever- sion. The consequence of such a limited bar is, that (0 See First Report of Real (w) Sects. 34, 35. Property Commissioners, p. 32. (o) Sect. 22. (»0 Stat. 3 & 4 Will. IV. c. 74, {p) Sect. 32. ss. 42— 47. C'/) Sects. 30, 37. E 2 52 OF CORPOREAL HEREDITAMENTS. the tenant acquires a disposable estate in the land for so long as he has any issue or descendants living, and no longer ; that is, so long as the estate tail would have lasted had no bar been placed on it. But, when his issue fail, the persons having estates in remainder or reversion become entitled. When the estate tail is in possession, that is, when there is no previous estate for life or otherwise, there can very seldom be any protector (r), and the tenant in tail may, at any time by deed duly inrolled, bar the entail, remainders, and reversion at his own pleasure. Estates tail The above-mentioned right, of a tenant in tail to crown as the ^ ^^^* ^^^ entail, is subject to a few exceptions; which, reward of pub- though not of very frequent occurrence, it may be as lie scrvicGS well to mention. And, first, estates tail granted by the crown as the reward for public services cannot be barred so long as the reversion continues in the crown. This restriction was imposed by an act of parliament of the reign of Henry VIII. (s), and it has been con- tinued by the act by which fines and recoveries were abolished {t), and by the act to facilitate leases and sales of settled estates (m), so far as regards any sale or lease beyond the term of twenty-one years. There are also some cases in which entails have been created by particular acts of parliament, and cannot be barred. Tenant in tail Again, an estate tail cannot be barred by any person bililVoTissue ^^^ ^^ tenant in tail after possibiliti/ of issue extinct. extinct. This Can only happen where a person is tenant in special tail. For instance, if an estate be given to a (;•) See Sugd. Vend, and Pur. 593, 11th ed. is) Stat. 34 & 35 Hen. VHI, C.20; Cruise on Recoveries, 318. (t) Stat. 3 & 4 Will. IV. c. 74, s. 18 ; Duke of Qraftoii's case, 5 New Cases, 27. (u) Stat. 19 & 20 Vict. c. 120, s. 42. OF AN ESTATE TAIL. 53 man and the heirs of his body by his present wife ; in this case, if the wife should die without issue, he would become tenant in tail after possibility of issue ex- tinct (u) ; the possibility of his having issue who could inherit the estate tail would have become extinct on the death of his wife. A tenancy of this kind can never arise in an ordinary estate in tail general or tail male ; for, so long as a person lives, the law considers that the possibility of issue continues, however im- probable it may be from the great age of the party (x). Tenants in tail after possibility of issue extinct were prohibited from suffering common recoveries by a statute of the reign of Elizabeth (i/), and a similar pro- hibition is contained in the act for the abolition of fines and recoveries (z). But, as we have before re- marked (a), tenancies in special tail are not now com- mon. In modern times, when it is intended to make a provision for the children of a particular marriage, estates are given directly to the unborn children, which take effect as they come into existence ; whereas in ancient times, as Ave shall hereafter see(Z»), it was not lawful to give any estate directly to an unborn child. The last exception is one that can only arise in the case of grants and settlements made before the passing of the recent act ; for the future it has been abolished. It relates to women who are tenants in tail of lands of their husbands, or lands given by any of his ancestors. After the decease of the husband, a woman so tenant Tenant In tail in tail ex provisione viri was prohibited by an old sta- ^.^4!'^^**"^' (y) Litt. sects. 32, 33; 2 Black. (y) U Eliz. c. 8. Com. 124. (z) 3 & 4 Will. IV. c. 74, s. 18. {x) Litt. sect. 34 ; Co. Litt. 40 a; («) Ante, p. 33. 2 Black. Com. 125; Jce v. Aiidleij, {!>) See the Chapter on a Con- 1 Cox, 324. tingent Remainder. 54 OF CORPOREAL HEREDITAMENTS. tute (c) from suffering a recovery without the assent, recorded or inrolled, of the heirs next inheritable to to her, or of him or them that next after her death shoukl have an estate of inheritance, (that is, in tail or in fee simple,) in the lands : she Avas also prohibited from levying a fine under the same circumstances by the statute Avhich confirmed to fines their force in other cases (rf). This kind of tenancy in tail very rarely occurs in modem practice, having been super- seded by the settlements now usually made on the unborn children of the marriao;e. An estate tail cannot be barred by will or contract. It is important to observe that an estate tail can only be barred by a proper deed, duly inrolled ac- cording to the act of parliament by which a deed was substituted for a common recovery or fine. Thus every attempt by a tenant in tail to leave the lands entailed by his Avill(e), and every contract to sell them, not completed in his lifetime by the proper bar (y), will be null and void as against his issue claiming under the entail, or as against the remainder- men or reversioners, (that is, the owners of estates in remainder or reversion,) should there be no such issue left. Timber. Leases. A tenant in tail may cut down timber for his own benefit, and commit what waste he pleases, without the necessity of barring the entail for that purpose (y). A tenant in tail was moreover empowered by a statute of Henry VIII. (h) to make leases, under certain re- (c) 11 Hen. Vn. c. 20. id) Stat. 32 Hen. VIIL c. 3G, s. 2. (e) Cro. Eliz. 805 ; Co. Litt. Ilia; Stat. 3 & 4 Will. IV. c. 74, s, 40. (/) Bac. Abr. tit. Estate in Tail (D); Stat. 3 & 4 Will. rV. c. 74, s. 40. (g) Co. Litt. 224 a ; 2 Black. Com. 115. (//) Stat. 32 Hen. VIII. c. 28; OF AN ESTATE TAIL. ^^ strictions, of such of the lands entailed as had been most commonly let to farm for twenty years before ; but such leases were not to exceed twenty-one years, or three lives, from the day of the making thereof, and the accustomed yearly rent was to be reserved. This power was however of little use ; for leases under this statute, though binding on the issue, were not binding on the remainderman or reversioner (t), and conse- quently had not that certainty of enjoyment which is the great inducement to the outlay of capital, and the cons'equent improvement of landed property ; and this statute has been recently repealed (J)- The Act for Ncwenact- the Abolition of Fines and Recoveries now empowers every tenant in tail in possession to make leases by deed, without the necessity of inrolment, for any term not exceedmg twenty-one years, to commence from the date of the lease, or from any time not exceeding twelve calendar months from the date of the lease, where a rent shall be thereby reserved, which, at the time of granting such lease, shall be a rack-rent, or not less than five-sixth parts of a rack-rent {k). It has been observed that, in ancient times, estates Forfeiture for ^ „ ., f ^ • 1 . treason. tail were not subject to forfeiture for high treason beyond the life of the tenant in tail {!). This privi- lege they were deprived of by an act of parliament passed in the reign of Henry VIII. (m), by which all estates of inheritance (under which general words estates tail were covertly included) were declared to be forfeited to the king upon any conviction of high treason {n). But the attainder of the ancestor does Co. Litt. ii a 5 Bac. Abr. tit. (/;) Stat. 3 & 4 Will. IV. c. 74, Leases and Terms for Years, ss. 15, 40, 4 L (^D)2. (0 Ante, p. 42. (/) Co. Litt. 45 1) ; 2 Black. (/») 2G Ilcn. VIIL c. 13, s. 5 ; Com. 319. ^cc also 5 & G Edw. VI. c. 1 1 , s. 9, (j) Stat. 19 & 20 Vict. c. 120, («) 2 Black. Cora. 118. s. 35. 56 OF CORPOREAL HEREDITAMENTS. Debts to the crown. Judgment debts. Bankruptcy. not of itself prevent the descent of an estate tail to his issue, as they claim from the original donor, per formam doni (o) ; and, therefore, on attainder for murder, an estate tail would still descend to the issue. By virtue of another statute of the reign of Henry VIII. (p), 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 later statute of the reign of Elizabeth ((7), placed on the same footing. But estates tail, if suifered to descend, were not subject to the debts of the deceased tenant owing to private indi- viduals (r). By an act passed at the commencement of Her present Majesty's reign debts, for the payment of which any judgment, decree, order or rule had been given or made by any court of law or equity, were made binding on the lands of the debtor, as against the issue of his body, and also as against all other persons whom he might, w^ithout the assent of any other person, cut off and debar from any re- mainder or reversion (5). But a more recent statute has enacted that no such judgment, decree, order or rule to be entered up after the 29th of July, 1864, the date of the act, shall affect any land until such land shall have been actually delivered in execution {t). An estate tail may also be barred and disposed of on the bankruptcy 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 (?<). (0) 3 Eep. 10; 8 Eep. 1G5 b; Cro. Eliz. 28. (p) Stat. 33 Hen. VIII. c. 39, s. 75. {q) Stat. 13 Eliz. c. 4 ; and see 11 Eliz. c. 7 ; 25 Geo. 3, c. 35. (r) Com. Dig. Estates (B) 22. (s) Stat. 1 & 2 Vict. 0. 110, ss. 13, 18. (0 Stat. 27 & 28 Vict. c. 1 1 2, ss. 1, 2. (u) Stat. 3 & 4 Will. IV. c.74, OF AN ESTATE TAIL. 57 In addition to the liabilities above mentioned are Husband aud the rights which the marriage of a tenant in tail con- fers on the wife, if the tenant be a man, or on the hnsband, if the tenant be a woman ; an account of which will be contained in a future chapter on the relation of husband and wife. But, subject to these Descent of an rights and liabilities, an estate tail, if not duly barred, ^^^^^^ *''^^^- will descend to the issue of the donee in due course of law ; all of whom will be necessarily tenants in tail, and will enjoy the same powers of disposition as their ancestor, the original donee in tail. The course of descent of an estate tail is similar, so far as it goes, to that of an estate in fee simple, an explanation of which the reader will find in the fourth chapter. If an estate p 711' autre vie should be given to a per- Quasi entail. son and the heirs of his body, a quasi entail, as it is called, Avill be created, and the estate will descend, during its continuance, in the same manner as an or- dinary estate tail. But the owner of such an estate in possession may bar his issue, and all remainders, by an ordinary deed of conveyance (x), without any in- rolment under the statute for the abolition of fines and recoveries. If the estate tail be in remainder ex- pectant 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 (y). ss. 56—73 ; 12 & 13 Vict. c. 106, {y) Allen v. Allen, 2 Dm. & s. 208 ; 24 & 25 Vict. c. 134, War. 307, 324, 332 ; Edwards v. s. 232. Chanqnon, 3 De Gcx, M. & G. ix) Fearnc, Gout. Rem. 495, 202. et seq. 58 OF COEPOKEAL HEREDITAMENTS. CHAPTER III. OF AN ESTATE IN FEE SIMPLE. An estate in fee simple (feudum simplex) is the greatest estate or interest which the law of England allows any person to possess in landed property (a). Tenant in fee A tenant in fee simple is he that holds land or tene- hSi^lnd hfs' ^"^ ments to him and his heirs (b); so that the estate is heirs; descendible, not merely to the heirs of his hody, but to collateral relations, according to the rules and canons of descent. An estate in fee simple is of course an estate oi freehold, being a larger estate than either an estate for life, or in tail (c). and has an estate of free' hold. Right of alien- ation. It is not, however, the mere descent of an estate in fee simple to collateral heirs, that has given to this estate its present value and importance : the unfettered right of alienation, which is now inseparably incident to this estate, is by far its most valuable quality. This right has been of gradual growth: for, as we have seen {d), estates were at first inalienable by tenants, without their lord's consent ; and the heir did not derive his title so much from his ancestor as from the lord, who, when he gave to the ancestor, gave also to his heirs. In process of time, however, the ancestor acquired, as we have already seen (e), the right, first, of disaj^pointing the expectations of his heir, and then of defeating the interests of his lord. The alienations (rt) Litt. s. 11. {b) Litt. s. 1. (r) Ante, pp. 22, 34, {(1) Ante, pp. 17, 18. (p) Ante, pp. 36—40. OF AN ESTATE IN FEE SIMPLE. 59 by -wliich these results were effected were, as will be remembered, either the subinfeudation of parts of the land, to be holden of the grantoi', or the conveyance of the Avhole, to be holden of the superior lord. It was Tart of any- impossible to make a grant of part of the lands to be anden^tiy he^ holden of the superior lord without his consent; for, granted to hold , . T . -, T of the superior the services reserved on any grant were considered as lord. entire and indivisible in their nature (/). The tenant, consequently, if he wished to dispose of part of his lands, was obliged to create a tenure between his grantee and himself, by reserving to himself and his heirs such services as would remunerate him for the services, which he himself was liable to render to his superior lord. In this manner the tenant became a lord in his turn; and the method, which the tenants were thus obliged to adopt, when alienating part of their lands, was usually resorted to by choice, when- ever they had occasion to part with the whole ; for the immediate lord of the holder of any lands had advan- tages of a feudal nature {g), which did not belong to the superior lord, when any mesne lordship intervened; it was therefore desirable for every feudal lord, that the possession of the lands should always be holden by his own immediate tenants. The barons at the time Subinfeuda- of Edward I. accordingly, perceiving, that, by the ttg'ourtoThe" continual subinfeudations of their tenants, their privi- superior lords, leges as superior lords were gradually encroached on, proceeded to procure an enactment in their own favour with respect to estates in fee simple, as they had then already done with regard to estates tail (A). They did not, however, in this case attempt to restrain the prac- tice of alienation altogether, but simply procured a prohibition of the practice of subinfeudation ; and at the same time obtained, for their tenants, facility of (/) Co. Litt. 43 a. Sec Bract, lib. ii. c. 19, par. 2. ig) Such as marriage and ward- (/;) By the stat. i?e Bonis, 13 ship, to be hereafter explained. Edw. I. c. 1, ante, p. 41. 60 OF CORPOREAL HEREDITAMENTS. alienation of parts of their lands, to be holden of the chief lords. The statute of Quia emj}- tores. The statute by which these objects were effected is known by the name of the statute of Quia emptor es {i)\ so called from the Avords with which it commences. It enacts, that from thenceforth it shall be lawful to every freeman to sell at his own pleasure his lands and tenements or part thereof, so nevertheless that the feoffee (or purchaser) shall hold the same lands or tenements of the same chief lord of the fee, and by the same services and customs, as his feoffor held them before. And it further enacts (Ji), that, if he sell any part of such his lands or tenements to any person, the feoffee shall hold that part immediately of the chief lord, and shall be forthwith charged with so much ser- vice as pertaineth, or ought to pertain, to the said chief lord, for such part, according to the quantity of the land or tenement so sold. This statute did not extend to those who held of the king as tenants in capite, who Avere kept in restraint for some time longer (Z). Free liberty of alienation was however subsequently ac- quired by them ; and the right of disposing of an estate in fee simple, by act inter vivos, is now the un- disputed privilege of every tenant of such an estate (?«). Alienation by will. The alienation of lands by will was not allowed in this country, from the time the feudal system became completely rooted, until many years after alienation inter vivos had been sanctioned by the statute of Quia emptores. The city of London, and a few other favoured places, formed exceptions to the general restraint on the power of testamentary alienation of estates in fee simple {n) ; for in these places tenements (0 Stat. 18 Ed w. I.e. 1. (/O Chap. 2. (I) Wright's Tenures, 162. (m) Wright's Tenures, 172; Co. Litt. Ill b, n. 1. (») Litt. sect. 167 ; Perk. sees. 528, 537. OF AN ESTATE IN FEE SIMPLE. Gi might be devised by will, in virtue of a special custom. In process of time, however, a method of devising lauds by will was covertly adopted by means of con- veyances to other j)arties, to such uses as the person conveying should appoint by his will (o). This indi- rect mode of devising lands was intentionally restrained by the operation of a statute, passed in the reign of King Henry VIII. {p), knoAvn by the name of the Statute of Uses, to which we shall hereafter have occasion to make frequent reference. But only five years after the passing of this statute, lands were by a further statute expressly rendered devisable by will. This great change in the law was efi'ected by statutes of the 32nd and 34th of Henry VIII. {q). But even by these statutes the right to devise was partial only, as to lands of the then prevailing tenure; and it Avas not till the restoration of king Charles II., Avlien the feudal tenures were abolished (r), that the right of de- vising freehold lands by will became complete and uni- versal. At the present day, every tenant in fee simple so fully enjoys the right of alienating the lands he holds, either in his lifetime or by his will, that most tenants in fee think themselves to be the lords of their own domains; whereas, in fact, all landowners are merely tenants in the eye of the law, as will hereafter more clearly aj^pear. Blackstone's explanation of an estate in fee simple is, that a tenant in fee simple holds to him and his heirs for ever, generally, absolutely, and simply, Avith- out mentioning what heirs, but referring that to his own pleasure, or the disposition of the law (5). But {0) Perk, ubi sup. Litt. Ill b, n. (1). {p) Stat. 27 Hen. VIII. c. 10, (r) By stat. 12 Car. II. c. 24. intituled "An Act concerning (s) 2 Black. Com. 104. See Uses and Wills." however 3 Black. Com. 224, where {q) Stat. 32 Hen. VIII. c. 1; the correct account is given. 34 & 35 Hen. VIII. c. 5 ; Co. G2 OF CORPOREAL HEREDITAMENTS. The heir is appointed by law. Assigns. the idea of nominating an heir to succeed to the inhe- ritance has no place in the English law, however it might have obtained in the Roman jurisprudence. The heir is always appointed by the law, the maxim being Solus Deus Jiceredem facer e potest, non homo [t)', and all other persons, whom a tenant in fee simple may please to appoint as his successors, are not his heirs but his assigns. 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 ex- clusion of the heir, who would otherwise have become entitled {u). Excepted per- sons. Alien. With respect to certain persons, exceptions occur to the right of alienation. Thus, if an alien or foreigner, who is under no allegiance to the crown (x), were to purchase an estate in lands, the crown might at any time assert a right to such estate ; unless it were merely a lease taken by a subject of a friendly state for the residence or occupation of himself or his ser- vants, or the purpose of any business, trade, or manu- facture, for a term not exceeding twenty-one years (y). For the conveyance to an alien of any greater estate in lands in this country, is a cause of forfeiture to the Queen, who, after an inquest of office has been held for the purpose of finding the truth of the facts, may seize the lands accordingly (z). Before office found, that is, before the verdict of any such inquest of office has been given, an alien may make a conveyance to a natural-born subject; and such conveyance will be valid for all purposes («), except to defeat the prior rioht of the crown, which will still continue. No per- {t) 1 Keeves's Hist. Eng. Law, 105; Co.Litt. 191 a, n. (l),vi. 3. («) Ilogan v. Jackson, Cowp. .%5; Co. Litt. 191a,n.(l),vi. 10. (a-) Litt. s. 198. (y) Stat. 7 & 8 Viet. c. 66, s. 5. {z) Co. Litt. 2 b, 42 b; 1 Black. Com. 371, 372; 2 Black. Com. 249, 274, 293. (a) Shcp. Touch. 232; 4 Leo. 84. OF AN ESTATE IN FEE SIMPLE. 63 son is considered an alien who is born within the dominions of the crown, even though such person may- be the child of an alien, unless such alien should be the subject of a hostile prince (i). And in Calvin's CahWsease. case (c), a person born in Scotland after the accession of James I. to the crown of England, was held to be a natural-born subject, and consequently entitled to hold lands in England, although the two kingdoms had not then been united. Again, the children of the Queen's ambassadors are natural-born subjects by the Common Law {d) ; and, by several acts of parliament, the pri- vileges of natural-born subjects have been accorded to the lawful children, though born abroad, of a natural- born father, and also to the grandchildren on the father's side of a natural-born subject (e); and more recently, the children of a natural-born mother, though born abroad, have been rendered capable of taking any real or personal estate (/). It has been also pro- vided that any woman, who shall be married to a natural-born subject or person naturalized, shall be taken to be herself naturalized, and have all the rights and privileges of a natural-born subject (V/). And by a statute of the reign of William the Third all the King's natural-born subjects are enabled to trace their title by descent through their alien ancestors {h). Any foreigner may, moreover, be made a denizen by the Denizen. Queen's letters patent, and capable as such of acquir- ing lands by purchase, though not by descent (/), or may be naturalized by act of parliament. But almost JJ^*^''^^'^''" (J>) 1 Black. Com. 373 ; Bacon's II. of L. Cas. 535 ; Fitch v. Weher, Abr. tit. Aliens (A). G Hare, 51. (c) 7 Rep. 1. (/) Stat. 7 & 8 Vict. c. CG, \d) 7 Rep. 18 a. s. 3. (e) Stat. 25 Edw. III. stat. 2 ; {g) 7 & 8 Vict. c. GG, s. IG. 7 Anne, c. 5 ; 4 Geo. II. c. 21 ; (/<) Stat. 11 & 12 Will. III. c. G, 13 Geo. III. c. 21. Doe dem. explained by stat. 25 Geo. II. Duroure v. Jones, 4 T. Rep. 300 ; c. 39. Shedden v. Patrick, 1 M'Quecn's (i) 1 Black. Com. 374. 64 OF CORPOREAL HEREDITAMENTS. all the privileges of natural-bom subjects may now be obtained by aliens intending to settle in this country, upon obtaining the certificate and taking the oath pre- scribed by the act of the present reign to amend the laws relating to aliens (A). Infants, idiots, and lunatics. Infants' mar- riage settle- ments. Infants, or all jiersons under the age of twenty-one years, and also idiots and lunatics, though they may hold lands, are incapacitated from making a binding disposition of any estate in them. The conveyances of infants are generally voidable only (Z), and those of lunatics and idiots appear to be absolutely void, unless they were made by feoifment with livery of seisin before the year 1845 {m). But by a recent act of parliament {n), every infant, not under twenty if a male, and not under seventeen if a female, is empowered to make a valid and binding settlement on his or her marriage, with the sanction of the Court of Chancery. If, however, any disentailing assurance shall have been executed by any infant tenant in tail under the provi- sions of the act, and such infant shall afterwards die under age, such disentailing assurance shall thereupon become absolutely void (o). Under certain circum- stances, also for the sake of making a title to lands, infants have been empowered, by modern acts of par- liament, to make conveyances of fee-simple and other estates, under the direction of the Court of Chan- cery (p). And more extensive powers, with respect to (Ji) Stat. 7 & 8 Vict. c. GG. (0 2 Black. Com. 291 ; Bac. Abr. tit. Infancy and Age (13); Zoueli V. Parsons, 3 Burr. 171»4; Allen V. Allen, 2 Dru. & War. 307, 338. {m) Yates v. Soen, 2 Strange, 1104 ; Sugd. Pow. 604, 8th cd. ; Bac. Abr. tit. Idiots and Lunatics (F); Stat. 7 & 8 Vict. c. 76, s. 7; 8 & 9 Vict, c. 106, s 4. (?i) Stat. 18 & 19 Vict. c. 43, extended to the Court of Chancery in Ireland by stat. 23 & 24 Vict, c. 83; lie Dalton, 6 De Gex, Mac. & Gor. 201. (o) Sect. 2. {2>) See Stat. 11 Geo. IV. & 1 Will. IV. c. 47, s. 11 ; 11 Geo. IV. & 1 Will. IV. c. 65, ss. 12, 16, 31 ; OF AN ESTATE IN FEE SIMPLE. 65 tlie estates of idiots and lunatics, have been given to their committees, or the persons Avho have had com- mitted to them the charge of snch idiots and lunatics (5'). Power is also given to the Court of Chancery in the case of infants {r), and to the Lord Chancellor or either of the Lords Justices (5), intrusted by virtue of the Queen's sign manual with the care of the persons and estates of idiots and lunatics {t), by a simple order, to vest in any other person the lands of which any infant, idiot, or lunatic, may be seised or possessed upon any trust or by way of mortgage. Married women are under a limited incapacity to Married alienate, as will hereafter appear. And persons at- women, tainted for treason or felony cannot, by any conveyance persons. which they may make, defeat the right to their estates, which their attainder gives to the crown, or to the lord, of whom their estates may be holden (ii). There are certain objects, also, in respect of which Excepted the alienation of lands is restricted. In the reign of ^ -"^^ ^' George II. an act was passed, commonly called the Mortmain Act, the object of which, as expressed in the The Mortmain preamble, was to prevent improvident alienations or ^^^' dispositions of landed estates, by languishing or dying 2 & 3 Vict. e. GO ; 11 & 12 Vict. stat. 13 & 14 Vict. c. 60, ss. 7, 8. c. 87. (s) Stat. 30 & 31 Vict. c. 87, () Sect. 13. As to the Lords Justices, see stats. ((/) Sect. 18. See Jones v. Wll- 10 & 11 Vict. c. 102; U & 15 Vict. Hams, 11 Ad. & Ell. 157; 8 Mees. c. 83. As to entering satisfaction &Wds.34:d;jDoeY.Ameij,SMees. on judgments, see stat. 23 & 24 & Wels. 565 ; Wells v. Gibbs, 3 Vict. c. 115, s. 2. Beav. 399 ; DuJic of Bcavfovf v. (r) Sect. 19; 2 & 3 Vict. c. 11, R.P. • G 82 OF CORPOREAL HEREDITAMENTS. peated every five years (5); but the purchaser was bound if the judgment, decree, order, or rule was regis- tered within five years before the execution of the conveyance to him, although more than five years should have elapsed since the last previous registra- Notice imma- tion (t). If, however, the judgment, &c., were not so tenal, registered, or re-registered, the purchaser was not affected thereby, even though he should have had express notice of its existence (zt); but the judgment creditor did not, by omitting to re-register, neces- sarily lose his priority, if once obtained, over subse- Protection to quent judgments, though duly registered (x). And, purchasers |^ ^ further enactment, it was provided, in favour of Anthout notice. •' _ \ ^ ' _ purchasers without notice of any such judgments, decrees, orders, or rules, that none of such judgments, &c. should bind or aifect any lands, tenements, or hereditaments, or any interest therein, as against such purchasers without notice, further or otherwise, or more extensively in any respect, although duly regis- tered, than a judgment of one of the superior courts would have bound such purchasers before the last- mentioned act, Avhen it had been duly docketed ac- Purther Act. cording to the law then in force (y). More recently it was provided (z), that no judgment to be entered up after the 23rd of July, 1860, should afiect any land as to a bona fide purchaser for valuable consideration, or a mortgagee, (whether such purchaser or mort- gagee had notice or not of such judgment,) unless a writ or other due process of execution of such judg- ment should have been issued and registered, as pro- s. 3 ; 18 & 19 Vict. c. 15, s. 10 ; 18 & 19 Vict. c. 15, ss. 4, 5. Sugd. Vend. & Pur. 423 et scq. (a?) BeavaJix. TJie Earl of Ox- 13th cd. ford, 6 De Gex, M. & G. 492. (s) Stat. 2 & 3 Vict. c. 11, s. 4. (y) Stat. 2 & 3 Vict. c. 11, s. 5; it) Stat. 18 & 19 Vict. c. 15, Lanev. Jackson, 20 Be&y. 5^5. s. G. (2) Stat, 23 & 24 Vict. c. 38, (//) Stat. 3 & 4 Vict. c. 82, s. 2; s. 1. OF AN ESTATE IN FEE SIMPLE. 83 vided by the act, before the execution of the con- veyance or mortgage to him, and tlie payment of the purchase or mortgage money by hun. And no such judgment, nor any writ of execution or other process thereon, Avas to affect any land as to a bona fide pur- chaser 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 Avas regis- tered. A registry of writs of execution was also pro- vided (a); but as the entry Avas required to be made in alphabetical order by the names of the persons in whose behalf the judgments were registered, and not by the names of the debtors, it was still necessary to search for judgments in the registry above re- ferred to (b). An act has at length been passed which entirely New Act, lion deprives all future judgments of their lien on real abolished!" " estates (c). This act, which was passed on the 29th of July, 1864, provides that no future judgment shall affect any land, of whatever tenure, until such land shall have been actually delivered in execution by virtue of a Avrit of elegit, or other lawful authority, in pursuance of such judgment {d). In the construction of the act, the term "judgment" is to be taken to include registered decrees, orders of courts of equity and bankruptcy, and other orders having the opera- tion of a judgment (e). Every writ, by virtue Avhereof Writ to be re- any land shall have been actually delivered in execu- " '^ tion, must be registered in the manner provided by the last-mentioned act (y), but in the name of the {a) Stat. 23 & 2-t Vict. c. 38, {d) Sect. 1. s. 2. {e) Sect. 2. (Jj) Ante, p. 81. (/) Stat. 23 & 2-4 Vict. c. 38, (0 Stat. 27 &28 Vict. c. 112. G 2 84 OF CORPOREAL HEREDITAMENTS. debtor against wliom such writ or process is issued, instead of, as under that act, in the name of the creditor. And no other registration of the judgment is to be deemed necessary for any purpose (^). 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 regis- tered, may obtain from the Court of Chancery, upon Order for sale, petition in a summary way, an order for the sale of his debtor's interest in such land (A). 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 who may be found entitled thereto, according to their priorities (/). And every person claiming any inte- rest in such land through or under the debtor, by any means subsequent to the delivery of such land in execution as aforesaid, is bound by every such order for sale, and by all the proceedings consequent thereon {k). This act does not extend to Ireland (Z). This act extends not only to judgments, but also to Statutes and Statutes and recognizances. Statutes merchant and , recognizances, statutes staple, which are here referred to, are modes of securing money that have long been obsolete. Kecognizances are entered into before a court of record or a magistrate ; and, like judgments, they were a charge on lands until the passing of this act (?«). Counties * Lands in either of the counties palatine of Lan- paiatine. caster or Durham were affected both by judgments of the courts at Westminster, and also by judgments iff) Stat. 27 & 28 Vict. c. 112, (0 Sect. 7. g. 3, • (;«.) See the Author's " Princi- (/i) Sect. 4. pies of the Law of Personal Pro- (0 Sect. 5. perty," p. 100, 5th ed. ; 102, Gth cd. {Jt) Sect. G. OF AN ESTATE IN FEE SIMPLE. g of the Palatine Court (??). These latter judgments had, Avithin the county palatine, the same efiect as judgments of the courts at Westminster ; and an index for their registration Avas established in each of the counties palatine, similar to the index of judgments at the Conamon Pleas (o). And by a recent statute (p) it was provided, that no judgment, decree, order, or rule of any court should bind lands in the counties palatine, as against purchasers, mortgagees, or credi- tors, until registration in the court of the county jialatine in which the lands were situate. And the same provisions as to re-registration within five years as applied to the registry of the Court of Common Pleas applied also to these registries i^q). Lands in the county palatine of Chester, and in the principality of Wales, have been jjlaced by a modern statute ex- clusively within the jurisdiction of the courts at West- minster (r); and by another statute [s) the palatinate jurisdiction within the county of Durham, which for- merly belonged to the Bishop of Durham, has been transferred to the croAvn. Debts due, or Avhich might have become due, to the Crown debts. croAvn, from persons Avho Avere accountants to the crown {€), and debts of record, or by bond or specialty, due from other persons to the croAvn(2<), were, until in) 2 Wms. Saund. 194. vi. 9. See also stats. 1 & 2 Geo. (o) Stat. 1 & 2 Vict. c. 110, IV. c. 121, s. 10; 2 & 3 Vict. c. 11, s. 21. ss. 9, 10, 11; Sugd. Vend. & Pur. (/^) Stat. IS & 19 Vict. c. 15, 436, 13th ed. s. 2. («) Stat. 33 Hen. VHI. c. 39, (-7) Sect. 3. ss. 50, 75. But simple contract (?•) Stat. 11 Geo. IV. & 1 Will. debts due to the crown by the IV. c. 70, s. 14. vendor were not binding on the (s) Stat. 6 & 7 Will. IV. c. 19, purchaser, unless he had notice of amended by stat. 21 & 22 Vict. them, Alng \. Smith, VCv^htw. Si; c. 45. Casherd \. Attorney- General, Q (t) Stat. 13 Eliz. c. 4 ; 25 Geo. Price, 474. lU. c. 35 ; Co. Litt. 191 a, n. (1), 86 OF CORPOREAL HEREDITAMENTS. recently, binding on tlieir estates in fee simple when sold, as well as when devised by will, or suffered to descend to the heir-at-law. But any two {x) of the Commissioners of the Treasury were empowered, upon such terms as they might think proper, to certify by writing under their hands, that any lands of any crown debtor, or accountant to the crown, should be held by the purchaser or mortgagee thereof discharged from all further claims of her Majesty, her heirs or suc- cessors, in respect of any debt or liability of the debtor or accountant to whom such lands belonged (y). And a similar power was more recently given to any two of the commissioners, or other principal officers of any public department with respect to any crown bond or other security concerning or incident to any such department ; or if there were only one such commis- sioner or officer then the power was vested in him {z). To obviate the dangerous liability of purchasers to crown debts, an index was opened at the Common Pleas of the names of crown debtors ; and lands could not be charged, in the hands of purchasers, with these lia- bilities, unless the name, abode, and description of the debtor, with other particulars, were inserted in the proper index. And from the 31st of December, 1859, the provisions already mentioned for the re-registry of judgments every five years were applied to crown debts; and notice of any crown debt not duly re- registered was rendered of no avail against a pur- Kcw enact- chaser (a). But now no debts or liabilities to the crown incurred after the 1st of November, 1865 (Z»), shall affect any land as to a bona fide purchaser for (,r) Stat. 12 & 13 Vict. c. 89. (a) Stats. 2 & 3 Vict. c. 11, s. 8; (y) Stat. 2 & 3 Vict. c. 11, 22 & 23 Vict. c. 35, s. 22. Pur- s. 10. chasers were indebted for this pro- (z) Stats. 10 & 17 Vict. c. 107, tcction to Lord St. Leonards, ss. 19.5— 197; 23 & 21 Vict. c. 115, (h) Stat. 28 & 29 Vict. c. 104, 8. 1. s. 4. IllCUt. OF AN ESTATE IN FEE SIMPLE. ^' valuable consideration or a mortgagee, whether such purchaser or mortgagee have or have not notice thereof, unless a writ or process of execution has been issued and registered before the execution of the conveyance or mortcrage to such purchaser or mortgagee and the payment by him of the purchase or mortgage money (c) The registration is effected as follows :-A minute of Registration. the name of the person against whom the writ or process is issued and of the date of the issuing thereof and of the amount for which it is issued, is left with the senior Master of the Court of Common Pleas at Westminster, who forthwith enters the same m a book by the name, in alphabetical order, of the person ao-ainst whom the writ or process is issued; and no other registration of the writ or process or of the debt or liability is now necessary for any purpose (^). Actions at law and suits in equity respecting Lis pendens. the lands will also bind a purchaser as well as the heir or devisee; that is, he must abide by the result, although he may be ignorant that any such proceed- ings are depending (e). A provision has accordingly be^'en made for the registration of every lis pendens ; and no Us pendens binds a purchaser or mortgagee without express notice thereof, unless and until it is duly re- o-istered; and the registration to be binding must be Repeated every five years(/). And the Court before Reg-h-ation whom the property sought to be bound is m litigation ^^-^^^^^ is now empowered, on the determination of the hs pendens, or during its pendency if satisfied that the litio-ation is not prosecuted bomt fide, to order the re- gistration to be vacated without the consent of the (e^ Stat 28 & 29 Vict. c. 104, 120; 3 Prest. Abst. 354; Bellamy ,/ V. Sabine, 1 De Gex & Jones, s. 48. (d^ Sect 40 ^'''^'- (e) Co. Litt. 344 b; Anon. 1 (/) Stat. 2 & 3 Vict. c. 11, Vera. 318; mern\.Mill,V3Yes. s. 7. 88 OF CORrOREAL HEREDITA3IENTS. party by Avliom the lis pendens "was registered (<7). The index of pending suits, together with the indexes of writs of execution, are accordingly searched pre- viously to every purchase of lands; and, if the name of the vendor should be found in either, the debt or liability must be got rid of, before the purchase can be safely completed. Bankrnptcj. Insolvency. Hi'xh treason and murder. Another instance of involuntary alienation for the jDayment of debts, occurs on the bankruptcy of any person, in which event the whole of his freehold, as well as his personal estate, is now vested first in the official and afterwards in the creditors' assignee, by virtue of his appointment, in trust for the whole body of the creditors (Ji). On the insolvency of any person, his whole estate formerly vested in the provisional assignee of the Court for the Relief of Insolvent Debtors, from whom it was transferred to assignees appointed by the Court, vesting in them by virtue of their appointment, and Avithout any conveyance, in trust for the benefit of the creditors of the insolvent, according to the provisions of the act for amending the laws for the relief of insolvent debtors (/j. The whole of these laws are however now repealed, and all debtors, whether traders or not, are subject to the provisions of the last act to amend the law relating to bankruptcy and insolvency in England (A). Involuntary aliena- tion of lands also occurs in case of high treason or murder committed by the owner, as will be hereafter more fully explained. iff) Stat. 30 & 31 Vict. c. 47, s. 2. (/O Stat. 12 & 13 Vict. c. lOG, ss. Ill, 142, repealing and conso- lidating the former statute G Geo. IV. c. 16, and subsequent acts ; amended by stat. 17 & 18 Viet. c. 119, and further amended and greatly altered by stat. 24 & 25 Vict. c. 134. (0 1 & 2 Vict. c. 110, s, 23 et seq. See also 5 & 6 Vict. c. 116; 7 & 8 Vict. c. 96 ; 10 & 11 Vict. c. 102. {k) Stat. 24 & 20 Vict. c. 134. OF AN ESTATE IN FEE SIMPLE. 89 So inherent is the right of alienation of all estates The right ar.a (except estates tail, in which, as we have seen, the aiiViation'both right is only of a modified nature), that it is impossible ^^^^j^JUP^^.;!"'^ for any owner, by any means, to divest himself of this are iuhercut in right. And in the same manner the liability of estates P^^ope^ty. to involuntary alienation for payment of debts cannot by any means be got rid of. So long as any estate is in the hands of any person, so long does his power of disposition continue {I), and so long also continues his liability to have the estate taken from him to satisfy the demands of his creditors (??«). When, however. But a gift of 1 £• ii, property may lands or property are given by one person tor the ^e contined to benefit of another, it is possible to confine the duration JJjc pc^'^j^^ of the gift within the period in which it can be per- personal sonally enjoyed by the grantee. Thus land, or any enjoyment. other property, may be given to trustees in trust for A. until he shall dispose of the same, or shall become bankrupt or insolvent, or until any act or event shall occur, whereby the property might belong to any other person or persons (?«); and this is frequently done. On the bankruptcy or insolvency of A., or on his attempting to make any disposition of the pro- perty, it will in such a ease not vest in his assignees, or follow the intended disposition; but the interest which had been given to A. will thenceforth entirely cease ; in the same manner as where lands are given to a person for life, his interest terminates on his de- cease. But, although another person may make such a ffift for A.'s benefit, A. would not be allowed to make such a disposition of his own property in trust for himself (o). An exception to this rule of law Exception, occurs in the case of a woman, who is permitted by (Z) Litt. s. 3G0; Co. Litt. 20G b, 947. 223 a. (<') Lester y. Garland, 5 Sim. (m) Brandon v. Bohinmn, 18 20.5; Phipj'S \. Lord Ennixmore, Vcs. 429, 433. 4 Russ. 131. (ft) Lochjer v. Savage, 2 Str. 90 OF CORrOREAL HEREDITAMENTS. the Court of Chancery to have property settled upon her in such a way, that she cannot when married make any disposition of it during the coverture or marriage ; but this mode of settlement is of comparatively mo- dern date ip). There are also certain cases in which the personal enjoyment of property is essential to the performance of certain public duties, and in which no alienation of such property can be made; thus a benefice with cure of souls cannot be directly charged or encumbered (9-); so offices concerning the adminis- tration of justice, and pensions and salaries given by the state for the support of the grantee in the per- formance of present or future duties, cannot be aliened (r); though pensions for past services are, generally speaking, not within the rule {s). Husbands and In addition to the interests which may be created ^\-ives. l3y alienation, either voluntary or involuntary, there are certain rights, conferred by law on husbands and wives in each other's lands, by means of which the descent of an estate, from an ancestor to his heir, may partially be defeated. These rights will be the sub- ject of a future chapter. If, however, the tenant in fee simple should not have disposed of his estate in his lifetime, or by his will; if it should not be SAval- lowed up by his debts ; and if he should not have been either traitor or murderer, his lands will descend {p) Brandon v. Iiol)imon,\^ (r) Flartyx. Odium, ST.Re'p. Ves. 434 ; Tnllett v. Armstrong, 681; stats. 5 & 6 Edw. VI. c. 16 ; 1 Bear. 1; 4 M. & Cr. 390; Scar- 49 Geo. III. c. 126. borough V. Borman, 1 Beav. 34; («) McCarthy v. Goold, 1 Ball 4 M. & Cr. 377. & Bcatty, 387; Tunsfal v. Booth- {q) Stats. 13 Eliz. c. 20; 57 Geo. hy, 10 Sim. 542. But see statutes III. c. 99, s. 1 ; 1 & 2 Vict. c. 106, 47 Geo. IH. sess. 2, c. 25, s. 4, and s. 1; Shawv. Prltchard, 10 Bam. 11 Geo. IV. & 1 Will. IV. c. 20, & Cress. 241 ; Long v. Storie, 3 De s. 47; Lloyd y. Cheetham, 3 Giff. Gex & Smale, 308 ; Hawkins v. 171; Heald v. Hay, 3 Giff. 467. Gatliercole, 6 De Gex, M. & G. 1. OF AN ESTATE IN FEE SIMPLE. 91 (subject to any rights of his wife) to the heir at law. The heir, as we have before observed (0, is a person The heir at appointed by the law. He is called into existence by his ancestor's decease, for no man during his life- time can have an heir. Nemo est hceres viventis. A man may have an heir apparent, or an heir presumptive, but until his decease he has no heir. The heir ap- Heir apparent. parent is the person, who, if he survive the ancestor, must certainly be his heir, as the eldest son in the life- time of his father. The heir presumptive is the per- Heir presump- son, who, though not certain to be heir at all events, should he survive, woukl yet be the heir in case of the ancestor's immediate decease. Thus an only daughter 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; for her father may have a son, who would supplant her, and become heir appa- rent during the father's lifetime, and his heir after his decease. An heir at law is the only person in whom the law of England vests property, whether he will or not. If I make a conveyance of land to a person in my lifetime, or leave him any property by my will, he may, if he pleases, disclaim taking it, and in such case it will not vest in him against his will {ii). But an heir at law, immediately on the decease of his ancestor, becomes presumptively possessed, or seised in law, of all his lands (ar). No disclaimer that he may make The heir can- ^ „ , , ^ 1 not disclaim. will have any effect, though, ol course, he may, as soon as he pleases, dispose of the property by an ordi- nary conveyance. A title as heir at law is not nearly so frequent now as it was in the times when the right of alienation was more restricted. And when it does occur, it is often established with difficulty. This difficulty arises more from the nature of the facts to (/) Ante, p. 02. (•'•) ■\^'"atkins on Descents, 2.', (w) Nlcloson V. Wordsn-orth, 2 2G (-ith cd. CI). Swanst. 3G5, 372. 92 or CORPOREAL HEREDITAMENTS. be jDroved, than from any uncertainty in the law. For the rules of descent have now attained an almost mathematical accuracy, so that, if the facts are rightly given, the heir at law can at once be pointed out. Gradual pro- The accuracy of the law has arisen by degrees, by the faw of de- Successive determination of disputed points. Thus, scents. -YfQ have seen that, in the early feudal times, an estate to a man and his heirs simply, which is now an estate in fee simple, was descendible only to his offspring, in the same manner as an estate tail at the present day; but in process of time collateral relations were admitted to succeed. When this succession of col- laterals first took place is a question involved in much obscurity; we only know that in the time of Henry II. the law was settled as follows: — In default of lineal descendants, the brothers and sisters came in ; and if they were dead, their children; then the uncles and their children; and then the aunts and their children; males being always preferred to females (y). Subse- quently, about the time of Henry III. (z), the old Saxon rule, which divided the inheritance equally amongst all males of the same degree, and w^hich had hitherto j)revailed as to all lands not actually the sub- jects of feudal tenure (a), 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 in injini- tum of any person, who would have been heir if livino-, 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 grand- daughter only, was to be preferred in inheritance (y) 1 Reeves's Hist. Eng. Law, note (1\ vi. 4. 43. («) Clements v. Sandamayi, 1 {z) 1 Reeves's Hist. 310 ; 2 T. Wms. 04 ; 2 Lord Raymond, Black. Com. 215; Co. Litt. 191a, 1024; 1 Scriv. Cop. 53. OF AN ESTATE IN FEE SIMPLE. before any younger son (b). The father, moreover, or any other lineal ancestor, was never allowed to suc- ceed as heir to his son or other descendant; neither were kindred of the half-blood admitted to inherit (c). The rules of descent, thus gradually fixed, long re- mained unaltered. Lord Hale, in whose time they had continued the same for above 400 years, was the first to reduce them to a series of canons (d); which were 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 {e), a.d. 1833. By this act, amongst other important altera- tions, the father is heir to his son, supposing the latter to leave no issue; and all lineal ancestors are rendered capable of being heirs (/); relations of the half-blood are also admitted to succeed, though only on failure of relations in the same degree of the whole blood (f/). 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 next chapter. (^b) 1 Keeves's Hist. 310. amended by stat. 22 & 23 Vict. (c) 2 Black. Com. c. 14. c. 35, ss. 19, 20. (d) Hale's Hist. Com. Law, (/) Sect. 6. . 6th ed., p. 318 et seq. (i/) Sect. 9. (f) Stat. 3 & 4 Will. IV. c. 106, 93 94 OF CORPOREAL HEREDITASIENTS. CHAPTEE IV. Eules of descent. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. We shall now proceed to consider the rules of the de- scent of an estate in fee simple, as altered by the act for the amendment of the law of inheritance (a). This act does not extend to any descent on the decease of any person, who may have died before the first of January, 1834(6). For the rules of descent prior to that date, the reader is referred to the Commentaries of Blackstone (c), and to Watkins's Essay on the Law of Descents. Eule 1. Purchase. Descent for- merly traced from the j)er- son last pos- sessed. 1. The first rule of descent now is, that inheritances shall lineally descend, in the first place, to the issue of the last purchaser in iiifinitum. The word purchase has in law a meaning more extended than its ordinary sense: it is possession to which a man cometh not by title of descent {d) : a devisee under a will is accord- ingly a purchaser in law. And, by the act, the pur- chaser from Avhom descent is to be traced is defined to be, the last person who had a right to the land, and who cannot be proved to have acquired the land by descent, or by certain means (e) which render the land part of, or descendible in the same manner as, other land acquired by descent. This rule is an alteration of the old law, which was, that descent should be traced from the person who last had the feudal pos- (fl) Stat. 3 & 4 Will. IV. c. 106, amended by stat. 22 & 23 Vict. c. 35, ss. 19, 20. {h) Sect. 11. (c) 2 Black. Com. c. 14. {d) Litt. s. 12. (e) Escheat, Partition and In- closurc, s. 1. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 95 session or seisin, as it was called; the maxim being seisina facit stipitetn {f ). This maxim, a relict of the troublesome times when right without possession was Avorth but little, sometimes gave occasion to diffi- culties, 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 enter- ing into a house by the Avindow, and when half out and half in, was pulled out again by the heels, it Avas made a question, Avhether or no this entry Avas sufficient, and it was adjudged that it AA-as {g). These difficulties cannot arise under the ucav act ; for noAv the heir to be sought for is not the heir of the person last pos- sessed, but the heir of the last person entitled ivho did 7wt inherit, Avhether he did or did not obtain the pos- session, or the receipt of the rents and profits of the land. The rule, as altered, is not indeed altogether Objection to free from objection ; for it Avill be observed that, not ^^^ alteration. content Avith making a title to the laud equi\'alent to possession, the act has added a new term to the defi- nition, by directing descent to be traced from the last person entitled who did not inherit. So that if a person who has become entitled as heir to another should die intestate, the heir to be sought for is not the heir of such last OAvner, but the heir of the jDerson from whom such last owner inherited. This provision, though made by an act consequent on the report of the Real Property Commissioners, Avas not proposed by them. The Commissioners merely proposed that lands should pass to the heir of the person last en- titled (K), instead, as before, of the person last pos- sessed; thus facilitating the discovery of the heir, by rendering a mere title to the lands sufficient to make (/) 2 Black. Com. 209; Watk. 53). Descent, c. 1, s. 2. (Ji) Thirteenth proposal as to ((jr) Watk. Descent, 1.5 (4th cd. Descents. OF CORPOREAL HEREDITAMENTS. the person entitled the stock of descent, without his obtaining the feudal possession, as before required. Under the old law, descent was confined within the limits of the family of the purchase?- ; but now no per- son who can be shown to have inherited can be the stock of descent, except in the case of the total failure of the heirs of the purchaser {i) ; in every other case, descent must be traced from the last purchaser. The author is bound to state that the decision of the Courts of Exchequer and Exchequer Chamber, in the recent case of Muggleton v. Barnett{K), is opposed to this view of the construction of the statute. The reasons which have induced the author to think that decision erroneous will be found in Aj^pendix A. 2. The second rule is, that the male issue shall be admitted before the female (/). 3. The third rule is, that where two or more of the male issue are in equal degree of consanguinity to the purchaser, the eldest only shall inherit; but the females shall inherit all together (7?z). The last two rules are the same now as before the recent act ; accordingly, if a man has two sons, William and John, and two daughter, Susannah and Catherine (w), William, the eldest son, is the heir at law, in exclusion of his younger brother John, according to the third rule, and of his sisters, Susannah and Catherine, according to rule 2, although such sisters should be his seniors in years. If, however, William should die without issue, then John will succeed, by the second rule, in exclu- sion of his sisters ; but if John also should die without (0 Stat. 22 & 23 Vict. c. 35, (0 2 Black. Com. 212. ss. 11), 20. {ni) 2 Black. Com. 214, {k) 1 H. & N. 282; 2 H. & N. (») See the Table of Descents 663. annexed. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 97 issue, the two sisters Avill succeed in equal shares by the third rule, as being together heir to their father. Primogeniture, or the right of the eldest among the Primogeniture. males to inherit, Avas a matter of far greater conse- quence in ancient times, before alienation by will was permitted, than it is at present. Its feudal origin is undisputed; but in this country it appears to have taken deeper root than elsewhere ; for a total exclusion of the younger sons appears to be peculiar to Eng- land : in other countries, some portion of the inherit- ance, or some charge upon it, is, in many cases at least, secured by law to the younger sons (o). From this ancient right has arisen the modern English custom of settling the family estates on the eldest son ; but the right and the custom are quite distinct : the right may be prevented by the owner making his will ; and a conformity to the custom is entirely at his option. When two or more persons together form an heir, Coparceners, they are called in law coparceners, or, more shortly, parceners (p). The term is derived, according to Lit- tleton (q), from the circumstance that the law will con- strain them to make partition ; that is, any one may oblige all the others so to do. AYhatever may be thought of this derivation, it will serve to remind the reader, that coparceners are the only kind of joint owners, to whom the ancient common law granted the poAver of scA'ering their estates without mutual con- sent: as the estate in coparcenary Avas cast on them by the act of the laAv, and not by their OAvn agree- ment, it Avas thought right that the perverseness of one should not prevent the others from obtaining a (o) Co. Litt. 191 a, n. (1), vi. 4. (q) Sect. 241 ; 2 Black. Cora. ( p) Bac. Abr. tit. Coparceners. 1 89. R.P. H 98 OF COEPOREAL HEREDITAMENTS. more beneficial method of enjoying the property. raitition. This conipulsory partition Avas formerly effected by a writ of partition (r), a proceeding now abolished (5). The modern method is by a jndge of the Court of Chancery in chambers, or more rarely by a commis- sion issued for the purpose by that Court (t). Parti- tion, however, is most frequently made by voluntary agreement between the parties, and for this purpose a deed has, by a modern act of parliament, been ren- dered essential in every case (u). The inclosure com- missioners for England and Wales have also j^ower to effect partitions, by virtue of modern enactments, which Avill be found mentioned at the end of the chapter on Joint Tenants and Tenants in Common. When partition has been effected, the lands allotted Severalty. are said to be held in severalty/ ; and each owner is Entirety. Said to have the entirety of her own parcel. After partition, the several parcels of land descend in the same manner as the undivided shares, for which they have been substituted {v); the coparceners, therefore, do not by partition become purchasers, but still con- tinue to be entitled by descent. The term coparce- ners is not applied to any other joint owners, but only to those who have become entitled as coheirs {w). Rule 4. 4. The fourth rule is, that all the lineal descendants in infinitum of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living (a;). Thus, in the case above mentioned, on (r) Litt. ss. 247, 248. (.s) Stat. 3 & 4 Will. IV. c. 27, s. 3G. (0 Co. Litt. IGOa, n. (2); 1 Tonb. Eq. 18 ; Canning v. Can- ning, 2 Drewry, 434. («) Stat. 8 & 9 Vict. c. 106, s. 3, repealing stat. 7 & 8 Vict. c. 76, s. 3, to the same effect. {v) 2 Prest. Abst. 72 ; Doe d. Crostliwaite v. Dixon, 5 Adol. & Ellis, 834. (w) Litt. s. 254. (a?) 2 Black. Com. 216. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 99 the death of William the eldest son, leaving a son, that son Mould succeed to the wliole by right of repre- sentation, in exclusion of his uncle John, and of his two aunts Susannah and Catherine; or had William left a son and daughter, such daughter would, after the decease of her brother, without issue, be, in like manner, the heir of her grandfather, in exclusion of her uncle and aunts. The precedins rules of descent apply as well to the Descent of an ^ „ ., .,. ,111 1 X xi i. estate tail descent of an estate tail, it not duly barred, as to that of an estate in fee simple. The descent of an estate tail is always traced from the purchaser, or donee in tail, that is, from the person to whom the estate tail was at first given. This was the case before the act, as well as now(?/); for, the person who claims an entailed estate as heir claims only according to the express terms of the gift, or, as it is said, per formam doni. The gift is made to the donee, or pur- chaser, and the heirs of his body ; all persons, there- fore, who can become entitled to the estate by descent, must answer the description of heirs of the purchaser's body; in other words, must be his lineal heirs. The second and third rules also equally apply to estates tail, unless the restriction of the descent to heirs male or female should render unnecessary the second, and either clause of the third rule. The fourth rule com- pletes the canon, so far as estates tail are concerned; for, when the issue of the donee are exhausted, such an estate must necessarily determine. But the descent of an estate in fee simple may extend to many other persons, and accordingly requires for its guidance addi- tional rules, with which we now proceed. 5. The fifth rule is, that on failure of lineal descend- Kuie 5. (//) Doe (1. Griijorij v. WfiirJwIo, 8 T. liep. LM 1. H 2 100 OF CORPOREAL HEREDITAMENTS. ants, or issue of the purchaser, the inheritance shall descend to his nearest lineal ancestor. This rule is materially different from the rule Avhich prevailed The old rule, before the passing of the act. The former rule was, that, on failure of lineal descendants or issue of the person last seised (or feudally possessed), the inheritance should descend to his collateral relations, being of the blood of the first purchaser, subject to the three preceding rules (r). The old law never allowed lineal relations in the ascending line (that is, parents or ancestors) to succeed as heirs. But, by the new act, descent is to be traced through the an- cestor, who is to be heir in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there being no descendant of such Exclusion of lineal ancestor. The exclusion of parents and other lineal ances- lineal ancestors from inheriting under the old law was a hardship of which it is not easy to see the propriety ; nor is the explanation usually given of its origin per- haps quite satisfactory. Bracton, who is followed by Lord Coke, compares the descent of an inheritance to that of a falling body, which never goes upwards in its course (a). The modern explanation derives the origin of collateral heirships, in exclusion of lineal ancestors, from gifts of estates (at the time when in- heritances 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 novum nt called a gift of a feudum novum, or new inheritance, antujuum. ^^ ^^^^ ut feudum a7itirjuuni,aB an ancient one. Now, an ancient inheritance,— one derived in a course of descent from some remote lineal ancestor, — would of (.-) 2 Black. Com. 220. (a) Bract, lib. 2, c. 29; Co. Litt. 11 a. tors. Fenduni OF THE DESCENT OF AN ESTATE IN FEE SIMFLE. 101 course be descendible to all tbe issue or lineal heirs of such ancestor, including, after the lapse of many years, numerous families, all collaterally related to one ano- ther: an estate newly granted, to be descendible ut feudum antiquum, would therefore be capable of de- scending to the collateral relations of the grantee, m the same manner as a really ancient inheritance, de- scended to him, would have done. But an ancient inheritance could never go to the father of any owner, because it must have come from his father to him, and the father 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 {h). So far, there- fore, 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, contrary to this theory of an ancient lineal inheritance, which would have previously passed by every elder brother, as well as the ftither. The expla- nation 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 family 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. 6. The sixth rule is, that the father and all the male Rule 6. paternal ancestors of the purchaser, and their descend- ^ ants, shall be admitted, before any of the female pa- ternal ancestors or their heirs; all the female paternal ancestors and their heirs, before the mother or any of {h) 2 Black. Coin. 212, 221, 222; Wright's Tenures, 180. See also Co. Litt. 11 a, n. (i;. OF CORPOREAL HEREDITAMENTS. Preference of males to fe- males. 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 maternal ancestors, or their heirs (c). This rule is a development of the ancient canon, which requires that, in collateral inheritances, the male stocks should always be preferred to the female ; and it is analogous to the second rule above given, which directs that in lineal inheritances the male issue shall be admitted before the female. This strict and careful preference of the male to the female line was in full accordance with the spirit of the feudal system, which, 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 {d). The feudal origin of our laws of descent will not, however, aftbrd. a complete explanation of this preference; for such lands as continued, descen- dible after the Saxon custom of equal division, and not according to the Xorman and feudal law of primo- geniture, were equally subject to the preference of males to females, and descended in the first place ex- clusively to the sons, who divided the inheritance between them, leaving nothing at all to their sisters. The true reason of the preference appears to lie in the degraded position in society, which, in ancient times, Avas held by females; a position arising from their deficiency in that kind of might, which then too fre- quently made the right. The rights given by the common law to a husband over his wife's property (rights now generally controlled by proper settlements previous to marriage), show the state of dependence to which, in ancient times, women must have been reduced {e). The preference of males to females has (c) Stat. 3 & 4 Will. IV. c. lOG, s. 7, combined with the definition of "descendants," sect. 1. (rO 2 Black. Com. 214. (i") See post, the chapter on Hus- band and Wife. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 103 been left untouched by the recent act for the amend- rrefercncc of ment of the law of descents; and the father and all males still his most distant relatives have priority over the mother continued. of the purchaser: she cannot succeed as his heir until all the paternal ancestors of the purchaser, both male and female, and their respective families, have been exhausted. The father, as the nearest male lineal ancestor, of course stands first, supposing the issue of the purchaser to have failed. If the father should be dead, his eldest sou, being the brother of the pur- chaser, will succeed as heir in the place of his father, according to the fourth rule; unless he be of the half blood to the purchaser, which case is provided for by the next rule, which is: — 7. That a kinsman of the half blood shall be Kule 7. capable of being heir ; and that such kinsman shall inherit next after a kinsman in the same degree of the whole blood, and after the issue of such kinsman, when the common ancestor is a male(y), and next after the common ancestor, when such ancestor is a female. This introduction of the half blood is also a new regu- lation ; and, like the introduction of the father and other lineal ancestors, it is certainly an improvement on the old law, which had no other reason in its favour than the feudal maxims, or rather fictions, on which it was founded (^). By the old lav/, a relative of the By the old law purchaser of the half blood, that is, a relative con- coukrnot'i^i-'^ nected by one only, and not by both of the parents, herit. or other ancestors, could not possibly be heir ; a half brother, for instance, could never enjoy that right Avhich a cousin of the whole blood, though ever so distant, might claim in his proper turn. The exclu- sion of the half blood was accounted for in a manner (/) Stat. 3 & 1 Will. IV. c. lOG, {g) 2 Black. Com. 228. 8.9. 104 OF CORPOREAL HEREDITAMENTS. similar to tliat by which the exclusion of all lineal an- cestors was explained ; but a return to practical justice may well compensate a breach in a beautiful theory. Relatives of the half blood now take their proper and natural place in the order of descent. The position of the half blood next after the common ancestor, when such ancestor is a female, is rather a result of the sixth rule, than an additional independent regulation, as will appear hereafter. Rule 8. 8. The eighth rule is, that, in the admission of female paternal ancestors, the mother of the more re- mote male paternal ancestor, and her heirs, shall be preferred to the mother of a less remote male paternal ancestor, and her heirs; and, in the admission of female maternal ancestors, the mother of the more remote male maternal ancestor, and her heirs, shall be pre- ferred to the mother of a less remote male maternal ancestor, and her heirs (A). The eighth rule is a settlement of a point in distant heirships, which very seldom occurs, but which has been the subject of a vast deal of learned controversy. The oj:)inion of Black- stone (?) and Watkins (j) is now declared to be the law. Kule 9. 9- -^ further rule of descent has now been intro- duced by a recent statute (h), which enacts that, where there shall be a total failure of heirs of the purchaser, or where any land shall be descendible as if an an- cestor had been the purchaser thereof, and there shall be a total failure of the heirs of such ancestor, then and in every such case the land shall descend, and the descent shall thenceforth be traced, from the person (70 Stat. 3 & 4 Will. IV. c. 10(5, (14G ct soq. Itli cd.). s. 8. (k) Stat. 22 & 23 Vict. c. 35, (i) 2 Black. Com. 238. ss. 19, 20. (j) ^Vatkins on Descent, 130 1 /v'fftr \ A>WrA 1 ^,,,-'--^ :v '■^-^ \. J/u/yarr/ ' / / 1 /: yt,„. /,'„,„ /OS OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 105 last entitled to the laud, as if lie had been the pur- chaser thereof. This enactment provides for such a case as the following. A purchaser of lands may die intestate, leaving an only son and no other relations. On the death of the son intestate there will be a total failure of the heirs of the purchaser ; and previously to this enactment the laud would have escheated to the lord of the fee, as explained in the next chapter. But noAV, although there be no relations of the son on his father's side, yet he may have relations on the part of his mother, or his mother may herself be living : and these persons, who were before totally excluded, are now admitted in the order mentioned in the 6th rule. The rules of descent above given will be better ap- Explanation of prehended by a reference to the accompanying table, taken, with a little modification, from Mr. Watkins's Essay on the Law of Descents. In this table, Ben- jamin Brown is the purchaser, from whom the descent is to be traced. On his death intestate, the lands will Descent to the accordingly descend first to his eldest son, by Ann jsgue!^'^' 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 purchaser, 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 descend- ants in infinitum of every person deceased shall repre- sent their ancestor. We find accordingly that Wil- liam 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 Lucy, yet being a male, shall be preferred according to the second rule; and he is therefore 106 OF CORPOREAL HEREDITAMENTS. (3rdly)tlie next heir. Had Isaac been the purchaser, the case would have been diiferent; for, his half brother George would then have been postponed, in favour of his sister Lucy of the whole blood, accord- ing to the seventh rule. But noAv Benjamin is the purchaser, and both Isaac and George are equally his grandchildren. George dying without issue, Ave must again seek the heir of his grandfather Benjamin, who noAv is undeniably (4thly) Lucy, she being the re- maining descendant of his eldest son. Lucy dying likcAvise Avithout issue, her father's issue become ex- tinct ; and Ave must still inquire for the heir of Ben- jamin BroAvn, the purchaser, whom Ave now find to be (othly) John Brown, his only son by his second wife. The land then descends from John to (6thly) his eldest son Edmund, and from Edmund (7thly) to his only son James. James dying without issue, we must once more seek the heir of the purchaser, whom we find among the yet liA'ing issue of John. John leaving a daughter by his first Avife, and a son and a daughter by his second wife, the lands descend (8thly) to Henry his son by Frances Wilson, as being of the male sex ; but he dying without issue, we again seek the heir of Benjamin, and find that John left tAvo daughters, but by different Avives ; these daughters, being in the same degree and both equally the children of their common father, Avhom they represent, shall succeed (9thly) in equal shares. One of these daughters dying Avithout 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 Avithout issue, Ave still pursue our old inquiry, and seek again for the heir of Benjamin BroAvn the purchaser. Descent to tlic The issue of the sons of the purchaser is noAV extinct; thc'^'trchascr ^^~^^> ^^ ^^^ ^^^^ ^^^'^ daughters, Susanuah and Catherine, and their issue. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 107 by different wives, we shall find, by the second and 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. The next heirs of Benjamin Brown, after the decease of Catherine, are evidently Susannah BroAvn 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 (Z). On further research, however, the author inclined to the opinion that the share 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 he only, is the right heir of the pur- chaser. The reasoning Avhich led the author to this conclusion will be found in the Appendix (w). This point may now be considered as established. If Susannah Brown and John Smith should die Descent to the without issue, the descendants of the purchaser will purchaser, and then have become extinct; and Joseph Brown, the his issue. 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 (lothly), as representing her father, in preference to her half brother Tim.othy, who is only of the half blood to the purchaser, and is accordingly postponed to his sister by the seventh rule. But next to Bridget is Timothy (/) 23Law]\riis. 279; 1 Hayes's wood's Conveyancing, hy Sweet, Conv. 313; 1 Jannan & Bythe- 139. («() Sec Appendix (B). 108 OF CORPOREAL HEREDITAMENTS. (14thly) by the same rule^ Bridget being supposed to leave no issue. Descent to the On the decease of Timothy without issue, all the rcestmS the descendants of the father will have failed, and the in- purchaser, and heritance will next pass to Philip Brown (15thly), the eu issue. paternal grandfather of the purchaser. But the grand- father being dead, we must next exhaust 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, Avill inherit, by the seventh rule, next after Thomas, a kinsman in the same degree of the whole blood. Stephen Brown dying without issue, the descendants of the grandfather are exhausted ; and we must ac- cordingly still keep, according to the sixth rule, in the male paternal line, and seek the paternal great grand- father 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, by the same rule, Edward (20thly) and his issue (21stly) Abraham. Descent to the All the male paternal ancestors of the purchaser, anc'ettolJS''^ ^ud their descendants, are now supposed to have their heu-s. failed; and by the sixth rule, the female paternal ancestors and 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 lier heirs. Barbara Finch (22ndly), 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 OF THE DESCENT OF AN ESTATE IN FEE SIMFLE. 109 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 de- scent, and her heirs will be the right heirs of Ben- jamin 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 exhausted in seeking for his descendants ; but she might have had issue by another husband ; and such issue (23rdly) will accordingly next succeed. These issue are evi- Half blood to dently of the half blood to the purchaser. But they where 111^0001- are the right heirs of Barbara Finch ; and they are l^on ancestor , . , •11 -I ('1 • ' 1 is a female. accoi'dmgly entitled to succeed next aiter her, without the aid they might derive from the position expressly assigned to them by the seventh rule. The common ancestor of the purchaser and of the issue is Barbara Finch, a female ; and, by the united operation of the other rules, these issue of the half blood succeed next after the common ancestor. The latter part of the seventh rule is, therefore, explanatory only, and not absolutely necessary (??). In default of issue of Bar- bara Finch, the lands will descend to her father Isaac Finch (24thly), and then to his issue (25thly), as re- presenting him. If neither Barbara Finch, nor any of her heirs, can be found, Margaret Pain (26thly), or her heirs, will be next entitled, Margaret Pain being the mother of a more remote male paternal ancestor than Esther Pitt ; but next to Margaret Pain and her heirs will be Esther Pitt (27thly), or her heirs, thus closing the list of female paternal ancestors. Next to the female paternal ancestors and their heirs Descent to the comes the mother of the purchaser, Elizabeth AVebb, ^ujSTaser Ind (w) See Jarman & Bythewood's Conveyancing, by Sweet, vol, i. 146, note (a). 110 OF COKPOREAL HEREDITAMEXTS. the maternal (28thly) (supposing her to be alive), with respect to ancestois. -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 grandfather, William Webb (SOthly), whose issue (31stly) will be entitled to succeed him. Such issue failing, the whole line of male maternal ancestors and their descendants 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, by the eighth rule, to the mother of the less remote male maternal ancestor, and her heirs. The course to be taken is, accordingly, pre- cisely the same as in pursuing the descent through the paternal ancestors of the purchaser. In the present table, therefore, Harriet Tibbs (32ndly), the maternal grandmother of the purchaser, is the person next entitled, no claimants appearing whose title is pre- ferable ; and, should she be dead, her heirs Avill be entitled next after her. On the failure of the heirs of the purchaser, the person last entitled is, as we have seen (o), 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 purchaser. It should be carefully borne in mind, that the above- Co) Ante, p. 104. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. Ill mentioned rules of descent apply exclusively to estates in land, and to that kind of property which is denomi- nated real, and have no application to money or other personal estate, which is distributed on intestacy in a manner Avhich the reader will find explained in the author's treatise on the law of personal property (jo). (;;) Page 256, 1st ed.; 275, 2n(\. cd.; 283, 3rd ed. ; 299, 4th ed. ; 332, 5th ed. ; 339, Gth cd. 112 OF CORPOREAL HEREDITAMENTS. CHAPTER V. OF THE TENURE OF AN ESTATE IN FEE SIMPLE. A lease for The most familiar instance of a tenure is given by a years. common lease of a house or land for a term of years; in this case the person letting is still called the land- lord, and the person to whom the premises are let is the tenant ; the terms of the tenure are according to the agreement of the parties, the rent being usually the chief item, and the rest of the terms of tenure being contained in the covenants of the lease; but, if no rent should be paid, the relation of landlord and tenant would still subsist, though of course not with the same advantage to the landlord. This, however, is not a freehold tenure ; the lessee has only a chattel interest, as has been before observed (a) ; but it may serve to explain tenures of a freehold kind, which are A lease for i^ot SO familiar, though equally important. So, when life. a lease of lands is made to a man /or his life, the lessee becomes tenant to the lessor (6), although no rent may be reserved; here again a tenure is created by the transaction, during the life of the lessee, and the terms of the tenure depend on the agreement of the parties. A gift in tail. So, if a gift of land should be made to a man and the heirs of his hodij, the donee in tail, as he is called, and his issue, Avould be the tenants of the donor as long as the entail lasted (c), and a freehold tenure would thus be created. Fee simple. But if a gift should be made to a man and his heirs, (fl) Ant«,p. 8. (c) Litt. s. 19; Kitchen on (&)Litt. s. 132; Gilb. Tenures, Courts, 410; Watk. Desc. p. 4, 90. »■ ('^Oi PP- 11, 12, (4tli c(l.) OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 113 or for au estate in fee simple, it would not now be lawful for the parties to create a tenure between themselves, as in the case of a gift for life, or in tail. For by the statute of Quia emptores {d), we have seen that it was Statute of ^^w/a enacted, that from thenceforth it should be lawful for ^"^i"''^*- every free man to sell, at his ow^n pleasure, his lands or tenements, or part thereof, so nevertheless that the feoffee, or purchaser, should hold the same lands or tenements of the same chief lord of the fee, and by the same services and customs as his feoffor, the seller, held them before. The giver or seller of an estate in fee simple is then himself but a tenant, with liberty of putting another in his own place. He may have under him a tenant for years, or a tenant for life, or even a tenant in tail, but he cannot now, by any kind of conveyance, place under himself a tenant of an estate in fee simple. The statute of Quia cmpfores now forbids any one from making himself the lord of such an estate ; all he can do is to transfer his own tenancy ; and the purchaser of an estate in fee simple must hold his estate of the same chief lord of the fee, as the seller held before him. The introduction of this doctrine of tenures has been already noticed (e), and it still pre- vails throughout the kingdom ; for it is a fundamental rule, that all the lands within this realm were origi- nally derived from the crown (either by express grant or tacit intendment of law), and therefore the Queen Queen is lady is sovereign lady, or lady paramount, either mediate ^^^'' or immediate, of all and every parcel of land within the lealm {/). The rent, services and other incidents of the tenure Ancient inci- p ,,./.. 1 . • . .• ij. dents of tenure 01 estates m tee simple were, m ancient times, matters ^f estates in of much variety, depending as they did on the mutual f^^e simple. 65 b, (rZ) 18 Edw. I. c. 1, ante, p. GO. Book, M. 24 Edw. III. (p) Ante, pp. 2, 3. pi. ()0. (/) Co. Litt. 05 a, 93 a; Year R.P. I 114 OF CORPOREAL HEREDITAMENTS. The lord's de- mesne, &.C. Manors. agreements which, previously to the statute of Quia emptorcs, the various lords and tenants made with each other ; though still they had their general laws, govern- ing such cases as were not expressly provided for ig). The lord was usually a baron, or other person of power and consequence, to whom had been granted an estate in fee simple in a tract of land. Of this land he re- tained as much as was necessary for his oavu use, as his own demesne (A), and usually built upon it a man- sion or manor house. Part of this demesne was in the occupation of the villeins of the lord, who held various small parcels at his will, for their own subsistence, and cultivated the residue for their lord's benefit. The rest of the cultivable land was granted out by the lord to various freeholders, subject to certain stipulated rents or services, as " to plough ten acres of arable land, parcel of that which remained in the lord's pos- session, or to carry his dung unto the land, or to go with him to war against the Scots "(z). The barren lands which remained formed the lord's wastes, over which the cattle of the tenants were allowed to roam in search of pasture {j ). In this way manors were created (A), every one of Avhich is of a date prior to the statute of Quia emptores (J), except perhaps some, which may have been created by the king's tenants in capite with licence from the crown (m). The lands (^) Bract c. 19,fol. 48 b; Brit- ton, c. 66. (/(,) Attorney- General v. Par- sons, 2 Cro. & Jerv. 279, 308. (/) Terkins's Profitable Book, s. 670. (j) In the recent case of Loj-d Dunraven v. LleivcUyn, 15 Q. B. 791, the Court of Exchciiuer Chamber held that there was no general common law right of te- nants of a manor to common on the waste. But, in the humble opinion of the author, the authori- ties cited by the Court tend to the opposite conclusion. The reasons for this opinion mil be found in Appendix C. {h) See Scriv. Cop. 1 ; Watk. Cop. 6, 7; 2 Black. Com. 90. (I) 18 Edw. I. c. 1. (m) 1 "VVatk. Cop. 15; ante, p. CO. OF THE TENURE OP AN ESTATE IN FEE SIMPLE. 115 held by the villeins were the origin of copyholds, of which more hereafter (w). Those granted to the free- men were subject to various burdens, according to the nature of the tenure. In the tenure by knights' ser- Incidents of vice, then the most universal and honourable species knu!hts"ser-^ of tenure, the tenant of an estate of inheritance, that vice. is, of an estate of fee simple or fee tail (o), was bound to do homage to his lord, kneeling to him, professing Homage, to become his man, and receiving from him a kiss ( /;). The tenant Avas moreover at first expected, and after- wards obliged, to render to his lord pecuniary aids, to Aids. ransom his person, if taken prisoner, to help him in the expense of making his eldest son a knight, and in pro- viding a portion for the eldest daughter on her mar- riage. Again, on the death of a tenant, his heir was bound to i^ay a fine, called a relief, on taking to his Relief, ancestor's estate (.7). If the heir were under age, the lord had, under the name of warthliip, the custody of Wardship, the body and lands of the heir, without account of the profits, till the age of twenty-one years in males, and sixteen in females; when the wards had a right to require possession, or sue out their livery, on payment Livery. to the lord of half a year's profits of their lands. In addition to this, the lord possessed the right of mar- riage {pnaritagiuni), or of disposing of his infant wards Marriage. in matrimony, at their peril of forfeiting to him, in case of their refusing a suitable match, a sum of money equal to the value of the marriage; that is, what the suit r was willing to pay down to the lord as the price of marrying his ward; and double the market value was to be forfeited, if the ward presumed to marry without the lord's consent (r). The king's tenants in («) Post, chapters on Copy- Com. 53. holds. (//) Scriven on Copyholds, 738 (o) Litt. s. 90. et sc(i. ip) Sec a description of ho- (/•) 2 Black. Com. fi;J et seq.; mage, Litt. ss. 85, 80, 87; 2 Bl. Scriven on Copyholds, 721). Ward- I 2 116 OF COKPOKEAL HEEEDITAMENTS. capite were moreover subject to many burdens and restraints, from which the tenants of other lords were exempt (5). Again, every lord, who had two tenants or more, had a right to compel their attendance at the court baron of the manor, to which his grants to them Suit of court, had given existence ; this attendance was called suit of court, and the tenants were called free-suitors (^). And to every species of lay tenure, as distinguished from clerical, and whether of an estate in fee simple, in tail, or for life, or otherwise, there was insepar- ably incident a liability for the tenant, whenever Fealty. called upon, to take an oath of fealty or fidelity to his lord i^u). Free and com- mon socage. At the present day, however, a much greater sim- plicity and uniformity will be found in the incidents of the tenure of an estate in fee simple, for there is now only one kind of tenure by which such an estate can be held; and that is the tenure oi free and com- mon socage {x). The tenure of free and common socage is of great antiquity; so much so, that the meaning of the term socage is the subject only of con- jecture iy). Comparatively few of the lands in this ship and marriage were no parts of the great feudal system, but were introduced into this country, and perhaps invented, by the Normans. 2 Hall. Midd. Ages, 415. (s) As primer seisin, involun- tary knighthood in certain cases and fines for alienation. {f) Gilb. Ten. 431 et seq. ; Scriven on Copyholds, 719 et seq. («) Litt. ss. 91, 131, 132; Scriv. Cop. 732. (x) 2 Black. Com. 101. (y) See Litt. s. 119; Wright's Tenures, 143; 2 Black. Com. 80; Co. Litt. 8G a, n. (1); 2 Ilallam's Middle Ages, 481. The contro- versy lies between the Saxon word soc, which signifies a liberty, privilege or franchise, es]5ecially one of jurisdiction, and the French word soc, which signifies a plough- share. In favour of the foi-mer is urged the beneficial nature of the tenure, and also the circumstance that socagers were, as now, bound to attend the court baron of the lord, to whose soc or right of jus- tice they belonged. In favour of the latter derivation is urged the nature of the emplojTnent, as well as the most usual condition of OF THE TENJURE OF AN ESTATE IN FEE SIMPLE. 117 country were in ancient times the subjects of this tenure: the lands in which estates in fee simple were thus held, appear to have been among those Avhich escaped the grasp of the Conqueror, and remained in the possession of their ancient Saxon proprietors (r). The owners of fee simple estates, held by this tenure, were not villeins or slaves, but freemen (a); hence the term free socage. No military service was due, as the condition of the enjoyment of the estates. Ho- mage to the lord, the invariable incident to the mili- tary tenures ((^), was not often required (c); but the services, if any, were usually of an agricultural na- ture: a fixed rent was sometimes reserved; and in Rent, process of time the agricultural services appear to have been very generally commuted into such a rent. In all cases of annual rent, the relief paid by the heir. Relief. on the death of his ancestor, was fixed at one year's rent((/). Frequently no rent was due; but the owners were simply bound to take, when required, the oath of fealty to the lord of whom they lield(^), to do Fealty, suit at his court, if he had one, and to give him the Suit of court. customary aids for knighting his eldest son and mar- Aids. rvino- his eldest daughter ( /'). This tenure was ac- Superiority of •^ » , •, ^ . , 1 ,1 -Tx J. socage tenure. cordingly more beneficial than the military tenures, by which fee simple estates, in most other lands in the kingdom, were held. True, the actual military service, in respect of lands, became gradually com- muted for an escuage or money payment, assessed Escuage. on the tenants by knights' service from time to time, tenure of the lands of sockmen, («) Ibid. ; 2 Black. Com. GO, who were principally engaged in Gl. agriculture. The former appears (/') Co. Litt. G.5 a, GT b, n. (1). to be the more probable dcriva- (^) Co. Litt. 80 a. tion. See Sir H. Ellis's Introduc- {d) Litt. s. 126 ; 2 Black. Com. tion to Domesday, vol. i. p. G9. 87. (z) 2 Hallam's Middle Ages, (c) Litt. ss. 117, 118, 131. 481. (/) Co. Litt. 91 a ; 2 Black. Com. 86. 118 OF CORPOREAL HEREDITASqjNTS. first at the discretion of the crown, and afterwards by authority of parliament (^) ; and this commutation ap- pears to have generally prevailed from so early a period as the time of Henry II. But the great supe- riority of the socage tenure was still felt in its freedom from the burdens of wardship and marriage, and other exactions, imposed on the tenants of estates in fee held by the other tenures (A). The wardship and marriage of an infant tenant of an estate held in socage devolved on his nearest relation, (to whom the inheritance could not descend,) who was strictly accountable for the rents and profits (^). As the commerce and wealth of the country increased, and the middle classes began to feel their own power, the burdens of the other tenures became insupportable ; and an opportunity was at last seized of throAving them oif. Accordingly, at the Stat. 12 Car. restoration of King Charles II., an act of parliament II. c. 24. ^^^ insisted on and obtained, by which all tenures by knights' service, and the fruits and consequences of tenures in capite (j), were taken away ; and all tenures of estates of inheritance in the hands of private per- sons (except copyhold tenures) were turned into free and common socage ; and the same were for ever dis- charged from homage, wardships, values and forfei- tures of marriage, and other charges incident to tenure by knights' service, and from aids for marry- ino- the lord's daughter and for making his son a knight {k). Power for the Tlic right of wardship or guardianship of infant father to ap- tenants havino- thus been taken away from the lords, point a fiuar- o . . . ,t r n dian to his the opportunity was embraced ot givmg to the lather child. (ff) 2 Hallara's Lliddle Ages, (i) 2 Black. Com. 87, 88. 439, 440 ; 2 Black. Com. 74 ; (j) Co. Litt. 108 a, n. (5). Wright's Tenures, 131 ; Litt. s. (^) Stat. 12 Car. II. c. 24. The 97 ; Co. Litt. 72 a. 12th Car. II. A.D. 1060, was the (A) 2 Ilallaiu's ISIiddle Ages, first year of his actual reign. 481. OF THE TENUEE OF AN ESTATE IN PEE SlfiLPLE. 119 a right of appointing guardians to his children. It was accordingly provided by the same act of parlia- ment (Z), that the father of any child under age and not married at the time of his death, may, by deed executed in his lifetime, or by his will in the presence of two or more credible witnesses, in such manner and from time to time as he shall think fit, dispose of the custody and tuition of such child during such time as he shall remain under the age of one-and-twenty years, or any lesser time, to any person or persons in possession or remainder. And this power was given, whether the child was born at his father's decease or only in ventre sa mere at that time, and whether the father were within the age of one-and-twenty years, or of full age. But it seems that the father, if under age, cannot now appoint a guardian by will; for the Wills Act now enacts, that no will made by any person under the age of twenty-one years shall be valid (m). In other respects, hoAvever, the father's right to appoint a guardian still continues as originally pro- vided by the above-mentioned statute of Charles II. The guardian so appointed has a right to receive the rents of the child's lands, for the use of the child, to whom, like a guardian in socage, he is accountable when the child comes of age. A guardian cannot be appointed by the mother of a child, or by any other relative than the father (w). A rent is not now often paid in respect of the tenure Rent, of an estate in fee simple. When it is paid, it is usually called a quit rent {o), and is almost always of (/) Stat. 12 Car. II. c. 24, s. 8. («) Ex parte Edwards,^ Aik. i>c& Mo7'ffa)i y. Ilate/icU, Id Beav. 519; Bac. Abr. tit. Guardian S6. (A) 3. Sec also Mr. Hargrave's (m) Stat. 7 Will. IV. & 1 Vict. Notes to Co. Litt. 88 b. c. 26, s. 7 ; 1 Jai-m. Wills, 36, (n) 2 Black. Com. 43 ; Co. Litt. .1st ed. ; 34, 2nd ed. ; 39, 3rd ed. 85 a, n. (l;. 120 OF CORPOREAL HEREDITAMENTS. a very trifling amount : the change in the value of money in modern times will account for this. The Relief. relief of one year's quit rent, payable by the heir on the death of his ancestor, in the case of a fixed quit rent, was not abolished by the statute of Charles, and Suit of court, such relief is accordingly still due (/»). Suit of court also is still obligatory on tenants of estates in fee simple, held of any manor now existing (q). And the Fealty. oath of fealty still continues an incident of tenure, as well of an estate in fee simple, as of every other estate, down to a tenancy for a mere term of years; but in practice it is seldom or never exacted (r). Escheat. There is yet another incident of the tenure of estates in fee simple ; an incident, Avhich has existed from the earliest times, and is still occasionally productive of substantial advantage to the lord. As the donor of an estate for life has a certain reversion on his tenant's death, and as the donor of an estate in tail has also a reversion expectant on the decease of his tenant, and failure of his issue, but subject to be defeated by the proper bar, so the lord, of whom an estate in fee simple is held, possesses, in respect of his lordship or seignory, a similar {s), though more uncertain ad- vantage, in his right of escheat; by which, if the estate happens to end, the lands revert to the lord, by whose ancestors or predecessors they were anciently granted to the tenant {t). When the tenant of an estate in fee simple dies, without having alienated his estate in his lifetime, or by his will(?^), and without leaving any (^^) Co. Litt. 85 a, n. (1); Scriv. (f) 2 Black. Coin. 12; Scriv. Cop. 738. Cop. 757 et seq. iq) Scriv. Cop. 736. (») Year Book, 49 Edw. III. (?■) Co. Litt. 67 b, n. (2), 68 b, c. 17; Co. Litt. 236 a, n. (1) ; n. (.")). Scriv. Cop. 762. But it may per- (.v) Watk. Descent, p. 2 (jip. .">, Imps be doubted whether the new 6, 7, 4th ed.). AVilLs Act (7 AVill. IV. & 1 Vict. OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 121 heirs, either lineal or collateral, the lands in which he held his estate escheat (as it is called) to the lord of Avhom he held them. Bastardy is the most usual cause Bastardy, of the failure of heirs; for a bastard is in law nullius Jilius ; and, bemg nobody's son, he can consequently have no brother or sister, or any other heir than an heir of his body (v) ; nor can his descendants have any heirs, but such as are also descended from him. If such a person, therefore, were to purchase lands, that is, to acquire an estate in fee simple in them, and were to die possessed of them Avithout having made awill(?<;), and without leaving any issue, the lands would escheat to the lord of the fee, for want of heirs. Again, when sentence of death is pronounced on a person convicted of high treason or murder, or of abetting, procuring, or counselling the same (x), his blood is said to be attainted or corrupted, and loses Attainder, its inheritable quality. In cases of high treason, the crown becomes entitled by forfeitvire to the lands of the traitor (y) ; but in the other cases the lord, of whom the estate was held, becomes entitled by escheat to the lands, after the death of the attainted person [z) ; subject, however, to the Queen's right of possession for a year and a day, and of committing waste, called the Queen's year, day and waste, — a right now usually c. 26, s. 3) extends to this case, 9 Geo. IV. c. 31, s. 2, repealed by and whether, therefore, in order stat. 2i & 25 Vict. c. 95, and re- to prevent an escheat, three -wit- enacted by stat. 24 & 25 Vict, nesses should not attest the will c. 100, s. 8. as under the old law, which still (y) Stat. 2G Hen. VIII. c. 13, subsists as to wills to which the s. 5; 5 & 6 Edw. VI. c. 11, s. 9 ; new act does not extend (see 39 Geo. III. c. 93 ; 4 Black. Com. sect. 2). 381. (y) Co. Litt. 3 b ; 2 Black. Com. (z) 2 Black. Com. 245; 4 Black. 347 ; Bac. Abr. tit. Bastardy (B). Com. 380, 381 ; Swinburne, part 2, (w) See ante, p. 120, n. («). sect. 13; Bac. Abr. tit. Wills and {X) Stat. 54 Geo. III. c. 145 ; Testaments (B). 122 OF CORPOEEAL HEREDITAMENTS. compounded for (a). The crown most frequently ob- tains the lands escheated in consequence of the before- mentioned rule, that the crown was the original pro- prietor of all the lands in the kingdom (b). But if there should be any lord of a manor, or other person, who could prove that the estate so terminated was held of him, he, and not the croAvn, would be entitled (c). In former times, there were many such mesne or in- termediate lords ; every baron, according to the feudal system, had his tenants, and they again had theirs. The alienation of lands appears, indeed, as we have seen (rf), to have most generally, if not universally, proceeded on this system of subinfeudation. ButnoAV the fruits and incidents of tenure of estates in fee simple are so few and rare, that many such estates are considered as held directly of the crown, for want of proof as to who is the intermediate lord ; and the diffi- culty of proof is increased by the fact before mentioned, that, since the statute of Quia emptores, passed in the reign of EdAvard I. (e), it has not been lawful to create a tenure of an estate in fee simple ; so that every lordship or seignory of an estate in fee simple bears date at least as far back as that reign : to this rule the few seignories, Avhich may have been sub- sequently created by the king's tenants in capite, form the only exception (y). {a) 4 Black. Com. 385. (c) Doe d. Hayne and His {Ij) Lands escheated or forfeited Mojesty v. Bedfern, 12 East, 96. to the cro\vn arc frequently re- (<■/) Ante, pp. 37, 68. stored to the families of the per- {_e) 18 Edw. I. c. 1 ; ante, sons to whom such lands belonged pp. 60, 113, pursuant to stat. 39 & 40 Geo. (/) By a recent statute, 13 & 14 III. c. 88, s. 12, explained and Vict. c. 60, lands vested in any amended by stats. 47 Geo. III. person upon any trust, or by way of sess. 2, c. 24, and 59 Geo. III. mortgage, are exempted from es- c. 94, and extended to forfeited cheat. This act repeals a former leaseholds l)y stat. G Geo. IV. statute, 4 & 5 Will. IV. c. 23, to c. 17. the same effect. OP THE TENURE OF AN ESTATE IN FEE SIMPLE. 123 A small occasional quit rent, with its accompanying relief,— suit of the Court Baron, if any such exists,— an oath of fealty never exacted,— and a right of escheat seldom accruing,— are now, it appears, there- fore, the ordinary incidents of the tenure of an estate in fee simple. There are, however, a few varieties in this tenure which are worth mentioning ; they respect either the persons to whom the estate was originally granted, or the places in which the lands holden are situate. And, first, respecting the persons: The ancient tenure of grand serjeanty was where a man Grand ser- held his lands of the king by services to be done in his ^^^^ ^' OAvn proper person to the king, as, to carry the banner of the king, or his lance, or to be his marshal, or to carry his sword before him at his coronation, or to do other like services {g) : when, by the statute of Charles II. (/i), this tenure, with the others, was turned into free and common socage, the honorary services above described were expressly retained. The ancient tenure of petit serjeanty was where a man held his land of the Petit ser- king, " to yield him yearly a bow, or a sword, or a J^'''"*^- dagger, or a knife, or a lance, or a paire of gloves of maile, or a paire of gilt spurs, or an arrow, or divers arrowes, or to yield such other small things belonging to warre"(/) : this was but socage in effect (,;), because such a tenant was not to do any personal service, but to render and pay yearly certain things to the king. This tenure therefore still remains unaffected by the statute of Charles II. Next, as to such varieties of tenure as relate to places: — These are principally the temu-es of gavel- kind, borough-English, and ancient demesne. The (-7) Litt. s. 1;)3. (0 Litt. s. 159. (//) 12 Car. II. c. 24; uiitc, (j) Litt. s. IGO ; 2 Black. Com. p. 118. 81. 124 OF CORPOREAL HEREDITAMENTS. tenure of gavelkind, or as it has been more correctly Gavelkind. styled (A), socage tenure, subject to the custom of gavelkind, prevails chiefly in the county of Kent, in which county all estates of inheritance in land (Z) are presumed to be holden by this tenure until the con- trary is shown (m). The most remarkable feature of this kind of tenure is the descent of the estate, in case of intestacy, not to the eldest son, but to all the sons in equal shares (w), and so to brothers and other colla- teral relations, on failure of nearer heirs (o). It is also a remarkable peculiarity of this custom, that every tenant of an estate of freehold (except of course an estate tail) is able, at the early age of fifteen years, to dispose of his estate by feofihient (/?), the ancient method of conveyance, to be hereafter explained. There is also no escheat of gavelkind lands upon a con\'iction of murder ( q) ; and some other peculiarities of less importance belong to this tenure (r). The custom of gavelkind is generally supposed to have been a part of the ancient Saxon law, preserved by » (a') Third Report of Real Pro- Kancire, p. ] 65. See stat. 8 & 9 perty Commissioners, p. 7. Vict. c. lOG, s. 3. (J.) Including estates tail, Litt. {q) Rob. Gav. 226 (228, 3rd ed.) s. 265 ; Robinson on Gavelkind, (r) The husband is tenant by 51, 94 (64, 119, 3rd ed.) courtesy of a moiety only of his (j/i) Robinson on Gavelkind, 44 deceased wife's land, until hemar- (54, 3rd ed.) ries again, whether there were is- (re) Every son is as great a gen- sue born alive or not ; the wddow tleman as the eldest son is ; Litt. also is dowable of a moiety instead s. 210. of a third, and during widowhood (o) Rob. Gav. 92 ; 3rd Rep. of and chastity only ; estates in fee Real Property Commissioners, p. simple were devisable by will, 9; Crump (\.. WooUeyv.Korrvood, before the statute M-as passed 7 Taunt. 362 ; Hooh v. Bonh, 1 empowering the devise of such Hemming & Miller, 43 ; in oppo- estates ; and some other ancient sitiontoljac.Abr.tit.Descent,(D), privileges, now obsolete, were at- citing Co. Litt. 140 a. tached to this tenure. See Robin- (/() Rob. Gav. 193 (248, 3rd son on Gavelkind, passim ; 3rd ed.), 217 (277, 3rd ed.) ; 2 Black. Report of Real Property Commis- Cora. 84 ; Sandys' Consuetudines sioners, p. 9. OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 125 tbe struggles of the men of Kent at the time of the Norman conquest ; and it is still held in high esteem by the inhabitants, so that whilst some lands in the county, having been originally held by knights' service, are not within the custom (s), and others have been disgavelled, or freed from the custom, by various acts of parliament {t), any attempt entirely to extinguish the peculiarities of this tenure has uniformly been re- sisted (u). There are a few places, in other parts of the kingdom, Avhere the course of descent follows the custom of gavelkind (,r) ; but it may be doubted whether the tenure of gavelkind, with all its accom- panying peculiarities, is to be found elsewhere than in the county of Kent (?/). Tenure subject to the custom of borough-English Borough- prevails in several cities and ancient boroughs, and districts adjoining to them ; the tenure is socage, but, according to the custom, the estate descends to the youngest son in exclusion of all the other children (z). The custom does not in general extend to collateral relations ; but by special custom it may, so as to admit the youngest brother, instead of the eldest (a). Estates, as well in tail as in fee simple, descend according to this custom {h). The tenure of ancient demesne exists in those Ancient Je- manors, and in those only, which belonged to the ™^^"*^- (s) Rob. Gav. 46 (57, Srd ed.) (y) See Bac. Abr. tit. Gavel- (0 See Rob. Gav. 75 (94, Srd kind (B) 3. cd.) (z) Litt. s. 1G5 ; 2 Black. Com. {u) An express saving of the 83. custom of gavelkind is inserted in («) Comyns' Digest, tit. Bo- the act for the commutation of rough-English ; Watk. Descents, certain manorial rights, &c. Stat. 89 (94, 4th ed.) See Rider v. 4 & 5 Vict. c. 35, s. 80. Wood, 1 Kay & Johns. 644. (.r) Kitchen on Courts, 200; (?») Rob. Gav. 94 (120, Srd Co. Lift. 140 a. edit.) 126 OF CORPOREAL HEREDITAJVIENTS. crown iu the reigns of Edward the Confessor and William the Conqueror, and in Domesday Book are denominated Terra Regis Edwardi, ox TerrcB Regis {c). The tenants are freeholders (c?), and possess certain ancient immunities, the chief of which is a right to sue and be sued only in their lord's court. Before the abolition of fines and recoveries, these proceedings, being judicial in their nature, could only take place, as to lands in ancient demesne, in the lord's court ; but, as the nature of the tenure was not always known, much inconvenience frequently arose from the pro- ceedings being taken by mistake in the usual Court of Conmiou Pleas at Westminster; and these mistakes have given to the tenure a prominence in practice which it would not otherwise have possessed. Such mistakes, however, have been corrected, as far as pos- sible, by the act for the abolition of fines and reco- veries {e) ; and for the future, the substitution of a simple deed, in the place of those assurances, renders such mistakes unpossible. So that this peculiar kind of socage tenure now possesses but little practical im- portance. So much then for the tenure of free and common socao-e, with its incidents and varieties. There is yet another kind of ancient tenure still subsistmg, namely. Frankalmoign, the tenure oi frankalmoign, or free alms, already men- tioned (/), by w^hich the lands of the church are for the most part held. This tenure is expressly excepted from the statute 12 Car. II. c. 24, by which the other (c) 2 Scriv. Cop. 687. 3rd Kep. of Real Property Com- () Co. Litt. 48 b. an cxce])tion to this rule; for it (//) Co. Litt. 52 b. was but as one thing for the ])ur- (r) Co. Litt. 9 a; 2 Black. Com. pose of a fcolTmcnt; Perkins, scot. 310. 227. See, hune^e^, Hale's M.S., 140 OF CORPOREAL HEREDITAMENTS. An estate for life. be marked out, whether for his own life or for that of another person, or in tail, or in fee simple, or other- wise. This marking out of the estate is as necessary now as formerly, and it is called limiting the estate. If the feudal holding is transferred, the estate must necessarily be an estate of freehold ; it cannot be an estate at will, or for a fixed term of years merely. Thus the land may be given to the feoifee to hold to himself simply; and the estate so limited is, as we have seen {s), but an estate for his life {t), and the feoffee is then generally called a lessee for his life ; though when a mere life interest is intended to be limited, the land is usually expressly given to hold to the lessee "during the term of his natural life "(?<). If the land be given to the feoffee and the heirs of his bodij, lie has an estate tail, and is called a donee in An estate tail, tail (.r). And in order to confer an estate tail, it is necessary (except in a will, where greater indulgence is allowed), that words of procreation, such as heirs of his body, should be made use of; for a gift of lands to a man and his heirs male is an estate in fee simple, and not in fee tail, there being no words of procreation to ascertain the body out of which they shall issue {y) ; and an estate in lauds descendible to collateral male heirs only, in entire exclusion of fe- males, is unknown to the English law {z). If the land be o-iven to hold to the feoffee and his heirs, he has an estate in fee simple, the largest estate which the law allows. In every conveyance (except by will) of an estate of inheritance, whether in fee tail or in fee simple, the word heirs is necessary to be used as a An estate in fee simple. The word heirs to be used. (5) Ante, p. 19. it) Litt. s. 1 ; Co. Litt. 42 a. («) Ante, p. 23. {x) Litt. s. 57; ante, p. 34. (y) Litt. s. 31 ; Co. Litt. 27 a ; 2 Black. Com. 115 ; Doe A. Brune V. Maviyn, 8 IJani. & Cress. 4l'7. (c) But a grant of arms by the crown to a man and his heirs male, without saying " of the body," is good, and they will descend to his heirs male, lineal or collateral. Co. Litt. 27 a. OF A FEOFFMENT. 141 word of limitation to mark out the estate. Thus if a grant be made to a man and his seed, or to a man and his offspring, or to a man and the issue of his hodij, all these are insufficient to confer an estate tail, and only give an estate for life for want of the word heirs (a) ; so if a man purchase lands to have and to hold to him for ever, or to him and his assigns for ever, he will have but an estate for his life, and not a fee simple (A). Before alienation was permitted, the heirs of the tenant were the only persons, besides himself, who could en- joy the estate ; and if they were not mentioned, the tenant could not hold longer than for his own life (c) ; hence the necessity of the word heirs to create an estate in fee tail or fee simple. At the present day, the free transfer of estates in fee simple is universally allowed ; but this liberty, as avc have seen {d), is now given by the law, and not by the particular words by which an estate may happen to be created. So that, though conveyances of estates in fee simple are usually made to hold to the purchaser, his heirs and assigns for ever, yet the word heirs alone gives him a fee simple, of which the law enables him to dispose ; and the remaining words, and assigns for euer, have at the present day no conveyancing virtue at all ; but are merely declaratory of that poAver of alienation which the purchaser would possess without them. The formal delivery of the seisin or feudal possession, a feoffment which always took place in a feoffment, rendered it, ^^'j^^'ar till recently, an assurance of great power ; so that, if estate by a person should have made a feoffinent to another of "=■ an estate in fee simple, or of any other estate, not warranted by his own interest in the lands, such a feoffinent would have operated by wrong, as it is said, («) Co. Litt. 20 b ; 2 Black. Com. ( c) Ante, pp. 17, 18. 115. {(I) Ante, p. 40. (/>) Litt. s. 1; Co. Litt. 20 a. 142 OF CORPOREAL HEREDITAMENTS. Feoffment bv tenant for life. By idiots and lunatics. By infants, of gavelkind lands. New enact- ment. and would have conferred on the feoffee the whole estate Ihnited by the feofiinent along Avith the seisin actually delivered. Thus if a tenant for his own life should have made a feoffinent of the lands for an estate in fee simj^le, the feoifee would not merely have ac- quired an estate for the life of the feoffor, but would have become seised of an estate in fee simple by wrong ; accordingly, such a feoffinent by a tenant for life was regarded as a cause of forfeiture to the person entitled in reversion ; such a feoffment being in fact a conveyance of his reversion, without his consent, to another person. In the same manner, feoffinents made by idiots and lunatics appear to have been only void- able and not absolutely void (e) ; whereas their con- veyances made by any other means are void in toto ; for, if the seisin was actually delivered to a person, though by a lunatic or idiot, the accompanying estate must necessarily have passed to him, until he should- liave been deprived of it. Again, the formal delivery of the seisin in a feoffment appears to be the ground of the validity of such a conveyance of gavelkind lands, by an infant of the age of fifteen years (_/); although a" conveyance of the same lands by the infant, made by any other means, would be voidable by him, on attaining his majority {(j\ By the act to amend the law of real property (A), it is, however, now pro- vided, that a feoffment shall not have any tortious operation ; but a feoffment made under a custom by an infant is expressly recognised (i). Down to the time of King Henry VIII. nothing more was requisite to a valid feoffinent than has been already mentioned. In the reign of this king, how- ever, an act of parliament of great importance was (e) Ante, p. 64. (/) Ante, p. 124. (ff) Ante, ]i. C>\. (/i) Stat. 8 & 9 Vict. c. lOG, s. 4. (i) Sect. 3. OF A FEOFFMENT. 143 passed, known by the name of the Statute of Uses (h). The statute of And since this statute, it has now become further requisite to a feoffment, either that there should be a consideration for the ^ift, or that it sliould be expressed A considcra- ^ tion required, to be made, not simply unto, but unto and to the use of or the <;ift to the feoffee. The manner in which this result has been l^g^^jfthc" *^^ brought about by the Statute of Uses will be explained feoffee. in the next chapter. If proper words of gift were used in a feoffment, and Writing for- Tncrlv unncccs- witnesses were present who could afterwards prove sary. them, it mattered not, in ancient times, whether or not they were put into writing (/) ; though writing, from its greater certainty, Avas generally employed {m). There was this difference, however, between writing in those days, and writing in our own times. In our own times, almost everybody can write ; in those days very few of the landed gentry of the country were so learned as to be able to sign their own names {n). Accordingly, on every important occasion, when a written document was required, instead of signing their names, they affixed their seals ; and this writing, thus sealed, was delivered to the party for whose benefit it was intended. "Writing was not then em- ployed for every trivial purpose, but was a matter of some solemnity ; accordingly, it became a rule of law, that every writing under seal imported a considera- tion (o) : — that is, that a step so solemn could not have been taken Avithout some sufficient ground. This custom of sealing remained after the occasion for it had passed aAvay, and writing had been generally in- (70 Stat. 27 Ilcn. VIII. c. 10. (h) 3 Hallam's Middle Ages, (0 Bracton, lib. 2, fol. 11 b, 32!); 2 Bhick. Com. 305, 30r.. par. 3, 33 b, par. 1 ; Co. Litt. 48 b, (o) Plowden, 308 ; 3 Burrow, 121 b, 143 a, 271 b, n. (1). 1039 ; 1 Fonblanque on Equity, (w) Madox's Form. Angl. Dis- 342 ; 2 Fonb. Eq. 26. sert. p. 1. 144 OF CORPOEEAL HEREDITAMENTS. A deed. Execution. Escrow. Alteration, rasure, &c. troduced ; so tliat, in all legal transactions, a seal was affixed to tlie written document, and the writing so sealed was, when delivered, called a deed, in Latin factum, a thing done ; and, for a long time after v/ritiug had come into common use, a written instru- ment, if unsealed, had in law no superiority over mere words (/J ) ; nothing was in fact called a writing, but a document under seal ( y). And at the present day a deed, or a writing sealed and delivered (r), still im- ports a consideration, and maintains in many respects a superiority in law over a mere unsealed writing. In modern practice the kind of seal made use of is not regarded, and the mere placing of the finger on a seal already made, is held to be equivalent to sealing (5) ; and the words " I deliver this as my act and deed," which are spoken at the same time, are held to be equivalent to delivery, even if the party keep the deed himself (#). The sealing and delivery of a deed are termed the execution of it. Occasionally a deed is delivered to a third person not a party to it, to be deli- vered up to the other party or parties, upon the per- formance of a condition, as the payment of money or the like. It is then said to be delivered as an escrow or mere writing {scriptitm) ; for it is not a perfect deed until delivered up on the performance of the condition ; but when so delivered up, it operates from the time of its execution (m). Any alteration, rasure or addition {!)) See Litt. ss. 250, 252 ; Co. Litt. 9 a, 49 a, ] 21 b, 143 a, 1G9 a ; Manny. Hughes, 7 T. Rep. 350, n. (<7) See Litt. ss. 365, 36G, 367 ; Shep. Touch, by Preston, 320, 321 ; Sugden's Ven. & Pur. 126, 11th ed. (r) Co. Litt. 171 b ; Shep. Touch. 50. (.?) Shop. Touch. 57. {t) Doe d. Garnons v. Kniglit, 5 Barn. & Cress. 671 ; Grvrjron V. Gerrard, 4 You. & Coll. 119, 130 ; Exton v. Soott, 6 Sim. 31 ; Fletcher v. Fletcher, 4 Hare, 67. See also Hall v. Bainhrldge, 12 Q. B. 699. {it) See Shep. Touch. 58, 59; Bonher v. Hurdeldn, 11 Mees. & Wels. 128, 147 ; Nash v. Flyn, 1 Jones & Lat. 162 ; Graham v. Graham, 1 Ves. jun. 275; Miller- shijj V. Brookes, 5 II. &N. 797. OF A FEOFFIVIENT. 145 made in a material part of a deed after its execution by the grantor, even though made by a stranger, will render it void ; and any alteration made by the party to Avhom it is delivered, though in words not material, will also render it void (x). But if an estate has once been conveyed by a deed, of course the subsequent alteration, or even the destruction, of the deed cannot operate to reconvey the estate ; and the deed, even though cancelled, may be given in evidence to shoAV that the estate was conveyed by it whilst it was valid (y). But the deed having become void, no action could be brought upon any covenant contained in it {z). Every deed, if not charged with any ad valorem or Stamps on other stamp duty, nor expressly exempted from all stamp duty, is liable to a stamp duty of II. los. ; and if the deed, together with any schedule, receipt or other matter put or indorsed thereon or annexed thereto, contain 2160 Avords, or 30 common law folios of 72 words each, or upwards, it is liable to a further progressive duty of 10^. for every entire quantity of 1080 words, or 15 folios, over and above the first 1080 words. But the duplicate or counterpart of any deed is liable Duplicate or only to a stamp duty of five shillings and a progressive counteipait. duty of half-a-crown, unless the original be liable to a less duty, in which case the duty is the same as on the original. If, however, the deed was signed or executed by any party thereto, or bears date, before or upon the 10th of October, 1850, when the act to amend the stamp duties took effect, then the progressive duty is (a-) P'tgofx ease, 1 1 Rep. 27 a ; eel, ohliterate or conceal any do- Princijiles of the Law of Personal cumciit of title to lands. Stat. 24 Property, p. 81, 4th ed.; 83, oth & 2.j Vict. c. 9G, s. 28. ed.; 85, 6th ed.; JInlly. Chand- {ij) Lord Ward v. Lnmley, 5 less, 4 Bing. 123. It is now felony 11. & N. 87, G5G. not only to steal, but also for any (r) Pilot's case, iibi supra, fraudulent purpose to destroy, can- R.P. L 14G OF CORPOREAL HEREDITAlilENTS. II. 5s. for every entire quantity of 1080 words beyond the first 1080(a). Deeds poll and Deeds are divided into two kinds, Deeds poll and luc cntuicb. Indentures : a deed poll being made by one party only, and an indenture being made between two or more parties. Formerly, when deeds were more concise than at present, it was usual, where a deed was made between two parties, to write two copies upon the same piece of parchment, Avith some word or letters of the alphabet written between them, through which the parchment was cut, often in an indented line, so as to leave half the words on one part, and half on the other, thus serving the purpose of a tally. But at length indenting only came into use {h) ; and now every deed, to which there is more than one party, is cut with an indented or waving line at the top, and is called an indenture (c) ; and, until recently, when a deed assumed the form of an indenture, every person who took any inunediate benefit under it, was always Kew enact- named as one of the parties. But now by the act to amend the law of real property it is enacted that, under an indenture, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tene- ments or hereditaments, may be taken, although the taker thereof be not named a party to the same inden- ture ; also that a deed, purporting to be an indenture, shall have the effect of an indenture, although not actually indented (d). A deed made by only one party is polled, or shaved even at the top, and is therefore Deed poll. called a deed poll ; and, under such a deed, any person may accept a grant, though of course none but the («) Stats. 65 Geo. III. c. 184 ; (c) Co. Litt. 143 b. ' 13 & 14 Vict. c. 97 ; 24 & 25 Vict. {d) Stat. 8 & 9 Vict. c. 106, s. 5, c. 91, s. 31. repealing stat. 7 & 8 Vict. c. 76, (h) 2 Black. Com; 295. .s. 11, to the same effect. OF A FEOFFMENT. 147 party can make one. All deeds must be written either on paper or parchment (e). So manifest are the advantages of putting down in "Writings not writing matters of any permanent importance, that, as ™ ^^"^ commerce and civilization advanced, writings not under seal must necessarily have come into frequent use ; but, until the reign of King Charles II., the use of writing remained perfectly optional with the parties, in every case which did not require a deed under seal. In this reign, however, an act of parliament was passed (/"), requiring the use of writing in many trans- actions, which previously might have taken place by mere word of mouth. This act is intituled " An Act for Prevention of Frauds and Perjuries," and is now commonly called the fStatute of Frauds. It enacts (^), The Statute of amongst other things, that all leases, estates, interests ^^■'^"'^^• of freehold, or terms of years, or any uncertain in- terest, in messuages, manors, lands, tenements, or hereditaments, made or created by livery of seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and no greater force and effect ; any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding. The only exception to this SAveeping enactment is in favour An exception. of leases not exceeding three years from the making, and on which a rent of two-thirds at least of the full improved value is reserved to the landlord (/*). In consequence of this act, it became necessary that a feoffment should be put into writing, and signed by the party making the same, or his agent lawfully (e) Shop. Toiuh. 54; 2 Black. {g) Sect. 1. Com. 297. {h) Sect. 2. (/) Stat. 2!) Car. II. c. 3. L 2 148 OF CORPOREAL HEREDITAMENTS. A deed now necessary. Whether sign- ing of deeds necessary. authorized by writing ; but a deed or writing under seal was not essential {i), if livery of seisin were duly made. But now by tlie act to amend the law of real property (A), it is provided that a feoffment, other than a feoffinent made under a custom by an infant, shall be void at law, unless evidenced by deed (Z). Where a deed is made use of, it is a matter of doubt, whether signing, as well as sealing, is absolutely necessary : previously to the Statute of Frauds, signing was not at all essential to a deed, provided it were only sealed and delivered {m) ; and the Statute of Frauds seems to be aimed at transactions by parol only, and not to be intended to affect deeds. Of this oj)inion is Mr. Preston (w). Sir William Blackstone, on the other hand, thinks signing now to be as necessary as seal- ing (o). And the Court of Queen's Bench has, if pos- sible, added to the doubt (/»). Mr. Preston's, how- ever, appears to be the better opinion ( q). However this may be, it would certainly be most unwise to raise the question by leaving any deed sealed and delivered, but not sio-ned. Legal doults. The doubt above mentioned is just of a class with many others, with which the student must expect to meet. Lying just by the side of the common highway of legal knowledge, it yet remains uncertain ground. The abundance of principles, and the variety of illustra- tions to be found in legal text books, are apt to mislead the student into the supposition, that he has obtained a map of the whole country which lies before him. But further research will inform him that this opinion is (i) 3 Prest. Abst. 110. ih) Stat. 8 & 9 Vict. c. 106. (Z) Sect. 3. (w) Shep. Touch. 5G. In) Shep. Touch, n. (24),rres- ton's ed. (o) 2 Black. Com. 300. {j>) Coocli V. Goodman, 2 Queen's Bench Rep. 580, 597. ((/) See Taunton v. Pepler, 6 Madd. 1G6, 1G7; Aveline\. mils- son, 4 Man. & Gran. 801 ; Cherry V. Heming, 4 Ex. G31, G36. OF A FEOFFMENT , 1-49 erroneous, and that, though the ordinary paths are well beaten by author after author again going over the same ground, yet much that lies to the right hand and to the left still continues unexplored, or known only as doubt- ful and dangerous. The manner in which our laws are formed is the chief reason for this prevalence of un- certainty. Parliament, the great framer of the laws, seldom undertakes the task of interpreting them, a task indeed which would itself be less onerous, were more care and pains bestowed on the making of them. But as it is, a doubt is left to stand for years, till the cause of some unlucky suitor raises the point before one of the Courts; till this happens, the judges them- selves have no authority to remove it; and thus it remains a pest to society, till caught in the act of raising a lawsuit. No wonder then, when jvidges can do so little, that writers should avoid all doubtful points. Cases, which have been decided, are con- tinually cited to illustrate the principles on which the decisions have proceeded; but in the absence of deci- sion, a lawyer becomes timid, and seldom ventures to draw an inference, lest he should be charged with introducing a doubt. To return : a feoffment, with livery of seisin, though once the usual method of conveyance, has long since ceased to be generally employed. For many years past, another method of conveyance has been re- sorted to, Avhich could be made use of at any dis- tance from the property; but as this mode derived its effect from the Statute of Uses (r), it Avill be necessary to explain that statute before proceeding further. (?•) 27 Hen. VIII. c. 10. 150 OF CORPOREAL HEREDITAMENTS. CHAPTER VIII. OF USES AND TRUSTS. Anciently a gift witli liverj^ of seisin was all that was necessary for a conveyance. In equity a different rule prevailed. Previously to the reign of Henry VIII., when the Statute of Uses (a) was passed, a simple gift of lands to a person and his heirs, accompanied by livery of seisin, was all that was necessary to convey to that person an estate in fee simple in the lands. The courts of law did not deem any consideration necessary ; but if a man voluntarily gave lands to another, and put him in possession of them, they held the gift to be complete and irrevocable; just as a gift of money or goods, made without any consideration, is, and has ever been, quite beyond the power of the giver to retract it, if accompanied by delivery of possession {b). In law, therefore, the person to whom a gift of lands was made, and seisin delivered, was considered thenceforth to be the true owner of the lands. In equity, how- ever, this was not always the case ; for the Court of Chancery, administering equity, held that the mere delivery of the possession or seisin by one person to another was not at all conclusive of the right of the feoffee to enjoy the lands of which he was enfeoffed. Equity was unable to take from him the title which he ]^ossessed, and could always assert in the courts of law; but equity could and did compel him to make use of that legal title, for the benefit of any other person who mioht have a more rio-hteous claim to the bene- ficial enjoyment. Thus if a feoffiiaent was made of lands to one person for the benefit or to the use of another, such person was bound in conscience to hold (rt) 27 Hen. VIII. c. 10. {b) 2 Black. Com. 441. OF USES AND TRUSTS. 151 the lands to the use or for the benefit of the other accordingly; so that Avhile the title of the person enfeoffed was good in a court of law, yet he derived no benefit from the gift, for the Court of Chancery obliged him to hold entirely for the use of the other for whose benefit the gift was made. This device was introduced into England about the close of the reign of Edward III. by the foreign ecclesiastics, who con- trived by means of it to evade the statutes of mort- main, by which lands were prohibited from being given for religious purposes ; for they obtained grants to persons to the 7ise of the religious houses ; which grants the clerical chancellors of those days held to be binding (c). In process of time, such feoffments to one person to the use of another became very com- mon; for the Court of Chancery allowed the use of lands to be disposed of in a variety of ways, amongst others by will (d), in Avhich a disposition could not then be made of the lands themselves. Sometimes Feoffment to persons made feoffments of lands to others to the use ^^^^^^ ° * ^ of themselves the feoffors ; and when a person made a feoffinent to a stranger, without any consideration being given, and wdthout any declaration being made for whose use the feoffment should be, it was con- sidered in Chancery that it must have been meant by the feoffor to be for his own use () 2 Black. Com. 335. (o) See JToj)?{ins V. Jloph'uis, I (//) Principles of Conveyancing, Atk. 591 ; 1 Sand. Uses, 2G5 (277, Introiluction. 5tli ed.) IjG OF CORrOllEAL HEREDITAMENTS. Chancery in- terfered. Legal estate. Equitable estate. takes no estate in law, for the use to him is a use upon a use ; but the fee sunple vests in A. to whom the use is first declared (r). Here then was at once an oppor- tunity for the Court of Chancery to interfere. It was manifestly inequitable that C, the party to whom the use was last declared, should be deprived of the estate, which was intended solely for his benefit ; the Court of Chancery, therefore, interposed on his behalf, and constrained the party, to Avhom the laAv had given the estate, to hold in trust for him to whom the use was last declared. Thus arose the modern doctrine of uses and trusts. And hence it is, that if it is now wished to vest a freehold estate in one person as trustee for another, the conveyance is made unto the trustee, or some other person (it is immaterial which), and his lieirs, to the use of the trustee and his heirs, in trust for the party intended to be benefited (called cestui que trust) and his heirs. An estate in fee simple is thus vested in the trustee, by force of the Statute of Uses, and the entire beneficial interest is given over to the cestui que trust by the Court of Chancery. The estate in fee simple, which is vested in the trustee, is called the legal estate, being an estate, to which the trustee is entitled, only in the contemplation of a court of law, as distinguished from equity. The interest of the cestui que trust is called an equitable estate, being an estate to which he is entitled only in the contem- plation of the Court of Chancery, which administers equity. In the present instance, the equitable estate being limited to the cestui que trust and his heirs, he has an equitable estate in fee simple. He is the bene- ficial owner of the property. The trustee, by virtue of his legal estate, has the right and power to receive the rents and profits; but the cestui que trust is able. (r) Due d. Lloyd v. Pasdngham, G Bam. & Crcs. 305. OF USES AND TRUSTS. 157 by virtue of liIs estate in equity, at any time to oblige his trustee to come to an account, and hand over the whole of the proceeds. We have now arrived at a very prevalent and im- portant kind of interest in landed property, namely, an estate in equity merely, and not at law. The owner Estates in of such an estate has no title at all in any court of law, ^'l"^*^^' but must have recourse exclusively to the Court of Chancery, where he will find himself considered as owner, according to the equitable estate he may have. Chancery in modern times, though in principle the Modern Chan- same as the ancient court which first gave eftect to J^^;^jjcientf" uses, is yet Avidely diiferent in the application of many of its rules. Thus we have seen (s) that a considera- tion, however trifling, given by a feofiee, was sufficient to entitle him to the use of the lands of which he was enfeoffed. But the absence of such a consideration caused the use to remain with, or more technically to result to, the feoffor, according to the rules of Chan- cery in ancient times. And this doctrine has now a practical bearing on the transfer of legal estates ; the ancient doctrines of Chancery having, by the Sta- tute of Uses, become the means of determining the owner of the legal estate, whenever uses are men- tioned. But the modern Court of Chancery takes a wider scope, and will not withhold or grant its aid, according to the mere payment or non-payment of five shillings : thus, circumstances of fraud, mistake, or the like, may induce the Court of Chancery to require a grantee under a voluntary conveyance to hold merely as a trustee for the grantor; but the mere want of a valuable consideration would not now be considered by that court a sufficient cause for its interference (t). (s) Ante, p. 152. (0 1 Sand. Uses, 334 (365, 5th ed.) and in tail. 158 OF CORPOREAL HEREDITAMENTS. County Courts. By the recent act to confer on the County Courts a limited jurisdiction in equity, it is enacted, amongst other things, that these courts shall have and exercise all the power and authority of the High Court of Chan- cery in all suits for the execution of trusts in which the trust estate or fund shall not exceed in amount or value the sum of five hundred pounds {u). This act came into operation on the first of October, 1865 {v). Equity follows In the Construction and regulation of trusts, equity the law. -g gj^-^ ^Q follow the law, that is, the Court of Chancery generally adopts the rules of law applicable to legal Equitable estates (^^) ; thus, a trust for A. for his life, or for him estates for life and the heirs of his body, or for him and his heirs, will give him an equitable estate for life, in tail, or in fee simple. An equitable estate tail may also be barred, in the same manner as an estate tail at law, and cannot be disposed of by any other means. But the decisions of equity, though given by rule, and not at random, do not follow the law in all its ancient technicalities, but proceed on a liberal system, corre- spondent with the more modern origin of its power. Thus, equitable estates in tail, or in fee simple, may be conferred without the use of the words heirs of the body, or heirs, if the intention be clear : for, equity pre-eminently regards the intentions and agreements of parties ; accordingly, words which at law would confer an estate tail, are sometimes construed in equity, in order to further the intention of the parties, as giving merely an estate for life, followed by sepa- rate and independent estates tail to the children of the donee. This construction is frequently adopted by equity in the case of marriage articles, where an in- tention to provide for the children might otherwise be (?/) Stat. 28 & 29 Vict. c. 99, («) Sect. 23. s. 1, amended by stat. 30 & 31 (w) 1 Sand. Uses, 2G9 (280, 5tli Vict. c. 142. cd.) 01" USES AXD TRUSTS. 159 defeated by vesting an estate tail in one of the parents, who could at once bar the entail, and thus deprive the children of all benefit (x). So if lands be directed to Equitable be sold, and the money to arise from the sale be SdJ"tobe° directed to be laid out in the purchase of other land to purchased. be settled 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 purchase 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 iy). 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 Equitable fee simple immediately belongs to every purchaser of g^^^"" ^^ freehold propei'ty the moment he has signed a contract for purchase, provided the vendor has a good title (a); and it is understood that the whole estate of the vendor is contracted for, unless a smaller estate is ex- pressly mentioned, the employment of the word heirs not being essential {h). If, therefore, the purchaser were to die intestate the moment after the contract, the equitable estate in fee simple, which he had just acquired, would descend to his heir at law, who would (;r) 1 Sand. Uses, 311 (337, 5th IV. c. 45, -which repealed stat 39 ed.) ; Watkins on Descents, 108, & 40 Geo. IIL c. 5G. (214, 4th ed.) (a) Sugd. Vend. & Pur. 146, iy) 1 Sand. Uses, 300 (324, 5th (162, 13th ed.) ed.) (&) Boiver v. Coojjer, 2 Hare, (r) Stat 3 & 4 WiU. IV. c. 74, 40S. ss. 70, 71, repealing stat. 7 Geo. IGO OF CORPOREAL HEREDITAMENTS. have a right (to be enforced in equity) to have the estate paid for out of the money and other jiersonal 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 in fee simple might be furnished. No escheat of a trust estate. Trast for alien. Treason. An equitable estate in fee will not escheat to the lord upon corruf)tion of the blood, or failure of heirs of the cestui que trust (c) ; for a trust is a mere creature of equity, and not a subject of tenure. In such a case, therefore, the trustee "svill hold the lands discharged from the trust which has so failed ; and he will accordingly have a right to receive the rents and profits without being called to account by any one. In other words, the lands will thenceforth be his own {d). But it has been held that, if lands be pur- chased by a natural-born subject in trust for an alien (e), the crown may claim the benefit of the pur- chase (/") ; although, if lands be directed to be sold, and the produce given to an alien, the crown has then no claim (r/). In the event of high treason being committed by the cestui que trust of an estate in fee simple, it is the better opinion that his equitable estate will be forfeited to the crown (A). By a recent statute {{) both the lord's right of escheat, and the crown's right of forfeiture, have been taken away in the case of the failure of heirs or corruption of blood {c) 1 Sand. Uses, 288 (302, 5th ed.) {(l) Bvrgess v. Wlieate, 1 Wm. Black. 123; 1 Eden, 177; Taylor V. Hay garth, 14 Sim. 8; Davall v. New River Company, 3 De Gex & Sinale, 394; Bcale v. Symonds, IG Bcav. 40G. (^) Sec ante, p. G2. (/) Barrow v. Wadldn, 24 Beav. 1. See however Bittson v. Stordy, 3 Sm. & Giff. 230, qu. ? (g) Bit Ilourmelln v. Sheldon, 1 Bcav. 79; 4 My. & Cr. 525. (70 1 Hale, P. C. 249. (0 Stat. 13 & 14 Vict. c. 60, re- pealing Stat. 4 & 5 Will. IV. c. 23, to the same effect. OF USES AND TRUSTS. IGl of the trustee, except so far as he himself may have any beueficial interest in the lands of which he is seised ( j). The descent of an equitable estate on in- Descent of an testacy follows the rules of the descent of legal estates ; ""^^^^f' ^ and, therefore, in the case of gavelkind and borough- English lands, trusts affecting them will descend ac- cording to the descendible quality of the tenure (A). Trusts or equitable estates may be created and Creation and ^ 1 • 1 i ii -P transter ot passed from one person to anotlier, without the use ot ^^^^^ estates. any particular ceremony or form of words (Z). But, |*^*|]j5g °^ by the Statute of Frauds {m) it is enacted ^n) that no action shall be brought upon any agreement made upon consideration 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 charged therewith, or some other person thereunto by him lawfully authorized. It is also enacted (o), that all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing, signed by the party who is by law en- abled to declare such trust, or by his last will in writing; and further(j5), that all grants and assign- ments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by his last will. Trusts arising or resulting from any conveyance of lands or tenements, by unpli- cation or construction of law, and trusts transferred or ij) Stat. 13 & U Vict. c. 00, s. (w) 29 Car. II. c. 3. 47. (w) Sect. 4; Sug. V. & P. c. 4, ( /.■) 1 Sand. Uses, 270 (282, 5th pp. 9G et seq., 13th ed. ed.) (") Sect. 7 ; Tlcrney v. Wood, (l) 1 Sand. Uses, 315, 31G (343, 19 Beav. 330. 344, 5th ed.) {p) Sect. 9. K.P. M 162 OF CORrOREAL HEREDITAjVIEXTS. extinguished by an act or operation of law, are ex- empted from this statute {q). In the transfer of equitable estates it is usual, in practice, to adopt con- veyances applicable to the legal estate ; but this is never necessary (r). 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 {s). Sale of land by auction. Opening of biddings abo- lished. The sale of real estate by auction is now regulated by an act which renders invalid every such sale Avhere a puffer is employed; and which requires that the particulars or conditions of sale shall state whether the sale is without reserve, or subject to a reserved price, or whether a right to bid is reserved. And if the sale is stated to be without reserve or to that effect, the seller may not employ any person to bid at the sale, and the auctioneer may not knowingly take any bidding from any such person. But where the sale is declared to be subject to a right for the seller to bid, he or any one person on his behalf may bid at the auction in such manner as he may think projier {t). This act also very properly abolishes a practice which had long prevailed in Courts of Chancery of opening tlie biddings after a sale by auction of land under (^7) 29 Car. II. c. 3, s. 8. (r) 1 Sand. Uses, 342 (377, 5th ed.) (s) Agreements, the matter whereof is of the value of five pounds or upwards, now bear a stamp duty of sixpence, which may be denoted by an adhesive stamp, on which, if used, every party who signs the agreement must at the same time write his name, and the date of the day and year of mritinr] the same, other- wise the stamp will be of no avail. Stats. 23 Vict. c. 15; 23 & 24 Vict. c. Ill, s. 12. If they contain 2,1G0 words or upwards, there is a fur- ther progi'cssive duty of sixpence for every entire quantity of 1 ,080 words, or fifteen folios, over and above the first 1,080 words. De- clarations of trust made by any writing, not being a will, bear the same duty as ordinary deeds ; stats. 55 Geo. III. c. 18-t; 13 & 14 Vict. c. 97; ante, p. 145. i,t) Stat. 30 & 31 Vict. c. 48, ss. 4, 5, C. OF USES AND TRUSTS. 163 tlieir authority, if a price considerably higher was afterwards offered ; so that a bona fide purchaser was never sure of his bargain. But now the highest bona fide bidder is to be declared and allowed the purchaser, except in the case of fraud or improper conduct in the management of the sale(?<). The County Courts County Courts have now jurisdiction in equity in all suits for specific gf/eor^ase." performance of, or for reforming, delivering up or cancelling of any agreement for the sale, purchase or lease of any property, where, in the case of a sale or purchase, the purchase-money, or in case of a lease the value of the property, shall not exceed five hun- dred pounds {v). Trust estates, besides being subject to voluntary Trust estates ,. , , ,.1 J 1 , • liable to debts. alienation, are also liable, like estates at law, to in- voluntary alienation for the payment of the OAvner's debts. By the Statute of Frauds it is provided, that The Statute of if any cestui que trust shall die, leaving a trust in fee simple to descend to his heir, such trust shall be assets by descent, and the heir shall be chargeable with the obligation of his ancestors for and by reason of such assets, as fully as he might have been if the estate in laAv had descended to hhn in possession in like manner as the trust descended (w). And the subsequent Subsequent statutes. statutes to which we have before referred, for pre- venting the debtor from defeating his bond creditor by his will, and for rendering the estates of all persons liable on their decease to the payment of their just (u) Stat. 30 & 31 Vict. c. 48, bond creditor any relief. Bennet s. 7. V. Box, 1 Cha. Ca. 12 ; Prat v. (r) Stat. 30 & 31 Vict. c. 142, Colt, ib. 128. These decisions, s. 9. in all in-obability, gave rise to the («•) Stat. 2!) Car. II. c. 3, s. 10. above enactment. See 1 Win. Before this provision the Court of Black. 159; 1 Sand. Uses, 27G (289, Chancery had refused to give the 5th cd.) M 2 The Statute of rrauds 164 OF CORPOKEAL HEREDITAMENTS. debts of every kind, apply as well to equitable or trust estates as to estates at law (or). Judgment The same Statute of Frauds also gave a remedy to debts. ii^Q creditor who bad obtained a judf/ment against his debtor, by providing {y) that it should be lawful for every sheriff or other officer to whom any writ should be directed, upon any judgment, to deliver execution unto the party in that behalf suing of all such lands and hereditaments as any other person or persons should be seised or possessed of in trust for him against whom execution was sued, like as the sheriff or other officer might have done if the party against whom execution should be sued 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 a statute of Henry VII. [z), re- specting lands of which any other person or persons were seised to the use of him against whom execution was sued; and which statute of course became in- operative when uses were, by the Statute of Uses (a), turned into estates at law. The construction placed upon this enactment of the Statute of Frauds was more favourable to purchasers than that placed on the statute of Edward I, (Z»), by which fee simple estates at law were first rendered liable to judgment debts. For it was held that although the trustee might have been seised in trust for the debtor at the time of ob- taining the judgment, yet if he had conveyed away the lands to a purchaser before execution was actually (.r) Stats. 3 & 4 Wm. & Man-, (//) Stat. 29 Car. II. c. 3, s. 10. c. 14, s. 2 ; 47 Geo. KI. c. 74 ; {z) Stat. 19 Hen. VII. c. 15. 11 Geo. IV. & 1 Will. IV. c. 47 ; {a) Stat. 27 Hen. VIII. c. 10. 3 & 4 Will. IV. c. 104; ante, (5) Stat. 13 Edw, I. c. 18; ante, pp. 76, 77. p. 79. OF USES AND TRUSTS. 165 sued out on the judgment, the lands could not after- wards 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(^c\ The act for extend- ing the remedies of creditors against the property of debtors {d), however, deprived purchasers of this ad- vantage, in consideration perhaps of the greater faci- lities which it afforded in the search for judgments ; for it provided (^) that execution might be delivered under the writ of elegit, of all such lands and here- ditaments as the person against whom execution was sued, or any person in trust for him, should have been seised or possessed of at the time of entering up the judgment, or at any time afterwards ; and a remedy in equity was also given to the judgment creditor against all lands and hereditaments of or to which the debtor should at the time of entering up the judgment, or at any time afterwards, be seised, possessed or entitled for any estate or interest whatever at law or in equity (y). But the still more recent enactments {g^, to which we New enact- have before referred (A), greatly diminish the eifect of °^'^'^'^- these provisions. Trust estates are subject to debts due to the crown Crown debts. in the same manner and to the same extent as estates at laAv (z). They are also equally liable to involuntary Bankruptcy. alienation on the bankruptcy of the cestui que trust. But on the bankruptcy (A) of the trustee, the legal estate in the premises of which he is trustee remains vested in him and does not pass to his assignees; (p) Hunt V. Coles, Com. 220 ; 5; 23 & 24 Vict. c. 38, ss. 1, 2; 27 Harris v. Pugh, 4 Bing. 335 ; 12 & 28 Vict. c. 112. J. B. Moore, .'377. (/>,) Ante, pp. 82, 83. {d) Stat. 1 & 2 Vict. c. 110; (() King v. Smith, Sugd. Vcn. ante, p. 81. & Pur. Appcndi.x, No. 15, p. 1008, (e) Sect. 11. 11th ed. (/) Sect. 18. (*) Exparte Geniiys, Mont. & {g) Stats. 2 & 3 Viet. c. 11, s. Mac. 258. 166 OF CORPOREAl, HEREDITAMENTS. and the same rule formerly applied to cases of in- solvency (/). The Trustee Act, 1850. New tnistees. The circumstance of proj^erty being vested in trus- tees sometimes occasions inconvenience. A trustee may become lunatic, or may leave the country, or may refuse to convey, when required, the lands of which he is trustee ; or he may die intestate without an heir, or leaving an infant heir, on whom, if he was a sole or a sole surviving trustee, the lands will descend at law. In order to remedy the inconvenience thus occasioned to the persons beneficially entitled, it is provided by recent acts of parliament (in) that, in the case of a lunatic trustee, the Lord Chancellor, or the persons entrusted by the Queen's sign manual with the care of the persons and estates of lunatics, and the Court of Chancery in other cases, may make an order vesting the lands in any other person or persons ; and such an order will operate as a valid conveyance of such lands accordingly. It is also provided that, when- ever it is expedient to appoint a new trustee, and it is inexpedient, difficult or impracticable so to do without the assistance of the Court of Chancery, that Court may make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees (?i), or whether there be any existing trustee or not (o). The Court of Chancery is also empowered to appoint a new trustee in the place of any trustee who shall have been convicted of felony (p). And upon making any order appointing (0 Sims V. Tliumas, 12 Ad. & El. 536. (/«) Stats. 13 & 14 Vict. c. 60, and 15 & 10 Vict. c. 55, repealing and consolidating stats. 11 Geo. IV. & 1 Will. IV. c. 60, 4 & 5 Will. IV. c. 23, and 1 & 2 Vict. c. 69. («) Stat, 13 & 14 Vict. c. 60, s. 32. {o) Stat. 15 & 16 Vict. c. 55, s. 9. i2>) Stat. 15 & 16 Vict. c. 55, s. 8. OF USES AND TRUSTS. 167 a new trustee, the Court may direct that any lands subject to the trust shall vest in the person or persons, who, upon the appointment, shall be the trustee or trustees for such estate as the Court shall direct ; and such order will have the same effect as if the person or persons who before such order Avere the trustee or trustees (if any) had duly executed all proper convey- ances of such lands ( q). Propex'ty held in trust for Charity piu- charities may also be vested by the Court in new ^^'^^ ^' trustees, or in the official trustee of charity lands, without any conveyance (/•). But every such order is now chargeable with the like amount of stamp duty as it would have been chargeable Avith if it had been a deed executed by the person or persons possessed of the land (s). All the power and authority of the County Courts. Court of Chancery, in any of the above-mentioned matters, is now vested in the County Courts, in all proceedings in Avhich the trust estate or fund to which the proceeding relates, shall not exceed in amount or value the sum of five hundred pounds (f). By another Tropcrty luKi act of parliament {u) provision is made for vesting the eiu/'^t'''^'"'r "^ property of congregations or societies for purposes of purposes. religious worship or education in ncAv trustees from time to time without any conveyance. The provisions Literary and of this act have recently been extended to Literarv f'^'^ntific insti- ...•^ .. •' tutious. and Scientific Institutions (y). But it is an ill-drawn act, and not likely to be very beneficial. More re- New enact- cently an act has been passed which contains a general "oT* lomrnew provision for the appointment of new trustees, similar trustees. to the powers for that purpose ordinarily inserted in {q) Stat. 13 & 14 Viet. c. GO, s. 13. s. 34. (i^) Stat. 28 & 29 Vict. c. 99, (?•) Sect. 45. Stats. IG & 17 s. 1. Vict. c. 137, s. 48 ; 18 & 19 Viet. (?«) Stat. 13 & 14 Viet. c. 28. c. 124, s. 15; 23 & 24 Vict. e. 13G. (c) Stat. 17 Si 18 Vict. c. 112, (.v) Stat. 15 & IG Viet. c. 55, s. 12. 168 OF CORPOREAL HEREDITAMENTS. well-drawn trust deeds. The act " to give to trustees, mortgagees and others, certain powers now commonly- inserted in settlements, mortgages and wills," extends to instruments executed, or wills confirmed or revived by codicil executed, after the 28th of August, 1860, the date of the act (w). It provides {x) that whenever any trustee shall die, or desire to be discharged from, or refuse, or become unfit or incapable to act in the trusts or powers reposed in him, the surviving or con- tinuing trustees or trustee, or the acting executors or administrators of the last surviving or continuing trustee, or the last retiring trustee, may, if there be no person nominated for that purpose by the instrument creating the trust, or no such person able and willing to act, appoint a new trustee. And every such trustee, and also every trustee appointed by the Court of Chancery, either before or after the passing of the act, is invested with the same powers as if he had been originally nominated by the instrument creating the trust ( y). And the above-mentioned power of appoint- ing new trustees may be exercised in cases Avhere a trustee nominated in a will has died in the lifetime of the testator, as well as where he may have died after Stamps on the testator's decease (z). It is now provided that nertSees.''* where the appointment of a new trustee occasions several deeds, if one of them be stamped with the usual deed stamp of II. I5s., the others may bear the same stamp only as a duplicate would be charged with (a). (?!') Stat. 23 & 24 Vict. c. 145, County Palatine of Lancaster. s. 34. Stat. 28 & 29 Vict. c. 40. {x) Stat. 23 & 24 Vict. c. 145, (--) Stat. 23 & 24 Vict. c. 145, s. 27. s. 28. («/) The words Court of Chancery {a) Stat. 24 & 25 Vict. c. 91, here used extend to and inchide s. 30. See ante, p. 145. the Court of Chancery of the OF USES AND TRUSTS. 169 The concurrent existence of two distinct systems of l^'^^^^'^^^Ji'''^^ jurisprudence is a peculiar feature of liinglish Lnvf. tcms. On one side of Westminster Hall a man may succeed in his suit under circumstances in which he Avould un- doubtedly be defeated on the other side ; for he may have a title in equity, and not at law (being a cestui que trust), or a title at law and not in equity (being merely a trustee). In the former case, tliough he would succeed in a chancery suit, he never would think of bringing an action at law ; in the latter case he would succeed in an action at law ; but equity would take care that the fruits should be reaped only by the person beneficially entitled. The equitable title is, therefore, the beneficial one, but if barely equitable, it may oc- casion the expense and delay of a chancery suit to maintain it. Every purchaser of landed property has, therefore, a right to a good title both at law and in equity ; and if the legal estate should be vested in a trustee, or any person other than the vendor, the con- currence of such trustee or other person must be obtained for the purpose of vesting the legal estate in the purchaser, or, if he should please, in a new trustee of his OAvn choosing. When a person has an estate at law, and does not hold it subject to any trust, he has of course the same estate in equity, but Avithout any occasion for resorting to its aid. To him, therefore, the doctrine of trusts does not apply : his legal title is sufficient ; the law declares the nature and incidents of his estate, and equity has no ground for interfer- ence (Z»). A great step has now been taken towards the amal- Common Law gamation of law and equity by the Common Law l^o^6*i"i^o ^^^^ Procedure Act, 1854 (c), which confers on the Courts (h) See Bryrhjes v. Brythjcs, 3 (c) Stat. 17 & 18 Vict. c. 125. Ves. 127. no OF CORPORE^\X HEREDITAMENTS. of Common Law an extensive equitable jurisdiction. The plaintiff in any action, except replevin and eject- ment, may claim a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested () Stat. 7 & 8 Vict. c. 76. {c) Sects. 2, 13. OF A MODERN CONVEYANCE. 173 This act however, had not been in operation more Farther enact- than nine months when it was repealed by the act to amend the hiw of real property (d), which provides, that after the 1st of October, 1845, all corporeal tene- ments and hereditaments shall, as regards the convey- ance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. A simple deed of grant is therefore now sufficient to grant the freehold or feudal seisin of all lands (e). But as a lease and release was so long the usual method of conveyance, the nature of a conveyance by lease and release should still form a subject of the student's inquiry; and with this we will accordingly begin. From the little that has already been said concerning A lease for a lease for years (/), the reader will have gathered, that the lessee is put into possession of the premises leased for a definite time, although his possession has nothing feudal in its nature, for the law still recog- nizes the landlord as retaining the seisin or feudal possession. Entry by the tenant was, however, in Entry neces- ancient times, absolutely necessary to make a complete lease {(/); although, in accordance with feudal prin- ciples, it was not necessary that the landlord should depart at once and altogether, as he must have done in the case of a feoffment where the feudal seisin was transferred. When the tenant had thus gained a The tenant's TiOSiLion cii~ footing on the premises, under an express contract tered by entry. with his landlord, he became, with respect to the feudal possession, in a different position from a mere (d) Stat. 8 & 9 Vict. c. lOG, for a year is now rercalcd by stat. g 2. 13 & 14 Vict. c. 97, s. 6, so far as (f) By the second section of the relates to any deed or instrument act, the stamp dnty on this single bearing date after the 10th of Oc- deed was the same as was charge- tober, 1850. able on the lease and release, ex- (/) Ante, pp. 8, 112. cept the progressive duty on the (^7) Litt. s. 459; Co. Litt. 270 a. lease. But the duty on the lease 174 OF CORrOREAL HEREDITAMENTS. A release. Inconvenience of lease with entry. stranger; for, he was then capable of acquiring such feudal possession, without any formal livery of seisin, by a transfer or conveyance, from his landlord, of all his (the landlord's) estate in the premises. Being already in possession by the act and agreement of his landlord, and under a tenancy recognized by the law, there was not the same necessity for that open delivery of the seisin to him, as there would have been to a mere stranger. In his case, indeed, livery of seisin would have been improper, for he was already in pos- session under his lease (A); and, as a delivery of the possession of the lands could not, therefore, be made to him, it was necessary that the landlord's interest should be conveyed in some other manner. Now the ancient common law always required that a transfer or gift of every kind relating to real property should be made, either by actual or symbolical delivery of the subject of the transfer, or, when this was impos- sible, by the delivery of a written document [i). But in former times, as we have seen (A), every writing was under seal ; and a writing so sealed and delivered is in fact a deed. In this case, therefore, a deed was required for the conveyance of the landlord's inte- rest (Z); and such conveyance by deed, under the above circumstances, was termed a release. To a lease and release of this kind, it is obvious that the same objection applies as to a feoffment : the incon- venience of actually going on the premises is not obviated; for, the tenant must enter before he can receive the release. In the very early periods of our history, this kind of circuitous conveyance was, how- ever, occasionally used. A lease was made for one, two, or three years, completed by the actual entry of (7t) Litt. s. 460; Gilb. Uses and Trusts, 104 (223, Srd ed.) (i) Co. Litt. 9 a; Doe d. TT't're V. Cole, 7 Bara. & Cress. 243, 24t!; ante, p. 11. (k) Ante, p. 143. (I) Shep. Touch. 320. or A MODERN CONVEYANCE. 175 the lessee, for the express purpose of enabling him to receive a release of the inheritance, which was accord- ingly made to him a short time afterwards. The lease and release, executed in this manner, transferred the freehold of the releasor as effectually as if it had been conveyed by feoffment (jn). But a lease and release would never have obtained the prevalence they after- wards acquired had not a method been found out of making a lease, without the necessity of actual entry by the lessee. The Statute of Uses (n) was the means of accom- The statute of plishiug this desirable object. This statute, it may be ^^^" remembered, enacts, that when any person is seised of lands to the use of another, he that has the use shall be deemed in lawful seisin and possession of the lands, for the same estate as he has in the use. Now, besides a feoffment to one person to the use of another, there were, before this statute, other modes by which a use might be raised or created, or in other words, by which a man might become seised of lands to the use of some other person. Thus — if, before the Statute of Uses, a bargain was made for the sale of an estate. Bargain and and the purchase-money paid, but no feoffment was ^^^^• executed to the purchaser, — the Court of Chancery, in analogy to its modern doctrine on the like occa- sions (o), considered that the estate ought in conscience immediately to belong to the person who paid the money, and, therefore, held the bargainor or vendor to be immediately seised of the lauds in question to the use of the purchaser (p). This proper and equit- able doctrine of the Court of Chancery had rather a curious effect when the Statute of Uses came into (m) 2 Sand. Uses, Gl (74, 5th (j?) 2 Sand. Uses, 43 (.",3, 5th cd.) cd.); Gilb. Uses and Trusts, 49 («) 27 lien. VIII. c. 10. (94, 3rd cd.) 0>) Ante, pp. 159, IGO. 176 OF CORPOREAL HEREDITAMENTS. operation; for, as by means of a contract of this kind the purchaser became entitled to the use of the lands, so, after the passing of the statute, he became at once entitled, on j^ayment of his purchase-money, to the lawful seisin and possession; or rather, he was deemed really to have, by force of the statute, such seisin and possession, so far at least as it was possible to consider a man in possession, who in fact was not (y). It, con- sequently, came to pass that the seisin was thus trans- ferred, from one person to another, by a mere bargain and sale, that is, by a contract for sale and payment of money, Avithout the necessity of a feofiment, or even of a deed (r) ; and, moreover, an estate in fee simple at law was thus duly conveyed from one jaerson to another without the employment of the technical word heirs, which before w^as necessary to mark out the estate of the purchaser ; for, it was presumed that the purchase-money was paid for an estate in fee simple (5); and, as the purchaser had, under his con- tract, such an estate in the use, he of course became entitled, by the very words of the statute, to the same estate in the legal seisin and possession. The mischievous results of the statute, in this par- ticular, were quickly perceived. The notoriety in the transfer of estates, on which the law had always laid so much stress, was at once at an end ; and it was })erceived to be very undesirable that so important a matter as the title to landed property should depend {q) Thus, he could not maintain ed.); 2 Fonb. on Equity, 12; Har- an action of trespass without being rison v. lilachburn, 17 C. B. actually in possession, for this ac- N. S. 678. tion is grounded on the disturbance (?•) Dyer, 229 a ; ComjTi's Di- of the actual possession, which is gest, tit. Bargain and Sale (B. 1, evidently more than the Statute 4); Gilb. on Uses and Trusts, 87 of Uses, or any other statute, can 271 (197, 475, 3rd ed.) give. Gilb. Uses, 81 (135, 3rd (.s) Gilb. Uses, 62(116, 3rd ed.) or A 3IODERN CONVEYANCE. 177 on a mere verbal bargain and money payment, or harqain and sale, as it was termed. Shortly after the Bargainf? mA . r. ■, n, PTT -i T1 sales reqnired passnig of the Statute of Uses, it was accordmgly ^ be by deed required by another act of parliament (t), passed in curolled. 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 the date, in one of the courts of record at Westminster, or before the a/sfos rotnlorum and two justices of the peace and the clerk of the peace for the county in Avhich the lands lay, or two of them at least, Avhereof the clerk of the peace should be one. A stop was thus put to the secret con- veyance of estates by mere contract and payment of money. For a deed entered on the records of a Court is of course open to public inspection; and the expense of enrolment was, in some degree, a counterbalance to the inconvenience of going to the lands to give livery of seisin. It was not long, hoAvever, before a loophole A loophole -,. T • 1 • 1 , , ji 11*1 discovered in was discovered in this latter statute, through Avhich, ^jjg statute. after a few had ventured to pass, all the Avorld 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 years, which is not a freehold. A bargain and sale of lands for a year Bargain and only, was not therefore affected by the act {u), but remained still capable of being accomplished by Avord of mouth and payment of money. The entry on the part of the tenant, required by the laAv (?^), Avas sup- plied by the Statute of Uses; AA^iich, by its own force, placed him in legal intendment in possession for the same estate as he had in the use, that is, for the term bargained and sold to him {x). And as any pecuniary (0 27 Hen. Vni. c. IH. (r) Ante, p. 173. (?/) Gilb. Uses, 08, 200 (214, (,/•) Gilb. Uses, 104 (223, 3rd 502, 3rd ed.) ; 2 Sand. Uses, 03 ed.) (7.5. .5tli ed.) R.P. N lease. 178 OF CORPOREAL HEREDITAMENTS. payment, however small, was considered sufficient to raise a use (y), 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 lauds 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 Avhole fee simple, with- out 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 lands for an estate in fee simple. This Lease and re- bargain and sale for a year, followed by a release, is the modern conveyance by lease and release — a method which was first practised by Sir Francis INIoore, Serjeant at law, at the request, it is said, of Lord JN^orris, in order that some of his relations might not know what conveyance or settlement he should make of his estate (z), and although the efficiency of this method was at first doubted («), 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 efiect 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 {h). The Statute of Uses was employed in the conveyance by lease and release only for the purj^ose of giving to the intended releasee, without his actually entering on the lands, such an estate as would enable him to receive the release. AVhen this estate for one year was ob- (y) 2 Sand. Uses, 47 (57, otli p. 328 ; 2 Prest. Conv. 231 ; 2 ed.) Fonb. Eq. 12. (z) 2 Prcst. Conv. 219. {h) Sugd. note to Gilb. Uses, (r/) Sugd. note to Gill). LTses, 229. OF A MODERN CONVEYANCE. 179 tained by the lease, the Statute of Uses had performed its part, and the fee smiple Avas 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 passing of the Statute of Frauds (c), it became necessary that every bargain and sale of lands for a year should be put into Bargain and writing, as no pecuniary rent was ever reserved, the must be 1^/^^^ consideration being usually five shillings, the receipt writing. of Avhich was acknowledged, though in fact it was ne^er paid. And the bargain and sale, or lease for a year, was usually made by deed, though this was not abso- lutely necessary. It was generally dated the day before the date of the release, though executed on the same day as the release, immediately before the execu- tion of the latter. This cumbrous contrivance of two deeds to every Act abolishing purchase continued in constant use down to the year *^® ^^^^^ ^'^^' ^ •1 , '' year. 1841, when the act was passed to which we have before referred (fZ), intituled "An Act for rendering a Re- lease as effectual for the Conveyance of Freehold Estates as a Lease and Release by the same Parties." This act enacts that every deed or instrument of re- lease of a freehold estate, or purporting or intended to be so, which shall be expressed to be made in pur- suance of the act, shall be as effectual, and shall take effect as a conveyance to uses or otherwise, and shall operate in all respects, as if the releasing party or parties, who shall have executed the same, had also executed, in due form, a deed or instrument of bargain (r) Stat. 29 Car. II. c. 3, ante, (r7) Stat, i & 5 Vict. c. 21; ante, p. 147. p. 172. N 2 180 OF COKPOREAL HEREDITAMEXTS. and sale, or lease for a year, for giving effect to such release, although no such deed or instrument of bargain and sale, or lease for a year, shall be executed. And Act to amend now, by the act to amend the law of real property (e), property*^ ^^^ ^ ^^^^ o^ grant is alone sufficient for the conveyance of all corporeal hereditaments. The estate The legal seisin being thus capable of being trans- marked'out.^^ ferred by a deed of grant, there is the same necessity now as there was Vvhen a feoffment was employed, that the estate which the purchaser is to take should be marked out (/). If he has purchased an estate in fee simple, the conveyance must be expressed to be made to him a7id his heirs ; for the construction of all con- veyances, wills only excepted, is in this respect the same ; and a conveyance to the purchaser simply, without these Avords, would merely convey to him an estate for his life, as in the case of a feoffinent {(j). In this case also, as well as in a feoffment, it is the better opinion that, in order to give permanent validity to the conveyance, it is necessary either that a con- sideration should be expressed in the conveyance, or that it should be made to the use of the purchaser as well as 2mto him (A) : for a lease and release was formerly, and a deed of grant is now, as much an established conveyance as a feoffhient ; and the rule was, before the Statute of Uses, that any conveyance, and not a feoffinent particularly, made to another without any consideration, or any declaration of uses, should be deemed to be made to the use of the party Conveyance conveying. In order, therefore, to avoid any such To^the'y^of^ construction, and so to prevent the Statute of Uses the purchaser. (e) Stat. 8 & Vict. c. 106 ; (h) 2 Sand. Uses, 64—69 (77 ante, p. 173. — 84, oth ed.) ; Sugd. note to Gilb. (/) Shep. Touch. 327; see Uses, 233; see ante, pp. 143, 153, ante, p. l?.!t. ITA. (/7) Shep. Toucli. ubi sujira. OF A MODERN CONVEYANCE. 181 from immediately undoing all that lias been done, it is usual to express, in every conveyance, that the pur- chaser shall hold, not only unto, but unto and to the ?<5e q/" himself and his heirs. A conveyance might also have been made by lease A conveyance and release, as well as by a feofiment, to one person and ^^ug^g^ "^^ his heirs, to the use of some other person and his heirs; and, in this case, as in a similar feoffiuent, the latter per- son took at once the whole fee simple, the former being made, by the Statute *of Uses, merely a conduit-pipe for conveying the estate to him (/). This extraordi- nary result of the Statute of Uses is continually relied on in modern conveyancing ; and it may now be ac- complished by a deed of grant in the same manner as it might have been before effected by a lease and re- lease. It is found particularly advantageous as a means for avoiding a rule of law, that a man cannot A man cannot make any conveyance to himself; thus if it were g^^f^^^ *'° "'^^' wished to make a conveyance of lands from A., a person solely seised, to A. and B. jointly, this ope- ration could not, before the Statute of Uses, have been . effected by less than tAvo conveyances; for a con- veyance from A. directly to A. and B. would pass the whole estate solely to B. {j). It Avould, 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, Avhich are not affected by the Statute of Uses, until an act was passed by which any person may now assign leasehold (i) See ante, p. 153. himself and another on a joint ac- (,/) Perkins, s. 203. So a man count, Faulkner v. Loive, 2 Ex. cannot covenant to pay money to Eep. 595. 182 OF CORrOREAL UEREDITAMENTS. convej' freC' holds to an- other to his own use. or personal property to himself jointly with another (A); But a man may but this act does not extend to freeholds. If the estate be freehold, A. must convey to B. and his heirs, to the use of A. and B. and their heirs ; and a joint estate in fee simple will immediately vest in them both. Suppose, again, a person should wish to convey a free- hold estate to another, reserving to himself a life interest, — without the aid of the Statute of Uses he would be unal)le to accomplish this result by a single deed (Z). But, by means of the statute, he may now make a conveyance of the property to the other and his heirs, to 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. By this means the conveying party will at once become seised of an estate only for his life, and after his decease an estate in fee simple will remain for the other. An ordinary purchase deed. Date, Pai-ties. Kecital of the conveyance to the vendor. The reader will now be in a situation to understand an ordinary purchase deed of the simplest kind, with a specimen of which he is accordingly presented : — " THIS INDENTURE (7n) made the first day of " January 1846 between A. B. of Cheapside in the " city of London esquire of the one part and C. D. " of Lincoln's Inn in the county of Middlesex esquire " of the other part Whereas by indentures of lease " and release {n) bearing date respectively the first " and second days of January 1838 and respectively " made between E. F. of the one part and the said " A. B. of the other part for the consideration therein " mentioned the messuage lands and hereditaments {li) Stat. 22 & 23 Vict. c. 35, s. 21. (J) Perk. ss. 704, 705; Yotde v. Jonex, 13 Mee. & Wels. 534. (m) Ante, p. 146. («) Ante, p. 1 78. OF A MODERN CONVF.YANCE. 183 *' hereinafter described with the appurtenances were " conveyed unto and to the use of the said A. B. his " heirs and assigns for ever And whereas the said Redtal^oHhc " A. B. hath contracted with the said C. D. for the ^^^^^ " absolute sale to him of the inheritance in fee simple(o) " in possession of and in the said messuage lands and " hereditaments with the appurtenances free from all « incumbrances for the sum of one thousand pounds " Now THIS Indenture w^itnesseth that in pursu- Testatum. " ance of the said contract and in consideration of the Consideration. " sum of one thousand pounds of lawful money of " Great Britain to the said A. B. in hand paid by the '' said C. D. upon or before the execution of these " presents (the receipt of which said sum of one thou- Receipt. " sand pounds in full for the absolute purchase of the " inheritance in fee simple in possession of and in the " messuage lands and hereditaments herein before " referred to and hereinafter described with the ap- « purtenances he the said A. B. doth hereby acknow- " ledge and from the same doth release the said C. D. " his heirs executors administrators and assigns) He " the said A. B. doth by these presents grant {p) Operative « unto the said C. D. and his heirs all that messuage ^^^^^'j^^ " or tenement [here describe the premises'] Together ^^^^^^.^^ ^^^^^.^^^ " with all outhouses ways watercourses trees com- " monable rights easements and appurtenances to the " said messuage lands hereditaments and premises (q) " hereby granted or any of them belonging or there- " with used or enjoyed And all the estate (r) and Estate. " right of the said A. B. in and to the same To " nIvE AND to hold the said messuage lands heie- Habendum. " ditaments and premises intended to be hereby " crranted with the. appurtenances imto and to the (o) Ante, p. 58 et scq. ('/) Ante, p. 14. (2?) Ante, pp. 173, 180. ('0 Ante, p. 17. 184 OF COIlPOREAl, HEKEDITAMENTS. " use of (5) the said C. D. his heirs and assigns for "ever(^)." \_T]ien follow covencmts hy the vendor with the purchaser for the title ; that is, that he has good right to convey the j)remises, for their quiet enjoyment by the purchaser, and freedom from incum- brances, and that the vendor and his heirs will make all such further conveyances as may be reasonably required,'] " In witness whereof the said parties to " these presents 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 (m); and, on the back is indorsed a further receipt for the purchase-money {x), also an Two witnesses attestation by the witnesses, of whom it is very de- desirable, sirable that there should be two, though the deed Stamps. would not be void even without any (?/). On the face of the deed Avill be observed the proper stamps, without which it could not until recently have been admitted as evidence (z). But by the Common Law Procedure Act, 1854 («), it is noAv provided that, upon payment to the proper officer of the Court of the stamp duty, and the penalty required by statute, namely 10/. {b), and the additional penalty of 1/., any deed or other document shall be admissible in evidence, saving all just exceptions on other groimds. Purchase deeds are now subject to ad valorem stamps of one- half par cent., or five shillings per fifty pounds on the amount of the purchase-money paid, according to the («) Ante, p. 180. Trestou's Abstracts, 15, . it) Ante, pp. 141, 180. Qy) 2 Black. Com. 307, 378. (w) Ante, p. 148. (z) Ibid. 297. (rf") This practice is of compara- («) Stat. 17 & 18 Vict. c. 125, tivcly modem date. See 2 Atkyns, s. 29. 478; 3 Atk. 112; 2 Sand. Uses, (5) Stat. 13 & 14 Vict. c. 97, 305, n. A. (118, n., 5tli ed.) ; 3 s, 12. OF A MODEllN CONVEYANCE. table below (c); with a further progressive duty of 10^. for every entire quantity of 1080 words over and above the first 1080, unless the ad valorem duty is less than 105., in which case the jDrogressive duty is equal to the amount of the ad valorem duty {d). These duties were imposed by the recent Act to amend the Laws relating to the Inland Revenue {e), which was passed on the 5th of July, 1865. Before this act the table of stamp duties advanced in a slightly different manner by less minute steps (/). These duties again did not apply to any deed or instrument signed or executed by any party thereto, or bearing date, before or upon the 10th of October, 1850. Such a deed, unless pre- ceded by a lease for a year, bears the same stamp duty as the lease for a year was subject to, and also, whether so preceded or not, an ad valorem duty according to (r) Where the i)urchase or consideration expressed in or upon the jirincipal or only deed, instrument or writing of conveyance shall not exceed £5 And where the same shall exceed £5 and not exceed X.10 » » 1^ » 20 25 ^0 » » '^ » 100 125 150 „ „ 1'5 „ 200 )> >> -"-'"' » 250 „ 275 And where the purchase or consideration money shall ex- ceed .4:300, then for eveiy £50, and also for any frac- tional part of £50 5 (rf) Stat. 13 & 14 Vict. c. !17, schedule, title " Progressive Duties." (p) Stat. 28 & 29 Vict. c. HO. (/) Stat. 13 & 14 Vict. c. 97, schedule, title " Conveyance." 185 .. £0 G £10 1 15 1 6 20 2 25 2 6 50 5 75 7 6 100 10 125 12 6 150 15 175 17 6 200 225 2 6 250 5 275 7 6 300 10 186 OF CORPOREAL HEREDITAIHENTS. the table stated below (_^). The whole of the laAv relating to stamp duties sadly needs revision and con- solidation. Eegistrj' in If the premises should be situate in either of the Yorkshire and counties of Middlesex or York, or in the town and ■^"^^- county of Kingston-upon-Hull, a memorandum will or ought to be found indorsed, to the eifect that a (^) Where the purchase or consideration money therein expressed shall not amount to £20 £0 10 Amount to 20 and not to 50 „ „ 150 „ 800 600 „ „ 750 „ 1000 „ 2000 „ „ 3000 „ 4000 „ 5000 „ 6000 „ 7000 8000 0000 „ 10,000 „ 12,500 15,000 „ 20,000 „ „ 30,000 „ „ 40,000 „ „ 50,000 „ „ 60,000 „ „ 80,000 „ „ 100,000 And for every entire quantity of 1080 words contained therein over and above the first 1080 words, a further progressive duty of •• .. .. .. ..£10 See stats. 55 Geo. III. c. 184, 4 & 5 Vict. c. 21, 7 & 8 Vict. c. 76, and 8 & 9 Vict. c. 106. The earlier stamp acts are stats. 44 Geo. III. c. 98, and 48 Geo. III. c. 149, the latter of which statutes first imposed an ad valorem duty on purchase deeds. 50 1 150 1 10 300 2 500 3 750 6 1000 9 2000 12 8000 25 4000 35 5000 45 6000 55 7000 65 8000 75 9000 85 10,000 95 12,500 110 15,000 130 20,000 170 30,000 240 40,000 350 50,000 450 60,000 650 80,000 650 100,000 800 or upwards 1000 OF A MODERN CONVEYANCE. 187 memorial of the deed was duly registered on such a day, in such a book and page of the register, estab- lished by act of parliament, for the county of Middle- sex (A), or the ridings of York, or the town of Kingston- upon-Hull {{). Under these acts, all deeds are to be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless a memorial of such deeds be duly registered before the registering of the memorial of the deed under which such subsequent purchaser or mortgagee shall claim. Wills of lands in the above counties ought also to be registered, in order to prevail against subsequent purchasers or mortgagees. Conveyances of lands forming part of the great level of the fens, called Bedford Level, are also required to be regis- Bedford Level. tered in the Bedford Level Office (7<); but the con- struction which has been put on the statute, by which such registry is required, prevents any priority of interest from being gained by priority of registra- tion (/). From the specimen before him, the reader will be Formal style of struck with the stiff and formal style which charac- ^^^^\ ^^^^^^' -' ments. 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 must frequently occur, this facility of reference is of incal- culable advantage. The framework of every deed consists but of one, two, or three simple sentences, (/^) Stat. 7 Anne, c. 20. north riding. The deeds must be (i) Stat. 2 & 3 Anne, c. 4, 5 first duly stamped. Stat. 2-i & 25 Anne, c. 18, for the west ridinf^; Vict. c. 91, s. ;:?4. Stat. 6 Anne, e. 35, for the cast {h.) Stat. 15 Car. II. c. 17, s. 8. riding and Kingston-upon-HuU ; (/) WiUis v. Brown, 10 Sim. and Stat. 8 Geo. II. c. 0. for the 127. 188 OF CORPOKEAL HEREDITAMENTS. Testatum. Habendum. Parties. Recitals. Oiierativc words. rarccls. according to the number of times that the testatum, or ■witnessing part, " Now this Indenture witnesseth," is repeated. This testatum is always "written in large letters ; and, though there is no limit to its repetition (if circumstances should require it), yet, in the majority of cases, it occurs but once or twice at most. In the examj)le above given, it will be seen that the sentence on which the deed is framed, is as follows : — " This " Indenture, made on such a day between such parties, ** witnesseth, that for so much money A. B. doth grant ** certain premises 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 intro- ducing the recitals ; and when the whole of the intro- ductory circumstances have been mentioned, the thread is resumed, and the deed proceeds, " Xow this Inden- ture Avitnesseth." The receipt for the purchase-money is again a parenthesis ; and soon after comes the de- scription of the property, Avhich further impedes the progress of the sentence, till it is taken up in the habendum, " To have and to hold," from which it un- interruptedly proceeds to the end. The contents of deeds, embracing as they do all manner of transactions betAveen man and man, must necessarily be infinitely varied ; and a simple conveyance, such as that we have given, is rare, compared Avith the number of those in w^hich 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 beginning ; then follow recitals of facts relevant to the matter in hand ; then, a preliminary recital, stating shortly Avhat is to be done ; then, the testatum, containing the operative words of the deed, or the Avords Avhich eiFect the transaction, of Avhich the deed is the AA^tness or evidence ; after this, if the deed relate to property, come the parcels or description of the property, either at large, or by reference to some OF A :modern conveyance. 189 deed already recited ; then, the habendum shoAvmg the Habendum, estate to be hohlen ; then, the uses and trusts, if any; Uses and and, lastly, such qualifying provisoes and covenants, J^"^^^- as may be required by the special circumstances of the case. Throughout all this, not a single stop is to be No stops. found, and the 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 semicolon. The commencement of sentences, and now and then some few important words, which serve as landmarks, are rendered conspicuous by capitals : by the aid of these, 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. The adherence of lawyers, by common consent, to Similavih- of the same mode of framing their drafts has given rise to a great similarity in the outward appearance of deeds; and the eye of the reader is continually caught by the same capitals, such as, " Tins Indenture," " And w^hereas," " Now this Indenture witness- ETH," " To HAVE AND TO HOLD," &c. This similarity of appearance seems to have been mistaken by some for a sameness of contents, — an error for which any one but a lawyer might perhaps be pardoned. And this mistake, coupled with a laudable anxiety to save expense to the public, appears to have produced a plan for making conveyances by way of schedule. In pur- suance of this plan, two acts of parliament were some time since passed, one for conveyances (m), the other for leases {n). These acts, however, as might have been expected, are very seldom employed; nor is it possible that any schedule should ever comprehend (w) Stat. 8 & Vict. c. 11'.). (^0 Stat. 8 & VU't. c. Y2\. remuneration. 190 OF CORrOREAL HEREDITAMENTS. the multitude of variations to Avhich purchase-deeds are continually liable. In the midst of this variety, the adoption, as nearly as possible, of the same frame- work is a great saving of trouble, and consequently of expense; but so long as the power of alienation pos- sessed by the public is exerciseable in such a variety of ways, and for such a multitude of purposes as is now permitted, so long will the conveyance of landed property call for the exercise of learning and skill, and so long also will it involve the expense requisite to give to such learning and skill its proper remunera- Professional tion. The remuneration, however, which is afibrded to the profession of the law is bestowed in a manner which calls for some remark. In a country like England, where every employment is subject to the keenest competition, there can be little doubt but that, whatever method may be taken for the remuneration of professional services, the nature and quantity of the trouble incurred must, on the average and in the long run, be the actual measure of the remuneration paid. The misfortune is, that when a wrong method of remu- neration is adopted, the true proportion between ser- vice and reward is necessarily obtained by indirect means, and therefore in a more troublesome, and, con- sequently, more expensive manner, than if a proper scale had been directly used. In the law, unfor- tunately, this has been the case, and there seems no good reason why any individual connected with the law should be ashamed or afraid of making it knoAvn. The labour of a lawyer is very different from that of a copyist or printer; it consists first and chiefly in acquiring a minute acquaintance with the principles of the law, then in obtaining a knowledge of the facts of any particular case which may be brought before him, and lastly in practically applying to such case the principles he has previously learnt. But, for the last and least of these items alone does he obtain any OF A MODERN CONVEYANCE. 191 direct remuneration ; for, deeds are noAV paid for by the length, like printing or copying, without any re- gard to the principles they involve, or to the intricacy or importance of the facts to which they may relate (o); and, more than this, the rate of payment is 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 may require, and then to draw a deed containing the full measure of ideas of which words are capable. The payment to a solicitor for drawing a deed is fixed at one shilling for every seventy-two words, denominated a folio ; and the fees of counsel, though paid in guineas, average about the same. The consequence of this false economy on the part of the public has been, that certain w^ell known and long established lengthy forms, full of synonyms and exple- tives, are current among laAvyers as common forms, Common and, by the aid of these, ideas are diluted to the proper remunerating strength; not that a lawyer actually inserts nonsense simply for the sake of increasing his fee ; but words, sometimes unnecessary in any case, sometimes only in the particular case in which he is engaged, are suffered to remain, sanc- tioned by the authority of time and usage. The proper amount of verbiage to a common form is well established and understood ; and whilst any attempt to exceed it is looked on as disgraceful, it is never likely to be materially diminished till a change is made in the scale of payment. The case of the medical pro- Co) By statute G & 7 Vict. c. 73, was not taxable, unless part of the s. 37, the charges of a solici- bill was for business transacted iu tor for business relating entirely some Court of law or equity. But to conveyancing are rendered although conveyancing bills were liable to taxation or reduction to not strictly taxable, they were al- the established scale, which is ways dra^ra up on the same prin- regulated only by length. Bre- ciple of payment by length, which viously to this statute, the bill of a pervades the other branches of the solicitor relating to conveyancing law. 192 OF CORPOREAL HEREDITAMENTS. fession Is exactly parallel; for, so long as the public think that the meiliciue supplied is the only thing worth paying for, so long will cures ever be accom- panied with the customary abundance of little bottles. In both cases, the system is bad; but the fault is not with the profession, who bear the blame, but with the public, who have fixed the scale of payment, and who, by a little more direct liberality, might save themselves a considerable amount of indirect expense. If physicians' prescriptions were paid for by their length, does any one suppose that their present con- ciseness would long continue ? — unless indeed the rate of payment were fixed so high as to leave the aver- age remuneration the same as at present. The acts above mentioned contained a provision that, in taxing any bill for preparing and executing any deed under the acts, the taxing officer shall consider, not the length of such deed, but only the skill and labour em- ployed and responsibility incurred in the preparation thereof (79). This, so far, is an efibrt in the right direction ; though it is too partial to be of any benefit. The student must, therefore, make up his mind to find in legal instruments a considerable amount of verbiage; at the same time he should be careful not to confound this with that formal and orderly style which facilitates the lawyer's perusal of deeds, or with that repetition which is often necessary to exactness without the dangerous aid of stops. The form of a purchase-deed, which has been given above, is dis- encumbered of the usual verbiage, whilst, at the same time, it preserves the regular and orderly arrangement of its parts. A similar conveyance, by deed of grant, in the old established common forms, will be found in the Appendix ((7). (p) Stat. 8 & 9 Vict. c. 1 1 !), s. 4 ; (v) See Appendix (D). Stat. 8 & 9 Virt. c. 124, s. ;?. OF A MODERN CONVEYANCE. 193 To return: — A lease and release was said to be an Lease and rc- , r 1 1 lease au luno- innocent conveyance; lor when, by means ot tlie lease cent couvey- 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 feoffinent occasionally did (r), but simj^ly passes that which may lawfully and rightly be conveyed {s). The So a grant. same rule is applicable to a deed of grant (t). Thus, if a tenant merely for his own life should, by a lease and release, or by a grant, purport to convey to another an estate in fee simple, his own life interest only would pass, and no injury would be done to the reversioner. The word (jrant is the proper and tech- "Word ffrant. nical term to be employed in a deed of grant (?<), but its employment is not absolutely necessary ; for it has been held that other words indicating an intention to grant will answer the purpose {x). In addition to a conveyance by deed of grant, other methods are occasionally employed. Thus, there may be a bargain and sale of an estate in fee simple, by deed Bargain and duly inrolled pursuant to the statute 27 Hen. VIII. c. 16, already mentioned ( y). The chief advantage of a bargain and sale is, that by a statute of Anne [z), an office copy of the inrolment of a bargain and sale is made as good evidence as the original deed. In some Inrolment. cities and boroughs the inrolment of bargains and sales is made by the mayors or other officers («). And in the counties palatine of Lancaster and Durham it may be made in the palatine courts {h) ; and so the inrol- ment of bargains and sales of land in the county of (r) Ante, p. 141. Bam. & Cress. 101. {g) Litt. s. GOO. (y) Ante, p. 177. (0 Litt. ss. GIG, G17. (z) Stat. 10 Anne, c. 18, s. 3. («) Shcp. Touch. 229. (a) Stat. 27 Hen. VIH. c. 16, (a-) Shove V. PUiclic, 5 T. Ecp. s. 2. 124; Ilagfjcrsion v. Uanbury, 5 {h) Stat. 5 Eliz. c. 2G. R.P. O 194 OF CORPOREAL HEREDITAIVIENTS. Bargain and sale cannot be made to one person to the use of another. Covenant to stand seised. Appointment. Cheshire might have been made in the palatine conrts of that county until their abolition (c). Bargains and sales of lands in the county of York may be inrolled in the register of the riding in which the lands lie (d). When a bargain and sale is employed the whole legal estate in fee simple passes, as we have seen (e), by means of the Statute of Uses, — the bargainor becom- ing- seised to the use of the bargainee and his heirs. A bargain and sale, therefore, cannot, like a lease 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 transferring the legal estate in fee simple to the bargainee {f). Similar to a bargain and sale is another method of conveyance occasionally, though very rarely, employed, namely, a covenant to stand seised to the use of another, in consideration of blood or marriage {g). In addition to these methods, there may be a conveyance by ai^-p ointment of a use, under a power of appointment, of which more will be said in a future chapter (A). The student, indeed, can never be too careful to avoid supposing that, when he has read and understood a chapter of the present, or any other elementary Avork, he is therefore acquainted with 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. (c) By Stat. 11 Geo. IV. & 1 Will. IV. c. 70. {d) Stat. 5 & 6 Anne, c. 18; 6 Anne, c. 35, ss. 16, 17, 34; 8 Geo. II. c. 6, s. 21, (e) Ante, p. 175. (/) See ante, p. 17G. (^) See Doe d. DanicUv. Wood- roffe, 10 Mee. & Wcls. 608; Doe d. Starling v. Prince, C. P. 15 Jur. 632. (7i) See the chapter on executory interests. ( 195 ) CHAPTER X. OP A WILL OF LANDS. The right of testamentary alienation of lands is a matter depending- upon act of parliament. We have seen, that previously to the reign of Henry VIII. an estate in fee simple, if not disposed of in the lifetime of the owner, descended, on his death, to his heir at law {a). To this rule, gavelkind lands, and lands in a few favoured horoughs, formed exceptions; and the hardship of the rule was latterly somewhat mitigated by the prevalence of conveyance to uses ; for the Court of Chancery allowed the use to be devised by T^^ll (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 reraedv this inconvenience, an act of parliament {d), to statute of which we have before referred {e), 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 (a) Ante, p. 61. (d) 32 Hen. VIII. c. 1, ex- (b) Ante, p. 151. plained by statute 34 & 35 Hen. (c) Stat. 27 Hen. VIII. c. 10 ; VIII. c. 5. ante, p. 152. (^) Ante, p. Gl. o 2 196 OF CORPOREAL HEREDITAMENTS. the statute of 12 Car. II. c. 24 (/) socage was made the universal tenure, all estates in fee simple became at once devisable, being all then holden by socage. This extensive power of devising lands by a mere writing unattested was soon curtailed by the Statute The Statute of of Frauds (y), which required that all devises and Frauds. bequests of any lands or tenements, devisable either by statute or the custom of Kent, or of 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 subscribed in the presence of the said devisor by three or four credible witnesses, or else they should be utterly 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 NewWillsAct. respect to wills (/i). By this act the original statute of Henry VIII. {i) was repealed, except as to wills made prior to the 1st of January, 1838, and the law was altered to its present 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 ancestor (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 hvo or more witnesses, present at the same time ; and such witnesses shall attest, and shall subscribe the will in the presence of the testator. One would have thought that this enact- ment was sufficiently clear, especially that part of it (/) Ante, p. 118. (/) 32 Hen. VHI. c. 1. (ff) 29 Car. II. c. 3, s. 5. (.;) Stat. 7 Will. IV. & 1 Vict. (A) Stat. 7 Will. IV. & 1 Vict. c. 2G, s. 3. c. 2G. (/") Sect. 9. OF A WILL OF LANDS. ^^^ which directs the will to be signed at the foot or end thereof. Some very careless testators, and very clever judges, have, however, contrived to throw upon this clavTse of the act a discredit which it does not deserve. And it has accordingly been enacted (Z), by way of W|l^^Act^^ explanation, that every will shall, so far only as regards ^^^^ ^g^g. the position of the signature of the testator, or of the person signing for him, be deemed to be valid, if the signature" shall be so placed at, or after, or following, 0° under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator 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 testun°onium clause, or of the clause of attestation, or shall follow or be after or under the clause of attesta- tion, either with or Avithout 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 the signature shall be on a side or page, or other portion of the paper or papers, con- taining the will, whereon no clause or paragraph or disposhig part of the will shall be written above the signature, or by the circumstance that there shall ap- pear 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 sig- nature ; and the enumeration of the above circum- stances is not to restrict the generality of the above enactment. But no signature is to be operative to (Z) Stat. 1.-) & 16 Vict. c. 24. 198 OF CORPOREAL HEREDITAMENTS. Who may be witnesses. New enact- lueut. give effect to any disi^osition or direction which is un- derneath, or which follows it ; nor shall it give effect to any disposition or direction inserted after the sig- nature shall be made. The unlearned reader will perhaps be of opinion that there is not one of the posi- tions above so laboriously enumerated, that might not very properly have been considered as at the foot or end of the will within the spirit and meaning of the act; except in the case of a large blank being left before the signature, apparently 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. The Statute of Frauds, it will be observed, required that the witnesses should be credible ; and, on the point of credibility, 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 Avho had the smallest pecuniary 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 Avill was void for want of three credible witnesses. By an act of Geo. II. (?n), a witness to whom a gift was made was ren- dered credible, and the gift only wliich was made to the Avitness 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 (n). Under the new act, however, the incompetency of the witness at the time of the exe- cution of the will, or at any time afterwards, is not (m) Stilt. 25 Geo. II. c. 6. («) Haificld V. Thorp, 5 Barn. & Aid. 589; 1 Jarm. on "Wills, 65, 1st edit.; 2 Strange, 1255. OF A WILL OF LANDS. 195^ sufficient to make the will invalid (o) ; 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, will be void(7j). Creditors, also, are good witnesses, although the will should contain a charge for payment of debts {q) ; and the mere circumstance of being appointed executor is no objection to a witness (r). By more recent statutes {s), 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 noAV received, and its vakie estimated ac- cording to its worth ; but the ncAv Wills Act is not aifected by these statutes {f). The courts of common law had formerly exclusive jurisdiction in questions arising on the validity of a Avill of real estate, ^vhilst the ecclesiastical courts had the like exclusive juris- diction over wills of personal estate. But an act has Court of Pro- recently been passed establishing a Court of Pro- bate {ii), in which all w^ills of personal estate are now required to be proved. This act provides 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 {v) ; but this occurs only when a contest (o) Stat. 7 Will. IV. & 1 Vict. & 15 Vict. c. 99, amended by stat. c. 26, s. 14. 16 & 17 Vict. c. 83. (i>) Stat. 7 Will. IV. & 1 Vict. {t) Stat. 6 & 7 Vict. c. 85, s. 1 ; c. 26, s. 15. See Chirney v. 14 & 15 Vict. c. 99, s. 5. r?«J-«e//, 3Drew. 208; Tempest v. (w) Stat. 20 & 21 Vict. c. 77, Tempest, 2 Kay & J. 635. amended by stat. 21 & 22 Vict. (q) Sect. 16. c. 95. (»•) Sect. 17. (0 Stat. 20 & 21 Vict. c. 77, (5) Stat. 6 & 7 Vict. c. 85; 14 ss. 61, 02, 63. 200 OF CORrOREAL, HEREDITAMENTS. Revocation of a will. By maniage. By burning, &c. is expected or actually takes place. In all ordinary cases a mil, so far as it affects real estate, does not require to be proved. So mucli, then, for the power to make a will of lands, and for the formalities with which it must be accompanied. A will, it is well known, does not take eifect until the decease of the testator. In the mean- time, it may be revoked in various ways ; as, by the marriage of either a man or woman (w) ; though, before the Wills Act, the marriage of a man was not sufficient to revoke his will, unless he also had a child born (x). A will may also be revoked by burning, tearing, or otherwise destroying the same, by the testator, or by some person in his presence and by his direction, with the intention of revoking the same (y). But the Wills Act enacts {z), that no obliteration, interlineation, or other alteration, made in any Avill after its execution shall have any eifect (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 manner 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 (?«•) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 18. " Except a will made in exercise of a power of appoint- ment, when the real or personal estate thereby appointed would not, in default of such ap]5oint- ment, pass to his or her heir, cus- tomary heir, executor or adminis- trator, or the person entitled, as his or her next of kin, under the Statute of Distributions." In the goods of Femvlcli, Law Eep , 1 Court of Probate, 319. {x') 1 Jannau on Wills, 106, 1st ed. ; 102, 2nd ed. ; 114, 3rd ed. See JSIarston v. Hoc d. Fox, 8 Ad. & Ell. 14. (y) Stat. 7 Will. IV. & 1 Vict. c. 26, s.'20; Andrew v. Motlei/, 12 C. B., N. S. 514. {z) Sect. 21. OF A WILL OF LANDS. 201 end, or some other part of the will. A will may also By ^Titinfr be revoked by any writing, executed in the same '^"'>' executed. manner as a will, and declaring an intention to revoke, or by a subsequent will or codicil (a), to be executed By subsequent as before. And where a codicil is added, it is con- ^^' ' sidered as part of the will ; and the disposition made by the will is not disturbed further than is absolutely necessary to give effect to the codicil {b). The above are the only means by Avhich a will can Subsequent now be revoked ; unless, of course, the testator choose « '^ tained an inconvenient property Avhich accrued to it in the simple times when alienation of lands was far less frequent than at present. If at any time during the coverture the husband became solely seised of any estate of inheritance, that is fee simple or fee tail, in lands to which any issue, which the wife might have had, might by possibility have been heir {m), she from that time became entitled, on his decease, to have one equal third part of the same lands allotted to her, to be enjoyed by her in severalty during the i-emainder of her life (?i). This right having once attached to the lands, adhered to them, notwithstanding any sale or devise which the husband might make. It con- sequently became necessary for the husband, whenever he Avished to make a valid conveyance of his lands, to obtain the concurrence of his Avife, for the pur- pose of releasing her right to doAver. This release Dower could could be effected only by means of a fine, in Avhich i^fafed by^fine. the Avife Avas separately examined. And AA'hen, as often happened, the Avife's concurrence Avas not obtained on account of the expense involved in leA^ying a fine, a defect in the title obviously existed so long as the wife lived. As the right to doAver Avas para- (0 Stat. 3 & 4 Will. IV. c. 105. and Wife, 332. (w) Litt. ss. 3G, 53 ; 2 Black. («) See Dicltin v. Hamer, 1 Com. 131 ; 1 Rojicr's Husband Drew. & Snialc, 284. 224 OF CORPOREAL HEREDITAMENTS. Dower inde- pendent of husband's debts. A legal seisin required. Estate must not be joint. Dower of ga- velkind lands. mount to the alienation of the hnsband, so it was quite independent of his debts, — even of those owing to the crown (o). It was necessary, however, that the husband should be seised of an estate of inheritance at law ; for the Court of Chancery, whilst it allowed to husbands curtesy of their wives' equitable estates, withheld from wives a like privilege of dower out of the equitable estates of their husbands (p). The estate, moreover, must have been held in severalty or in common, and not in joint tenancy; for the unity of interest which characterizes a joint tenancy forbids the intrusion into such a tenancy of the husband or wife of any deceased joint tenant : on the decease of any joint tenant, his surviving companions are already entitled, under the original gift, to the whole subject of the tenancy (g). The estate was also required to be an estate of inheritance in possession ; although a seisin in law, obtained by the husband, was sufficient to cause his wife's right of dower to attach (r). In no case, also, was any issue required to be actually born ; it was sufficient that the wife might have had issue who might have inherited. The dower of the widow in gavelkind lands consisted, and still consists, like the husband's curtesy, of a moiety, and continues only so long as she remains unmarried and chaste {s). In order to prevent this inconvenient right from attaching on newly-purchased lands, and to enable the purchaser to make a title at a future time, without his Avife's concurrence, various devices Avere resorted to Old method of i^ the framing of purchase-deeds. The old-fashioned barring dower, j^gthod of barring dower was to take the conveyance (o) Co. Litt. 31 a ; 1 Roper's Husband and Wife, 411. (/>) 1 Roper's Husband and Wife, 354. (q) Ibid. '.'fiC, ■ ante, II. l.'H ct scq. (r) Co. Litt. 31 a. (s) Bac. Abr. tit. Gavelkind (A); Rob. Gav. book 2, c. 2. OF THE :.IUTUAL RIGHTS OF HUSBAND AXD WIFE. 225 to tlie purcliaser and his heirs to the nsc of the pur- chaser and a trustee and the heirs of the purchaser : but as to the estate of the trustee, it was declared to be in trust only for the purcliaser and his heirs. By this means the purchaser and the trustee became joint tenants for life of the legal estate, and the remainder of the inheritance belonged to the pur- chaser. 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 Avife's doAver never arose; whilst the estate for life of the trustee was subject in equity to any disposition which the husband migl.t think fit to make by his Avill. 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 husband's life, the latter became at once solely seised of an estate in fee simple in possession ; and the Avife's right to dower accordingly attached. Moreover, the hus- band could never make any conveyance of an estate in fee simple Avithout the concurrence of his trustee so long as he lived. This plan, therefore, gave Avay to another method of framing purchase-deeds, Avhich will be hereafter explained {t), and by means of which the wife's dower under the old laAv is effectually barred, whilst the husband alone, without the con- currence of any other person, can effectually convey the lands. The right of dower might have been barred alto- Jointrre. gether by a jointure, agreed to be accepted by the intended wife previously to marriage, in lieu of dower. This jointure was either legal or equitable. A legal {t) See jjost, the chapter on Executory Interests. R.P. Q 220 OF CORPOKEAL HEREDITAMENTS. Equitable jointure. jointure was first authorized by the Statute of Uses {u), which, by turning uses into legal estates, of course, rendered them liable to dower. Under the provi- sions of this statute, dower may be barred by the wife's acceptance 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 (x). If the jointure be made after marriage, the wife may elect between her dower and her jointure (?/). A legal jointure, how- ever, has in modern times seldom been resorted to as a method of barring dower; when any jointure has been made, it has usually been merely of an equitable kind : for if the intended wife be of age, and a party to the settlement, she is competent, in equity, to extinguish her title to dower upon any terms to which she may think proper to agree {z). And if the wife should have accepted an equitable jointure, the Court of Chancery will 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, must be made before marriage. Dower under the recent act. "With regard to women married since the 1st of January, 1834, the doctrine of jointures is of very little moment. For by the recent act for the amendment of the law relating to dower («), the dower of such women has been placed completely within the poAver of their husbands. Under the act no widow is entitled to doAver out of any land which shall have been absolutely (?0 27 Hen. VIII. c. lO! {x) Co. Litt. 3G b ; 2 Black. Com. 137 ; 1 lloper's Husband and Wife, 462. (y) 1 lloper's Husband and Wife, 468. (i) Iljid. 488; Dijle v. Rendall, 2 De G., M. & G. 209. («) 3 & 4 Will. IV. c. 105. Gavelkind lands are within the act, Farley v. Bonham, 2 John. & II. 177. OF THE MUTUAL RIGHTS OF HUSB^VND AND WIFE. 227 disposed of by her husband in his lifetime or by his will (i). And all partial estates and interest, and all charges created by any disposition or will of the husband, and all debts, incumbrances, contracts and engagements to which his lauds may be liable, shall be effectual as against the right of his widow to dower (c). The husband may also, either wholly or partially, deprive his wife of her right to dower by any declara- tion for that purpose made by him, by any deed, or by his will {d). 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 (e) ; dower is also ex- tended to equitable as well as legal estates of inherit-- ance in possession, excepting of course estates in joint tenancy (/). 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 in- testate, 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 has, un- Declaration fortunately, found its way, as a sort of 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 Avith some misapprehension of the effect of the new enactment. 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 far superior, if the heir be a lineal ancestor, or remote re- lation (^). The proper method seems therefore to be, (5) 3 & 4 Will. IV. c. 105, s. 4. (^0 Sect. 3. (c) Sect. 5 ; Jones v. Jones, 4 (/) Sect. 2; Fry v. J^'oble, 20 Kay & J. 3G1. Beav. 598; Clarke v. Franklin, 4 {d) Sects. 6, 7, 8. See Fry v. Kay & J. 2GG. li'ohle, 20 Beav. 598; 7 De Gex, (y) Sugd. \'cnd. & rur. 545, M. & G. (i87. 11th ed. ■aiust dower. Q •> 228 OF CORPOREAL HEREDITAMENTS. 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 te- nant in dower. The act to facilitate leases and sales of settled estates now empowers every person entitled to the pos- session or the receipt of the rents and profits of any unsettled estate as tenant in dower, to grant leases not exceeding twenty-one years, in the same manner as a tenant by the curtesy, or a tenant for life under a settlement made after that act came in force {h). Action for dower. An action for dower is now commenced by writ of summons issuing out of the Court of Common Pleas, in the same manner as the writ of summons in an ordinary action (/) ; and the proceedings are the same as in ordinary actions commenced by writ of sum- mons (A). {h) Stat. 19 & 20 Vict. c. 120, 32. See ante, pp. 26, 220. (i) Stat. 23 & 24 Vict. c. 126, s. 2G. ik) Sect. 27. ( 229 ) PART II. OF INCORPOREAL HEREDITAMENTS. Our attention has hitherto been directed to real pro- perty of a corporeal kind. We have considered the usual estates which may be held in such property, — the mode of descent of such estates as are inheritable, — the tenure by which estates in fee simple are holden, — and the usual method of the alienation of such estates, whether in the lifetime of the owner or by his will. We have also noticed the modi^ation in the right and manner of alienation produced by the relation of hus- band and wife. Besides corporeal property, we have seen (a) that there exists also another kind of property. Incorporeal which, not being of a visible and tangible nature, is P'^^'^P'^i'^y- denominated incorporeal. This kind of property, though it may accompany that which is corporeal, yet does not in itself admit of actual delivery. When, therefore, it was required to be transferred as a separate subject of property, it was always conveyed, in ancient times, by writing, that is, by deed; for we have seen (i), that formerly all legal writings were in fact deeds. Property of an incorporeal kind was, therefore, said to lie in grant, whilst corporeal property was said to lie in Lay in grant. livery (e). For the word grant, though it comprehends all kinds of conveyances, yet more strictly and pro- perly taken, is a conveyance by deed only {d). And livery, as we have seen (e), is the technical name for that delivery which was made of the seisin, or feudal (a) Ante, p. 10. {(1) Shop. Toucli. 228. (*) Ante, p. 143. (<') Ante, p. 138. (c) Co. Litt. 9 a. ment. 230 OF INCORPOREAL HEREDITAMENTS. possession, on every feoffinent of lands and houses, or corporeal hereditaments. In this difference in the ancient mode of transfer accordingly lay the chief dis- tinction between these two classes of property. But New enact- as Ave have seen(y), the act to amend the law of real property now provides that all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery {g). There is, accordingly, noAv no practical difference in this respect between the two classes ; and the lease for a year stamp, to Avhich a grant of corporeal hereditaments was previously subject, has been abolished by the recent Stamp Act (A). (/) Ante, p. 173. s. 2. {g) Stat. 8 & 9 Vict. c. 106, (7t) Stat. 13 & 14 Vict. c. 97. ( 231 ) CHAPTER I. OF A REVERSION AND A VESTED REMAINDER. The first kind of incorporeal hereditament which we shall mention is somewliat of a mixed nature, being at one tune incorporeal, at another not; and, for this reason, it is not usually classed Avith those heredita- ments which are essentially and entirely of an incor- poreal kind. But as this hereditament partakes, during its existence, very strongly of the nature and attributes of other incorporeal hereditaments, particu- larly in its always permitting, and generally requiring, a deed of grant for its transfer,— it is here classed with such hereditaments. It is called, according to the mode of its creation, a reversion or a vested re- mainder. If a tenant in fee simple should grant to another person a lease for a term of years, or for life, or even if he should grant an estate tail, it is evident that he will not thereby dispose of all his interest ; for in each case, his grantee has a less estate than himself. Ac- cordingly, on the expiration of the term of years, or on the decease of the tenant for life, or on the decease of the donee in tail withovit having barred his estate tail and Avithout issue, the remaining interest of the tenant in fee will revert to himself or his heirs, and he or his heir will again become tenant in fee simple in posses- sion. The smaller estate which he has so granted is called, during its continuance, the particular estate, Particulai- being only a part, or particula, of the estate in fee (a). {a) 2 Black. Cum. 1G5. "232 OF INCOUrOKEAL HEREDITAMENTS. Reversion. And, during tine continuance of such particular estate, the interest of the tenant in fee simple, which still remains undisposed of— that is, his present estate, in virtue of which he is to have again the possession at some future time — is called his reversion {b). Remainder. A remainder arises from ex- press grant. If at the same time with the grant of the particular estate he should also dispose of this remaining interest or reversion, or any part thereof, to some other person, it then changes its name, and is termed, not a reversion, but a remainder (c). Thus, if a grant be made by A., a tenant in fee simple, to B. for life, and after his decease to C. and his heirs, the Avhole fee simple of A. will be disposed of, and C.'s interest Avill be termed a remain- der, expectant on the decease of B. A remainder, therefore, always has its origin in express grant: a reversion merely arises incidentally, in consequence of the grant of the particular estate. It is created simply by the law, Avhilst a remainder springs from the act of the parties {d). A reversion on a lease for years may be con- veyed by feoff- ment, 1. And first, of a reversion. If the tenant in fee simple should have made a lease merely for a term of years, his reversion is looked on, in law, precisely as a continuance of his old estate, with respect to himself and his heirs, and to all other persons but the tenant for years. The owner of the fee simple is regarded as having simply placed a bailiff on his property (e) ; and the consequence is, that, subject to the lease, the owner's rights of alienation remain unimpaired, and may be exercised ill the same manner as before. The feudal possession or seisin has not been parted with. And a conveyance of the reversion may, there- {!)) Co. Litt. 22 b, 142 b. (6") Litt. ss. 215, 217. (rZ) 2 Cluck. Com. 1G3. (fl) Watk. 4th ed.) Descents, 108 (113, OF A REVERSION AND A VESTED REMAINDER. 233 lore, be made by a feoffment, with livery of seisin, made Avith the consent of the tenant for years (/). But, if this mode of transfer should not be thought or by deed of eligible, a grant by deed will be equally efficacious. For the estate of the grantor is strictly incorporeal, the tenant for years having the actual possession of the lands : so long, therefore, as such actual posses- sion continues, the estate in fee simple is strictly an incorporeal reversion, which, together with the seisin or feudal possession, may be conveyed by deed of grant (^it). But, if the tenant in fee simple should A reversion on have made a lease for life, he must have parted Avith ^ ^^^^ ""^ ^ ® his seisin to the tenant for life ; for, an estate for life is an estate of freehold, and such tenant for life will, therefore, during his life, continue to be the free- holder, or holder of the feudal seisin (A). No feoft- ment can consequently be made by the tenant in fee simple ; for he has no seisin of Avhich to make livery. His reversion is but a fragment of his old estate, and remains purely incorporeal, until, by the dropping of the life of the grantee, it shall again become an estate in possession. Till then, that is, so long as it remains a reversion expectant on an estate of freehold, it can must be con- only be conveyed, like all other incorporeal heredita- v^J^d by deed , ' „ . , of grant, ments Avnen apart from what is corporeal, by a deed of grant ii). "VYe have before mentioned (A), that, in the case of a lease for life or years, a tenure is created between the parties, the lessee becoming tenant to the lessor. To this tenure are usually incident two things, feed/ ij {I) Fealty and and rent. The oath of fealty is now never exacted ; ^^'^^' (/) Co. Litt. 48 b, n. (8). 4th ed.); ante, p. 137. ig) Perkins, s. 221 ; Doe d. (/) Shcp. Touch. 230. Were v. Cole, 7 Barn. & Cress. (/••) Ante, p. 112. 243, 248; ante, p. 174. {I) Ante, pp. 119, 120. (A) W'ldk. Descents, 109(114, 234 OF INCORPOREAL, HEREDITAMENTS. but the rent, which may be reserved, is of practical Kent service, importance. This rent is called in law rent service (m), in order to distinguish it from other kinds of rent, to be spoken of hereafter, which have nothing to do with the services anciently rendered by a tenant to his lord. It consists, usually, but not necessarily, of money; for, it may be rendered in corn, or in any thing else. Thus, an annual rent of one peppercorn is sometunes reserved to be paid, when demanded, in cases where it is wished that lands should be holden rent free, and yet that the landlord should be able at any time to obtain from his tenant an acknowledg- Adeedhitherto ment of his tenancy. To the reservation of a rent unnecessary to ggj-^icc, a deed was formerly not absolutely neces- trie reservatioii '-■^ * ? •/ of a rent. sary (w). For, although the rent is an incorporeal hereditament, yet the law considered that the same ceremony, by which the nature and duration of the estate Avere fixed and evidenced, was sufficient also to New enact- ascertain the rent to be paid for it. But, by the act '"^^*- to amend the law of real property (o), it is now pro- vided, that a lease, required by law to be in writing, of any tenements or hereditaments shall be void at law, unless made by deed. In every case, therefore, where the Statute of Frauds (p) has required leases to be in writing, they must now be made by deed. But, according to the exception in that statute {q), where the lease does not exceed three years from the making, a rent of two-thirds of the full improved value, or Rent issues out more, may still be reserved by parol merely. Rent of every part of ggryice, when created, is considered to be issuing out of every part of the land in respect of which it is paid (r) : one part of the land is as much subject to it (wt) Co. Litt. 142 a, (p) Stat. 20 Car. II. c. 3, ante, i^n) Litt. s. 214; Co. Litt. 143 a. p. 147. (o) Stat. 8 & 9 Vict. c. 106, s. 3, (a) Sect. 2. repealing stat. 7 & 8 Vict. c. 76, (r) Co. Litt. 47 a, 142 a. s. 4, to the same effect. OF A REVERSION AND A VESTED REMAINDER. 235 as another. For the recovery of rent service, the well Distress. known remedy is by distress and sale of the goods of the tenant, or any other person, found on any part of the premises. This remedy for the recovery of rent service belongs to the landlord of common right, without any express agreement (s). In modern times it has been extended and facilitated by various acts of parliament (^). In addition to the remedy by distress, there is usually Condition of contained in leases a condition of re-entry, empowering "^^'^^ ^* the landlord, in default of payment of the rent for a certain tune, to re-enter on the premises and hold them as of his former estate. When such a condition is inserted, the estate of the tenant, whether for life or years, becomes determinable on such re-entry. In former times, before any entry could be made under a proviso or condition for re-entry on non-payment of rent, the landlord was required to make a demand. Demand for- upon the premises, of the precise rent due, at a con- ™^^ yrequun. venient time before sunset of the last day when the rent could be paid according to the condition ; thus, if the jiroviso were for re-entry on non-payment of the rent by the space of thirty days, the demand must have been made on the evening of the thirtieth day {n). But now, if half a year's rent is due, and no sufficient Modern pro- distress is found on the premises, the landlord may ^^^^'^^ss- recover the premises, at the expiration of the period lunited by the proviso for re-entry {x), by action of (s) Litt. ss. 213, 211. It must c. 42, ss. 37, 38 ; 14 & 15 Vict, be made between snnrise and sun- c. 25, s. 2. set, Tuttonv. Darlte, 5 H. & N. (m) IWms. Saund.287,n. (1G); C47. Acochs V. P7iiUips,'5 H. & N. (t) Stat. 2 Wm. & Mary, c. 5 ; 183. 8 Anne, c. 14; 4 Geo. II. c. 28; (.c) JDoe d. BU'on v. lioe, 7 and 11 Geo. 11. c. 19 ; Co. Litt. C. B. 134. 47 b, n. (7); stat. 3 & 4 Will. IV. 236 or INCORPOREAL HEREDITAMENTS. ejectment, without any formal demand or entry {y) ; but all proceedLogs are to cease on joayment by the tenant of all arrears and costs, at any time before the trial (z). Formerly also the tenant might, at an inde- finite time after he was ejected, have filed his bill in the Court of Chancery, and he would have been relieved by that Court from the forfeiture he had incurred, on his payment to his landlord of all arrears and costs. But now, the right of the tenant to apply for relief in equity is restricted to six calendar months next after the execution of the judgment on the eject- ment (a); and by a recent statute, the same relief may The benefit of uow be given by the Courts of Law {b). In ancient a condition of ^.^^^^^ ^j^^^ ^^^ benefit of a condition of re-entry could belong only to the landlord and his heirs ; for the law would not allow of the transfer of a mere conditional right to put an end to the estate of another (c). 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 reign of Henry VIII. 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, there- fore, applied for the benefit of the favourites of the croAvn ; and the opportunity was taken for making the re-entry for- merly inalien able. (y) Stat. 15 & IG Vict. c. 7G, s. 210, rc-cuacting stat. 4 Geo. II. c. 28, s. 2. (2) Stat. 15 & 16 Vict. c. 76, s. 212, re-enacting- stat. 4 Geo. II. c. 28, s. 4. An under-tenant has the same privilege. Due d, Wyatt V. BiiroH, 1 C. B. 623. (a) Stat. 15 & 16 Vict. c. 76, s. 210, re-enacting stat, 4 Geo. II. c. 28, s. 2 ; Bowser v. Colby, 1 llarc, 109. (}>) Stat. 23 & 24 Vict. c. 126, s. 1. {a) Litt. ss. 347, 348 ; Co. Litt, 265 a, n. (1). OF A REVERSION AND A VESTED REMAINDER. 237 same provision foi* the puLlic at large. A statute was i^cmcdy by accordingly passed (c?), which enacts, that as well the grantees of the croAvn as all other persons being gran- tees (e) 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 forfeiture, 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. There exist also further means for the recovery Actions at law. of rent, in certain actions at law, which the landlord may bring against his tenant for obtaining payment. Rent service, being incident to the reversion, passes Rent service by a grant of such reversion without the necessity of ^f ^^^^ rever-" any express mention of the rent(y). Formerly no sion. grant could be made of any reversion without the con- sent of the tenant, expressed by what was called his attornment to his new landlord (^). It was thought Attommcnt. 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 could refuse to attorn tenant to the purchaser, and without attornment the grant was invalid. The landlord, however, "had it always in his power to convey his reversion by the expensive process of a fine duly levied in the Court Fine, 'of Common Pleas; for this method of conveyance, being judicial in its nature, was carried into effect (rZ) Stat. 32 Hen. VIII. c. 34; rovghes, 3 C. B. 685. Co.lAit.2lbsi; Ishcrrvuody. Old- (/) Litt. ss. 228, 229, 572; know, 3 Mau. & Selw. 382, 394. Perk. s. 113. (e) A lessee of the reversion is (^) Litt. ss. 551, 567, 568, 5G9; within the act, Wright v. Bur- Co. Litt. 309 a, n. (1). 238 OF INCORPOREAL HEREDITAMENTS. without the tenant's concurrence ; and the attornment of the tenant, which for many purposes was desirable, could in such case be compelled (A). It can easily be imao-ined, 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. Attornment The necessity of attornment to the validity of the abolished. grant of a reversion was accordingly abolished by a statute passed in the reign of Queen Anne {i). But the statute very properly provides (k), that no tenant shall be prejudiced or damaged by payment 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 (Z), any attornment which may be made by tenants without their landlords' consent, to strano;ers claiming; title to the estate of their landlords, is rendered null and void. Nothing, there- fore, is now necessary for the valid conveyance of any rent service, but a grant by deed of the rever- sion, to which such rent is incident. When the con- veyance is made to the tenant himself, it is called a release (^m). Rent formerly The doctrine, that rent service, being incident to the tion'o^'tkf re-' I'^vcrsion, always follows such reversion, formerly gave version. rise to the curious and unpleasant consequence of the rent beins; sometimes lost when the reversion was destroyed. For it is possible, under certain circum- stances, that an estate may be destroyed and cease to exist. For instance, suppose A. to be a tenant of lands for a term of years, and B. to be his under- tenant for a less term of years at a certain rent ; this (h) Shop. Toucli. 254. (k) Sect. 10. (0 Stat. 4 & 5 Anne, c. 16, (0 Stat. 11 Geo. II. c. 10, s. 11. e. 9. (//') Ante, p. 174. OF A REVERSION AND A VESTED REMAINDER. 239 rent is an incident of A.'s reversion, that is, of the term of years belonging to A. If, then, A.'s term shonld by any means be destroyed, the rent paid to him by B. woukl, as an incident of such term, have hitherto been destroyed also. Now, by the rules of law, a conveyance of the immediate fee simple to A. would at once destroy his term, — it not being possible that the term of years and the estate in fee simple should subsist together. In legal language the term of years would be merged in the larger estate in fee Merger, simple ; and the term being merged and gone, it followed, as a necessary consequence, that all its inci- dents, of which B.'s rent was one, should cease also {ii). This unpleasant result was some time since provided Leases sun-en- P ii'ii'.i -.1 11' dered iu order tor and obviated with respect to leases surrenderea m ^^ ^^ renewed. order to be renewed, — the owners of the new leases being invested with the same right to the rent of under- tenants, and the same remedy for recovery thereof, as if the original leases had been kept on foot (o). But in all other cases the inconvenience continued, until a remedy was provided by the act to simplify the transfer of property (/>). This act, however, was shortly after- Now enact- wards repealed by the act to amend the law of real property ( q), which provides, in a more efficient though somewhat crabbed clause (r), 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 (w) WeU V. Russell, 3 T. R. 8 & 9 Vict. c. 99, s. 7. 393. (/>) Stat. 7 & 8 Vict. c. 76, (o) Stat. 4 Geo. II. c. 28, s. G ; s. 12. 3 Prcst. Conv. 138 ; Covsins v. (y) Stat. 8 & 9 Vict. c. 106. PUirq)s, 3 Hurlst. & Colt. 892; (?•) Sect. 9. extended to cro\vn lands by stat. ment. 240 or INCORPOKEAL HEREDITAMENTS. hereditaments, shall, to the extent and for the purpose of preserving such incidents to and obligations on the same reversion as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease. A remainder. No tenure be- tween parti- cular tenant and remainder- man. No rent ser- vice. 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 remainder- man) no tenure exists. They both derive their estates from the same source, the grant of the 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 remainder-man both hold their estates of the same chief lord as their grantor held before (.?). 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 difference between a reversion and a remainder we have already noticed (^), 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. Powers of alienation may be exer- cised concur- rently. We have seen that the powers of alienation possessed by a tenant in fee sim^^le enable him to make a lease for a term of years, or for life, or a gift in tail, as well as 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 (.revail uj) to the present time. Such indeed has been the case. Notwithstanding the vast power of aliena- tion now possessed by a tenant in fee simple, and the great liability of such an estate to involuntary aliena- tion for the purpose of satisfying 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, Avill 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 convey to him an estate tail as effec- tually as a grant to him and the heirs of his body. In these cases, therefore, as well as in ordinary limitations Words of limi- to A. and his heirs, or to A. and the heirs of his body, *^*'°°' the words heirs, and heirs of his body, are said to be tcords of limitation ; that is, words which limit or mark out the estate to be taken by the grantee (d). At the present day, when the heir is perhaps the last person likely to get the estate, these words of limitation are regarded simply as formal means of conferring powers and privileges on the grantee — as mere technicalities, and nothing 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 circumstance, that a man's estate was to go to his heir, was the very thing which, after- (^) See ante, pp. 139, 140; Perrin v. Blalie, ante, pp. 205, 206. 246 OF INCORPOREAL HEREDITAIVIENTS. session. wards, enabled him to convey to another an estate in fee simple (c). And the circumstance, that it was to cro 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 Shel- Having proceeded thus far, we have already mastered lei/'scase,asto ^^ ^^^^ branch of the rule in Shelley's case, namely, estates in pos- . '^ . . . that which relates to estates m possession, ihis 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 " the 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 limited estate, as for his own life. Thus, let the estate have been given to A. and his heirs, but with a vested estate to B. for his own life, to take effect in possession next after the decease of A.,— thus suspend- ing the enjoyment of the lands by the heir of A., until after the determination of the life estate of B. In Buch a case it is evident that B. would have had a vested estate for his life, in remainder, expectant on the decease of A. ; and the manner in which such remainder would have been limited would, as we have seen (/), have been to A. for his life, and after his decease to B. for his life. The only question then remainmg would be as to the mode of expressing the rest of the intention,— namely, that, subject to B.'s life estate, A. should have an estate in fee simple. To this case the As to estates in remainder, (e) Ante, p. 40. (/) Ante, p. 241. OF A REVERSION AND A VESTED REMAINDER. 247 same reasoning applies, as we have alread)^ 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 terras, to a man and his heirs. But, in the present case, A. Avould have already had his estate given him by the first limitation to himself for his life ; nothing, therefore, Avould remain but to give the estate to his heirs, in order to complete the fee simple. 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." Tiie heir, in this case, would not have taken any estate in- dependently of his ancestor any more than in the com- mon limitation to A. and his heirs : the heir could have claimed the estate only by its descent from his ancestor, who had previously enjoyed it during his life; and the interposition of the estate of B. would have merely postponed that enjoyment by the heir, Avhich would otherwise have been immediate. But we have seen that the very circumstance of a man's having an estate which is to go to his heir will now give him a poAver 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, M^hilst he cannot 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 his 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 pos- session A. has, with regard to B., an estate only for his own life. In remainder, expectant on the decease of B., he has, in consequence of his life interest being folloAved 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 248 OF INCORPOREAL HEREDITAMENTS. Remainder to the heirs of the body. Any number of estates may in- terpose. Intermediate estate tail. Example. apart, and divides it, as it Avere, in two. If, therefore, B. should die during A.'s life, A. Avill 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 Avill enjoy, without any interruption, all the privileges belonging to a tenant in fee simple. By parity of reasoning, a similar result would follow, 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, ^yiih 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 life- time, A. would become a complete tenant in tail in possession. The example we have chosen, of an intermediate estate to B. for life, is founded on a principle 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 these estates should be for life only; for some of them may be larger estates, as estates in tail. For instance, suppose 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 re- mainder after an estate tail), to the heirs of A. In this case A. Avill have an estate for life in possession, with an estate in fee simple in remainder, expectant on the determination of B.'s estate tail. An important case of this kind arose in the reign of Edward III. (ff). Lands were given to one John de Sutton for his life, the remainder, after his decease, to John his son, and (g) Provost of Beverley's case, Year Cook, 10 Edw. III. 9. 1 Prest. Estates, 304. See OF A REVEKSION AND A VESTED KE5IAINDEU. 249 Eline, the wife of John the sou, 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 John and Eline entered into possession. John tlie son then died, and afterwards Eline his wife, without leaving any heir of her body. R., another son, and Iieir at law of John de Sutton, the father, then entered. And it Avas decided by all the justices that he was liable to pay a relief {h) to the chief lord of the fee, on account of tlie 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 first estate is ai estate tail. is an estate in tail, instead of an estate for life. Thus, ^^^'-^^^ ^^ ^^ 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 (/j. Here, in default of male heirs of the body of A., the heirs female Avill 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 lin:iit 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 to him in limiting the estate in tail male. The heirs female, being mentioned in the gift, Avill be sup- posed to take the lands as heirs, that is, by descent from their ancestor, in whom an estate in tail female must consequently be vested in his lifetime. For, (//) Sec ante, pp. ll.-,, 117, V20. (/) Litt. s. 71D ; Co. Litt. 37C b. 250 OF INCORPOREAL HEREDITAMENTS. Rule in Shel- ley's case. the same rule, founded on the same principle, Avill apply in every instance; and this rule is no other than the rule in Shelleifs case, which lays it down for law, that Avhen the ancestor, by any gift or convey- ance, takes an estate of freehold, and, in the same gift or conveyance, an estate is limited, either mediately or immediately, to his heirs in fee or in tail, 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 con- veyance, a purchaser of any separate and independent estate for himself. Ancestor need not have an estate fox* the Avhole of his life. The rule, it will be observed, requires that an estate of freehold merely should be taken by the ancestor, and not 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, subject 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, expectant on the event of her marry- ing again {k). For to apply to this case the same reasoning as to the former ones, A. has still an estate to her and to her heirs. She has the freehold or feudal possession, and after her decease, her heirs are (;^) Curtis V. Price, U Ves. 89. OF A REVERSION AND A VESTED REMAINDER. 251 to have the same. It matters not to them that a stranger may take it for a while. The terms of the gift declare that Avhat was once enjoyed by the an- cestor shall afterwards be enjoyed by the heirs of such ancestor. These very terms then make an estate in fee sunple, with all its incidental powers of alienation, controlled only by the rights of B. in respect of the estate conferred on him by the same gift. But if the ancestor should take no estate of freehold Where the under the gift, but the land should be granted only to no estate of his heirs, a very different effect would be produced, freehold. In such a case a most material part of the definition of an estate in fee simple would be wanting. For an estate in fee simple is an estate given to a man and his heirs, and not merely to the heirs of a man. The ancestor, to whose heirs the lauds were granted, would accordingly take no estate or interest by reason of the gift to his heirs. But the gift, if it should ever take effect, would be a future contingent estate for the person who, at the ancestor's decease, should answer the description of heir to his freehold estates. The gift would accordingly fall within the class of future estates, of which an explanation is endeavoured to be given in the next chapter [I). (I) The most concise account given by Mr. Watkins in his Es- of the rule in Shelleifs case, to- say on the Law of Descents, pp. gether with the principal distinc- 154 et seq. (194, 4th ed.) tions which it involves, is that ( 252 ) CHAPTER II. OF A CONTIXGENT REMAINDER. Hitherto we have observed a very extensive power of alienation possessed by a tenant in fee simple. He may make an immediate grant, not of one estate merely, or two, but of as many as he may please, pro- vided he ascertain the order in which his grantees are to take possession (a). This power of alienation, it will be observed, may in some degree render less easy the alienation of the land at a future time ; for, it is plain that no sale can in future be made of an unin- cumbered estate in fee simple in the lands, unless every owner of each of these estates will concur in the sale, and convey his individual interest, whether he be the particular tenant, or the owner of any one of the estates in remainder. But if all these owners should concur, a valid conveyance of an estate in fee Vested remain- simple Can at any time be made. The exercise of the ders do not /•!•<• • xi j.* /• j. i render the power 01 ahenation, m the creation oi vested, remam- land inalien- ders, docs not, therefore, withdraw the land for a moment from that constant liability to complete alien- ation, which it has been the sound policy of modern law as much as possible to encourage. But, great as is the power thus possessed, the law has granted to a tenant in fee simple, and to every other owner to the extent of his estate, a greater Future estates, power still. For, it enables him, under certain restric- tions, to grant estates to commence in interest, and not in possession merely, at a future time. So that (r/) Ante, pp. 240, 241. OF A CONTINGENT REMAINDER. 253 during the period which may elapse before the com- mencement of such estates, the land may be withdrawn from its former liability to complete alienation, and be tied up for the benefit of those who may become the oAvners of such future estates. The power of alienation is thus allowed to be exercised in some degree to its OAvn destruction. For, till such future estates come into existence, they may have no owners to convey them. Of these future estates there are Two kiqds. two kinds, a contingent remainder, and an executory interest. The former is allowed to be created by any mode of conveyance. The latter can arise only by the instrumentality of a will, or of a use executed, or made into an estate, by the Statute of Uses. The nature of an executory interest will be explained in the next chapter. The present Avill be devoted to contingent remainders, which, though abolished by the act to simplify the transfer of property (6), were revived the next session by the act to amend the law of real pro- perty (c), by which the former act, so far as it abolished contingent remainders, Avas repealed as from the time of its taking effect. The simplicity of the common law allowed of the Contingent re- creation of no other estate than particular estates, "^^^wf "l^^ followed by the vested remainders, which have already legal, occupied our attention. A contingent remainder — a ' remainder not vested, and which never might vest, — was long regarded as illegal. Down to the reign of Henry VI. not one instance is to be found of a con- tingent remainder being held valid (^). The early (i) Stat. 7 & 8 Vict. c. 7G, s. 8. searches. The general opinion {c) Stat. 8 & 9 Vict. c. lOG, appears to be in favour of the an- s. 1. tiquity of contingent remainders, (^/) The reader should be in- See 3rd Rep. of Real Property formed that this assertion is Commissioners, p. 23 ; 1 Stepli. grounded only on the writer's re- Com. 014, w.{(t). And an at- 254 OF INCORPOEEAL HEREDITAMENTS. authorities on the contrary are rather opposed to such a conclusion (e). And, at a later period, the authority of Littleton is express (/"), that every remainder, which beginneth by a deed, must be in him to whom it is limited, before livery of seisin is made to him who is to have the immediate freehold. It appears, how- ever, to have been adjudged, in the reign of Henry VI., that if land be given to a man for his life, with remainder to the right heirs of another icho is living. tempt to create a contingent re- mainder appears in an undated deed in Madox's Formulare Angii- cauum, No. 535, p. 305. (e) Year Book, 11 Hen. IV. 74; in wliich case, a remainder to the right heirs of a man, who was dead before the 7'ema'mder was limited, was held to vest by purchase in the person who was heir. But it was said by Hankey, J., that if a gift were made to one for his life, M'ith remainder to the right heirs of a man n'ho 7vas living, the re- mainder would be void, because the fee ouglit to pass immediately to him to whom it was limited. Note, also, that in 3Iandecille's case (Co. Litt. 2G b), which is an ancient case of the heir of the body taking by purchase, the an- cestor was dead at the time of the gift. The cases of rents are not apposite, as a diversity was long taken between a grant of a rent and a conveyance of the freehold. The decision in 7 Hen. IV. 6 b, cited in Archer^s case (1 Rep. G6 b), was on a case of a rent- charge. The authority of P. II Rich. II. Fitz. Ab. tit. Detinue, 46, which is cited in Archer's case (I Rep. 67 a), and in Chudlelgh''s case (1 Ro]i. in." 1)), as mcII ns in the margin of Co. Litt. 378 a, is merely a statement by the judge of the opinion of the counsel against whom the decision was made. It I'uns as follows : — " Cherton to Rykhil — You think (voits quides) that inasmuch as A. S. was living at the time of the remainder being limited, that if he was dead at the time of the remainder falling in, and had a right heir at the time of the remainder falling in, that the remainder would be good enough? Rykhil — Yes, Sii-. — And aftei'- wards in Trinity Term, judgment was given in favour of Wad [the opposite counsel] : qnod iiota hene." It is curious that so much pains should have been taken by modem lawyers to explain the reasons why a remainder to the heirs of a per- son, who takes a prior estate of freehold, should not have been held to be a contingent remainder (see Fearne, Cont. Rem. 83 et seq.), when the construction adopted (subsequently called the rule in Shellofs case) was decided on be- fore contingent remainders were allowed. (/) Litt. s. 721; see also M. 27 Hen. VIIL 24 a. OF A CONTINGENT REMAINDER. 25o and who afterwards dies, and then the tenant for life dies, the heir of the stranger shall have this land; and yet it was said that, at the time of the grant, the re- mainder was in a manner void(^). This decision ultimately prevailed. And the same case is accord- gf* t° ^-.for ino-ly put by Perkins, who lays it down, that if land mai'nder to the be" leased to A. for life, the remainder to the right nghtheusot heirs of J. S., Avho is alive at the time of the lease, this remainder is good, because there is one named in the lease (namely, A. the lessee for life,) who may take immediately in the beginning of the lease (/<). This appears to have been the first mstance in which a contingent remainder was allowed. In tiii" case J. S. takes no estate at all; A. has a life interest; and, so long as J. S. is living, the remainder in fee does not vest in any person under the gift ; for, the maxim is nemo est hares viventis, and J. S. being alive, there is no such person living as his heir. Here, accordingly, is a future estate, which will have no existence until the decease bf J. S. ; if however J. S. should die in the lifetime of A., and if he should leave an heir, such heir will then acquire a vested remain- der in fee simple, expectant on A.'s life interest. But, until these contingencies happen or fail, the limitation to the right heirs of J. S. confers no pre- sent estate on any one, but merely gives rise to the prospect of a future estate, and creates an interest of that kind which is known as a contingent re- mainder (z). The iiift to the heirs of J. S. has been determined A gift to the => • r> • 1 heirs of a man to be sufficient to confer an estate m lee snnple on confers a fee the person who may be his heir, without any addi- ^"^ple «" ^^'^ ((/) Year Book, 9 Ilcn. VI. 24 a; (h) Terk. s. 52. H. 32 Hen, VI. Fitz. Abr. tit. (0 3 Kep. 20 a, in Borasfon's Feoffments and Faits, 90. case. 256 OF INCORPOREAL HEREDITAMENTS. tional limitation to the heirs of such heir (A). If, however, the gift be made after the 31st of December, 1833, or by the will of a testator who shall have died after that day, the land will descend, on the decease of the heir intestate, not to his heir, but to the next heir of J. S., in the same manner as if J. S. had been first entitled to the estate (/). What becomes . When contingent remainders began to be allowed, a ance^untirthe ^^i^stion arose, which is yet scarcely settled, Avhat contingency becomes of the inheritance, in such a case as this, happens. ^^^^.\^^ the life of J. S. ? A., the tenant for life, has but a- life interest; J. S. has nothing, and his heir is not yet in existence. The ancient doctrine, that the remainder must vest at once or not at all, had been broken in upon ; but the judges could not make up their minds also to infringe on the corresponding rule, that the fee simple must, on every feoffment which confers an estate in fee, at once depart out of the feoffor. They, therefore, sagely reconciled the rule which they left standing to the contingent remainders which they had determined to introduce, by affirming that, during the contingency, the inheritance was either in abeyance, or in gremio legis or else in nuhi- bus {m). Modern lawyers, however, venture to assert, that what the grantor has not disposed of must remain in him, and cannot pass from him until there exists some grantee to receive it (n). And, when the gift is by way of use under the Statute of Uses, there is no doubt that, until the contingency occurs, the use, and with it the inheritance, result to the grantor. {k) 2 Jarman on Wills, 2, 1st and Reversion (c). ed.; 49, 2nded.; 55, 5G, 3rd ed. (ft) Fearne, Cont. Eem. 361. (0 Stat. 3 & 4 Will. IV. c. 106, See however 2 Prest. Abst. 100 s. 4. — 107, where the old opinion is (w) Co. Litt. 342 a; 1 P. Wms. maintained. 515,516; Bac. Abr. tit. Remainder OF A CONTINGENT REMAINDER. 257 So, in the case of a Avill, the inheritance, until the contingency happens, descends to the heir of the testator (o). But Avhatever difficulties may have beset the depar- ture from ancient rules, the necessities of society required that future estates, to vest in unborn or un- ascertained persons, should under certain circum- stances be alloAved. And, in the time of Lord Coke, In Lord Coke's the validity of a gift in remainder, to become vested *^"^^ contm- "^ " , . gent remain- on some future contingency, was well established, (iers were well Since his day the doctrine of contingent remainders ^^ ^ is e . has gradually become settled ; so that, notwithstanding The doch-ine the uncertainty still remaining with regard to one or ^'^^ settled. two points, the whole system now presents a beautiful specimen of an endless variety of complex cases, all reducible to a few plain and simple principles. To Mr. Feame's this desirable end the masterly treatise of Mr. Fearue *'^^^''^'^®- on this subject (p) has mainly contributed. Let us now obtain an accurate notion of what a con- tingent remainder is, and, afterwards, consider the rules which are required to be observed in its creation. We have already said, that a contingent remainder is Definition of a a future estate. As distinguished from an executory contingent rc- ....,, /. 1 p..„ maiuder. interest, to be hereatter spoken oi, it is a future estate, which waits for and depends on the determination of the estates which precede it. But, as distinguished from a vested remainder, it is an estate in remainder, which is 7iot ready, from its commencement to its end, to come into possession at any moment when the prior estates may happen to determine. For, if any contin- (o) Feame, Cent. Rem. 351. rendered valuable by an original (^) Feame's Essay on the view of executory interests, con- Learning of Contingent Remain- taincd in a second volume, ap- ders and Executory Devises. The ponded by the learned editor, Mr, last edition of this work has been Josiah William bniitli. R.P. S 258 OF INCORPOREAL HEREDITAMENTS. gent remainder should, at any time, become thus ready- to come into immediate possession, whenever the prior estates may determine, it will then be contingent no longer, but will at once become a vested remainder (q). Example. For example, suppose that a gift be made to A., a bachelor, for his life, and after the determination of that estate, by forfeiture or otherwise in his lifetime, to B. and his heirs during the life of A., and after the decease of A., to the eldest son of A. and the heirs of the body of such son. Here we have two remainders, one of Avhich is vested, and the other contingent. The estate of B. is vested (r). Why ? Because, though it be but a small estate, yet it is ready from the first, and, so long as it lasts, continues ready to come into possession, Avhenever A.'s estate may happen to deter- mine. There may be very little doubt but that A. will commit no forfeiture, but will hold the estate as Ions: as he lives. But, if his estate should determine the moment after the grant, or at any time whilst BJ's estate lasts, there is B. quite ready to take possession. B.'s estate, therefore, is vested. But the estate tail to the eldest son of A. is plainly contingent. For A., being a bachelor, has no son ; and, if he should die without one, the estate tail in remainder will not be ready to come into possession immediately on the de- termination of the particular estates of A. and B. Indeed, in this case, there will be no estate tail at all. But if A. should marry and have a son, the estate tail will at once become a vested remainder ; for, so long as it lasts, that is, so long as the son or any of the son's issue may live, the estate tail is ready to come into im- mediate possession whenever the prior estates may de- termine, whether by A.'s death, or by B.'s forfeiture, supposing him to have got possession (5). It will be observed that here there is an estate, which, at the Ol) See ante, ]). 243. 325. {)•) Fearnc, Coiit. Kem. pp. 7u, {s) See ante, pp. 241, 242. OF A CONTINGENT REMAINDER. 259 time of the grant, is future in interest, as well as in possession ; and till the son is born, or rather till he comes of age, the lands are tied up, and placed beyond the power of complete alienation. This example of a contingent remainder is here given as by far the most usual, being that which occurs every day in the settle- ment of landed estates. The rules which are required for the creation of a Two rules for ,• , • ^ 1 1 J ^ J. r I • ^ the creation of contmgent remamder may be reduced to two ; oi wnicn ^ contino^ent the first and principal is well established; but the remainder. latter has occasioned a good deal of controversy. The Rule l. first of these rules is, that the seisin, or feudal posses- sion, must never be without an owner ; and this rule is sometimes expressed as folloAvs, that every contingent remainder of an estate of freehold must have a parti- cular estate of freehold to support it (t). The ancient Ancient noto- law regarded the feudal possession of lands as a matter fer*^of tjig'^''"^' the transfer of which ought to be notorious ; and it ac- feudal posses- cordingly forbad the conveyance of any estate of free- hold by any other means than an immediate delivery of the seisin, accompanied by words, either written or openly spoken, by which the owner of the feudal pos- session might at any time thereafter be known to all the neighbourhood. If, on the occasion of any feoiF- ment, such feudal possession Avas not at once parted with, it remained for ever with the grantor. Thus a Example, a feoffment, or any other conveyance of a freehold, made t d T^^hoW to-day to A., to hold from to-morrow, would be abso- from to-mor- lutely void, as involving a contradiction. For, if A. is not to have the seisin till to-morrow, it must not be given him till then (u). So, if, on any conveyance, the feudal possession were given to accompany any estate or estates less than an estate in fee simple, the (0 2 Black. Com. 171. (v) 2 Black. Com. 1G6. S 2 2G0 OP INCOEPOKEAL HEEEDITAMENTS. To A. for life, and after his decease and one day, to B. To A. for his life, and after his decease to his eldest son in tail. Posthnmous children may take estates as if boru. moment such estates, or the last of them, determined, such feudal possession would again revert to the grantor, in right of his old estate, and could not be again parted with by him, without a fresh conveyance of the freehold. Accordingly, suppose a feofhnent to be made to A. for his life, and after his decease and one day, to B. and his heirs. Here, the moment that A.'s estate determines by his death, the feudal possession, which is not to belong to B. till one day afterwards, reverts to the feoffor, and cannot be taken out of him without a new feoifment. The consequence is, that the gift of the future estate, intended to be made to B., is absolutely void. Had it been held good, the feudal possession would have been for one day without any owner, or, in other words, there would have been a so- called remainder of an estate of freehold, without a particular estate of freehold to support it. Let us now take the case we have before referred to, of an estate to A., a bachelor, for his life, and after his decease to his eldest son in tail. In this case it is evident, that the moment A.'s estate determines by his death, his son, if living, must necessarily be ready at once to take the feudal possession, in respect of his estate tail. The only case in which the feudal possession could, under such a limitation, ever be without an owner, at the time of A.'s decease, would be that of the mother being then enceinte of the son. In such a case, the feudal possession Avould be evidently without an owner, until the birth of the son; and such posthumous son would accordingly lose his estate, Avere it not for a special provision Avhich has been made in his favour. In the reign of William III. an act of parliament {x) was passed, to enable posthumous children to take estates, as if born in their father's lifetime. And the law now (a-) Stat. 10 & 11 Will. III. c. 16. OF A CONTINGENT. REMAINDElt. 261 considers every cliild en ventre sa mere as actually born, for the purpose of taking any benefit to which, if born, it would be entitled ( y). As a corollary to the rule above laid down, arises A contingent „ ^ ■ ^c ^ • ^ ^ c-o rcmaiuder another proposition, frequently itselt laid cloAvn as a ^^^^^^ ^.^^^ distinct rule, namely, that every contingent remainder ^^^^festair must vest, or become an actual estate, during the con- or eoUistanti tinuance of the particular estate which supports it, or JIj^J^^^ ^'*''- eo instanti that such particular estate determmes; otherwise such contingent remainder will fail altoge- ther, and can never become an actual estate at all. Thus, suppose lands to be given to A. for his life, and Example. after his decease to such son of A. as shall first attain the age of twenty-four years. As a contingent remain- der the estate to the son is well created (r) ; for the feudal seisin is not necessarily left without an OAvner after A.'s decease. If, therefore, A. should, at his decease, have a son who should then be twenty-four years of age or more, such son will at once take the feudal possession by reason of the estate in remainder which vested in him the moment he attained that age. In this case the contingent remainder has vested during the continuance of the particular estate. But if there should be no son, or if the son should not have attained the prescribed age at his father's death, the remainder will fail altogether (a). For the feudal possession will then, immediately on the father's decease, revert, for w^ant of another owner, to the (?/) Doe V. Clarlie, 2 H. Bl. however as to this case, Iltlc)/ v. 30d; Blackbm-nx. Stahl('s,2Yes. Garnett, 3 De Gex & S. G29 ; & Beames, 367; Mogg v. Mogg, Browne v. Browne, 3 Sraa. & 1 Meriv. G54 ; Trowa- v. Butts, Giff. 568, qy ? Be Mid Kent 1 Sim. & Stu. 181. Baihvay Act, 1856, Ex parte (2) 2 Brest. Abst. U8. Stgan, John. 387; nolmcs v. (a) Fcstlng v. Allen, 12 Mces. Prescott,V.-C. W., 10 Jur., N. S. & Wels. 27'J ; 5 Hiue, 573. See 507; 12 W. 11. 636. 262 OF INCOEPORE^VL HEREDITAMENTS. person who made the gift in right of his reversion. And, haying once reverted, it cannot now belong to the son, without the grant to him of some fresh estate by means of some other conveyance. Events on ■which a con- tingent re- mainder may not vest. Possibility on a possibility. Scholastic logic. A contingent remainder cannot be made to vest on any event which is illegal, or contra honos mores. Accordingly, no such remainder can be given to a child who may be hereafter born out of wedlock. But this can scarcely be said to be a rule for the creation of contingent remainders. It is rather a part of the general policy of the law in its discouragement of vice. In the reports of Lord Coke, however, a rule is laid down of which it may be useful to take some notice, namely, that the event on which a re- mainder is to depend must be a common possibility, and not a double possibility, or a possibility on a pos- sibility, which the law will not allow {b). This rule, though professed to be founded on former precedents, is not to be found in any of the cases to which Lord Coke refers, in none of which do either of the expres- sions " possibility on a possibility," or " double possi- bility," occur. It appears to owe its origin to the mischievous scholastic logic which was then rife in our courts of law, and of which Lord Coke had so high an opinion that he deemed a knowledge of it necessary to a complete lawyer (c). The doctrine is indeed ex- pressly introduced on the authority of logic : — " as the logician saith, '' potentia est duplex, remota et -pro- pinqua" {d). This logic, so soon afterwards demo- lished by Lord Bacon, appears to have left behind it many traces of its existence in our law ; and perhaps it would ])e found that some of those artificial and technical rules which have the most annoyed the (Z>) 2 Rep. 51 a; 10 Rep. 50 b. (o) Rrcfacc to Co. Litt. p. 37. (r/) 2 Rep. 51 a. OF A CONTINGENT EEMAINDEE. 2G3 judges of modern times (e) owe tLeir origin to tliis antiquated system of endless distinctions Avitliout solid differences. To show how little of practical benefit could ever be derived from the distinction between a common and a double possibility, let us take one of Lord Coke's examples of each. He tells us that the Examples of 1 . 1 . 1 1 xi, • J J common and chance that a man and a woman, both married to j^ou,,ie poggi. different persons, shall themselves marry one another bilities. is but a common possibility (/). But the chance that a married man shall have a son named Geoffrey is stated to be a double or remote possibility (^). Whereas it is evident that the latter event is at least quite as likely to happen as the former. And if the son were to get an estate from being named Geoffrey, as in the case put, there can be very little doubt but that Geoffrey would be the name given to the first son who might be born (A). Kespect to the memory of Lord Coke has long kept on foot in our laAv books (i) the rule that a possibility on a possibility is not allowed by law in the creation of contingent remainders. But the authority of this rule has long- been declining ( y), and lately a very learned living judge (k) has declared plainly that it is now abo- lished. But although the doctrine of Lord Coke, that there (e) Such as the rule in Bumjjor's ease, 4 Rep. 119. (/) 10 Rep. 50 b; Year Book, 15 Hen. VII. 10 b, pi. IG. (ff) 2 Rep. 51b. (/i) The true ground of the de- cision in the old case (10 Edw. III. 45), to which Lord Coke refers, was no doubt, as suggested by Mr. Preston (1 Prest. Abst. 128), that the gift was made to Geoif rcy the son, as though he were living, when in fact there was then no such person. (2) 2 Black. Com. 170; Feai-ne, Cont. Rem. 252. 0') See Third Report of. Real Property Commissioners, p. 29 ; 1 Prest. Abst. 128, 129. (Z;) Lord St. Leonards, in Cole V. Seivcll, 1 Conn. & Laws, 344 ; S. a 4 Dru. & War. 1, 32. The decision in this case has been atlirnicd in the House of Lords, 2 11. of L. Cases, 186. 264 or INCORrOREAL HEREDITAMENTS. can be no possibility on a possibility, has ceased to govern the creation of contingent remainders, there is yet a rule by which these remainders are restrained ■within due bounds, and prevented from keeping the lands, which are subject to them, for too long a period Eule 2. beyond the reach of alienation. This rule is the second Gift to an un- rule, to which we have referred (/), and is as follows ; born person — ^^i^g^^. ^^ estate cannot be given to an unborn person with remainder , " ^ to his child, fov life, followed hy any estate to any child of such void^^"^^^'^' ^^ ?«iior/z person (m); for in such a case the estate given to the child of the unborn person is void. This rule is apparently derived from the old doctrine which prohibited double possibilities. It may not be suf- ficient to restrain every kind of settlement which ingenuity might suggest; but it is directly opposed to the great motive which usually induces attempts at a perjjetuity, namely, the desire of keeping an estate in the same family ; and it has accordingly been hitherto found sufficient. An attemj)t has been recently made, with much ability, to explain away this rule as merely an instance of the rule by which, as we shall hereafter see, executory interests are restrained (??). But this rule is more stringent than (Z) Ante, p. 259. See however per Wood, V.-C, («?) 2 Cases and Opinions, 432 in Cattlm v, Brnnni, 11 Hare, — 441 ; Hay v. Earl of Coventry, 375, qy ? ZT.'R,fi\^.^Q; Brudenellx. Mwes, (n) See Lewis on Perpetuities, 1 East, 452 ; Fcarne's Posthuma, p. 408 et seq. The case of Challis 215; Feame, Cent. Rem. 502, v. i?oed. iS'iJej-s, 18 Q.B.231,must .^65, Butl. note ; 2 Prest. Abst. be admitted to accord with this 114;' 1 Sugd. Pow. 470 ; 393, 8th opinion; but the point, though ed.; 1 Jarm. Wills, 221, 1st ed.; adverted to by the counsel for the 203, 2nd ed.; 227, 3rd ed.; Cole appellant, was not taken by the V. Sewell, 2 H. of L. Cases, 186; counsel for the respondent, nor 3fonypcnnyy. Dering, 2 De Gex, mentioned in the judgment of the M. & G. 145, 170; Sugden on Pro- Com-t. This case has since been perty, 120; Sugden on the Real reversed in the House of Lords, Property Statutes, p. 285, n. («), 7 H. of L. Cas. 531. 1st ed. ; 274, n. («), 2nd ed. OF A CONTINGENT REMAINDER. 265 that Avlilch confines executory interests; and if there Avere no other restraint on the creation of contingent remainders than the rule by which executory interests are confined, landed property might in many cases be tied up for at least a generation further than is now possible (o). The opinion which so generally prevails, that every Gift by will to ■'■ ••11 X*!-.' tD.G SOUS or HIl man may make what disposition he pleases oi nis „nboni person, own estate -an opinion countenanced by the loose J^etosucV" description sometimes given by lawyers of an estate person. in fee simple (^9),— has not unfrequently given rise to attempts made by testators to settle their property on future generations beyond the bounds allowed by law; thus lands have been given by 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. This last limitation to the sons of the unborn son in tail, we have observed, is void. The courts of law, however, have been so indulgent to the ignorance of testators, that, in the case of a will, they have endeavoured to carry the intention of the testator into effect, as nearly as can possiblf/ be done, without infringing the rule of law; they, accordingly, take the liberty of altering his Avill to what they presume he would have done had he been acquainted with the rule which pro- hibits the son of any unborn son from being, in such circumstances, the object of a gift. This, in LaAV aj pres Aoc- Freuch, is called the cy pres doctrine (g). 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, (o) Sec Appendix (F). cd. ; 242, 2nd ed.; 278, 3rd cd. ; (/>) 2 Bhuk. Com. 104. Vandcrplank v. King, 3 Hare, 1 ; {q) Fearne, Cunt. Rem. 204, Minnjpcnmjx. Dcriiig, 16 Mee. Si note ; 1 Jarman on Wills, 260, 1st Wels. 418. 266 OF INCOKPOREAL HEREDITAMENTS. if not barred, will descend on the next generation ; but the risk of the entails being barred cannot, by any means, be prevented. The courts, therefore, when they meet with such a disposition 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 subsequent 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 (r), or in fee simple {s). If, how- ever, the estates be in tail, the rule equally applies, whether the estates tail be given to the sons succes- sively according to seniority, or to all the children equally as tenants in common {t). The expectant owner of a contingent i"C- mainder may be now living. Examijle. Though a contingent remainder is an estate which, if it arise, must arise at a future time, and will then belong to some future owner, yet the contingency may be of such a kind, that the future exj^ectant owner may be now living. For instance, suppose that a con- veyance be made to A. for his life, and if C. be living at his decease, then to B. and his heirs. Here is a contingent remainder, of which the future expectant owner, B., may be now living. The estate of B. is not a present A^ested estate, kept ovit of possession only by A.'s prior right thereto. But it is a future estate not to commence, either in possession or in interest, till A.'s decease. It is not such an estate as, according to our definition of a vested remainder, is (r) Seaivard v. WiUcocJi, 5 East, 198. (s) Bristom v. Warde, 2 Ves. jun. 336; Hale v. Ptn; 25 Beav. 335. (t) Pitt V. Jackson., 2 Bro. C. C. 51 ; Vanderplanli v. King, 3 Hare, 1. OF A CONTINGENT KEMAINDEE. 2G7 always ready to come into possession whenever A.'s estate may end; for, if A, should die after C, B. or his heirs can take nothing. Still B., though he has no estate during A.'s life, has yet plainly a chance of A possibility. obtaining one, in case C. should survive. This chance is called in law a possibility ; and a possibility of this A contingent kind was long looked upon in much the same light as could noTbe a condition of re-entry was regarded (?<), having been conveyed by inalienable at law, and not to be conveyed to another ' by deed of grant. A fine alone, before fines were abolished, could efiectually have barred a contingent remainder {x). It might, however, have been released ; but might be that is to say, B. might, by deed of release, have given ^^ ^^^^' ' up his interest for the benefit of the reversioner, in the same manner as if the contingent remainder to him and his heii's had never been limited (y); for the law, whilst it tolerated conditions of re-entry and con- tingent remainders, always gladly permitted such rights to be got rid of by release, for the sake of pre- serving unimpaired such vested estates as might happen to be subsisting. A contingent remainder Was devisable, was also devisable by Avill under the old statutes {z), and is so under the present act for the amendment of the laws with respect to wills («). And it was the Was assign- rule in equity, that an assignment intended to be made ^° equity, of a possibility for a valuable consideration should be decreed to be carried into effect (Jb). But the act to (w) Ante, p. 236. {z) Roe d. Perry y. Jones, 1 H, (a?) Feai-ne, Cont. Rem. 3G5 ; Black. 30 ; Fearne, Cont. Ecni. Ilelin V. Hereford, 2 Bam. & 3()(;, note. Aid. 242 ; Doe d. Christ man v. («) Stat. 7 Will. IV. & 1 Vict. Ollrer, 10 Barn. & Cress. 181; c. 2Q,s.Z; Ingilby y. Amcotts, 21 Doe d. Luvileij v. Earl of Scar- Beav. .585. horough, 3 Adol. & Ell. 2. {b) Feai-nc, Cont. Rem. 550, (jj) Lavi2)eVscase,\0'ReT^ABa, 551; sec, however, Carleton v. b ; Marhs v. Marks, 1 Strange, LeigMon, 3 Meriv. 6G7, 668, 132. note(/'). 268 OF INCORPOREAL HEREDITAIMENTS. New enact- ment. amend the law of real property (c) now enacts, that a contingent interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, may be disposed of by deed. But every such disposi- tion, if made by a married woman, must be made con- formably to the provisions of the act for the abolition of fines and recoveries {d). Inalienable nature of a contingent re- mainder. The circumstance of a contingent remainder having been so long inalienable at law was a curious relict of the ancient feudal system. This system, the fountain of our jurisprudence as to landed property, was strongly opposed to alienation. Its policy was to unite the lord and tenant by ties of mutual interest and aifection ; and nothing could so effectually defeat this end as a constant change in the parties sustaining that relation. The proper method, therefore, of explaining our laws, is not to set out with the notion that every subject of property may be aliened at pleasure ; and then to en- deavour to explain why certain kinds of property cannot be aliened, or can be aliened only in some modified manner. The law itself began in another way. When, and in what manner, different kinds of property gradually became subject to different modes of alienation is the matter to be explained ; and this explanation we have endeavoured, in proceeding, as far as possible to give. But, as to such interests as remained inalienable, the reason of their being so was, that they had not been altered, but remained as they were. The statute of Quia emptores (e) expressly per- mitted the alienation of lands and tenements, — an {c) Stat. 8 & Vict. c. s. 6. lOG, (r/) See ante, pp. 221, 222. {c) 18 Edw. I. c. 1, ante, p. GO. OF A CONTINGENT EESIAINDER. 2G9 alienation which usage had already authorized ; and ever since this statute, the ownership of an estate in lands (an estate tail excepted) has involved in it an undoubted power of conferring on another person the same, or, perhaps more strictly, a similar estate. But a contingent remainder is no estate, it is merely a chance of having one ; and the reason Avhy it has so lono- remained inalienable at law was simply because it had never been thought worth while to make it alienable. One of the most remarkable incidents of a contingent Destruction of . Yi contingent remainder was its liability to destruction, by the sudden remainders, determination of the particular estate upon which it depended. This liability has now been removed by the Liability to 1,1 PI ./^\-i. • destruction act to amend the law of real property (/ ) : it was, m ^^^^ removed. efiect, no more than a strict application of the general rule, required to be observed in the creation of con- tingent remainders, that the freehold must never be left without an owner. For if, after the determination of the particular estate, the contingent remainder might still, at some future time, have become a vested estate, the freehold Avould, until such time, have re- mained undisposed of, contrary to the principles of the law before explained (^). Thus, suppose lands to have Example, been given to A., a bachelor, for his life, and after his decease to his eldest son and the heirs of his body, and, in default of such issue, to B. and his heirs. In this case A. would have had a vested estate for his life in possession. There would have been a contingent re- mainder in tail to his eldest son, Avhich would have become a vested estate tail in such son the moment he was born, or rather begotten ; and B. would have had a vested estate in fee simple in remainder. Now sup- (/) Stat. 8 & 9 Vict. c. lOG, s. 8, s. 8, to the same effect, repealing stat. 7 & 8 Vict. c. 7G, {g) Ante, p. 2.VJ. 270 OF INCORPOREAL HEREDITAMENTS. Forfeiture of life estate. pose that, before A. had any son, the particular estate for life belonging to A., which supported the contingent remainder to his eldest son, should suddenly have de- termined during A.'s life, B.'s estate would then have become an estate in fee simple in possession. There must be some owner of the freehold; and B., being next entitled, would have taken possession. When his estate once became an estate in possession, the prior remainder to the eldest son of A. was for ever excluded. For, by the terms of the gift, if the estate of the eldest son was to come into possession at all, it must have come in before the estate of B. A forfeiture by A. of his life estate, before the birth of a son, would therefore at once have destroyed the contingent re- mainder, by letting into possession the subsequent estate of B. (^). A right of entry would have supported a contingent remainder. The determination of the estate of A. was, however, in order to effect the destruction of the contingent re- mainder, required to be such a determination as would put an end to his right to the freehold or feudal pos- session. Thus, if A. had been forcibly ejected from the lands, his right of entry would still have been suf- ficient to preserve the contingent remainder ; and, if he should have died whilst so out of possession, the contingent remainder might still have taken effect. For, so long as A.'s feudal possession, or his right thereto, continues, so long, in the eye of the law, does his estate last (i). It is a rule of law, that " whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is im- mediately annihilated ; or, in the law phrase, is said to (70 Fearnc, Cont. Rem. 317; sec N. C. (509. Dor a. Udvic^ V. Gaturrc, .". 13ing. {[) Fcarno, Cont. Rem. 28G. OF A CONTINGENT REMAINDER. 271 be merged, that is, sunk or drowned in the greater " (/t). Merger. From the operation of this rule, an estate tail is pre- served by the effect of the statute De donis (l). Thus, the same person may have, at the same time, an estate tail, and also the immediate remainder or reversion in fee simple, expectant on the determination of such estate tail by failure of his own issue. But with regard to other estates, the larger will swallow up the smaller; and the intervention of a contingent re- mainder, which, while contingent, is not an estate, will not prevent the application of the rule. Accordingly, if in the case above given A. should have purchased B.'s remainder in fee, and should have obtained a con- veyance of it to hunself, before the birth of a son, the contingent remainder to his son would have been de- stroyed. For, in such a case, A. would have had an estate for his own life, and also, by his purchase, an immediate vested estate in fee simple in remainder ex- pectant on his own decease ; there being, therefore, no vested estate intervening, a merger would have taken place of the life estate in the remainder in fee. The possession of the estate in fee simple would have been accelerated and would have immediately taken place, and thus a destruction would have been effected of the contingent remainder (m), which could never afterwards have become a vested estate ; for, were it to have become vested, it must have taken possession subsequently to the remainder in fee simple ; but this it could not do, both by the terms of the gift, and also by the very nature of a remainder in fee simple, which can never have a remainder after it. In the same manner the sale by A. to B. of the life estate of A., called in law a surrender of the life estate, before the Surrerider of birth of a son, would have accelerated the possession of ^^ ^^^^ ^' (A) 2 Black. Com. 177. p. 41. (l) Stat. 13 Edw. I. c. 1 ; ante, (w) Fcanic, Cont. Rem. 340. ment. 272 OF INCORPOREAL HEREDITAMENTS. the remainder in fee simple, by giving to B. an unin- terrupted estate in fee simple in possession ; and the contingent remainder would consequently have been destroyed {ji). The same effect would have been pro- duced 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 New enact- which no remainder could depend (o). But now, the act to amend the laAv of real property ( p) has altered the law in all these cases ; for, whilst the principles of law on which they proceeded have not been expressly abolished, it is nevertheless enacted (§-), that a contin- gent remainder shall be, and if created before the passing of the act shall be deemed to have been, capable of taking effect, notwithstanding the deter- mination by forfeiture, surrender or merger of any preceding estate of freehold, in the same manner in all i-espects 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 par- ticular estate. If, at the time when the particular estate would naturally have expired, the contingent remainder be not ready to come into immediate pos- session, it will still fail as before. The disastrous consequences which would have resulted from the destruction of the contingent re- mainder, in such a case as that we have just given, were obviated in practice by means of the interposition of a vested estate between the estates of A. and B. (m) Fearac, Cont. Rem. 318. (p) Stat. 8 & 9 Vict. c. 106, (o) Feame, Cont. Rem. 322, repealing stat. 7 & 8 Vict. c. 76, note; Noel v. Bewley, 3 Sim. 103; s. 8, to the same effect. JJijcrtoii V. Masseij, 3 C. B. N. S. {q) Sect. 8. 338. OF A CONTINGENT REMAINDER. . 273 We have seen(r) tliat 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 pre- Trustees to servatiou of contingent remainders to the children of a t^n^ggnl^re-'^' tenant for life was to give an estate, after the deter- mainders. mination by any means of the tenant's life interest, to cei'tain persons and their heii's during his life, as trustees for preserving the contingent remainders ; for which purpose 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 by the Court of Chancery from parting Avith their estate, or in any way aiding the destruction of the contingent remainders which their estate supported (s). And, so long as their estate continued, 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 remainder of the trustees during his life, and the estate in fee simple in remainder, be- longing, in the case Ave 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 prevented the remainder in fee simple from ever coming into possession, so long as the estate of the trustees endured, that is, if they were faithful to their trust, so long as A. lived. Provision was thus made for the keeping up of the feudal posses- sion, until a son was born to take it ; and the destruc- tion of the contingent remainder in his favour was (r) Ante, p. 258. (f) Fearne, Cont. Rem. 326. R.P. T 274 OF INCOEPOREAL HEREDITAMENTS. accordingly prevented. But now that contingent re- mainders can no longer be destroyed, of course there will be no occasion for trustees to preserve them. To A. for life. To trustees during his life to preserve contingent re- mainders. To A.'s first and other sons in tail. The following extract from a modern settlement, of a date previous to the act to amend the law of real property {t), will explain the plan which used to be adopted. The lauds were conveyed to the trustees and their heirs, to the uses declared by the settle- ment ; by which conveyance the trustees took no per- manent estate at all, as has been explained in the Chapter on Uses and Trusts (u), 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 assigns for and " during the term of his natural life without impeach- " ment of waste and from and iimnediately after the " determination of that estate by forfeiture or other- " wise in the lifetime of the said A. To the use of " the said {trustees) their heirs and assigns during the " life of the said A. In trust to preserve the con- " tingent uses and estates hereinafter limited from " being defeated or destroyed and for that purj)ose 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. severally succes- " sively and in remainder one after another as they " shall be in seniority of age and priority of birth and (0 8 & 9 Vict. c. 106. (it) Ante, pp. 153, 154. OF A CONTINGENT REMAINDER. 275 *' of the several and respective heirs of the body and " bodies of all and every such son and sons lawfully *' issuino- 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 heirs " of his and their body and respective bodies issuing " And in default of such issue" &c. Then follow the other remainders. In a former part of this volume we have spoken of Trust estates. equitable or trust estates (x). In these cases, the whole estate at law belongs to trustees, who are accountable in equity to their cestids que trust, the beneficial owners. As equity folloAvs 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 remainder, in the same manner as an estate at law. Contingent remainders may also be limited of trust estates. But between such contin- Contingent re- . -, , , . , . -1 r J. i. mainders of gent remaniders, and contmgent remamders ol estates ^^^^^ estates at law, there was always this difference, that whilst jvere indestruc- the latter were destructible, the former were not {y). 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 ascer- tained 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 (z). And, as the destruction of contingent remainders at law defeated, when it happened, the intention of those who created them, equity did not so far follow the law as to introduce into its system a similar destruc- tion of contingent remainders of trust estates. It {x) See the chapter on Uses and Cas. temp. Talbot, 145, 151 ; Eop- Trusts, ante, p. 154 et seq. hins v. Hopkins, Cas. temp. Tal- (y) Feame, Cont. Rem. 321. bot, 52 n. (2) See Chapman, v. Blissett, T 2 276 OF INCORPOREAL HEREDITAMENTS. rather compelled the trustees continually to observe the intention of those whose wishes they had under- taken 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 destroyed the con- tingent remainder directed to be held by A. or his heirs in trust for the eldest son. The Succes- It may be proper to mention in this place, that an 1853^"*^^ ^^^' ^^* ^^^ ^^^^ recently passed for granting duties on succession to property on the death of any person dying after the 19th of May, 1853, the time appointed for the commencement of the act (a). These duties are as follows :— where the successor is the lineal issue or lineal ancestor of the predecessor, the duty is at the rate of one per cent, on the vaUie of the succes- sion ; if a brother or sister, or a descendant of a brother or sister, three per cent. ; if a brother or sister of the father or mother, or a descendant of such a bro- ther or sister, five per cent. ; if a brother or sister of the grandfather or grandmother of the predecessor, or a descendant of such a brother or sister, six per cent. ; and if the successor shall be in any other degree of collateral consanguinity to the predecessor, or shall be a stranger in blood to him, the duty is ten per cent. (b). The interest, however, of a successor to real property is considered to be of the value of an annuity equal to (a) Stat. ]6 & 17 Vict. c. 51; Attorney-Gen. t. Lord Braij- see Wilcox v. Smith, 4 Drew. 40; hroolie, 5 H. & N. 488 ; 9 H. of Attorney-Gen. v. Lord Middle- L. Cas. loO ; Attorney-Gen. v. ton, 3 H. & N. 125 ; Attorney- Smytlie, 9 H. of L. Cas. 498. Gen. V. Sihthorpc, 3 II. & N. 424; (*) Sect. 10. OF A CONTINGENT REMAINDER. 271\ the annual value of such property during his life, or for any less period during which he may be entitled ; and every such annuity is to be valued, for the pur- poses of the act, according to tables set forth in the schedule to the act; and the duty is to be paid by eight equal half-yearly instalments, the first to be paid at the end of twelve months after the successor shall have become entitled to the beneficial enjoyment of the property ; and the seven following instalments are to be paid at half-yearly intervals of six months each, to be computed from the day on which the first instalment shall have become due. But if the suc- cessor shall die before all such instalments shall have become due, then any instalments not due at his decease shall cease to be payable; except in the case of a successor who shall have been competent to dis- pose by will (c) of a continuing interest in such property, in which case the instalments unpaid at his death shall be a continuinsr charo;e on such inte- rest in exoneration of his other property, and shall be payable by the owner for the time being of such interest (d). (c) Attorney-Qen. v. Hallett, (d) Stat. 16 & 17 Vict. c. 51, 2 H. & N. 368. s. 21. 278 OF INCORPOREAL HEREDITAMENTS. CHAPTER III. or AN EXECUTORY INTEREST. Contingent remainders are future estates, which, as we have seen (a), Avere, until recently, continually- liable, in law, until they actually existed (zs estates, to be destroyed altogether, — executory interests, on the other hand, are future estates, which in their Executory in- nature are indestructible (b). They arise, when their terests arise of , • r .-u • • i j . i.i .1 their own time comes, as 01 their own inherent strength ; they strength. depend not for protection on any prior estates, but on the contrary, they themselves often put an end to any prior estates which may be subsisting. Let us consider, first, the means by which these future estates may be created ; and secondly, the time fixed by the law, within which they must arise, and beyond which they cannot be made to commence. Section I. Oj the Means by ichicli Executory Interests may be created. 1. Executory interests may now be created in two ways — under the Statute- of Uses (c), and by will. {a) Ante, p. 269 et seq. 263, see ante, p. 47. Executory (J) Eeame, Cont. Rem. 418. interests subsequent to, or in de- Before fines were abolished, it was feazance of an estate tail, may also a matter of doubt whether a fine be barred in the same manner, and would not bar an executory in- by the same means, as remainders terest, in case of non-claim for five expectant on the determination of years after a right of entry had the estate tail. Fearne, Cont. Rem. arisen under the executory in- 423. terest. Homilli/ v. James, GTannt. (c) Stat. 27 Hen. VIII. c. 10. OF AN EXECUTORY INTEREST. 279 Executory interests created under the Statute of Uses are called sj^riyiging or shifting uses. We have Springing and seen {d) that, previously to the passing of this statute, ^^^^ting uses. the use of land was under the sole jurisdiction of the Executory Court of Chancery as trusts are now. In the exer- Xwed'brthe cise of this jurisdiction, it would seem that the Court Court of Chan- of Chancery, rather than disappoint the intentions of ^^^^' parties, gave validity to such interests of a future or executory nature, as were occasionally created in the disposition of the use (e). For instance, if a feofl&nent had been made to A. and his heirs, to the use of B. and his heirs 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(/). 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 destroyed by its prop fallingr When the Statute of Uses {g) was passed, the juris- The Statute of diction of the Court of Chancery over uses was at ^^^^• once annihilated. But uses in becoming, by virtue of the statute, estates at law, brought with them into the courts of law many of the attributes, which they had before possessed while subjects of the Court of Chancery. Amongst others which remained un- Executory touched, was this capability of being disposed of in "f.®^ ^''l^^ such a way as to create executory interests. The legal seisin or possession of lands became then, for the first time, disposable without the observance of the formalities previously required (Ji) ; and, amongst the dispositions allowed, were these executory interests, in which the legal seisin is shifted about from one id) Ante, pp. 150, 151. (.7) 27 Hen. VIII. c. 10, ante, (e) Butl. n. (a) to Feame, Cont. p. 1 52. Rem. 384. {h) Sec ante, pp. 175, 176. ■ (/) Ante, p. 259. 280 OF INCORPOKEAL HEPwEDlTAMEXTS. person to another, at the mercy of tlie springing uses, to which the seisin has been indissolubly united by the act of parliament ; accordingly it now happens that, by means of uses, the legal seisin or possession of lands may be shifted from one person to another in an endless variety of ways. "VVe hare seen {i), that a conveyance to B. and his heirs to hold from to-morrow, is absolutely void. But by means of shifting uses, the desired result may be accomplished ; for, an estate may be conveyed to A. and his heirs to the vise of the conveying party and his heirs until to-morrow, and Example:— To then to the use of B. and his heirs. A very common and his heirs iiistance of such a shifting use occurs in an ordinary until a mar- marriage settlement of lands. Supposing A. to be the after 'the mar- settlor, the lands are then conveyed by him, by the riage, to other settlement executed a day or two before the marriage, to the trustees (say B. and C. and their heirs) " to the use of A. and his heirs until the intended marriage 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 (A). 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 set- tlement. 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 marriasre. But the life estate (i) Ante, p. 259. (k) Ante, pp. 153, 181. OF AX EXECUTOEY INTEREST. 281 of D., the intended husband, is not an interest of the kind called a contingent remaindei*. For, the estate which precedes it, namely, that of A., is an estate in fee simple, after Avhich no remainder can be limited. The use to D. for his life springs up on the marriage taking place, and puts an end at once and for ever to the estate in fee simple which belonged to A. Here, then, is the destruction of one estate, and the substi- tution of another. The possession of A. is wrested from him by the use to D., instead of D.'s estate waiting till A.'s possession is over, as it must have done had it been merely a remainder. Another Another in- instance of the application of a shifting 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 Name and 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 defi- nite time, to assume the name and bear the arms, the lands will shift away from him, and vest in the person next entitled in remainder. From the above examples, an idea may be formed of the shifts and devices which can noAV 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 remain- ders, having until recently been destructible, would never have been made use of in modern conveyancing, but that every thing would have been made to assume the shape of an executory interest. This, however, is not the case. For, in many instances, future estates \ are necessarily required to wait for the regular expi- < ration of those which precede them ; and, when this is the case, no art or device can prevent such estates ■ 282 OF INCORPOREAL HEREDITAMENTS. No limitation construed as a shifting use which can be regarded as a remainder. from being what they are, coutingent remainders. The only thing that could fomierly be done, was to take care for their preservation, by means of trustees for that purpose. For, the law, having been acquainted with remainders long before uses Avere introduced into it, will never construe any limitation to be a springing or shifting use, which, by any fair interpretation, can be regarded as a remainder, whether vested or contingent (/). Scintilla juris. The establishment of shifting and contingent uses occasioned great difficulties to the 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 eifect. 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 ansAver 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 vested in B. But this doctrine, though strenuously main- tained 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 (0 Feame, Cont. Rem. 38G— 10 Bam. & Cres. 191, 197; 1 Prcst. 395, 526 ; Doe d. Harris v. Horvell, Abst. 1 30. OF AN EXECUTORY INTEREST. 283 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). And a final blow to the doctrine has now been given New enact- by a recent act of parliament (?0, which provides, that ™e°<^- Avhere by any instrument any hereditaments have been or shall be limited to uses, all uses thereunder, whether expressed or implied by law, and whether im- mediate 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 originally vested in the person seised to the uses ; and the 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. One of the most convenient and useful applications of springing uses occurs in the case of powers, which Powers, are methods of causing a use, with its accompanying estate, to spring up at the will of any given per- son (o) :— Thus, lands may be conveyed to A. and his Example. heirs to such uses as B. shall, by any deed or by his will, appoint, and in default of and until any such ap- pointment, to the use of C. 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 power of appointment. Here B., though not owner of the property, has yet the poAver, at any time, at once (;rt) Sug, Pow. 19, 8th cd. (") See Co. Litt. 271 b, n.(I), (n) Stat. 23 & 24 Vict. c. 38, VII., 1. s. 7. 284 OF INCORPOREAL HEREDITAMENTS. 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 Bankruptcy. power, he may dispose of it by his will. This power of appointment is evidently a privilege of great value ; and it is accordingly provided by the bankrupt act that the assignees of any person becoming bankrupt may exercise, for the benefit of his creditors, all powers (except the right of nomination to any vacant ecclesi- astical benefice) which the bankrupt might have ex- ercised for his own benefit (/>). If, however, in the case above mentioned, B. should not become bankrupt, and should die without having made any appointment by deed or will, C.'s estate, having escaped destruction, will no longer be in danger. In such a case a liability was until recently incurred by the estate of C. in respect of the debts of B. secured by any judgment, decree, order, or rule of any court of law or equity. These judgment debts, by an act of parliament i q), to which reference has before been made (r), were made binding on all lands over which the debtor should, at the time of the judgment, or at any time afterwards, have any disposing power, which he might, without the assent of any other person, exercise for his own benefit. Before this act was passed, nothing but an appointment by B. or his assignees, in exercise of his power, could have defeated or prejudiced the estate of C. And now, by New act. the act to which we have before referred for amending the law relating to future judgments {s), no judgment entered up after the 29th of July, 1864, the date of the act, can affect any land of whatever tenure, until such land shall have been actually delivered in execu- Judgment debts. {p) Stat. 12 & 13 Vict. c. 106, 6. 147, not repealed by stat. 24 & 25 Vict. c. 134. iq) Stat. 1 & 2 Vict. c. 110, ss. 11, 13. •(?•) Ante, pp. 80, 81. (s) Stat. 27 & 28 Vict. c. 112, ante, p. 83. OF AN EXECUTORY INTEREST. 28j tion by virtue of a writ of elegit, or other lawful authority, iu pursuance of such judgment. Suppose, however, that B. should exercise his power, Exerji- o^^^^^ and appoint the lands by deed to the use of D. and his heirs. In this case, the execution by B. of the instru- ment required by the power, is the event on which the use is to spring up, and to destroy the estate already existino-. The moment, therefore, that B. has duly executed his power of appointment over the use, in favour of D. and his heirs, D. has an estate m fee simple in possession vested in him, by virtue of the Statute of Uses, in respect of the use so appointed m his favour ; and the previously existing estate of O. is thenceforth completely at an end. The power of dis- Tl. P^wer .s position exercised by B. extends, it will 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 (f). If, therefore, B were to make an appointment of the lands, m 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 {u), is not executed, or made into a legal estate, by the Statute of Uses. E., therefore, would obtain no estate at law ; although the Court of Chancery would, in accordance Avith the expressed intention, consider him beneficially entitled, and would treat him as the owner of an equitable estate in fee simple, obliging D. to hold his leo-al estate merelv as a trustee for E. and his heirs. In the exercise of a power, it is absolutely necessary The^t™ a.d that the terms of the power, and all the formalities re- the power must be complied ■with. {t) See ante, pp. 153, 154. 00 Ante, p. 155. 286 OF INCOEPOEEAL HEEEDITAMENTS. Power to be exercised by writing under hand and seal, attested by witnesses. Stat. 54 Geo. III. c. 168. quired by it, should be strictly complied with. If the power should require a deed only, a loill will not do ; or, if a toill only, then it cannot be exercised by a deed (v), or by any other act, to take efi'ect in the life- time of the person exercising the power (x). So, if the power is to be exercised by a deed attested by two witnesses, then a deed attested by o?ie witness only will be insufficient (y). This strict compliance with the terms of the power was carried to a great length by the Courts of law ; so much so, that where a power was required to be exercised by a writing under hand and seal attested by toitnesses, the exercise of the poAver was held to be invalid if the witnesses did not sign a written attestation of the signature of the deed, as well as of the sealing (z). 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 attestation, 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 (a) was passed by which the defect thus arising was cured, as to all deeds and instruments, intended to exercise powers which were executed prior to the 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 Avhere the power was (w) 3Tajorihanhs v. Hovenden, 1 Drury, 11. {x) Sugd. Pow. 210, 8th ed. ; 1 Chance on Powers, ch. 9, pp. 273 et seq. (y) Sugd. Pow. 207 et seq., 8th ed.; 1 Chance on Powers, 331. (z) Wright v. WaJieford, 4 Taunt. 213; Doe d. Mansfield v. Peach, 2 Mau. & Selw. 57G ; Wright V. Barloro, 3 Mau. & Selw. 512. (a) 54 Geo. III. c. 168. OF AN EXECUTORY INTEREST. 287 to be exercised by writing under hand and seal, attested by witnesses (Z»\ It is, however, now pro- New enact- vided (c) that a deed executed after the 13th of ™^°*- August, 1859, in the presence of and attested by two or more witnesses in the manner in which deeds are ordinarily executed and attested, shall, so far as re- spects the execution and attestation thereof, be a valid execution of a poAver of appointment by deed or by any instrument in writing not testamentary, notwith- standing it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some addi- tional or other form of execution or attestation, or solemnity. Provided always, that this provision shall not operate to defeat any direction in the instrument creating the power that the consent of any particular person shall be necessary to a valid execution, or that any act shall be performed, in order to give validity to any appointment, having no relation to the mode of executing and attesting the instrument ; and nothing contained in the act is to prevent the donee of a power from executing it conformably to the power by writing, or otherwise than by an instrument exe- cuted and attested as an ordinary deed ; and to any such execution of a power this provision is not to extend. The strict construction adopted by the Courts of Equitable re- law, in the case of instruments exercising powers, is in 1^^.^°^^ execu-' some degree counterbalanced by the practice of the tion of powers. Court of Chancery to give relief in certain cases, when (&) See, however, Vincent v. hury, 10 Clark & Fin. 340; 6 Man. Bishop of Sodor and Man, 5 Ex. & Gran. 386. See also Ee Rick- Eep. 683, 693, in which case the eft's Trusts, 1 John. & H. 70, 72, Court of Exchequer intimated that affirmed in H. of L. as Kewton v. they considered the case of Wright L'ickctts, 9 li. of L. Cas. 262. V, ]Fa;t<'/<)?YZ,nowoverrt!ledbythe (c) Stat. 22 & 23 Vict. c. 35, case of Burdett v. Doe d. Spils- s. 12. 288 OF INCOEPOREAL HEREDITAMENTS. a power has been defectively exercised. If the Courts of law have gone to the very limit of strictness, for the benefit of the persons entitled in default of appoint- ment, the Court of Chancery, on the other hand, appears to have overstepped the proper boundaries of its jurisdiction in favour of the appointee {d). For, if the intended appointee be a purchaser from the person intending to exercise the power, or a creditor of such person, or his wife, or his child, or if the appointment be for a charitable purpose, — in any of these cases, equity Avill aid the defective execution of the power (e) ; in other words, the Court of Chancery 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. It is certainly hard that, for want of a little caution, a purchaser should lose his purchase or a creditor his security, or that a wife or child should be unprovided for ; but it may well be doubted whether it 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 the power), Avhich, if the poAver be not duly executed, has in fact never taken place. Exercise of The abovc remarks equally apply to the exercise of power by will. ^ power by will. Formerly, every execution of a power to appoint by will was obliged to be effected by a will conformed, in the number of its witnesses and other circumstances of its execution, to the requisitions of the poAver. But the act for the amendment of the laws with respect to wills (/) requires that all wills should be executed and attested in the same uniform {(l) See 7 Ves. 506; Sugd. Pow. p 488 et scq.; Luccna v. Lucena, 532 et seq , 8th ed. 5 Beav. 249. {e) Sugd. Pow. 534, 535, 8th (/) 7 Will. IV. & 1 Vict. c. 26. ed. ; 2 Chance on Powers, c. 23, OF AN EXECUTORY INTEREST. 289 ■vvay(^); and it accordingly enacts (//), tliat no ap- New enact- ])()inlment made by will in exercise of any poAver 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 ex- ecution and attestation thereof, be a valid execution of a power of appointment by Avill, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed Avith some additional or other form of execution or solemnity. These powers of appointment, viewed in regard to rowers of the individuals who are to exercise them, are a species pQ^^^pl^'l "'^1, of dominion over property, quite distinct from that ownership free right of alienation which has now become insepa- alienation in rably annexed to every estate, except an estate tail, respect of to which a modified right of alienation only belongs. As alienation by means of powers of appointment is of a less ancient date than the right of alienation annexed to ownership, so it is free from some of the incumbrances by which that right is still clogged. Thus a man may exercise a power of appointment in Appointments favour of himself or of his wife(/); although, as we Ei™J'"Trc have seen (/t), a man cannot directly convey, by virtue of his ownership, either to himself or to his wife. So we have seen (Z) that a married woman could not for- merly convey her estates without a fine, levied by her liusband and herself, in which she was separately examined; and now, no conveyance of her estates can be made without a deed, in Avhich her husband must concur, and which must be separately acknowledged by her to be her oavu act and deed. But a power of Married appointment either by deed or will, may be given to oTmise'"'^^ any woman ; and whether given to her Avhen married powers. ig) See ante, p. 196. («) Ante, pp. 181, 218. (70 Soot. 10. (/) Ante, pp. 221, 222. (/) Sii-il. Tiiw. 171, 8th cd. R.r. u 290 OF INCOEPOREAL HEREDITAMENTS. Infants" mai'- riage settle- ments. /Siff. or when single, she may exercise such a power without the consent of any husband to whom she may then or thereafter be married (m); and the power may be exercised in favour of her husband, or of any one else {n). The act of parliament to which we have before referred (o), for enabling infants to make binding settlements on their marriage, with the sanc- tion of the Court of Chancery, extends to property over which the infant has any power of appointment, unless it be expressly declared that the power shall not be exercised by an infant (j)). But the act pro- vides, 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 infant shall afterwards die under age, such appointment or disentailing assurance shall thereu]3on become absolutely void {cf). Ignorance of the nature of powers has caused disap- pointment of intention. The power to dispose of property independently of any ownership, though established for some three centuries, is at the present day frequently unknown to those to whom such a poAver may belong. This ignorance has often given rise to difficulties and the disappointment of intention in consequence of the execution of powers by instruments of an informal nature, particularly by wills, too often drawn by the parties themselves. 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 inten- tion, till lately, was defeated. For such a general devise was no execution of his power of appointment, but operated only on the j)roperty that was his own. (w) Boe d. Blomjicld v. Eyre, 8 C. B. 557; 5 C. B. 713. («) Sugd. Pow. 471, 8th ed. {o) Ante, p. 04. (p) Stat. 18 & 19 Vict. c. 43, s. 1. {q) Sect. 2. OF AX EXECUTORY INTEREST. 291 He ouglit to have given not only all that he had, but also all of which he had any power to dispose. The A general act for the amendment of the laws with respect to poin?mcnrnow wills (r) has now provided a remedy for such cases, executed by a . /\i iT-pi 1 general devise. by enactmg {s) that a general devise oi the real estate of a testator shall be construed to include any real estate which he may have power to appoint in any manner he may think j)roper (^), and shall operate as an execution of such power, unless a contrary inten- tion shall appear by the will. A power of appointment may sometimes belong to A power may a person concurrently with the ordinary power of yently^°vith " alienation arising from the ownership of an estate in ownership. the lands. Thus lands may be limited to such uses as A. shall appoint, and in default of and until appoint- ment to the use of A. and his heirs (m). And in such a case A. may dispose of the lands either by exercise of his power {x), or by conveyance of his estate (y). If he exercise his power the estate limited to him in default of appointment is thenceforth defeated and destroyed ; and, on the other hand, if he convey his a power may estate, his power is thenceforward extinguished, and be extm- ^ _ _ _ _ "^ _ guished or cannot be exercised by him in derogation of his own suspended by a conveyance. So if, instead of conveying his whole the^state^^ " estate, he should convey only a partial interest, his power would be suspended 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 (r) Stat. 7 Will. IV. & 1 Vict. dreU, 10 Ves. 246. c. 26. (x) Jloach v. Wadham, 6 East, (s) Sect. 27. 280. (t) Cloves \. A wdry, 12 BeaA-. (y) Cox \. Chamberlain, ^Ye^. 604. 631 ; Wynne v. Griffith, 3 Bing. (v) Sir Edward Clere'x ea.'!P,C, 179; 10 J. B. Moore, 592; 5 B. Rej). 17 b; Maundrell v. Mavn- & Cress. 923 ; 1 Russ. 283. u 2 292 OF INCORPOREAL HEREDITAMENTS. 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 iustrmneut employed is intended to operate. Under such circumstances it is very usual 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 convey- ance is of course inoperative {z) ; but if the power should by any means have been suspended or extin- guished, then the conveyance takes effect. The doctrine of powers, together with that of vested remainders, is 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 happens, it is vnshed 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, still remains subject to the ancient law ; and the inconvenience of taking the conveyance to the purchaser jointly with a trustee, for the purpose of barring dower, has also been pointed Mndem me- out (Z»). The modern method of effecting this object, dower. ^ ^^<1 ^^ ^^ Same time of conferring on the purchaser full power of disposition over the land, without the concurrence of any other person, is as follows : A general power of appointment by deed is in the first place given to the purchaser, by means of which he is enabled to dispose of the lands for any estate at any time during his life. In default of and until appointment, the land is then given to the purchaser for his life, and after the determination of his life (z) Ray V. Pung, 5 Mad. 310; (a) Ante, p. 223. 5 B. & Aid. 5G1 ; Doe d. Wigan {h) Ante, p. 225. V. Jones, 10 B. & Cress. 459. OF AN EXECUTORY INTEREST. 293 interest by any means in his lifetime, a remainder (which, as we have seen (c), is vested) is limited to a trustee and his heirs during the purchaser's life. This remainder is then followed by an ultimate remainder to the heirs and assigns of the purchaser for ever, or, Avhich is the same thing, to the purchaser, his heirs and assigns for ever (t/). These limitations are suf- ficient to prevent the Avife's right of dower from attaching. For the purchaser has not, at any time during his life, an estate of inheritance in possession, out of which estate only a Avife can claim dower (e) : he has 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 prevents, during the whole of the purchaser's lifetime, any union of this life estate and remainder {f). The lunitatlon to the heirs of the purchaser gives him, according to the rule in Shelley's case (^7), all the powers of disposition incident to ownership : though subject, as we have seen(/i), to the estate intervening between the limitation to the purchaser and that to his heirs. But the estate in the trustee lasts only during the purchaser's life, and during his life may at any time be defeated by an exercise of his power. A form of these uses to har dower, as they are called, Uses to bar will be found in the Appendix {i). As the estate of ^°^^^- the husband under these uses is partly legal and partly equitable, the Avife, if married after the 1st of January, 183-i, Avill not be barred of her doAver by these limi- tations (A); and if the deed is of a date previous to that day, even an express declaration contained in the (e) Ante, p. 258. {(,) Ante, pp. 24r,, 250. (cZ) Fcarne, Cont. T?cni..''>47, n.; (//) Ante, p. 2 i7. Co. Litt. 379 1), n. (1). (/) Sec Appendix (D). {e) Ante, p. 224. {k) Ante, \\ 227. (/) Ante, p. 273. 294 OF INCOEPOEEAL HEEEDITAMENTS. Special powers. Where the estate is of limited dura- tion. Power of leas- ing. deed that such was the intent of the uses will not be sufficient (/). 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: of this an example frequently occurs in the power of leasing which is given to every tenant for life under a properly drawn settlement. We have seen (m) that until recently a tenant for life, by virtue of his owner- ship, had no power to make any disposition of the pro- perty to take effect after his decease. He could not, therefore, grant a lease for any certain term of years, but only contingently on his living so long ; and even now he must apply to the Court ,of Chancery, unless he claims under a settlement made on or after the 1st of November, 1856, and wishes only to make a lease not exceeding twenty-one years. But if his life estate should be limited to him in the settlement by way of use, as is now always done, a power may be conferred on him of leasing the land for any term of years, and under whatever restrictions may be thought advisable. On the exercise of this power, a use will 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 continuance of the life of the tenant for life {n ). But if the lease attempted to be granted should exceed the duration authorized by the power, or in any other respect infringe on the restrictions imposed, it would be void altogether as an exercise of the power, and might until recently have been set aside by any person having the remainder or reversion, on the decease of (0 Fry V. KoUe, 20 Beav. 598; 7 De Gex, M. & G. 687; Clarke V. Franklin^ 4 Kay & J. 266. (?w) Ante, p. 26. (w) 10 Ves. 256. OF AN EXECUTOKY INTEREST. 295 the tenant for life. But by a recent act of parlia- ment (o) it is now provided, that such a lease, if made Relief against bona fide, and if the lessee have entered thereunder, fjfg'g^g'unj^.r shall be considered in equity as a contract for a grant, powers, at the request of the lessee, of a valid lease under the power, to the like purport and effect as such invalid lease, save so far as any variation may be necessary in order to comply with the terms of the power. But in case the reversioner is able and willing, during the continuance of the lessee's possession, to confirm the lease without variation, the lessee is bound to accept a confirmation accordingly; and such confirmation may be by memorandum or note in writing, signed by the persons confirming and accepting respectively, or some other persons by them respectively thereunto lawfully authorized (p). And the acceptance of rent by the reversioner will be deemed a confirmation of the lease as against him, if upon or before such accept- ance any receipt, memorandum or note in writing, confirming such lease, is signed by the person accepting such rent, or some other person by him thereunto lawfully authorized ((7). Another instance of a special poAver occurs in the Power of sale case of the power of sale and exchange usually ^^ ^^^ ^^^^' inserted in settlements of real estate. This power provides that it shall be lawful for the trustees of the settlement, with the consent of the tenant for life in possession under the settlement, and sometimes also at their oAvn discretion during the minority of the tenant in possession, to sell or exchange the settled lands, and for that purpose to revoke the uses of the settle- ment as to the lands sold or exchanged, and to appoint such other uses in their stead as may be necessary to (0) Stat. 12 & 13 Vict. c. 26, (jf) Stat. 13 & 14 Vict. c. 17, amended by stat. 13 & 14 Vict. s. 3. c. 17. (q) Sect. 2. 296 OF INCORPOREAL HEREDITAMENTS. New enact- ment. Relief against mistaken ]iay- ment by imr- fl laser. effectuate the transaction proposed. But it is pro- vided that the money to arise from any such sale, or which may be received for equality of exchange, shall be laid out in the purchase of other lands ; and that such lands, and also the lands which may be received in exchange, shall be settled by the trustees to the then subsisting uses of the settlement. It is further provided that, until a proper purchase can be found, the money may be invested in the funds or on mort- gage, and the income paid to the person who would have been entitled to the rents, if lands had been purchased and settled. The object of this power is to keep up the settlement, and at the same tune to ■facilitate the acquisition of lands which for any i-eason may be more desirable in lieu of any of the settled lands which it may be expedient to part with. The direction to lay out the money in the purchase of other lands makes the money, even before it is laid out, real estate in the contemplation of Courts of Equity (r): and though no land should ever be pur- chased, the parties entitled under the settlement will take in equity precisely the same estates in the invest- ments of the money, as they would have taken in any lands which might have been purchased therewith. The poAver given to the trustees to revoke the uses of the settlement and appoint new uses, enables them, by virtue of the Statute of Uses, to give the purchaser of the settled property a valid estate in fee simple, provided only that the requisitions of the power are complied Avith. And a recent enactment enables the Court of Chancery to relieve a bona fide purchaser under such a poAver, in case the tenant for life, or any other party to the transaction, shall by mistake have been alloAved to recei\'e for his oaa^i benefit a portion of the purcliasc-money, as the value of tlie timber or ()•) Ante, p. 159. OF AN EXECUTORY INTEREST. 297 Other articles (s). Previously to tins statute, the Courts of Equity had not considered themselves autho- rized to give relief in such a case {t). And a more New cnact- recent enactment (z^) embodies in the settlement the "J^" ' usual provisions, vsrhenever it is expressly declared aiui exchange therein that trustees or other persons therein named g^Jl^f^^^j"' or indicated shall have a power of sale either generally or in any particular event, or a power of exchange. But no sale or exchange under this act, and no pur- chase of hereditaments out of money received on any such sale or exchange, shall be made without the consent of the person appointed by the settlement to consent, or if no such person be appointed, then of the person entitled in possession to the receipt of the rents, if there be such a person under no disability. But this is not to be taken to require any consent where it appears from the settlement to have been intended that such sale, exchange or purchase should be made without any consent {x). And none of the powers of the act are to take effect or be exercisable if the settlement declares that they shall not take effect ; and where there is no such declaration, then if any variations or limitations of any of such powers are contained in the settlement, the same shall be exer- cisable or take effect subject to such variations or lunitations (y). Of this act it has been remarked by Remarks ou a great authority (r), that the option of declaring that ^ ^'^ '-^^^' the act shall not take effect " will probably be fre- quently acted upon, more particularly owing to the latter portion of the section ; for nothing can be more difficult, not to say dangerous, tliau an attempt to (*•) Stat. 22 & 23 Vict. c. 3.",, pt. 1. s. 13. (■?•) Seet. 10. (f) Coclicrell v. Chulmeky, 1 (y) Seet. 32. liiiss. & M. 418. (-) Lui'd St. Lcouarcls, Siigd. {n) Stat. 23 & 2i Vict. e. U5, Pow. 877, 8tli ed. 298 OF INCORPOREAL HEREDITAMENTS. amalgamate the powers in a settlement and the powers in the act, or to engraft the latter on the former. Where the settlement is purposely silent as to the powers conferred by the act, and the settlor approves of and chooses to rely upon them, the only incon- venience will be that the settlement itself will not inform the persons claiming imder it of the powers vested in them, but it will be necessary to refer to the act for the powers conferred by it." As to sales re- serving mine- rals. It was decided, in a recent case, that the ordinary power of sale and exchange contained in settlements does not authorize the trustees to sell the lands with a reservation of the minerals («). In consequence of this decision, which took the profession rather by sur- prise, an act was passed (b) which confirms all sales, exchanges, partitions and enfranchisements theretofore made, in intended exercise of any trust or power, of land, with an exception or reservation of minerals, or of the minerals separately from the residue of the land (c). And it is provided that for the future every trustee and other person authorized to dispose of land by way of sale, exchange, partition or enfranchise- ment, may, with the sanction of the Court of Chancery to be obtained on petition in a summary way, dispose of the land without the minerals, or of the minerals without the land, unless forbidden so to do by the in- strument creating the trust or power {d). When the objects are limited. Other kinds of special powers occur where the per- sons who are to take estates under the powers are limited to a certain class. Powers to jointure a Avife, and to appoint estates amongst children, are the most {a)I}uc7ilei/Y.IIo)veU,2dBea.y. (a) Sect. 1. 546. {fi) Sect. 2. (/^ Stat. 25 & 2G Yict. c. 103. OF AN EXECUTOliY INTEREST. 299 usual powers of this nature. When powers are thus The estates given in favour of particular objects, the estates which power take arise from the exercise of the power take effect pre- effect as if they cisely as if such estates had been inserted in the settle- serted in the ment by which the power Avas given. Each estate, as ■'^^ttlemeiit. it arises under the power, takes its place in the settle- ment 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 invalid in the original settlement, it will be equally invalid as the ofi'spring of the power (. l'J.">. (//) Bon'ifnrii v. Grecnfeld, OF AN EXECUTOEY INTEREST. 303 estates at law Avere also allowed to be created by will, and were invested with the same important attribute of indestructibility Avhich belongs to all executory interests. These future estates were called executory Executory devises, and in some respects they appear to have been Revises, more favourably interpreted than shifting uses con- tained in deeds {z), though generally sp'eaking 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 he 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 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 heirs, would have effected the same result. Not so, however, a direct conveyance independently of the Statute of Uses. A conveyance directly to A. and l.is heirs would vest in him an estate in fee simple, Cro. Eliz. 80; Co. Litt. 113a; see and Mr. Sanders (1 Sand. Uses, Mackintosh v. Barher, 1 Bing. 142, 143; 148, 5th ed.), and denied TiO. to be law by Mr. Butler (note (y) (;:) In the cases of Admns v. toFearne, Cont. Rem.p. 41). Mr. lavage (2 Lord Eaym. 855 ; 2 Preston also lays down a doctrine Salk. 679), and Rawleij \. Hoi- opposed to the above cases ( 1 Prest. land (22 Vin. Abr. 189, pi. 11), Abst. 114, 130, 131). SirEdwai-d limitations which would have been Sugden, however, suppoi'ts these valid in a will by way of executory cases, and seems sutficiontly to devise were held to be void in a answer Mr. Butler's objection, deed byway of shifting or spring- (Sugd. Gilb. Uses and Trusts, 35, iiig use. But these cases have note.) been doubted by INlr. Serjeant Hill 304 OF INCORPOREAL HEREDITAMENTS. after which no limitation conkl 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 the 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. Alienation of executoi y in- terests. Fx^mp]c. Sale or mort- gage for i)iiy- nient of debts. The alienation of an executory interest, before its becoming an actually vested estate, was formerly sub- ject to the same rules as governed the alienation of contingent remainders (a). But by the act to amend the law of real property, all executory interests may now be disposed of by deed {b). Accordingly, to take our last example, if a man should leave lands, by his will, to A. and his heirs, but in case A. should die under age, then to B. and his 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. 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 estate to convey (c). In order to facilitate the payment of debts out of real estate, it is provided, by modern acts of parliament, that when lands are by law, or by the will of their owner, liable to the payment of his debts, and are by the will vested in any person by way of executory devise, the first executory devisee, even though an infant, may convey the whole fee simple in order to (rt) Ante, p. 267. ih) St .at. 8 8i 9 Viet. e. 100, s, 0, repealing stat. 7 & 8 Vict. c. 7G, s. .5. (r) Ante. p. 2(58. OF AN EXECUTORY INTEREST. 305 carry into effect any decree for the sale or mortgage of the estate for payment of such debts {d). And this provision, so far as it relates to a sale, has recently been extended to the case of the lands having de- scended to the heir subject to an executory devise over in favour of a person or persons not existing or not ascertained (e). Section II. Of the Time within which Executory Interests must arise. Secondly, as to the time within which an executory The time •' , -r . • 1 . . 1 . within which estate or mterest must arise. It is evident that some an executory limit must be fixed ; for if an unlhnited time were ^[erest must allowed for the creation of these future and indestruc- tible estates, the alienation of lands might be hence- forward for ever prevented by the innumerable future estates which the caprice or vanity of some owners would prompt them to create. A limit has, therefore, been fixed on for the creation of executory interests; and every executory interest which might, under any circumstances, transgress this limit, is void altogether. With regard to future estates of a destructible kind, namely, contingent remainders, we have seen (/) that a limit to their creation is contained in the maxim, that no remainder can be given to the unborn child of a living person for his life, followed by a remainder to any of the issue of such unborn person :— the latter of such remainders being absolutely void. This maxim, it is evident, in effect, forbids the tying up of lands for a longer period that can elapse until the unborn child of some living person shall come of age ; id) Stat. 11 Geo. IV. & 1 Will. (0 «t"^- 1 1 & 12 Vict. c. 87. IV. c. 47. s. 12; 2 & 3 Vict. c. CO. (/) Ante, p. 2M. R.P. ^ 306 OF INCORPOKEAL HEEEDITAMENTS. Limit to tlie creation of executory inte- rests. Example. that is, for the life of a party now in being, and for twenty-one years after, — with a further period of a few months during gestation, supposing the child should be of posthumous birth. In analogy, there- fore, to the restriction thus imposed on the creation of contingent remainders {g), the law has fixed the fol- lowing limit to the creation of executory interests ; — it will allow any executory estate to commence Avithin the period of any fixed number of now existing lives, and an additional term of twenty-one years ; allowing further for the period of gestation, should gestation actually exist (Ji). This additional term of twenty-one years may be independent or not of the minority of any person to be entitled (/) ; and if no lives are fixed on, then the term of twenty-one years only is allowed {k). But every executory estate which might, in any event, transgress this limit, will from its commencement be absolutely void. For instance, a gift to the first son of A., a living person, who shall attain the age of twenty-four years, is a void gift(/). For if A. were to die, leaving a son a few months old, the estate of the son would arise, under such a gift, at a time exceeding the period of twenty-one years from the expiration of the life of A., which, in this case, is the life fixed on. But a gift to the first son of A. Avho shall attain the age of twenty-one years will be valid, as necessarily falling within the allowed period. When a gift is infected Avith the vice of its possibly exceeding the prescribed limit, it is at once and alto- gether void both at law and in equity. And even if. {g) Per Lord Kenyon, in Long V. BlacMll, 7 T. Rep. 102. See iilso 1 Sand. Uses, 197 (205, 5th ed.) {h) Fearne, Cent. Rem. 430 et seq. (0 CadnU V. Palmer, 7 Elijah, N. S. 202. {li) 1 Jarm. Wills, 230, 1st ed.; 205, 2nd ed.; 220, 3rd ed.; Lewis on Perpetuities, 172. (Z) Xeivman v. Xew^nan, 10 Sim. 51; 1 Jarm. Wills, 227, 1st ed. ; 208, 2nd ed.; 2.33, 3rd ed ; Grijfithw. Blunt, 4 Beav. 248. OF AN EXECUTORY INTEREST. 307 in its actual event, it should fall greatly within such limit, yet it is still as absolutely void as if the event had occurred which would have taken it beyond the boundary. If, however, the executory limitation Exception tj'j^'^'^^^"-'^ y • } ' _ T , 1 11 where preceded should be in defeazance of, or nnmediately preceaeci ^^ ^^ ggt^te by, an estate tail, then, as the estate tail and all taiL subsequent estates may be barred by the tenant in tail, the remoteness of the event on which the executory limitation is to arise will not affect its validity (m). In addition to the limit already mentioned, a fur- Restriction on :: . -, accumulaticn. ther restriction has been miposed by a modern act of parliament (w), on attempts to accumulate the income of property for the benefit of some future OAvner. This act was occasioned by the extraordinary will of the late Mr. Thellusson, who directed the in- Mr. M'^s- come of his property to be accumulated during the lives of all his children, grandchildren and great- grandchildren who were living at the time of his death, for the benefit of some future descendants to be living at the decease of the survivor (o) ; thus keeping strictly within the rule which allowed any number of existing lives to be taken as the period for an executory inte- rest. To prevent the repetition of such a cruel absurdity, the act forbids the accumulation of income Stat. 39 & 40 •' ' , 1 ,./. f .1 i. Geo, III. c. b8. for any longer term than the life of the grantor or settlor, or twenty-one years from the death of any such grantor, settlor, devisor or testator, or during the minority of any 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 (?h) Butler's note (A) to Fearne, c. 98; Fearne, Cont. Rem. 538, Cent. Rem. 562 ; Lewis on Per- n. {x). petuities, GG9. See ante, p. 278, (o) 4 Ves. 227 ; Fearne, Cont. ii_ (J). Rem. 436, note. {_,)) Stat. :l!1 & 10 rioo. in. X 2 308 OF INCORPOREAL, HEREDITAMENTS. tbe settlement or will, would for the time being, if of full age, be entitled to the income so directed to be accumulated {p). But the act does not extend {q) to any provision for payment of debts, or for raising por- tions for children (r), or to any direction touching the produce of timber or wood. Any direction to accu- mulate 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 {s). And if the direction to accumulate should exceed the limits allowed by law for the creation of executory interests, it will be void altogether, independently of the above act {{). Qj)) Wilson \. Wilson, I Sim. JRe Lad i/ Hosslyn's Trust, IG Sim. N. S. 288. . 391. (q) Sect. 3. (0 Lord SonthanqjtonY. Mar- (;■) See Halford v. Stains, 16 quis of Hertford, 2 Ves. & Bea. S\mA'>i8,^'d(}; BarringtonY. Lid- 54; Ker v. Lord Dungannon, 1 dell, 2 De Gex, M. & G. 480; Dr. & War. 509 ; Curtis Y.Lnkin, Edwards v. Tuck, 3 De Gex, M. 5 Beav. 147; Broughtony. James, & G. 40. 1 Coll. 26 ; Scarisbrick v. Shel- (s) 1 Jarm. Wills, 269, 1st ed.; mersdale, 17 Sim. 187. 250, 2nd ed. ; 286, 3rd ed. See ( 309 ) CHAPTER IV. OF HEREDITAMENTS PURELY INCORPOREAL. We now come to the consideration of incorporeal hereditaments, usually so called, Avhich, unlike a rever- sion, a remainder, or an executory interest, are ever of an incorporeal nature, and never assume a cor- poreal shape. Of these purely incorporeal heredita- Three kinds of meuts there are three kinds, namely, first, such as are |™|.g,^^ hercdi- apj^endant to corporeal hereditaments ; secondly, such tameuts. as are appurtenant ; both of which kinds of incor- poreal hereditaments are transferred simply by the conveyance, by whatever means, of the corporeal hereditaments to which they may belong ; and, thirdly, such as are in gross, or exist as separate and inde- pendent subjects of property, and which are accord- ingly 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 appen- dant to such as are corporeal, the first we shall consider is a seignory or lordship. In a previous part of our A seignoiy. work (J)) we have noticed the origin of manors. Of eucli of the lands belonging to a manor as the lord granted out in fee shnple to his free tenants, nothing remained to him but his seignory or lordship. By 00 Ante, p. 229. {h) Ante, \\ 114. 310 OF INCORPOREAL HEREDITAMENTS. the grant of au estate iu fee simple, lie necessarily parted with the feudal possession. Thenceforth his interest, accordingly, became incorporeal in its nature. But he had no reversion ; for no reversion can remain, as we have already seen (c), after an estate in fee simple. The grantee, however, became his tenant, did to him fealty, and paid to him his rent-service, if any Avere agreed for. This sim2:)ly 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 manor of the lord, who had made the grant ; whilst the land granted out was said to be holden of the manor. Very many grants were thus made, until the passing of the statute of Quia emptores (cZ) put an end to these creations of tenancies in fee simple, by directing that, on every such conveyance the feoffee should hold of the same chief lord as his feoffor held before (e). But such tenancies in fee simple as were then already sub- sisting were left untouched, 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 the tenure of an estate in fee simple. The corre- lative 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 con- veyance of the manor simply, without mentioning its appendant seignories, will accordingly comprise the seignories, together with all rents incident to them {f). Attornment. In ancient times it was necessary that the tenants should attorn to the feoffee of the manor, before the rents and services could effectually pass to him (y). (c) Ante, p. 242. (/) Perk, s. 116. id) 18 Edw. I. e. 1. (^g) Co. Litt. 310 b. (f-) Ante, pp. 60, 113. OF HEREDITAMENTS PURELY INCORPOREAL. 31 1 For, in this respect, the owner of a seignory was in the same position as the owner of a reversion (h). But tlie same statute (?) which abolished attornment in the one case abolished it also in the other. No attornment, therefore, is now required. Other kinds of appendant incorporeal hereditaments Eights of com- are rights of common, such as common of turhary, or a right of cutting turf in another person's land; common of piscary, or a right of fishing in another's water ; and common of pasture, which is the most usual, being Common of a right of depasturing cattle on the land of another. ^^^ "'^^" The rights of common now usually met with are of two kinds ; one Avhere the tenants of a manor j)ossess rights of common over the wastes of the manor, which belong to the lord of the manor, subject to such rights (A) ; and the other, where the several owners of strips of land, composing together a common field, have at certain seasons a right to put in cattle to range over the whole. The iuclosure of commons, so frequent of Commons, late years, has rendered much less visual than formerly the right of common possessed by tenants of manors over the lord's Avastes. These inclosures Avere formerly eifected by private acts of parliament, obtained for the purpose of each particular inclosure, subject to the ju'ovisions of the general inclosure act(/), Avhich con- tained general regulations applicable to all. But by an act of parliament of the present reign (w) commis- (70 Ante, p. 237. c. Ill ; 11 & 12 Vict. c. 99; 12 (0 Stat. 4 & 5 Anne, c. 16, & 13 Vict. c. 83; 15 & 16 Vict. s. 9; ante, p. 238. c. 79; 17 & 18 Vict. c. 97; 20 & (/.•) Ante, p. 114. 21 Vict. c. 31; and 22 & 23 Vict. (Z) 41 Geo. III. c. 109; sec also c. 43; and continued by stats. 14 stats. 3 & 4 Will. IV. c. 87; 3 & 4 & 15 Vict. c. 53 ; 21 & 22 Vict. Vict. c. 31. c. 53 ; 23 & 24 Vict. c. 81 ; (w) Stat. 8 & 9 Vict. c. 118, and 25 & 26 Vict. c. 73. The amended and extended hy stiits. stat. 8 & 9 Vict. c. 118, contains 9 & 10 Vict. c. 70; 10 & 11 Vict. (sect. 147) a remarkably useful 312 OF INCORPOREAL HEREDITAMENTS. Inclosurc Commis- sioners. Drainage. Metropolitan commons. sioners have been appointed, styled tlie Inclosure Commissioners for England and Wales, under whose sanction inclosures may now be more readily effected, several local inclosures being comprised in one act. The same commissioners have also been invested with powers for facilitating the drainage of lands {n). And by a recent act provision has been made for the improvement, protection and management of commons near the metropolis, by means of schemes for the pur- pose, to be certified by the Inclosure Commissioners and confirmed by act of parliament (o). The rights Common fields, of common possessed by owners of land in common fields, however useful in ancient times, are now found greatly to interfere with the modern practice of hus- bandry ; and acts have accordingly been recently passed to facilitate the exchange {p) and separate in- closure ((/) of lands in such common fields. Under the provisions of these acts, each owner may now obtain a separate parcel of land, discharged from all rights of common belonging to any other person. The rights of common above spoken of, being appendant to the lands in respect of which they are exercised, belong to the lands of common right (r), by force of the common provision, authorizing exchanges of lands whether inclosed or not. And this provision has since heen extended to partition between owners of undivided shares (stat. 11 & 12 Vict. c. 90, s. 13, ante, p. 13.5) and to other hereditaments, rights and easements (stat. 12 & 13 Vict. c. 83, s. 7), and in other respects (see stats. 15 & IG Vict. c. 79, ss. 31, 32 ; 17 & 18 Vict. c. 97, ss. 2, 5; 20 & 21 Vict. c. 31, ss. 4—11 ; 22 & 23 Vict. c. 43, ss. 10, 11). Socage lands maybe ex- changed ft)r gavelkind. Minet v. Lpman, 20 Beav. 209; 7 De Gex, M. & G. 340. («) Stat. 10 & 11 Vict. c. 38; see also the statutes mentioned, ante, pp. 29, 30. (f)) Stat. 29 & 30 Vict. c. 122. (^;) Stat. 4 & .5 Willi V. c. 30. (^) Stat. 6 & 7 Will. IV. c. 115, extended by stat. 3 & 4 Vict. c. 31. See also stats. 8 & 9 Vict. c. 118; 9 & 10 Vict. c. 70 ; 10 & 11 Vict. c. Ill; 11 & 12 Vict. c. 99; 12 & 13 Vict. c. 83 ; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict. c. 31. (r) Co. Litt. 122a; Bac. Abr. tit. Extinguishment (C). See, OF HEREDITAMENTS PURELY INCORPOREAL. 313 law alone, and not by virtue of any grant, express or implied. And any conveyance of the lands to which such rights belong will comprise such rights of common also {s). Another kind of appendant incorporeal here- ^/j^7^°" ^^'- ditament is an advowson appendant to a manor. ^ But on this head we shall reserve our observations till we speak of the now more frequent subject of conveyance, an advowson m (/ross, or an advowson unappended to any thing corporeal. In connection with the subject of commons, it may Strips of waste -'' ■,-,-,. by the side of be mentioned that strips of waste land betAveen an ^.^^^^^ inclosure and a highway, and also the soil of the high- way to the middle of the road, presumptively belong to the owner of the inclosure (t). And a conveyance of the inclosure (u), even by reference to a plan which does not comprise the highway (v), will carry Avith it the soil as far as one-half the road. But if the strips of waste land communicate so closely to a common as in fact to form part of it, they will then belong to the lord of the manor, as the owner of the common (w). Where a public way is foundrous, as such ways frequently were in former times, the public have by the common law a right to travel over the adjoining lands, and to break through the fences for that pur- pose {x). It is said that in former times the landowners, to prevent their fences being broken and their crops spoiled when the roads were out of repair, set back however, Lord D>i nra ven v. Llcw- Qr) Berrldgc v. Ward, C. P. 30 ellyn, 15 Q. B. 791, ante, p. lU, L. J, C. P. 218; 10 C. B., N. S. n.O") 400. (s) Litt. s. 183; Co. Litt. 121 b. (w) Grose v. West, 7 Taunt. {t) Doe a. Prlnff v. Pearsci/, 7 39; Doe d. Barrett v. Kemp, 2 B. & C. 304; Scoones v. Morrrll, Bing. N. C. 102. 1 Beav. 251. (•'") <^o"i- ^'S- ^"^ Chimin, {„) Sh>i/>so)>\'. neiid>/,S('.V,., (IX fi); Pnn-es v. TTan-liins, 8 N. S. 433. " C. B., N. S. 848. 314 OF INCORrOKEAL HEEEDITAMENTS. their hedges, leaving strips of waste at the side of the road, along which the public might travel without going over the lauds under cultivation. Hence such strips are presumed to belong to the owners of the Soil of river, lands adjoining (y). Where lands adjoin a river, the soil of one-half of the river to the middle of the stream is presumed to belong to the owner of the adjoining lands (ir). But if it be a tidal river, the soil up to high water mark appears presumptively to belong Sea-shore. to the Crown (a). The Crown is also presumptively entitled to the sea-sliore up to high water mark of medium tides {b) ; although grants of parts of the sea- shore have not uufrequently been made to subjects (c); and such grants may be presumed by proof of long continued and uninterrupted acts of ownership (?t v. 6r(/«.ww, Q. B., 6 Jur.,N. S. Cro. & M. 439. See »S.?.o James 1053; Bairdy. Fortune, H. L. 10 V. Plant, 4 Adol. & Ellis, 749; AV.R.2; Wardley.Brochlehurst, Hincliliffe y. Earl of Kiimoul, 5 1 Ellis & Ellis, 1058. 316 OF INCORPOREAL HEREDITAMENTS. mises, but also such as may be therewith used or enjoyed (/). 3. Such incorporeal hereditaments as stand separate and alone are generally distinguished from those which are appendant or appurtenant, by the appellation in A seignory in gross. Of these the first we may mention is a seignory gross. ^.^ gross, which is a seignory that has been severed from the demesne lands of the manor, to which it was anciently appendant (jn). It has now become quite unconnected with any thing corporeal, and, existing as a separate subject of transfer, it must be conveyed by deed of grant. Eent seek. The next kind of separate incorporeal hereditament is a rent seek, {reclditus siccus,) a dry or barren rent, so called, because no distress could formerly be made for it (n). This kind of rent affords a good example of the antipathy of the ancient law to any inroad on the then prevailing system of tenures. If a landlord granted his seignory, or his reversion, the rent ser- vice, which was incident to it, passed at the same time. But if he should have attempted to convey his rent, independently of the seignory or reversion, to which it was incident, the grant would have been effec- tual to deprive himself of the rent, but not to enable his grantee to distrain for it (o). It would have been a rent seek. Rent seek also occasionally arose from grants being made of rent charges, to be hereafter explained, without any clause of distress (/;). But now, by an act of Geo. II. (q) a remedy by distress is given for rent seek, in the same manner as for rent reserved upon lease. (0 Ante, p. 183. (") Litt. ss. 225, 226, 227, 228, (w.) ] Scriv. Cop. 5. 572. in.) Litt. s. 218. (j>) Litt. ss. 217, 218. iq) Stat. 4 Geo. XL c. 28, s. 5. OF HEREDITAMENTS PURELY INCORPOREAL. 317 Another important kind of separate incorporeal A rent charge. hereditament is a rent charge, Avhich arises on a grant by one person to another, of an annual sum of money, payable out of certain lands in which the grantor may have any estate. The rent charge cannot, of course, continue longer than the estate of the grantor ; but, supposing the grantor to be seised in fee simple, he may make a grant of a rent charge for any estate he pleases, giving to the grantee a rent charge for a term of years, or for his life, or in tail, or in fee simple (r). For this purpose a deed is absolutely ^^J^^^'^'^^" necessary ; for a rent charge, being a separate incor- "^"^^^ ' poreal hereditament, cannot, according to the general rule, be created or transferred in any other way {s), unless indeed it be given by will. The creation of a rent charge or annuity, for any life or lives, or for any term of years or greater estate determinable on any life or lives, was also, until recently, required, under certain circumstances, to be attended with the inrolment, in the Court of Chancery, of a memorial inrolment of .1 mi V « A.^ memorial of of certam particulars. These annuities weie lie- ^^^^^^^^^^^3^^ quently granted by needy persons to money lenders, l^^e^^g;^;*^;^^ in consideration of the payment of a sum of money, consideration. for which the annuity or rent charge served the pur- pose of an exorbitant rate of interest. In order, therefore, to check these proceedings by giving them publicity, it was provided that, as to all such annui- ties, granted for pecuniary consideration or money's worth {{), (unless secured on lands of equal or greater annual value than the annuity, and of Avhich the grantor was seised in fee simple, or fee tail in pos- session,) a memorial stating the date of the instru- ment, the names of the parties and witnesses, the per- (r) Litt. ss. 217, 218. Mee. & Rose. 110 ; Few v. Back- (.s) Litt. ubi sup. hovse, 8 Ad. & Ell. 789; S. C. 1 (0 Tctley V. Tetlaj, 4 Bing. Per. & Dav. 34; Doe d. Chnrch, 214 ; Mesiaycr v. niijfia, 1 Cro. v. Ponilfex, C. B. 229. 6 lb OF INCORPOREAL HEREDITAMENTS. sons for whose lives the annuity was granted, the person by whom the same was to be beneficially received, the pecuniary consideration for granting the same, and the annual sum to be paid, should, within thirty days after the execution of the deed, be inrolled in the Court of Chancery; otherwise the same should be null and void to all intents and Now unneces- purposes (m). But as these annuities were only ^^^' granted for the sake of evading the Usury Laws, the same statute which has repealed those laws (x) has also repealed the statutes by which memorials of such Registration of annuities were required to be inrolled. A subse- required. quent statute, however, provides, that any annuity or rent charge granted after the 26th of April, 1855, the date of the passing of the act, otherwise than by marriage settlement or will, for a life or lives, or for any estate determinable on a life or lives, shall not affect any lands, tenements or hereditaments, as to purchasers, mortgagees, or creditors, until the parti- culars mentioned in the act are registered in the Court of Common Pleas, where they are entered in alpha- betical order by the name of the person whose estate is intended to be affected (t/). A search for annuities is accordingly made in this registry on every purchase of lands, in addition to the searches for judgments, crown debts, executions and lis pendens {z). Creation of In settlements where rent charges are often given iiiKici tiu^sta- by way of pin-money and jointure, they are usually tutc of Uses, created under a provision for the purpose contained in the Statute of Uses (a). The statute directs that, (?/) Stat. 53 Geo. III. c. 141, («) Stat. 17 & 18 Vict. c. 90. explained and amended by stats. (//) Stat. 18 & 19 Vict. c. 15, 3 Geo. IV. c. 92, and 7 Geo. IV. ss. 12, U. c. 75, whicli rendered sufficient a (z) Ante, pp. 82, 83, 85, 87. memorial of the names of the wit- («) Stat. 27 Hen. VIII. c. 10, nesses as they appeared signed to ss. 4, 5. their attestations. OF HEREDITAMENTS PURELY INCORPOREAL. 319 where any persons shall stand seised of any lands, tenements, or hereditaments, in fee simple or other- wise, to the use and intent that some other person or persons shall have yearly to them and their heirs, or to them and their assigns, for term of life, or years, or some other special time, any annual rent, in every such case the same persons, their heirs and assigns, that have such use to have any such rent shall be adjudged and deemed in possession and seisin of the same rent of such estate as they had in the use of the rent ; and they may distrain for non-payment of the rent in their own names. From this enactment it follows, that if a conveyance of lands be now made to A. and his heirs, — to the use and intent that B. and his assigns may, during his life, thereout receive a rent charge, — B. will be entitled to the rent charge, in the same manner as if a grant of the rent charg-e had been duly made to him by deed. The above enactment, it will be seen, is similar to the prior clause of the Statute of Uses relating to uses of estates {b), and is merely a carrying out of the same design, which was to render every use, then cognizable only in Chancery, an estate or interest within the jurisdiction of the courts of law (c). But in this case also, as well as in the former, the end of the statute has been defeated. For a conveyance of land to A. and his heirs, to the use that B. and his heirs may receive a rent charge, in trust for C. and his heirs, will now be laid hold of by the Court of Chancery for C.'s benefit, in the same manner as a trust of an estate in the land itself. The statute vests the legal estate in the rent in B. ; and C. takes nothing in a court of law, because the trust for him Avould be a use upon a use {d). But C. has the entire beneficial interest ; for (J) Ante, p. 152. {d) Ante, p. L55. (c) Ante, p. 154. 320 or INCORPOREAL HEREDITAMENTS. he is possessed of the rent charge for an equitable estate in fee simple. Clause of dis- In ancient times it was necessary, on every grant of a rent charge, to give an express power to the grantee to distrain on the premises out of which the rent charge was to issue {e). If this power were omitted, the rent was merely a rent seek. Rent service, being an inci- dent of tenure, might be distrained for by common rio-ht; but rent charges were matters the enforce- ment of which was left to depend solely on the agree- ment of the parties. But since a power of distress has been attached by parliament (/) to rents seek, as well as to rents service, an express power of dis- tress is not necessary for the security of a rent charge {g). Such a power, however, is usually o-ranted in express terms. In addition to the clause of distress, it is also usual, as a further security, to Power of entiy. give to the grantee a power to enter on the premises after default has been made in payment for a certain number of days, and to receive the rents and profits until all the arrears of the rent charge, together with all expenses, have been duly paid. Estate for life Incorporeal hereditaments are the subjects of estates analogous to those which may be holden in corporeal hereditaments. If therefore a rent charge should be o-ranted for the life of the grantee, he will possess an estate for life in the rent charge. Supposing that he should alienate this life estate to another party, with- out mentioning in the deed of grant the heirs of such party, the law formerly held that, in the event of (e) Litt. s. 218. ig) Saward v. Anstey, 2 Bing. (/) Stat. 4 Geo. II. c. 28, s. 5. 519; Bufteri/ v. liobinso>i,3Bms. Sec Johnson v. Faulkner, 2 Q. B. 392; Bodds v. Tlwmpson, L. Rep. 92.5, 935; Miller v. Green, 8 Bing. 1 C. P. 133. 92 ; 2 Cro. & Jew. 142 ; 2 Tyr. 1. in a rent charge. OF HEREDITAMENTS PURELY INCORPOREAL, 321 the decease of the second grantee in the lifetime of the former, the rent charge became extinct for the benefit of the owner of the lands out of which it issued (A). The former grantee was not entitled because he had parted with his estate ; the second grantee was dead, and his heirs were not entitled because they were not named in the grant. Under similar circumstances, we have seen {i) that, in the case of a grant of corporeal hereditaments, the first person that might happen to enter upon the premises after the decease of the second grantee had formerly a right to hold possession during the remainder of the life of the former. But rents and other incorporeal hereditaments are not in their nature the subjects of occupancy (A); they do not lie exposed to be taken possession of by the first passer by. It was accord- ingly thought that the statutes, which provided a remedy in the case of lands and other corporeal here- ditaments, were not applicable to the case of a rent charge, but that it became extinct as before men- tioned (/). By a modern decision, however, the con- struction of these statutes was extended to this case also(»i); and now the act for the amendment of the Newenact- laws with respect to wills (ji), by which these statutes "^^^* Tir autre have been repealed (o), permits every person to dis- vie. pose by will of estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be a corporeal or an incor- poreal hereditament (j»); and in case there shall be no special occupant, the estate, whether corporeal or incorporeal, shall go to the executor or adminis- trator of the i^arty ; and coming to him, either by (A) Bac.Abr. tit. Estate for Life (m) BearparTi y. Hutchinson, and Occupancy (B). 7 Bing. 178. (i) Ante, p. 20. («) 7 Will. IV. & 1 Vict. c. 2G. {k) Co. Litt. 41 b, 388 a. (o) Sect. 2. (Z) 2 Black. Com. 260. {p) Sect. 3. R.P. Y 322 OF INCOEPOREAL HEEEDITAMENTS. reason of a special occupancy, or by virtue of the act, it shall be applied and distributed in the same manner as the personal estate of the testator or intestate {q). A grant of an estate tail in a rent charge scarcely ever occurs in practice. But grants of rent charges Estate in fee for estate in fee simple are not uncommon, especially r™t charge. ^^ ^^^ towns of Liverpool and Manchester, where it is the usual practice to dispose of an estate in fee simple in lands for building purposes in consideration of a rent charge in fee simple by way of ground rent, to be granted out of the premises to the original owner. These transactions are accomplished by a conveyance from the vendor to the purchaser and his heirs, to the use that the vendor and his heirs may thereout receive the rent charge agreed on, and to the further use that, if it be not paid within so many days, the vendor and his heirs may distrain, and to the further use that, in case of non-payment -within so many more days, the vendor and his heirs may enter and hold possession till all arrears and expenses are j^aid ; and subject to the rent charge, and to the powers and remedies for securing payment thereof, to the use of the purchaser, his heirs and assigns for ever. The purchaser thus acquires an estate in fee simple in the lands, subject to a perpetual rent charge payable to the vendor, his heirs and assigns (r). It should, however, be care- fully borne in mind, that transactions of this kind are very diflferent from those grants of fee simple estates which were made in ancient times by lords of manors, and from which quit or chief rents have arisen. These latter rents are rents incident to tenure, and may be distrained for of common right without any (q) 7 Will. IV. & 1 Vict. c. 26, s. 6 ; Reynolds v. Wright, 2b Beav. 100. (r) By Stat. 17 & 18 Vict. c. 83, conveyances of any kind, in con- OF HEREDITAMENTS PURELY INCORPOREAL. 323 express clause for the purpose. But as we have seen(s), since the passing of the statute of Quia emp- tores (0 it has not been lawful for any person to create a tenure in fee simple. The modern rents, of which we are now speaking, are accordingly mere rent charges, and in ancient days would have required express clauses of distress to make them secure. They were formerly considered in law as against common right { u), that is as repugnant to the feudal policy, which encouraged such rents only as Avere incident to tenure. A rent charge was accordingly regarded as a thing entire and indivisible, unlike rent service, which was capable of apportionment. And from this property of a rent charge, the law, in its hostility to such charges, drcAV the following conclusion : that if any part of the land, out of which a rent charge issued, a release of were released from the charge by the owner of the ^^^ ^^^^^ rent, either by an express deed of release, or virtually release of the by his purchasing part of the land, all the rest of the land should enjoy the same benefit and be released also {v). If, however, any portion of the land charged Apportion- should descend to the owner of the rent as heir at law, ™escentof part the rent would not thereby have been extinguished, of the land. sideration of an annual sum payable in perpetuity, or for any indefinite period, are subject to the following duties: — Where the yearly sum shall not exceed £5 £0 6 Shall exceed £5 and not exceed 10 12 J) 10 „ 15 18 ,, 15 20 1 4 .•) 20 25 1 10 J) 25 50 3 )> 50 75 4 10 » 75 100 6 And when the sum shall exceed £100, then for every £50, and also for any fractional part of £50 . . . . . .. 3 (s) Ante, pp. 60, 113 (f) Litt . s. 222 ; Dennett it) 18 Edw. L c. 1. Pass, 1 New Cases, 388. (w) Co. Litt. 147 b. Y 2 324 OF INCORPOEEAL HEREDITAMENTS. New enact- ment; release not now an extinguish- ment. Apportion- ment by In- closure Com- missioners. as in the case of a purchase, but would have been apportioned according to the value of the land ; because such portion of the land came to the owner of the rent, not by his own act, but by the course of law (x). But it is now provided (y), that the release from a rent charge of part of the hereditaments charged therewith shall not extinguish the whole rent charge, but shall operate only to bar the right to recover any part of the rent charge out of the here- ditaments released ; without prejudice, nevertheless, to the rights of all persons interested in the heredita- ments remaining unreleased, and not concurring in or confirming the release. A recent statute empowers the Inclosure Commissioners to apportion rents of every kind on the application of any persons interested in the lands and in the rent (2'). Bankruptcy of owner of land subject to per- petual rent. By the act to amend and consolidate the laws re- lating to bankrupts (a), the assignees of any bankrupt ha\dng any land under a conveyance to him in fee, or under an agreement for any such conveyance, subject to any jjerpetual yearly rent reserved by such con- veyance or agreement, may elect to take or to decline the same ; and any person entitled to the rent is empowered to oblige them to exercise this option, if they do not do so when required. If they elect to take the land, the bankrupt is discharged from liability to pay any rent accruing after the filing of the petition for adjudication of bankruptcy. If they decline to take the land, the bankrupt will not be liable if, Avithin fourteen days after he shall have had notice that the assignees have declined, he shall (a;) Litt. s. 224. (y) Stat. 22 & 23 Vict. c. 35, s. 10. . (z) Stat. 17 & 18 Vict. c. 97, ss. 10—14. (a) Stat. 12 & 13 Vict. c. 106, s. 145 ; not repealed by stat. 24 & 25 Vict. c. 134. OF HEREDITAMENTS PURELY INCORPOREAL. 325 deliver up such conveyance or agreement to the person then entitled to the rent. This clause seems to have been drawn under a misconception of the nature of these rent charges ; for the oAvner of such a rent has no estate in the land, and in order to acquire any estate therein, he should obtain not merely the delivery up of the old conveyance to the bankrupt, but also a conveyance of the fee simple of the land itself from the bankrupt to him. The rent charges of which we are speaking are Exoneration of n p ,1 T 1 , n . executors and usually lurther secured by a covenant lor payment, administrators entered into by the purchaser in the deed by which from liability T T T 1 to pay rent they are granted. In order to exonerate the execu- charges. tors or administrators of such a purchaser from per- petual liability under this covenant, it is now provided (Z*) that where an executor or adminis- trator, liable as such to the rent or covenants contained in any conveyance on chief rent or rent charge, or agreement for such conveyance, granted to or made with the testator or intestate whose estate is being administered, shall have satisfied all then subsisting liabilities, and shall have set apart a suf- ficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum agreed to be laid out on the property (although the period for laying out the same may not have arrived), and shall have conveyed the property, or assigned the agreement to a purchaser, he may distribute the residuary personal estate of the deceased without appropriating any part thereof to meet any future liability under such conveyance or agreement. But this is not to prejudice the right of the grantor or those claiming under him to follow the assets of the (b) Stat. 22 & 23 Vict. c. 35, s. 28. 326 OF INCORPOEEAL HEREDITAMENTS. deceased into the hands of the persons amongst whom such assets may have been distributed. Incorporeal hereditaments subject, as far as possible, to the same rules as corporeal hereditaments. Tenure an ex- ception. Although rent charges and other self-existing in- corporeal hereditaments of the like nature are no favourites with the law, yet, whenever it meets with them, it applies to them, as far as possible, the same rules to which corporeal hereditaments are subject. Thus, we have seen that the estates which may be held in the one are analogous to those which exist in the other. So estates in fee simple, both in the one and in the other, may be aliened by the owner, either in his lifetime or by his will, to one person or to several as joint tenants or tenants in common (c), and, on his intestacy, will descend to the same heir at law. But in one respect the analogy fails. Land is essentially the subject of tenure ; it may belong to a lord, but be holden by his tenant, by whom again it may be sub- let to another ; and so long as rent is rent service, a mere incident arising out of the estate of the payer, and belonging to the estate of the receiver, so long may it accompany, as accessory, its principal, the estate to which it belongs. But the receipt of a rent charge is accessory or incident to no other heredita- ment. True a rent charge springs from and is there- fore in a manner connected with the land on which it is charged; but the receiver and owner of a rent charge has no shadow of interest beyond the annual payment, and in the abstract right to this payment his estate in the rent consists. Such an estate therefore cannot be subject to any tenure. The owner of an estate in a rent charge consequently owes no fealty to any lord, neither can he be subject, in respect of his estate, to any rent as rent service ; nor, from the (c) Rivis T. Watson, 5 M. & W. 255. OF HEREDITAMENTS PURELY INCORPOREAL. 327 nature of the property, could any distress be made for such rent service if it were reserved (d). So, if the owner of an estate in fee simple in a rent charge should die intestate, and without leaving any heirs, his estate cannot escheat to his lord, for he has none. It will simply cease to exist, and the lands out of which it was jDayable will thenceforth be discharged from its payment (e). "Another kind of separate incorporeal hereditament Common in which occasionally occurs is a right of common m S^oss. gross. This is, as the name implies, a right of com- mon over lands belonging to another person, possessed by a man, not as appendant or appurtenant to the ownership of any lands of his own, but as an inde- pendent subject of property (/). Such a right of common has therefore always required a deed for its transfer. Another important kind of separate incorporeal Advowsons. hereditament is an advoAvson in gross. An advowson is a perpetual right of presentation to an ecclesiastical benefice. The owner of the advowson is termed the patron of the benefice ; but, as such, he has no pro- perty or interest in the glebe or tithes, which belong to the incumbent. As patron he simply enjoys a right of nomination from time to time, as the living becomes vacant. And this right he exercises by a presentation Presentation, to the bishop of some duly qualified clerk or clergy- man, whom the bishop is accordingly bound to institute Institution. to the benefice, and to cause him to be inducted into Induction. (). Advowsons are principally of two kinds,— ad vow- History of ^ \ r • rru advowsons of sons of rectories, and advowsons ot vicarages, ine rectories. history of advowsons of rectories is in many respects similar to that of rents and of rights of common. In the very early ages of our history advowsons of rectories appear to have been almost always appendant to some manor. The advowson was part of the manorial pro- perty of the lord, who built the church and endowed it with the glebe and most part of the tithes. The seignories in respect of which he received his rents were another part of his manor, and the remainder principally consisted of the demesne and waste lands, over the latter of which we have seen that his tenants enjoyed rights of common as appendant to their estates ( q). The incorporeal part of the property, both of the lord and his tenants, was thus strictly appendant or incident to that part which was cor- poreal; and any conveyance of the corporeal part naturally and necessarily carried with it that part which was incorporeal, unless it were expressly ex- cepted. But, as society advanced, this simple state of things became subject to many innovations, and in various cases the incorporeal portions of property be- came severed from the corporeal parts, to which they had previously belonged. Thus we have seen (r) that the seignory of lands was occasionally severed from the corporeal part of the manor, becoming a seignory in gross. So rent was sometimes granted independently of the lordship or reversion to which it had been inci- dent, by which means it at once became an independent (o) Stat. 9 Geo. IV. c. 9i, s. 4. (q) Ante, pp. 114, 30D. (j>) Sect. 5. (?•) Ante, p. 316. 330 OF INCORPOREAL HEREDITAMENTS. incorporeal hereditament, under the name of a rent seek. Or a rent might have been granted to some other person than the lord, under the name of a rent charge. In the same way a right of common might have been granted to some other person than a tenant of the manor, by means of which grant a separate in- corporeal hereditament would have arisen, as a common in gross, belonging to the grantee. In like manner there exist at the present day two kinds of advowsons of rectories ; an advowson appendant to a manor, and an advowson in gross (s), which is a distinct subject of property, unconnected with any thing corporeal. Origin of ad- Advowsous in gross appear to have chiefly had their vowsOTsm Qy.[g{^ from the severance of advowsons appendant from the manors to which they had belonged ; and any advowson now appendant to a manor, may at any time be severed from it, either by a conveyance of the manor, Avith an express exception of the advowson, or by a grant of the advowson alone independently of the manor. And when once severed from its manor, and made an independent incorporeal hereditament, an Conveyance of advowson can never become appendant again. So an advowson. ^^^^^ ^^ ^^ advowson is appendant to a manor, a con- veyance of the manor, even by feoffhient, and without mentioning the appurtenances belonging to the manor, will be sufficient to comprise the advowson (t). But, when severed, it must be conveyed, like any other separate incorporeal hereditament, by a deed of grant {u). vicarages. History of ad- The advowsons of rectories were not unfrequently vowsons of o-ranted by the lords of manors in ancient time to monastic houses, bishoprics, and other spiritual cor- (s) 2 Black. Com. 22 ; Litt. s. Sitwell, 1 You. & Coll. 559 ; 617. Rooper v. Harrison, 2 Kay & it) Perk. s. 116; Co. Litt. 190 b, John. 86. 307 a. See Attorney- General v. (w) Co. Litt. 332 a, 335 b. OF HEREDITAMENTS PURELY INCORPOREAL. 331 porations {x). When this was the case the spiritual patrons thus constituted considered themselves to be the most fit persons to be rectors of the parish, so far as the. receipt of the tithes and other profits of the rectory was concerned ; and they left the duties of the cure to be performed by some poor priest as their vicar or deputy. In order to remedy the abuses thus occa- sioned, it was provided by statutes of Richard II. (y) and Henry IV. (z), that the vicar should be sufficiently endowed wherever any rectory was thus appropriated. This was the origin of vicarages, the advowsons of which belonged in the first instance to the spiritual owners of the' appropriate rectories as appendant to such rectories («); but many of these advowsons have since, by severance from the rectories, been turned into advowsons in gross. And such advowsons of vicarages can only be conveyed by deed, like advow- sons of rectories under similar circumstances. The sale of an advowson will not include the right Next presenta- to the next presentation, unless made when the church ^, ' , ^ ' The church is full ; that is, before the right to present has actually must be full. arisen by the death, resignation or deprivation of the former incumbent {h). For the present right to pre- sent is regarded as a personal duty of too sacred a character to be bought and sold ; and the sale of such a right would fall within the offence of simony, — so Simony. called from Simon Magus, — an offence which consists in the buying or selling of holy orders, or of an eccle- siastical benefice (c). But, before a vacancy has actually occurred, the next presentation, or right of presenting at the next vacancy, may be sold, either (a?) 1 Black. Com. 384. Ellis, 289. (y) Stat. 15 Rich. II. c. 6. (c) Bac. Abr. tit. Simony; stats, (z) Stat. 4 Hen. IV. c. 12. 31 Eliz. c. 6; 28 & 29 Vict. c. {a) Dyer, 351 a. 122, ss. 2, 5, 9. {b) Alston V. Atlayy 7 Add. & 332 OF INCORPOREAL HEREDITAMENTS. together with, or independently of, the future presen- tations of which the advowson is composed (rf), and this is frequently done. No spiritual person, how- ever, may sell or assign any patronage or presentation belonging to him by virtvie of any dignity or spiritual office held by him, any such sale and assignment being void (e). And a clergyman is prohibited by a statute of Anne (/) from procuring preferment for himself by the purchase of a next presentation ; but this statute is not usually considered as preventing the purchase by a clergyman of an entire advowson with a view of presenting himself to the living. When the Next presenta- next presentation is sold, independently of the rest prTperty!'^^"''^^ of the advowson, it is considered as mere personal property, and will devolve, in case of the decease of the purchaser before he has exercised his right, on his executors, and cannot descend to his heir at law(^). The advowson itself, it need scarcely be remarked, will descend, on the decease of its owner intestate, to his heir. The law attributes to it, in common with other separate incorporeal hereditaments, as nearly as possible the same incidents as appertain to the corpo- real property to which it once belonged. Tithes. Tithes are another species of separate incorporeal hereditaments, also of an ecclesiastical or spiritual kind. In the early ages of our history, and indeed down to the time of Henry VIII., tithes were exclu- sively the property of the church, belonging to the incumbent of the parish, unless they had got into the hands of some monastery, or community of spiritual persons. They never belonged to any layman until (d) Fox V. BisJioj) of Chester, 6 Bing. 1. (e) Stat. 3 & 4 Vict. c. 113, s. 42. (/) Stat. 12 Anne, stat. 2, c. 12, (y) See Bennett v. Bishop of Lincoln, 7 Barn. & Cres. 113; 8 Bing. 490, OF HEREDITAMENTS PURELY INCORPOREAL. 333 the time of the dissolution of monasteries by King Henry VIII. But this monarch, having procured acts of parliament for the dissolution of the monas- teries and the confiscation of their j^i'operty (h), also obtained by the same acts(z) a confirmation of all grants made or to be made by his letters-patent of any of the property of the monasteries. These grants were many of them made to laymen, and comprised the tithes which the monasteries had possessed, as well as their landed estates. Tithes thus came for the Tithes in lay first time into lay hands as a new species of property. ^^'^"'^^• As the grants had been made to the grantees and their heirs, or to them and the heirs of their bodies, or for term of life or years (Z;), the tithes so granted evidently became hereditaments in which estates might be holden, similar to those already known to be held in other hereditaments of a separate incorporeal nature; and a necessity at once arose of a law to determine the nature and attributes of these estates. How such estates might be conveyed, and how they should descend, were questions of great importance. The former question was soon settled by an act of Conveyances parliament (/), which directed recoveries, fines, and ^^ *^*^^^' conveyances to be made of tithes in lay hands, according as had been used for assurances of lands, tenements, and other hereditaments. And the analogy of the descent of estates in other hereditaments was followed in tracing the descent of estates of inhe- ritance in tithes. But as tithes, being of a spiritual Descent of origin, are a distinct inheritance from the lands out of *^^^^^" (7t) Stat. 27 Hen. VIII. c. 28, all Monasteries and Abbies;" and intituled, " An Act that all Re- stat. 32 lien. VIII. c. 24. ligious Houses under the yeariy (i) 27 Hen. VIII. c. 28, s. 2; Revenue of Two Hundred Pounds 31 Hen. VIII. c. 13, ss. 18, 19. shall be dissolved, and given to (/,;) Stat. 31 Hen. VIII. c. 13, the King and his heirs ;" stat. s. 18; 32 Hen. VIIL c. 7, s. 1. 31 Hen. VIII. c. 13, intituled, {!) Stat. 32 Hen. VIIL c. 7, s. 7. "An Act for the Dissolution of 334 OF INCORPOREAL HEREDITAMENTS. Tithes exist as distinct from the land. Commutation of tithes. Merger of tithes or rent charge in the land. which they issue, they have not been considered as affected by any particular custom of descent, such as that of gavelkind or borough-English, to which the lands may be subject ; but in all cases they descend according to the course of the common law (m). From this separate nature of the land and tithe, it also follows that the ownership of both by the same person Avill not have the effect of merging the one in the other. They exist as distinct subjects of proj)erty ; and a conveyance of the land with its appurtenances, without mentioning the tithes, will leave the tithes in the hands of the conveying party (n). The acts Avhich have been passed for the commutation of tithes (o) affect tithes in the hands of laymen, as well as those possessed by the clergy. Under these acts a rent charge, varying with the price of corn, has now been substituted all over the kingdom for the inconvenient system of taking tithes in kind ; and in these acts provision has been properly made for the merger of the tithes or rent charge in the land, by which the tithes or rent charge may at once be made to cease, whenever both land and tithes or rent charge belong to the same person {p). Titles of honour. There are other species of incorporeal hereditaments which are scarcely worth particular notice in a work so elementary as the present, especially considering the short notice that has necessarily here been taken of the more important kinds of such property. Thus, titles of {ill) Doe d. Lushington v. Bishop of Llandaff, 2 New Rep. 491; 1 Eagle on Tithes, 16. (w) Chapman v. Gatcomie, 2 New Cases, 516. (o) Stats. 6 & 7 Will. IV. c. 71 ; 1 Vict. c. 39 ; 1 & 2 Vict. c. 64 ; 2 & 3 Vict. c. 62 ; 3 & 4 Vict. c. 15 ; 5 Vict. c. 7 ; 5 & 6 Vict. c. 54; 9 & 10 Vict. c. 73; 10 & 11 Vict. c. 104; 14 & 15 Vict. c. 53; 16 & 17 Vict. c. 124; 21 & 22 Vict. c. 53 ; and 23 & 24 Vict. c. 93. ip) Stat. 6 & 7 Will. IV. c. 71, s. 71 ; 1 & 2 Vict. c. 64 ; 2 & 3 Vict. c. 62, s. 1 ; 9 & 10 Vict. c. 73, s. 19. OF HEREDITAMENTS PURELY INCORPOREAL. 335 honour, in themselves an important kind of incorporeal hereditament, are yet, on account of their inalienable nature, of but little interest to the conveyancer. The same remark also applies to offices or places of business Offices. and profit. No outline can embrace every feature. Many subjects, which have here occupied but a single paragraph, are of themselves sufficient to fill a volume. Reference to the different works on the separate sub- jects here treated of must necessarily be made by those who are desirous of full and particular informa- tion. ( 336 ) PART III. OF COPYHOLDS. Definition of copyholds. Origin of cojiy- holds. Our present subject is one peculiarly connected with those olden times of English history to which we have had occasion to make so frequent reference. Every- thing relating to copyholds reminds us of the baron of old, with his little territory, in which he was king. Estates in copyhold are, however, essentially distinct, both in their origin and in their nature, from those freehold estates which have hitherto occupied our attention. Copyhold lands are lands holden by co-py of court roll ; that is, the muniments of the title to such lands are copies of the roll or book in which an account is kept of the proceedings in the Court of the manor to which the lands belong. For all copyhold lands belong to, and are parcel of, some manor. An estate in copyhold is not a freehold ; but, in construc- tion of law, merely an estate at the nrill of the lord of the manor, at whose will copyhold estates are expressed to be holden. Copyholds are also said to be holden according to the custom of the manor to Avhich they belong, for custom is the life of copyholds (a). In former days a baron or great lord becoming pos- sessed of a tract of land granted part of it to freemen for estates in fee simple, giving rise to the tenure of such estates as we have seen in the chapter on Tenure {b). Part of the land he reserved to himself, {a) Co. Cop. s. 32, Tr., p. 58. ih) Ante, p. 114, OF COPYHOLDS. 337 forming the demesnes of the manor, properly so called (c): other parts of the land he granted out to his villeins or slaves, permitting them, as an act of pure grace and favour, to enjoy such lands at his pleasure ; but sometimes enjoining, in return for such favour, the performance of certain agricultural ser- vices, such as ploughing the demesne, carting the manure, and other servile Avorks. Such lands as re- mained, generally the poorest, v^^ere the waste lands of the manor, over which rights of common were enjoyed by the tenants [d). Thus arose a manor, of which the tenants formed two classes, the freeholders and the villeins. For each of these classes a separate Court was held : for the freeholders, a Court Baron (e) ; for the villeins another, since called a Customary Court {f). Customary In the former Court the suitors were the judges ; in ^"'^'*'- the latter the lord only, or his steward (^). In some manors the villeins were allowed life interests ; but the grants were not extended so as to admit any of their issue in a mode similar to that in which the heirs of freemen became entitled on their ancestors' decease. Hence arose copyholds for lives. In other manors a Copyholds for greater degree of liberality was shown by the lords; ^^^' and, on the decease of a tenant, the lord permitted his eldest son, or sometimes all the sons, or sometimes the youngest, and afterAvards other relations, to succeed him by way of heirship ; for which privilege, however, the payment of a fine was usually required on the ad- mittance of the heir to the tenancy. Frequently the course of descent of estates of freehold was chosen as the model for such inheritances ; but, in many cases, dispositions the most capricious were adopted by the (c) Co. Cop. s. 14, Tr. 11; (/) 2 Watkins on Copyholds, Attorney- General v. Parsons, 2 4, 5 ; 1 Scrivcn on Copyholds, Cro. & Jcrv. 279, 308. 5, G. (d) 2 Black. Com. 90. {g) Co. Litt. 58 a. (e) Ante, p. llfi. R.r. z 338 OF COPYHOLDS. Copyholds of inheritance. Sun-ender and admittance. The will of the lord gradually controlled by the custom. Rise of copy- holders to cer- tainty of tenure. lord, and in time became the custom of the manor. Thus arose copyholds of inheritance. Again, if a villein wished to part with his own parcel of land to some other of his fellows, the lord would allow him to surrender or yield up again the land, and then, on payment of a fine, would indulgently admit as his tenant, on the same terms, the other, to whose use the surrender had been made. Thus arose the method, now prevalent, of conveying copyholds by surrender into the hands of the lord to the use of the alienee, and the subsequent admittance of the latter. But by long custom and continued indulgence, that which at first was a pure favour gradually grew uj) into a right. The Avill of the lord, which had originated the custom, came at last to be controlled b y it {Ji). The rise of the copyholder from a state of uncertainty to certainty of tenure appears to have been very gra- dual. Britton, who Avrote in the reign of Edward I. (z), thus describes this tenure under the name of villein- age : " Villeinage is to hold part of the demesnes of any lord entrusted to hold at his will by villein services to improve for the advantage of the lord." And he adds that, " In manors of ancient demesne there were pure villeins of blood and of tenure, who might be ousted of their tenements at the will of their lord" {k). In the reign of Edward III., however, a case occurred in which the entry of a lord on his copyholder was ad- judged lawful, because he did not do his services, by which he broke the custom of the manor (/), which seems to show that the lord could not, at the time, have ejected his tenant without cause (m). And in (7i) 2 Black. Com. 93 et seq., 147; "Wright's Tenures, 215 et seq. ; 1 Scriv. Cop. 46 ; Garland . V. Jekyll, 2 Bing. 292. (i) 2 Reeves's History of En duty 342 Waste. Customary freeholds. The freehold is in the lord. OF COPYHOLDS. commit any waste, either voluntary by opening mines, cutting down timber or pulling down buildings, or permissive, 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 (k). 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 (/); namely, a tenure by copy of court roll, but not expressed to be at the will of the lord. The lands held by this tenure are denominated customary freeholds. This tenure has been the subject of a great deal of learned discus- sion (m) ; but the Covirts of Law have now decided that, as to these lands, as well as to pure copyholds, the freehold is in the lord, and not in the tenant (n). If a conjecture may be hazarded on so doubtful a subject, it would seem that these customary freeholds were originally held at the Avill of the lords, as Avell as those proper copyholds in which the will is still of lOs. ; but if the clear yearly- value of the estate shall be ex- pressed in the licence, and shall not exceed £75, the duty is the same only as on a lease at a yearly rent equal to such yearly value under the act of the 13 & 14 Vict. c. 97. See post, " Of a Term of Years." By stat. 21 & 22 Vict. c. 77, s. 3, the lords of settled manors may be empowered to grant licences to their copyhold tenants to lease their lands to the same extent and for the same purposes as leases may be autho- rized of freehold land. See ante, p. 26. (/e) 1 Watk. Cop. 331 ; 1 Scriv. Cop. 526. See Doe d. Grubb v. IJarl of BHrlington, 5 Barn. & Adol. 507. (J) Britt. 164 b, 165 a. See ante, p. 125. (7«.) 2 Scriv. Cop. 665. (/^) Stephenson v. Hill, 3 Burr. 1278 ; Doe d. lieay v. Hunting- ton, 4 East, 271 ; Doe d. Cook v. Danrers, 7 East, 299; Burr ell v. Dodd, 3 Bos. & Pul. 378; Tliomp- son v. Ilardlnge, 1 C. B. 940. OF ESTATES IN COPYHOLDS. 343 expressed as the condition of tenure (o) ; but that these tenants early acquired, by their lord's indul- gence, a right to hold their lands on performance of certain fixed services as the condition of their tenure; and the compliment now paid to the lords of other copyholds, in expressing the tenure, to be at their will, was, conse(|uently, in the case of these customary free- holds, long since dropped. That the tenants have not the fee simple in themselves appears evident from the fact, that the right to mines and timber, on the lands held by this tenure, belongs to the lord in the same manner as in other copyholds {p). Neither can the tenants generally grant leases without the lord's consent (q). 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 are not merely held of him, like the estates of the freeholders (?•). In law, there- fore, 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 Freehold in above characteristics, or most of them, do not exist, tenant. such may with good reason be regarded as the actual freehold estates of the tenants. The tenants would then possess the rights of other freeholders in fee simple, subject only to a customary mode of alienation. That such a state of things may, and in some cases (o) See Bract, lib. 4, fol. 208 h, ton, 4 East, 271, 273 ; Stcphrnaon 209 a ; Co. Cop. s. 32, Tr. p. 57. v. Hill, 3 Burr. 1277, arguendo; In Stephenson v. Hill, 3 Burr. BiiJ^e of Portland v. Hill, V.-C. 1278, Lord Mansfield says, that W., Law Kcp. 2 Eq. ICTi. copyholders had acquired a per- {q) Doe v. Banrerx, 7 East, manent estate in their lands be- 299, 301, 314. fore these persons had done so. (r) Jinrrel v. Dodd, 3 Bos. Sc But he does not state where he Pul. 378, 381 ; Doc v. Danvers, 7 obtained his information. East, 320, 321. {p) Doe d. Reay y. Hunting- 344 OF COPYHOLDS. does exist, is the opinion of some very eminent laAV- yers (5). But a recurrence to first principles seems to sliOAv that the question, Avhether 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 the well- known rights of freeholders, snch as to cut timber and dig mines, are vested in the lord or in the tenant. Copyholder?, wheu ad- mitted, in a similar posi- tion to tree- holders having the seisin. rines. 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 the court rolls of a manor, stands, with respect to other copyholders, in a similar position to a freeholder Avho 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 the rolls, 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 lord. By the customs of some manors the fine payable was anciently arbitrary; but in modern times, fines, even when arbitrary by custom, are restrained to two (s) Sir Edward Coke, Co. Litt. 59 b ; Sir Matthew Hale, Co. Litt. 59 b, n.(l) ; Sir W. Black- stone, Considei'ations on the Ques- tion, &c. ; Sir John Leach, Bing- ham V. Woodgate, 1 Russ. & INIyhie, 32, 1 Taml}-!!, 138. Te- nements within the limits of the ancient borough of Kirby-in- Kendal, in Westmoreland, aj)pear to be an instance ; Suslici', ayyt., I7w)»j>son, resp., 4 C. B. 48. The freehold is in the tenants, and the customary mode of conveyance has always been by deed of grant, or bargain and sale, without livery of seisin, lease for a year, or inrol- ment. Some of the judges, how- ever, seemed to doubt the validity of such a custom. See also I'er- rg man's ease, 5 Rep. 84 ; Pas- s'lngltani, app., Pitty, resp., 17 C. B. 299. OF ESTATES IN COPYHOLDS. 345 years' improved value of the land after deducting quit rents {t). 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 (u). The tenants on the rolls, when once admitted, hold custo- Customary , , , 1.1 1 estates analo- mary estates analogous to the estates Avhich may be ^^^^g ^^ frgg. holden in freeholds. These estates of copyholders are told. 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 Estate for life. may be a copyhold estate for life ; and some manors admit of no other estates, the lives being continually renewed as they drop. And in those manors in which estates of inheritance, as in fee simple and fee tail, are allowed, a grant to a man simply, Avithout mentioning his heirs, will confer only a customary estate for his life {v). But as the customs of manors, having fre- quently originated in mere caprice, 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 may not be used (x). It will be remembered that, anciently, if a grant had Estate ^?/r been made of freehold lands to B. simply, without ««^^^'^- mentioning his heirs, during the life of A., and B. had 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. (?/). And this general occupancy Avas abolished by the Statute of Frauds. But copyhold lands were never subject to any such (0 1 Scriv. Cop. 384. Sec ante, pp. 18, 140. (ii) 1 Watk. Cop. 285. (.r) I Watk. Cop. 109, (r) Co. Cop. s. 49, Tr. p. 1 1 1. (y) Ante, p. 20. 346 OF COPYHOLDS. law (z). For the seisin or feudal possession of all such lands belongs, as we have seen («), to the lord of the manor, subject to the customary rights of occupa- tion belonging to his tenants. In the case of copy- holds, 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 life ; and the Sta- tute of Frauds had no application to such a case (6). But now, by the act for the amendment of the laws with respect to wills (c), the testamentary power is extended to copyhold or customary estates pur autre vie{d); 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 (e), is extended also to customary and copyhold estates {f). The grant of an estate pur autre vie, in copyholds, may, however, be extended by express words, to the heirs of the grantee {g). And in this event the heir will, in case of intestacy, be entitled to hold during the residue of the life of the cestui que vie, subject to the debts of his ancestor the grantee (Ji). Estate tail in An estate tail in copyholds stands upon a peculiar footing, and has a history of its own, which we shall now endeavour to give (J). This estate, it will be re- iz) Doe d. Foster v. Scott, 4 Cop. 303. Barn. & Cress. 706 ; 7 Dow. & (/i) Stat. 7 Will. IV. & 1 Vict. Ryl. 190. c. 26, s. 6. {a) Ante, p. 340. {i) The attempt here made to (&) 1 Scriv. Cop. 63, 108 ; 1 explain this subject is grounded Watk. Cop. 302. on the authorities and reasoning (c) Stat. 7 Will. IV. & 1 Vict. of Mr. Serjt. Scriven. (1 Scriv. c. 26. Cop. 67 ct seq.) Mr. Watkins (. 5 V (&) 1 Scriv. Cop. 289. 360 OF COPYHOLDS. the lord is authorized, with the consent of the homage, to grant any common or waste lands of the manor, the Court must be duly summoned and holden as be- fore the act (d). No Court can lawfully 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 Custo- mary Court may be preserved, a book is provided, in which a correct account of all the proceedings is Court rolls. entered by a person duly authorized. This book, or Steward. 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 him, but subject to the i-ight of the tenants to inspect them (/). This officer also usually presides at the Court of the tnanor. 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 (y). These grants may be made by the lord for the time being, whatever be the extent of his interest (h), so only that 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 Avere only a lease for years, his power to grant by copy would for ever be destroyed (z). The steward, or his deputy, if duly authorized so to do, may also make grants, as Avell as ((7) Stat.4&5Vict. c. 35,s. 91. Cop. 111. {r) 1 Scriv. Cop. 6. (/O Doc d. liat/cr v. Strick- (/) I1)id. 587, 588. land, 2 Q. B. 792. {g) 1 Watk. Cop. 23 ; 1 Scriv. (/) 1 Watk. Cop. 37. OF THE ALIENATION OF COrYIIOLDS. 361 the lord, Avbose servant he is (J). It Avas formerly doubtful whether the steward or his deputy could make grants of copyholds when out of the manor (/t). But by a recent act(0, to which we have before had Grants may occasion to refer, it is provided that the lord of any ouJ\,t\hc manor, or the steward, or deputy steward, may grant manor. at any time, and at any place, either within or out of the manor, any lands parcel of the manor, to be held by copy of court roll, or according to the custom of the manor, Avhich such lord shall for the time being be authorized and empoAvered 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 by lands, the usual method of alienation is by surrender s^'"*^"^^""- of the lands into the 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 In Com-t. entered on the court rolls, together Avith the other proceedings; and a copy of so much of the roll as relates to such svtrrender 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 {m). If the surrender should be made out of Out of Court. Court, a memorandum of the transaction, signed by the parties and the stcAvard, is made, in Avriting, and (J) 1 Watk. C). 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 the admittance of the surrenderee. The sur- renderee 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 de-^-isable by the new statute for the amendment of the laws with respect to wills (;■); but, like a possibility in the case of free- holds, it may always be released, by deed, to the tenant of the lands (5). (h) By stats. 55 Geo. III. c. 184, and 13 & 14 Vict. c. 97, the stamp duty on the memorandum of a surrender if made out of court, or on the copy of court roll if made in court, is the same as on the sale or mortgage of a free- hold estate ; but if not made on a sale or mortgage, the duty is ] I., where the clear yearly value exceeds that sum, and 5s. when it does not, with a further pro- gressive duty of 10?. in the one case, and 5.s. in the other. {(>) 1 Watk. Cop. 79 ; 1 Scrlv. Cop. 277. {p) Stat. 4 & 5 Vict. c. 35, s. 89. {q) Doe d. Tojield v. Tofield, 11 East, 246; Rex v. Dame Jane St. John Mildmay, 5 B. & Ad. 254 ; Doe d. Winder v. Lawes, 7 Ad. & E. 195. (?•) 7 Will. IV. & 1 Vict. c. 2(!, s. 3. (s) Kite and Qvelnton's case, 4 Rep. 25 a; Co. Litt. f.O a. OF THE ALIENATION OF COPYHOLDS. ">63 A surrender of copyholds may be made by a man S.xv-n.lcr^ to the use of his wife, for such a surrender is not a ^^^^ direct conveyance, but operates only through the instrumentality of the lord (0- And a valid surrender S.^cmW may at any time be made of the lands of a married ^ife. woman, by her husband and herself: she being on such surrender separately examined, as to her free consent, by the steward or his deputy {u). 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 admit- tance, he becomes at once tenant to the lord, and is bound to pay him the customary fine. This admit- tance is usually taken immediately (v) ; but, if obtained at any future time, it will relate back to the 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 (..)• formerly Aclmittance a steward was unable to admit tenants out of a ^^^^^ ^^^t of tl manor (x); but, by the act for the improvement of m^^io^' copyhold tenure, 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 surrender, in pursuance of which admission may have been granted (y). (0 Co. Cop. s. 35; Tracts, p. 79. 88, 90. By stat. 13 & 14 Vict. („,) 1 Watk. Cop. G3. c. 97, the stamp duty on the (r) Sec Appciulix (G). memorandum of admittance, if (w) 1 Watk. Cop. 103. made out of court, or on the copy (a;) Doed. Leachy. WldUalwr, of court roll of the admittance if 5 B. & Ad. 409, 435 ; Von d. made in court, is now reduced to ^Crntteridge v. Sonrrhy, 7 C. B., l>alf-a-crown on a sale or mort- -^ g r/_)9 gage, with half-a-crown progrcs- (y-) Stat. 4 & 5 Vict. c. 35, ss. sive duty ; but in other cases the the OF COPYHOLDS. Alienation by will. Presentmont of will now unneces- sary. The 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 liis estate should first make a surrender of it to the use of his will. His will then formed part of the sur- render, and no particular form of execution or attesta- tion was necessary. The devisee, on the decease of his testator, was, until admittance, in the same position as a surrenderee {z). By a statute of Geo. III. (a), a devise of copyholds, without any surrender to the use of the will, was rendered as valid as if a surrender had been made (J). The act for the amendment of the laws with respect to wills requires that wills of copyhold lands should be executed and attested in the same manner as wills of freeholds (c). But a sur- render to the use of the will is still unnecessary ; and a surrenderee, or devisee, who has not been admitted, is now empowered to devise his interest {d). For- merly, 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 present- ment was then made of the decease of the testator, and of so much of his will as related to the devise. After this presentment the devisee was admitted, according to the tenor of the Avill. But under the act for the improvement of copyhold tenure, the mere delivery to the lord, or his steward, or deputy steward, of a copy of the will is sufficient to authorize its entry old duty charged by the stat. 55 Geo. III. c. 184, is still payable, namely, 11., when the clear yearly value exceeds that sum, and 5s. when it does not, though the pro- gressive duty is now reduced to lOs. in the one case, and 5s. in the other. (z) Waincn-right v. Elwcll, 1 Mad. (127; PhiUipx v. PhillJpx, 1 My. & K. 649, GG4. («) 55 Geo. III. c. 192, 12th July, 1815. (ft) Doe d. Netli ercote v. Ba rtlc, 5 B. & Aid. 492. (c) Stat. 7 Will. IV. & 1 Vict. c. 2G, ss. 2, 3, 4, 5, 9 ; sec ante, p. 19*;. {(I) Sect. 3. OF THE ALIENATION OF COmiOLDS. 3G5 on the court rolls, Avithoiit the necessity of any pre- sentment; and the lord, or his steward, or deputy steward, may admit the devisee at once, without holding any Court for the purpose (e). Sometimes, on the decease of a tenant, no person if no person came in to be admitted as his heir or devisee. In this ^''""^ 'r,'"",'' . ^ tancc, tlic U.id case the lord, after making due proclamation at three may seize consecutive Courts of the manor for any person having !?'"""!lf"^- 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 (/) ; and by the special custom of some manors, he is entitled to seize the lands abso- lutely. But as this right of the lord might be very rrovision in prejudicial to infants, married women, and lunatics or f'^^ourof ni- . -.. • ^ -I 1 • fants, married idiots entitled to admittance to any copyhold lands, in women, hma- consequence of their inability to appear, special pro- ^^^'^^ ^^^ ^^'"'^'"' vision has been made by act of parliament in their behalf (^). Such persons are accordingly authorized to appear, either in person or by their guardian, attorney or committee, as the case may be (A); and in default of such appearance, the lord or his steward is empowered to appoint any fit person to be attorney for that purpose only, and by such attorney to admit every such infant, married woman, lunatic or idiot and to impose the proper fine {i). If the fine be not paid, the lord may enter and receive the rents till it be satisfied out of them {k); and if the guardian of any (e) Stat. 4 & 5 Vict. c. 35, ss. IV. c. Go, ss. 3, 4 ; IG & 17 Vict. 88, 89, 90. c. 70, s. 108. (/) I Watk. Cop. 234; 1 Scriv. (/) Stats. 11 Geo. IV. & 1 Will. Cop. 355; Doe d. Bovcr v. 7>'«e- IV. c. G.5, s. 5 ; IG & 17 Vict. c. man, 1 Bam. & Adol. 73G. 70, s. 108, 109. (/7) Stats. 11 Geo. IV. & 1 Will. (Z-) Stats. 11 Geo. IV. & 1 Will. IV. c. G.); and IG & 17 Vict. c. IV. c. G5, s.s. G, 7 ; IG & 17 Vict. 70, s. 108 et scq. c. 70, s. 110. (70 Stats. 11 Geo. IV. & 1 Will. 366 OF COPYHOLDS. infant, tlie husband of any married woman, or the committee of unj lunatic or idiot, should pay tlie fine, he will be entitled to a like privilege (/). But no abso- lute forfeiture of the lands is to be incurred by the neglect or refusal of any infant, married woman, lunatic or idiot to come in and be admitted, or for their omission, denial or refusal to pay the fine imposed on their admittance {ni). Statute of Uses Although mention has been made of surrenders to does not apply ?■ , t n i to copyholds, t'le use of the surrenderee, it must not therefore be supposed that the Statute of Uses (n) has any appli- cation to copyhold lands. This statute relates ex- clusively 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. Xotwithstanding that custom has given to the copyholder the enjoy- ment of the lands, they still remain, in contemplation of law, tiie lord's freehold. The copyholder 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 as he has in the use ; for the estate of the 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 any person, the lord is now merely an instrument for carrying the intended alienation into (0 Stats. 11 Geo. IV. & 1 Will. 842 ; Dimes v. Grand Junction IV. c. 65, s. 8; IG & 17 Vict. c. Canal Cunqiani/, 9 Q. B. 4G!), 70, s. 111. 510. (»0 Stats. 11 Geo. IV. & 1 AVill. («) Stat. 27 Hen. VIII. c. 10 ; IV. c. 65, s. 9 ; 16 & 17 Vict. c. ante, p. 152. 70, s. 112. See Doe d. Twining v. {o) Ante, p. 340. Muscott, 12 Mee. & Wels. 832, OF THE ALIENATION OF COrYIIOLDS. 367 effect ; and tlie title of tlie lord, so that lie be 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 Trusts. by one person to the use of another, iqwn trust for a third, the Court of Chancery 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 copyhold Settlements. lands form the subject of settlement, the usual plan is to surrender them to the use 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 es- tates which are thus created are of a similar nature to the equitable estates in freeholds, of which we have already spoken (5'); and a trust for the separate Separate use. use of a married woman may be created as well out of copyhold as out of freehold lands (r). An equitable Equitable ... iiT 11 niTT- estate tail ma}' estate tail m copyholds may be barred by deed, m be barred by the same manner in every respect as if the lands had •^^^'^• been of freehold tenure {s). But the deed, instead of being inrolled in the Court of Chancery (^), 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 deed, such deed must be executed by him either on, or any time before, the day on which the (^) 1 Watk. Cop. 74. been decided, contrary to the ((7) Ante, p. 157 et seq. prevalent impression, that the (?•) See ante, pp. 214, 215. entry must be made within six (.s) See ante, pp. 40, 50 et seq. calendar months. Iloncywood v. {t) Stat. 3 & 4 Will. IV. c. 74, Forster, M. R., 9 W. R. 855 ; 30 54. Bcav. 1 ; Gibhoiis v. Sna.pe, 32 (m) Sect. 5;i. It lias recently Euav. l.'JO. 368 OF COPYHOLDS. deed barring the entail is executed ; and the deed of consent must also be entered on the court rolls (a-). Equitable estate cannot be surrendered. Exce. tions. Tenant of equitable estate tail may bar entail by surrender. Husband and wile may sur- render wife's equitable estate. As the owner of an equitable estate has, from the nature of his estate, no legal right to the lands, he is not himself a copyholder. Pie 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 {y). To this general rule, however, there have 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 and recoveries {z), the tenant of a merely equitable estate tail is em- powered to bar the entail, either by deed in the manner above described, or by surrender in the same manner as if his estate were legal [a). The second exception relates to married women, it being pro- vided by the same act (b) that, whenever a husband and wife shall surrender any copyhold lands in which she alone, or she and her husband in her right, may 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 laAv instead of in equity merely (c); and every such surrender, when such examination shall be taken, shall be binding on the married Avoman and all per- sons claiming under her; and all surrenders pre- viously made of lands similarly circumstanced, where the Avife shall have been separately examined by the person taking the surrender, are thereby declared (ar) Stat. 3 & 4 Will. IV. e. 74, s. 53. (y) 1 Scriv. Cop. 2G2. (c) Stat. 3 & 4 Will. IV. c. 74, s, 50. («) See ante, p. 350. {h) Stat. 3 & 4 W^ill. IV. c. 74, s. 90. {c) See ante, p. 3G3. OF THE ALIENATION OF COPYHOLDS. 369 to be ffood and valid. But these methods of con- veyance, though tolerated by the laAv, 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 anyAvhere else. As, therefore, an equitable estate tail in copyholds may properly 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 is more properly conveyed by a deed, executed with her husband's concurrence, and acknowledged by her in the same manner as if the lands were freehold ((/). And the act for the abolition of fines and recoveries, by which this mode of conveyance is authorized, does not require that such a deed should be entered on the court rolls. ^ Copyhold estates admit of remainders analogous Remainders, to those which may be created in estates of free- hold {e). And when a surrender or devise is made to the use of any person for life, with remainders over, the admission of the tenant for life is the ad- mission of all persons having estates in remainder, unless there be in the manor a special custom to the contrary ( /" ). A vested estate in remainder is capable of alienation by the usual mode of surrender and admittance. Contingent remainders of copyholds Contin(rent have always had this advantage, that they have never ^'^'"^^ '^'^''* been liable to destruction by the sudden determina- tion of the particular estate on which they depend. The freehold, vested in the lord, is said to be the {(1) Stat. 3 Si 4 Will. IV. c. 74, N. S. 857 ; liandfeld v. Rand- s. 77. See ante, p. 222. fiidd, 1 Drew. & S. 310. See, (c) See ante, pp. 240, 252. however, as to the reversioner, (/) 1 Watk. Cop. 276; Doe d. Ilcij. v. Lady of the 3Ianor of Windfr v. Lan-est, 7 Ad. & E. DaUingham, 8 Ad. & E. 858. 105; /S'w;Y// V. Glasscock, 4 C. B., K.P. B B 370 OF COPYHOLDS. means of preserving such remainders, until tlie time Avhen the particular estate would regularly have ex- pired (^). In this respect they resemble contingent remainders of equitable or trust estates of freeholds, as to which we have seen, that the legal seisin, vested in the trustees, preserves the remainders from de- struction {h) ; 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 alto- gether {{). Executory Executory devises of copyholds, similar in all re- devises. spects to executory devises of freeholds, have long been permitted {k). And directions to executors to sell the copyhold lands of their testator (which di- rections, we have seen (Z), give rise to executory interests) are still in common use; for, when such a direction is given, the 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 procla- mation in order to seize the land quousque {m), the purchase 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 pvirchaser, who again must have been admitted under their surrender. And in a recent case, where (.,7) Fearne, Cont. Rem. 319 ; (Ji) 1 Watk. Cop. 210. 1 Watk. Cop. 196 ; 1 Scriv. Cop. (1) Ante, p. 301. The stat. 21 477; Picker sg ill \. Gre 1/, SO Bcuv. Hen. VIII. c. 4, applies to copy- 352. holds; Pepjjercornr. Way man, 5 (It) Ante, p. 275. De Gex & S. 230; ante, p. 302. (i) Gilb. Ten. 266 ; Fearne, (w) Sec ante, p. 365. Cont. Rem. 320. OF THE ALIENATION OF COPYHOLDS. 371 a testator devised copyholds to such uses as his trus- tees 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 with- out being admitted, even although the lord had in the meantime seized the lands quousque for want of a tenant (?<). But it has recently been decided that the Lord not lord of a manor is not bound to accept a surrender of \^l^l surren- copyholds inter vivos, to such uses as the surrenderee dcr inter vivos shall appoint, and, in default of appointment, to the ,jggg_ use of the surrenderee, his heirs and assigns (o). This decision is in accordance with the old rule, which con- strued surrenders of copyholds in the same manner as a conveyance of freeholds inter vivos at common law (7?). If, however, the lord should accept such a surrender, he will be bound by it, and must admit the appointee under the power of appointment, in case such power should be exercised (^q). With regard to the interest possessed by husband Husband and and wife in each other's copyhold lands, although the husband has necessarily the whole income of his wife's land during the coverture, yet a special custom appears to be necessary to entitle him to be tenant by cur- Curtesy, tesy (r). A special custom also is required to entitle the wife to any interest in the lands' of her husband after his decease. Wliere such custom exists, the (?i) Glass v. Ricliardsoyi, 9 1 Scriv. Cop. 178. Hare, G98; 2 De Gex, M. & G. () 1 Watk. Cop, 108, 110; to freeholds, ante, p. 218. BB 2 372 OF COPYHOLDS. Frcebcncli. wife's interest is termed her f ?- eeb en ch; and it generally consists of a life interest in one divided third part of the lands, or sometimes of a life interest in the entirety (5); and, like dower under the old law, free- bench is paramount to the husband's debts (^). Free- bench, however, usually difiers 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 time during the coverture (?<), the right to freebench does not usually attach until the actual decease of the husband {x). Freebench, therefore, is in general no impediment to the free alienation by the husband of his coi^yhold lands, Avithout his wife's concurrence. To this ru^le 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 husbands were tenants at any time during Dower act. the coverture (y). The act for the amendment of the law relating to dower {z) does not extend to free- bench («). IManor of Cheltenham is an exception. (s) 1 Scriv. Cop. 89. if) Sinjer v. Hijatt, 20 Beav. 621. {■u) Ante, p. 223.. {x) 2 Watk. Cop. 73. (y) Doe d. Rlddell v. Gwin- nell, 1 Q. B. CS2. (2) Stat. 3 & 4 Will. IV. c. 105 ; ante, p. 226. (rt) Smith V. Adams, 18 Beav. 499; D De Gex, M. & G. 712. ( 373 ) PART IV. OF TERSONAL INTERESTS EST 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 diiference between freehold and copyhold tenure has arisen from the distinction which prevailed, in ancient times, between the two classes of freemen and villeins (a); and that estates of freehold in lauds and tenements owe their origin to the ancient feudal system (i). The law of real property, in which term both freehold and copy- hold interests are included, is full of rules and prin- ciples 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 instituted than 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 debt. The origin and reason of the personal nature of a term Term of years. of years in land have been already attempted to be explained (c) ; and at the present day, leasehold interests in land, in Avhicli amongst other things all building leases are included, form a subject sufficiently important to require a separate consideration. The personal nature of a mortgage debt was not clearly Mortgage debt. (rt) Ante, p. 337. {h) Ante, p. 17. {cj Ante, p. 8. 374 OF PERSONAX, INTERESTS IN REAL ESTATE. establislied till long after a term of years was con- sidered 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 j)roportion of the lands in this kingdom is at present in mortgage, a fact generally allowed, it is evident that a chapter devoted to mortgages cannot be superfluous. (^7) Tlwrn'horoufjli v. Baiter, 1 Swanst. G36. Cha. Ca. 283; 3 Swanst. 628, (e) Co. Litt. 208 a, n. (1). anno 1675 ; Tabor v. Tabor, 3 ( 375 ) CHAPTER I. OF A TERM OF YEARS. At the present day, one of the most important kinds of chattel or personal interests in landed property is a term of years, by which is understood, not the time merely for which a lease is granted, but also the inte- rest acquired by the lessee. Terms of years may nractically be considered as of two kinds ; first, those Two kinds of ^., T, T 1 i-i terms of years. which are created by ordmary leases, which aie subject to a yearly 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 which no rent is usually reserved, which are frequently for one thousand years or more, which are often vested in trustees, and the object of which is usually to secure 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 Avhat- ever length possess precisely the same attributes in the eye of the laAV. 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 376 OF PERSONAL INTERESTS IN REAL ESTATE. Emblements. created by parol (a), or by deed : it arises when a person lets land to another, to hold at the will of the lessor or person letting (b). The lessee, or person taking the lands, is called a tenant at Avill ; 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 construction of law, a lease at an annual rent, made generally, without expressly stating it to be at Avill (e), and without limiting any certain period, is not a lease at Avill, but a lease from year to year(y"), of Avhich Ave shall presently speak. When property ^rus enan a j^ vested in trustees, the cestui que trust is, as we have seen ((/), absolutely entitled to such property in equity. But as the courts of law do not recognise trusts, they consider the cestui que trust, when in possession, to be merely the tenant at Avill to his trustees (A). A tenancy by sufferance is when a person, Avho has originally come into possession by a laAvful title, holds such possession after his title has determined. Cestui que Tenancy by- sufferance. Lease from year to year. A lease from year to year is a method of letting A^ery commonly adopted : in most cases it is much more advantageous to both landlord and tenant than a (a) Stat. 29 Car. n. c. 3, s. 1. {b) Litt. s. G8 ; 2 Black. Com. 145. (c) Harnett v. Maitland, 15 Mee. & Wels. 257. {d) Litt. s. 68 ; see Graves v. Weld, 5 B. & Adol. 105. (e) Doe d. Bastow v. Co,v, 11 Q. B. 122; Doedi. Dixie v. Davies, 7 Exch. Rep. 89. (/) liightA. Flower \. Darhy, 1 T. Kep. 159, 1G3. (/jr) Ante, p. 15G. (A) Earl of Pomfret v. Lord Windmr, 2 Ves. sen. 472, 481. See MeUing v. Leah, IG C. B. G52. OF A TERM OF YEARS. lease at will. The advantage consists in this, that both landlord and tenant are entitled to notice before the tenancy can be determined by the other of them. This notice must be given at least half a year before the expiration of the current year of the tenancy (/); for the tenancy cannot be determined by one only of the parties, except at the end of any niunber 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 rio-ht to remain for a year ; and if no notice to quit be o-iven for half a year after he has had possession, he will have a right to remain tAvo Avhole years from the time he came in ; and so on from year to year. A lease from year to year can be made by parol or word of month {j), if the rent reserved amount to two- thirds at 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 effect of a lease at will only (A). A lease from year to year, reserving a less amount of rent, must be made by deed (Z). 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 circuitous methods of saying the same thing (m). A lease for a fixed number of years may, by the Lease for a Statute of Frauds, be made by parol, if the term do ^l^^^'' °^ not exceed three years from the making thereof, and if the rent reserved amount to two-thirds, at least, of (i) Bight d. Flon-cr v. Darhij, {7.') 20 Car. II. c. n, ss. 1, 2. 1 T. Rep. 159, 163; and sec Doe (I) Stat. 8 & 9 Vict. c. 106, d. Lord Bradford v. Watldns, 7 s. 3. East 551. ('") ^•^'^ ^^c. Abr. tit. Leases {;}) Legg v. Hacliett, Bac. Abr. and Terms for Years (L. 3); Doe tit. Leases (L. 3); S.C.noTn.Z."^/^'/ d. Clarl 7 1 r ^ ' insurance that where, on a oo7ia jide purchase alter the passing against fire. of the Act of a leasehold interest under a lease con- taining a covenant on the part of the lessee to insure against fire, the purchaser is furnished with a written receipt of the joerson entitled to receive the rent, or his agent, for the last payment of rent accrued due before the completion of the purchase, and there is sub- sisting at the time of the completion of the purchase an insurance in conformity with the covenant, the pur- chaser or any person claiming under him shall not be subject to any liability by way of forfeiture or damages, or otherwise, in respect of any breach of the covenant committed at any time before the completion of the purchase, of which the purchaser had not notice before the completion of the purchase («), Leasehold estates may also be bequeathed by will. Will of lease- As leaseholds are personal property, they devolve in *^°^^^' the first place on the executors of the will, in the satne manner as other personal property; or, on the decease of their owner intestate, they will pass to his adminis- trator. An explanation of this part of the subject will be found in the author's treatise on the principles of the law of personal property (^). It was formerly a General cle\ ise. rule that where a man had lands in fee simple, and also lands held for a term of years, and devised by his will all his lands and tenements, the fee simple lands only passed by the will, and not the leaseholds ; but if he had leasehold lands, and none held in fee simple, the leaseholds would then pass, for otherwise the will would be merely void (?<). But the act for the amend- (7-) Stat. 22 & 2;] Vict. c. 3.5, (Q Tart IV. Chaps. 3 & 4. passed 13th August, 1859. (w) Rose v. Bartlctt, Cro. Car. (s) Sect. 8. 292. 390 OF PERSONAL INTERESTS IN REAL ESTATE. Wills' act. ment of the laws with respect to wills (u) now provides, that a devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the leasehold estates of the testator, or his leasehold estates to which such description shall extend, as well as freehold estates, unless a contrary intention shall appear by the will. The act to which we have already referred {x) con- Exoneration of tains a provision for the exoneration of the executors adminSra^tors ^^' administrators of a lessee from liability to the rents of lessee. and covenants of the lease, similar to that to which we have already referred with respect to their liability to rents charge in conveyances on rents charge (y). Debts. Leasehold estates are also subject to involuntary Judgments. alienation for the payment of debts. By the act for extending the remedies of creditors against the property of their debtors, they became subject, in the same manner as freeholds, to the claims of judg- ment creditors (z) : with this exception, that, as against purchasers without notice of any judgments, such judgments had no further effect than they would have had under the old law (a). And, under the old law, leasehold estates, being goods or chattels merely, were not bound by judgments until a writ of execution was actually in the hands of the sheriff or his officer (5). So that a judgment had no effect (f) Stats. 7 Will. IV. & 1 Vict. (;) Stat. 1 & 2 Vict. c. 110; c. 26, s. 26. ante, p. 80. (x) Stat. 22 & 23 Vict. c. 35, (a) Stat. 2 & 3 Vict. c. 11, s. 5; s. 27. Westhrook v. BhjtTie, Q. B. 1 (y) Ante, p. 325; Re Green, Jurist, N. S. 85; 3 E. & B. 737. 2 De Gex, F. & J. 12L {h') Stat. 29 Car. II. c. 3, s. 16. OF A TERM OF YEARS. as ao-ainst a purchaser of a leasehold estate without notice, unless a writ of execution on such judgment had actually issued prior to the purchase. And it leaseholds should be considered to be " goods " withm the meaning of the :Mercantile Law Amendment Act, 1856 (c), then a purchaser without notice was safe at anytime before an actual seizure under the writ. And now, as we have seen, no judgment of a date later than the 29th of July, 1864, can 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 (d). In the event of the bankruptcy of auy person en- Bankuptcy. titled to any lease or agreement for a lease, his assignees may elect to accept or to decline the same ; and'the lessor is empowered to oblige them to exercise this option, if they do not do so when required (e). If they accept the lease or agreement, the bankrupt is discharged from all future liability in respect of the rent and covenants. And if the assignees decline to take such lease or agreement, the bankrupt will not be liable if, within fourteen days after he shall have had notice that the assignees have declined, he shall deliver up such lease or agreement to the person then entitled to the rent, or having so agreed to lease, as the case may be (/). See Principles of the Law of Per- c. 16, s. 75, and not repealed by sonal Property, p. 46, 1st ed. ; 47, stat. 24 & 25 Vict. c. 134; BriffffS 2nd ed. ; 48, 3rd, 4th and 5th eds.; v. Son-nj, 8 Mee. & Wcls. 729. 5Q Q^]^ e(-l_ ^ This section applies to arrange- rs) Stat 19 & 20 Vict. c. 97, ' ments by deed under stat. 24 & 25 g J ' Vict. c. 145, ss. 192, 197; Porter {d) Stat 27 & 28 Vict. c. 112; v. KirJins, Law Rep. 2 C. P. 590. ante, p. 83.' (/) Sec CoUes v. L'ranson, 19 (e) Stat. 12 & 13 Vict. c. 106, C. B., N. S. 372. 8. 145, repealing stat. G Geo. IV, 392 OF PERSONAL INTERESTS IN REAL ESTATE. Underlease. The tenant for a term of years may, unless re- strained by express covenant, make an underlease for any part of his term; and any assignment for less than the whole term is in effect an underlease {g). On the other hand, any assurance purporting to be Underlease for an underlease, but which comprises the whole term, the whole term, ^g^ -^^ ^^^ better opinion, in eflect an assignment (^). It is true that in some cases, where a tenant for years, having less than three years of his term to run, has verbally agreed with another person to trans- fer 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 ii), rather than as an attempted assignment which would be void, formerly for want of a writing (J), and now for want No distress can of a deed {k). It is, however, held that no distress be made. ^^^ 1^^ made for the rent thus reserved (Z). But if a tenure be created, the lord, if he have no estate, must at least have a seignory {m), to which the rent would by law be incident ; and being thus rent service, it must by the common law be enforceable by distress (n). The very fact therefore that no distress can be made for 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 under- {g) See Sugd. Concise Vendors, Bing. 27 ; Pollock v. Stacy, 9 482 ; Cottee v. Richardson, 7 Ex. Q. B. 1033. Rep. 143. U) Stat. 29 Car. II. c. 3, s. 3; (/<-) Palmer v. Edwards, 1 ante, p. 388. Doug. 187 n. ; Parmenter y. {h) Stat. 8 & 9 Vict. c. 100, s. WeUer, 8 Taunt. 593; 2 Brest. 3; ante, p. 388. Conv. 124; Tliorn v. Woollcomhe, (I) Bac. Abr. tit. Distress (A) 3 B. & Adol. 58G; Lanr/ford v. v. Cooper, 2 "Wilson, 375 Selmes,ZK.&i:i. 220,227; Beau- Preece v. Corrie, 5 Bing. 24 montY. Marquis of Salisbury, 19 Pascoe \. Pascoe, 3 Bing. N. C. Beav. 198, 210. 898. (i) Potiltney v. Holmes, 1 (w) Ante, p. 316. Strange, 405; Preece v. Corj'ic, 5 («) Litt. sect. 213. OF A TERM OF YEARS. 393 lease (o). If, however, the disposition be by deed, and be executed by the' alienee, it has been decided that the reservation of rent may operate to create a rent- charge (jo), for which the owner may sue(q), and Avhich he may assign, so as to entitle the assignee to sne in his own name (r). And if this be so, there seems no good reason why, under these circumstances, the statutory power of distress given to the owner of a rent seek (s), should not apply to the rent thus created {t). But on this point also opinions differ (m). Everv underlessee becomes tenant to the lessee who No privity be- , . . 1 tween the les- grauts the underlease, and not tenant to the ongmal sor and the lessor. Between him and the underlessee, no privity underlessee. is said to exist. Thus the original lessor cannot maintain any action against an underlessee for any breach of the covenants contained in the original lease {v). His remedy is only against the lessee, or any assignee from him of the whole term. The deri- Derivative vative term, which is vested in the underlessee, is not SJln mi'2- an estate in the interest originally granted to the nal term. 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 owginal 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 chattel personal. (o) Barrett v. Itol])li, 14 M. & (f) Pascoe v. Pascoe, 3 Bing. W. 348, 352. N. C. 905. {p') Ante, p. 317. («) See v. Coo^jer, 2 Wils. {q) Baiter y. Gostllng, 1 Bing. 375; Langford v. Selmes, 3 K. & N. C. 19. J. 220 ; Smith v. Watts, 4 Drew. (r) Williamit V. Ilayward, Q. 338 ; Wills v. Cattling, Q. B., 7 B., 5 Jur., N. S. 1417; 1 Ellis & W. K. 448 ; Burton's Conipen- Ellis, 1040. dium, pi. 1111. (s) Stat. 4 Geo. II. c. 28, s. 5; (r) Holfordx. Hatch, 1 Dongl, ante, p. 320. 183. 394 OF PERSONAL INTERESTS IN REAL ESTATE. Husband's I'ili'lits in his wife's term. If a married woman should be possessed of a term of years, her husband may dispose of it at any time during the coverture, either absolutely or by way of mortgage (w) ; and in case he should survive her, he will be entitled to it by his marital right (x). But if he should die in her lifetime it will survive to her, and his will alone will not be sufficient to dej^rive her ofit(y). Renewable leases. Sun'endcr in law. In many cases landlords, particularly corporations, 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 (z). In all these cases the acceptance by the tenant of the new lease operates as a surrender in law of the unexpired residue of the 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 be void if the new lease fail (a). It appears to be now settled, after much difference of opinion, that the (?t") Hill V. Edmonds, 5 De Gex & S. 603, 607. (x) Co. Litt. 46 b, 351a. (y) 2 Black. Com. 434; 1 Rop. Husb. and Wife, 173, 177; Doe d. Sham T. Steward, 1 Ad. & Ell. 300; as to trust term, Donne v. Bart, 2 Russ. & Mylne, 3G0; see also Hanson v. Keating, 4 Hare, 1 J Duherly v. Day, Rolls, 16 Jurist, 581 ; S. C. 16 Beav. 33. (z) Iggulden t. May, 9 Ves. 325 ; 7 East, 237 ; Hare v. Surges, 4 Kay & J. 45. (a-) Ive's case, 5 Rep. lib; Roe d. Earl of Berkeley v. Arch- hishop of Torli, 6 East, 86; Doe d. Earl of Egremont v. Courte- nay, 11 Q. B. 702; Doe d. Bid- dulph V. Poole, 11 Q. B. 713. OF A TERM OF YEARS. granting of a new lease to another person with the consent of the tenant is an implied surrender of the old term (i). 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 thne 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 reo-aSed in equity as a trustee for the persons benefi- cially interested in the old one (c). So the costs of renewal are apportioned between the tenant for life and remainder-men according to their respective pe- riods of actual enjoyment of the new lease {d ). Special provisions have been made by parliament for facili- tating the procuring and granting of renewals of leases when any of the parties are infants, idiots or lunatics {e). And the provision by which the remedies against under-tenants have been preserved, when le^ases are surrendered in order to be renewed, has been already mentioned (/). More recently provisions have been made by parliament enabling trustees of renewable leaseholds to renew their leases (g), and to raise money by mortgage for that purpose {h). Pro- (&) See Lyon v. Heed, 13 Mee. G31 ; Green7i'ood v. Uvans, 4 Beav. & Wels. 285, 30G; CreaffJi, v. 44; Jones y. Jones, 5 Hare, 440; Blood, 3 Jones & Lat. 133, IGO ; Hadleston v. ^lielpdale, 9 Hare, MchelU V. Atlierstone, 10 Q. B. 775 ; Ainslie v. Harcourt, 28 944; McDonnell v. Pope, 9 Hare, Beav. 313. 705; Davison v. Gent, 1 H. & N. (e) Stats. 11 Geo. IV. & 1 Will. 744, IV. c. 65, ss. 12, 14—18, 20, 21; (c) Rawey. CJiichester, Ambl. 16 & 17 Vict. c. 70; ss. 113—115, 715 ; Gidding v. Gidding, 3 Kuss. 133—135. 241 ; Tanner v. Elworthy, 4 Beav. (/) Stat. 4 Geo. II. c 28, s. 6; 487- Clegg v. Fishmich, 1 Mac. & ante, p. 239. Gord. 294. ig) Stat. 23 & 24 Vict. c. 145, ( ^ J j-1 merger, sioned by the accidental imion ot the term and the immediate freehold in one and the same person. Thus, if the trustee of the term should purchase the freehold, or if it should be left to him by the Avill of the former owner, or descend to him as heir at law, in each of (o) 3 Prest. Conv. 219. Sec 97, and 23 & 24 Vict. c. Ill, a ante, pp. 239, 27 1 . surrender of a lease upon any other ( j; ) Stat. 8 & 9 Vict. c. 106, s. 3, occasion than a sale or mortgage repealing stat. 7 & 8 Vict. c. 76, is charged with the same duty as s. 4, to the same effect. an assignment. See ante, p. 388, {(j) By stats. 13 & U Vict. c. n. {<[). 400 OF PERSONAL INTERESTS IN REAL ESTATE. 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 free- hold 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 of the term (r). Merger being a legal incident of estates, occurs quite irrespective of the trusts on which they may be held ; but equity will do its utmost to pre- vent any injury being sustained by a cestui que trust, the estate of whose trustee may accidentally have merged (5). The law, however, though it does not recognize the trusts of equity, yet takes notice in some few cases of property being held by one person in right Estates held in of another, or in autre droit, as it is called ; and in autre droit. these cases the general rule is, that the union of the term with the immediate freehold will not cause any mero-er, if such union be occasioned by the act of law, and not by the act of the party. Thus, if a term be held by a person, to whose wife the immediate freehold afterwards comes by descent or devise, such freehold coming to the husband in right of his wife, will not cause a merger of the term {t). So, if the owner of a term make the freeholder his executor, the term will not merge (20; for the executor is recognized 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 merge (a;). (?•) Sir Ralph Bovey's ease, 1 507. Ventr. 193, 195 ; Co. Litt. 186 a ; («) Co. Litt. 338 b. Burton's Compendium, pi. 900. {x) 3 Prest. Conv. 310, 311. (s) See 3 Prest. Con. 320, 321. See Law v. Urlwin, 16 Sim. 377, (f) Doe d. Blight v. Pett, 11 and Lord St. Leonards' comments Adol. & Ellis, 842; Jones v. Da- on this case, Sug. V. & P. 507, vies, 5 H. & N. 766; 7 H. & N. 13th ed. OF A TERM OF YEARS. 401 And if an executor, whether legatee or not, holding a term as executor, should -purchase the immediate 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 (y). There was until recently another method of dis- Tbe term r, , 1 ji c 1 • 1 -i. might have posing 01 a term when the purposes lor which it Avas ijp(>,j j-^pj; q^ created had been accomplished. If it were not de- ^'^o*-- stroyed by a proviso for cesser, or by a merger in the freehold, it might have been kept on foot for the benefit of the owner of the property for the time being. A term, as we have seen, is an instrument of great power, yet easily managed ; and in case of a sale of the property, it might have been a great pro- tection to the purchaser. Suppose, therefore, that, after the creation of such a term as we have spoken of, the whole jDroperty had been sold. The purchaser, in this case, often preferred having the term still kept on foot, and assigned by the trustees to a new trustee of his own choosing, in trust for himself, his heirs and assigns ; or, as it Avas technically said, in trust to attend the inheritance. The reason for this proceeding Avas Assignment in that the former OAAmer might, possibly, since the com- the^iQ^erit ™' mencement of the term, have created some incum- ance. brance upon the property, of Avhich the purchaser was ignorant, and against which, if existing, he Avas of course desirous of being protected. Suppose, for in- Case of a rent- stance, that a rent-charge had been granted to be ' ° " issuing out of the lands, svibsequently to the creation of the term : this rent-charge of course could not affect the term itself, but was binding only on the freehold, subject to the term. The purchaser, therefore, if he took no notice of the term, bought an estate, subject (y) Sugd. Vcn.L & Tur. 505, 13th cil. R.r. DD 402 OF PERSOX.iL INTERESTS IN REAL ESTATE. Consequence of a surrender of the term. The term should have been assigned to attend the inheritance. not only to the term but, also, to the rent-charge. Of the existence of the term, however, we suppose hmi to have been aware. If now he should have procured the term to be surrendered to hhnself, the unknown rent-charge, not being any estate in the land, would not have prevented the union and merger 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 knoAvledge, nor any means of obtaining information. The rent-charge, by this means, became a charge, not only on the legal seisin, but also on the possession of the lands, and was said to be accelerated by the merger of the term (z). The preferable method, therefore, always was to avoid any merger of the term ; but, on the contrary, to obtain an assignment of it to a trustee in trust for the purchaser, his heirs and assigns, and to attend the in- heritance. The trustee thus became possessed of the lands for the term of 1,000 years ; but he was bound, by virtue of the trust, to allow the purchaser to receive the rents, and exercise what acts of OAvnership he might please. If, however, any unknown incumbrance, such as the rent-charge in the case supposed, should have come to light, then was the time to bring the term into action. If the rent-charge should have been claimed, the trustee of the term would at once have interfered, and infoinned the claimant that, as his rent-charge was made subsequently to the term, he must wait for it till the term was over, which was in effect a postponement sine die. In this manner, a term became a valuable protection to any person on whose behalf it was kept on foot, as well as a source of serious injury to any incumbrancer, such as the grantee of the rent-charge, who might have neglected to procure an assignment of («) 3 Prest. Conv. 460. OF A TERM OF YEARS. 403 it on his own behalf, or to obtain a declaration of trust in his favour from the legal owner of the term. For it will be observed that, if the grantee of the rent- charge had obtained from the persons in whom the term was vested a declaration of trust in his behalf, they Avould have been bound to retain the term, and could not lawfully have assigned it to a trustee for the purchaser. If the purchaser, at the time of his purchase, should If the pur- have had notice of the rent-charge, and should yet nSeoTthe have procured an assio-nment of the term to a trustee incumbrance it tllG tllllG Ot for his own benefit, the Court of Chancery would, on his purchase, the first principles of equity, have prevented his trustee ^gg^^t^e torn. from making any use of the term to the detriment of the grantee of the rent-charge {a). Such a proceed- ing would evidently be a direct fraud, and not the pro- tection of an innocent purchaser against an unknown incumbrance. To this rule, however, one exception An exception, was admitted, which reflects no great credit on the gallantry, to say the least, of those who presided in the Court of Chancery. In the common case of a sale of lands in fee simple from A. to B., it was holden that, if there existed a term in the lands, created prior to the time when A.'s seisin commenced, or prior to his marriage, an assignment of his term to a trustee for B. Dower barred might be made use of for the purpose of defeating the oYterm^^™'^'^ claim of A.'s wife, after his decease, to her dower out of the premises {b). Here B. evidently had notice that A. was married, and he knew also that, by the law, the widoAv of A. would, on his decease, be entitled to dower out of the lands. Yet the Court of Chancery per- mitted him to procure an assignment of the term to a (a) Willoughhijy.Willovghhy, (J>) Sugtl. Vend. & Tur. 510, 1 T. Rep. 7G3. 13th ed,; Co. Litt. 208 a, n. (I), DD 2 404 OF PERSONAL INTERESTS IN REAL ESTATE. trustee for himself, and to tell the widow that, as her right to dower arose subsequently to the creation of the term, she must wait for her dower till the term was ended. We have already seen (c), that, as to all women married after the first of January, 1834, the right to dower has been placed at the disposal of their , husbands. Such husbands, therefore, had no need to request the concurrence of their wives in a sale of their lands, or to resort to the device of assign- ing a term, should this concurrence not have been obtained. The owner of When a term had been assigned to attend the inhe- subie"c^^to*an'^^ ritancc, the owner of such inheritance was not re- attendant term garded, in consequence of the trust of the term in his had a real ^ i . • , i r^ i j. estate. lavour, as having any interest oi a personal nature, even in contemplation of equity ; but as, at law, he had a real estate of inheritance in the lands, subject to the term, so, in equity, he had, by virtue of the trust of the term in his favour, a real estate of inheritance Term atten- in immediate possession and enjoyment (f?). If the structionof' term were neither surrendered nor assigned to a law. trustee to attend the inheritance, it still was consi- dered attendant on the inheritance, by construction of laAV, for the benefit of all persons interested in the inheritance according to their resjiective titles and estates. Act to render An act has, however, been passed " to render the S^satTsfeir''* assignment of satisfied terms unnecessary" (e). This terms unncces- act provides (jT), that every satisfied term of years which, either by express declaration or by construction of law, shall upon the thirty-first day of December, 1845, {<■) Ante, p. 220. (e) Stat. 8 & 9 Vict. c. 112. { •> . equity only. office of administering equity. In equity, a mortgage debt is a sum of money, the payment whereof is secured, with interest, on certain lands; and being money, it is personal property, subject to all the inci- dents which appertain to such property. The Courts of Law, on the other hand, do not regard a mortgage in the lis;ht of a mere security for the repayment of money with interest. A mortgage in law is an abso- lute conveyance, subject to an agreement for a re- conveyance on a certain given event. Thus, let us Example 408 OF PERSONAL INTERESTS IN REAL ESTATE. sujopose freeliold lands to be conveyed by A., a person seised in fee, to B. and his heirs, subject to a proviso, that on repayment on a given future day, by A. to B., of a sum of money then lent by B. to A., with interest until repayment, B. or his heirs will reconvey the lands to A. and his heirs ; and with a further proviso, that until default shall be made in payment of the money, A. and his heirs may hold the land without any interruption from B. or his heirs. Here we have at once a common mortgage of freehold land (a). (a) By stat. 13 & 14 Vict. c. 97, mortgages are now subject to an ad valorem duty of one-eighth per cent., or half-a-cro\ni per hundred pounds on the amount of the mortgage money, according to the fol- lowing table: — s. d. Not exceeding £50 13 Exceeding £50 and not exceeding £100 2 6 100 „ 150 3 9 150 „ 200 5 200 ;, 250 6 3 250 „ 300 7 6 And where the same shall exceed £300, then for every £100 and also for any fractional part of £100 2 6 And where the same shall be made as a secm-ity for the repayment of money to be thereafter lent, advanced, or paid, or which may become due upon an account current, together vAfh any sum akeady advanced or due, or Avithout, as the case may be (other than and except any sum or sums of money to be advanced for the insurance of any property comprised in such mortgage against damage by fcre, or to be advanced for the insurance of any life or lives, or for the renewal of any grant or lease upon the dropping of any life or lives, pursuant to any agree- ment in any deed whereby any estate or interest held upon such life or lives shall be granted, assigned or assured, or whereby any annuity shall be granted or secured for such life or lives), if the total amount of the money secured, or to be ultimately recoverable thereupon, shall be limited not to exceed a given sum, the same duty will be payable as on a mortgage for such limited sum. And if the total amount secured or to be ultimately recoverable .shall be uncertain and without any limit, the deed will be available as a security or charge for such an amount only as the nd valo7-cm duty denoted l)y any stainp or stami)s thereon will extend to cover. The prf)gressive duty is the same as on purchase deeds. See ante, pp. 185, 186. OF A MORTGAGE DEBT. 409 A., who conveys the land, is called the mortgagor; B., who lends the money, and to Avhom the land is con- veyed, is called the mortgagee. The conveyance of the land from A. to B. gives to B., as is evident, an estate in fee simple at law. He thenceforth becomes, at law, the absolute o\\Tier of the premises, subject to the agreement under which A. has a right of enjoy- ment, until the day named for the payment of the money (i) ; on which day, if the money be duly paid, B. has agreed to re-convey the estate to A. If, when the day comes, A. should repay the money with in- terest, B. of course must re-convey the lands ; but if the money should not be repaid punctually on the day fixed, there is evidently nothing on the face of the ar- rangement to prevent B, from keeping the lands to himself and his heirs for ever. But upon this arrange- ment, a very different construction is placed by a Court of law and by a Court of equity, a con- struction which well illustrates the difference between the two. The Courts of law, still adhering, according to their Construction « , . , T , 1 • r xu of a mortgage ancient custom, to the strict literal meanmg ot the i^i^w. term, hold, that if A. do not pay or tender the money punctually on the day named, he shall lose the land for ever ; and this, according to Littleton (c), is the origin of the term mortgage or mortuum vadium, "for that ^^jj^in of^tl^e it is doubtful whether the feoffor will pay at the day gaye. limited such sum or not: and if he doth not pay, then the land which is put in pledge, upon condition for the payment of the money, is taken from him for ever, and is dead to him upon condition, &c. And if he doth pay the money, then the pledge is dead as to the tenant, &c." Correct, however, as is Littleton's state- (/>) Sec as to this, Doe d. Hoy- Q. B. 147; Itogcrs v. Grazrhrook, lance v. Lujhtfoot, 8 Mcc. & W. 8 Q. B. 89."). 553; Doc d. Furdci/ v. Diti/, 2 {c) Sect. 332. 410 OF PERSONAL INTERESTS IN REAL ESTATE. ment of the law, the accuracy of his derivation may be questioned; as the word mortgage appears to have been applied, in more early times, to a feofibaent to the creditor and his heirs, to be held by him until his debtor paid him a given sum ; until which time he re- ceived the rents without account, so that the estate was unprofitable or dead to the debtor in the mean- time {d); the rents being taken in lieu of interest, which, under the name of usury, was anciently re- garded as an unchristian abomination (e). This species of mortgage has, however, long been disused, and the form above given is now constantly employed. From The legal es- the date of the mortgage deed, the legal estate in fee th? mortgagee'! simple belongs, not to the mortgagor, but to the mort- gagee. The mortgagor, consequently, is thenceforward unable to create any legal estate or interest in the pre- The mortgagor mises ; he cannot even make a valid lease for a term of make°l valid J^ars (/),— a point of law too frequently neglected by lease, those whose necessities have obliged them to mortgage When the day their estates. When the day named for payment is paJseMhe ^^ passed, the mortgagee, if not repaid his money, may mortgagee may ^^ g^^y ^{^q. bring an action of ejectment against the eject the mort- '' . i j_i i i • gagor without m.ortgagor Without any notice, and thus turn nim out notice. ^f possession {g); so that, if the debtor had no greater mercy shown to him than a Court of law will allow, the smallest want of punctuality in his payment would cause him for ever to lose the estate he had pledged. Stat. 7 Geo. 11. In modern times, a pro^dsion has certainly been made c. 20, (r7) Glam-ille, lib. 10, cap. 6; &"Wels. 656; Doe (i. Lord Donnie Coote on Mortgages, ch. 2. v. TJiompson, 9 Q. B. 1037; Cuth- (e) Interest was first allowed hertsoriN. Irving, iB.. 8i,'^.12i; by law by stat. 37 Hen. VIIL 6 H. & N. 135 ; Saunders v, c. 9, by which also interest above Merry weather, 3 H. & Colt. 902. ten per cent, was forbidden, O) Keech v. Hall, Doug. 21 ; (/) See Doe d. Barney v. Doe d. Boby \. Maine y, 8 Biiw Sc Adams, 2 Cro, & Jerv. 235; Crcs. 767; Doe d. Fi.thrr v. Oiles, Whitton v. Peacock, 2 Bing. N. 5 Bing.421; Coote on Mortgages, C. 4:11 ; Green v. Jatnes, 6 Mee. book 3, ch. 3. OF A MORTGAGE DEBT. -ill by act of parliament for staying the proceedings in any action of ejectment brought by the mortgagee, on payment by the mortgagor, being the defendant in the action (A), of all principal, interest and costs (i). But at the time of this enactment, the jurisdiction of equity over mortgages had become fully established ; and the act may consequently be regarded as ancillary only to that full relief, which, as we shall see, the Court of Chancery is accustomed to afford to the mortgagor in all such cases. The relative rights of mortgagor and mortgagee interposition appear to have long remained on the footing of the ci,ance^°"* ""^ strict construction of their bargain, adopted by the Courts of law. It was not till the reign of James I. that the Court of Chancery took upon itself to inter- fere between the parties (j). But at length, having determined to interpose, it went so far as boldly to lay down as one of its rules, that no agreement of the parties, for the exclusion of its interference, should have any effect (A). This rule, no less benevolent than bold, is a striking instance of that determination to enforce fair dealing between man and man, which has raised the Court of Chancery, notwithstanding the many defects in its system of administration, to its present power and dignity. The Court of Chancery accord- ingly holds, that after the day fixed for the payment of the money has passed, the mortgagor has still a right to redeem his estate, on payment to the mortgagee of all principal, interest and costs due upon the mortgage to the time of actual payment. This right is called the mortgagor's equity of redemption ; and no agree- Equity of re- dcmptiou. (A) Doe d. Hurst v. Clifton, 4 (j) Cootc on Mortgages, book Adol. & Ell. 814. 1, ch. 3. (0 Stats. 7 Geo. II. c. 20, s. 1 ; {I') '2 Clia. Ca. 148; 7 Ves. 273. 15 & 16 Vict. c. 76, ss. 219, 220. 412 OF PERSONAL INTERESTS IN REAL ESTATE. ment with the creditor, expressed in any terms, how- ever stringent, can deprive the debtor of his equitable right, on payment within a reasonable time. If, there- fore, after the day fixed in the deed for payment, the mortgagee should, as he still may, eject the mortgagor by an action of ejectment in a Court of law, the Court of Chancery will nevertheless compel him to keep a strict account of the rents and profits ; and, when he has received so much as will suffice to repay him the principal money lent, together with interest and costs, he will be compelled to re-convey the estate to his former debtor. In equity the mortgagee is properly considered as having no right to the estate, further than is necessary to secure to himself the due repay- ment of the money he has advanced, together with in- terest for the loan ; the equity of redemption, which belongs to the mortgagor, renders the interest of the mortgagee merely of a personal nature, namely, a security for so much money. In a Court of law, the mortgagee is absolutely entitled ; and the estate mort- gaged may be devised by his will (Z), or, if he should die intestate, will descend to his heir at law ; but in equity he has a security only for the payment of money, the right to which will, in common with his other per- sonal estate, devolve on his executors or administrators, for whom his devisee or heir will be a trustee ; and, when they are paid, such devisee or heir Avill be obliged by the Court of Chancery, without receiving a sixpence for himself, to re-convey the estate to the mortgagor. Indulgent, however, as the Court of Chancery has shown itself to the debtor, it will not allow him for ever to deprive the mortgagee, his creditor, of the money which is his due; and if the mortgagor will not (0 Sec 1 Javm. Wills, C3S, Ist ctl.; .j91, 2uc1 cd.; G51, 3nl c«l. OF A MORTGAGE DEBT. 413 repay him within a reasonable time, equity will allow the mortgagee for ever to retain the estate toAvhich he is already entitled at law. For this purpose it Avill he necessary for the mortgagee to file a bill oi foreclosure Foreclosure. against the mortgagor, praying 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 short day, to be appointed by the Court, and that in default thereof he may be fore- closed his equity of redemption (m). A day is then fixed by the Court for payment ; Avhich day, however, may, on the application of the mortgagor, good reason being shown («), be postponed for a time. Or, if the mortgagor should be ready to make repayment, before the cause is brought to a hearing, he may do so at any time previously, on making proper application to the Court, admitting the title of the mortgagee to the money and interest (o). If, however, on the day ultimately fixed by the Court, the money should not be forthcoming, the debtor will then be absolutely deprived of all right to any further assistance from the Court ; in other words, his equity of redemption will be foreclosed, and the mortgagee Avill be allowed to keep, Avithout further hindrance, the estate which Avas conveyed to him Avhen the mortgage Avas first made. By the act to amend the practice and course of pro- New cnact- ceeding in the Court of Chancery, the Court is em- ™ powered, in any suit for foreclosure, to direct a sale of the property at the request of either party instead of a foreclosure {p). And the equitable jurisdiction of County Courts. the Court of Chancery is noAV extended to the County (?;i) Cooto on Mortgages, book {o) Stat. 7 Geo. II. c. 20, s. 2. 5, ch. 4. 00 Stat, lo & IG Vict. c. SG, (}i) JVanni/ y. Ed ivnrdu, 4 Jxusa. a. 48; Iliii'st \. Iluntf, IG Bcav. 124; Eyre v. Hanson, 2 Beav. 374; Newman \. Self e,d'd Beav. 478. 522. 414 OF PERSONAL INTERESTS IN REAL ESTATE. Power of sale. The mort- gagor's concur- rence cannot be required. New enact- ment. Statutory powers of sale, &c. Courts with respect to all sums not exceeding five hundred pounds {q). In addition to the remedy by foreclosure, which, it will be perceived, involves the necessity of a suit in Chancery, a more simple and less expensive remedy is now usually provided in mortgage transactions ; this is nothing more than a power given by the mortgage deed to the mortgagee, without further authority to sell the premises, in case default should be made in payment. When such a power is exercised, the mort- gagee, having the whole estate in fee simple at law, is of course able to convey the same estate to the pur- chaser ; and, as this remedy would be ineffectual, if the concurrence of the mortgagor were necessary, it has been decided that his concurrence cannot be re- quired by the purchaser (r). The mortgagee, there- fore, is at any time able to sell ; but, having sold, he has no further right 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 his principal, interest and costs ; and, having done this, the surplus, if any, must be paid over to the mortgagor. And, by a recent act of parliament {s), a power of sale, a power to insure against fire, and a power to require the appointment of a receiver of the rents, or in default to appoint any person as such receiver, have been rendered incident to every mort- gage or charge by deed affecting any hereditaments of any tenure. These powers, however, do not arise until after the expiration of one year from the time (q) Stat. 28 & 29 Vict. c. 99, amended by stat. 30 & 31 Vict. c. 142. (r) Corder v. Morgan, 18 Ves. 344; Clay y.Sliar lie, Sugd. Vend. & Pur. Appendix, No. XIII. p. 1096, 11th ed. (s) Stat. 23 & 24 Vict. c. 145, part 2. OF A MORTGAGE DEBT. 415 when the principal money shall have become payable according to the terms of the deed, or after any interest on such principal money shall have been in arrear for six months, or after any omission to pay any premium on any insurance, which by the terms of the deed ought to be paid by the person entitled to the property subject to the charge (#). And no sale is to be made until after six months' notice in writing (z^). But none of these poAvers are to be exercisable, if it be declared in the mortgage-deed that they shall not take effect ; and where there is no such declaration, then if any variations or limitations of any of the powers are contained in the deed, such powers shall be exercisable only subject to such variations or limita- tions (v). If, after the day fixed for the payment of the money Mortgagor is passed, the mortgagor should wish to pay off the ^^^^ f'''^ ^^^ mortgage, he must give to the mortgagee six calendar months' notice months' previous notice in writing of his intention so repay!''*'^'' *° to do, and must then punctually pay or tender the money at the expiration of the notice (w) ; for if the money should not be then ready to be paid, the mort- gagee will be entitled to fresh notice; as it is only reasonable that he should have time afforded him to look out for a fresh security for his money. Mortgages of freehold lands are sometimes made for Mortgages for long terms, such as 1,000 years. But this is not now y°^s*^™' ""^ often the case, as the fee simple is more valuable, and therefore preferred as a security. Mortgages for long terms, when they occur, are usually made by trustees, in whom the terms have been vested in trust to raise, (0 Stat. 23 & 24 Vict. c. 145, (r) Sect. 32, see ante, p. 297. s. 11. (w) Shrnjynell v. Blake, 2 Eq. (?0 Sect. 13. Ca. Abr. G03, pi. 3-4. 416 OF PERSONAL INTERESTS IN REAL ESTATE. by mortgage, money for tlie portions of the younger children of a family, or other similar purposes. The reasons for vesting; such terms in trustees for these purposes were explained in the last chapter (x). Mortgage of Copyhold, as well as freehold lands, may be the copyholds. subjects of mortgage. The purchase of copyholds, it will be remembered, is effected by a surrender of the lands from the vendor into the hands of the lord of the manor, to the use of the purchaser, followed by the admittance of the latter as tenant to the lord (y). The mortgage of copyholds is effected by surrender, in a similar manner, from the mortgagor to the use of the mortgagee and his heirs, subject to a condition, that on payment by the mortgagor to the mortgagee of the money lent, together with interest, on a given day, the surrender shall be void. If the money should be duly paid on the day fixed, the surrender will be void accordingly, and the mortgagor will continue entitled to his old estate ; but if the money should not be duly paid on that day, the mortgagee will then acquire at law an absolute right to be admitted to the customary estate which was surrendered to him ; sub- ject nevertheless to the equitable right of the mort- gagor, confining the actual benefit derived by the former to his principal money, interest and costs. The mortgagee, however, is seldom admitted, unless he should wish to enforce his security, contenting himself with the right to admittance conferred upon him by the surrender ; and, if the money should be paid off", all that Avill then be necessary will be to pro- cure the steward to insert on the court rolls a memo- randum of acknowledgment, by the mortgagee, of satisfaction of the principal money and interest secured (a-) See^antc, p. iidC. (>/) Ante, pp. 3G1, 303. ; OF A MORTGAGE DEBT. 417 by the surrender (z). If the mortgagee should have been admitted tenant, he must of course, on repay- ment, surrender to the use of the mortgagor, who will then be re-admitted. Leasehold estates also frequently form the subjects Mortgage of of mortgage. The term of years of Avhich the estate ^^^^ ^° ' ^" consists is assigned by the mortgagor to the mort- gagee, subject to a proviso for redemption or re-assign- ment on payment, on a given day, by the mortgagor to the mortgagee, of the sum of money advanced, with interest ; and with a further proviso for the quiet enjoyment of the premises by the mortgagor until default shall be made in payment. The principles of equity as to redemption apply equally to such a mort- gage, as to a mortgage of freeholds ; but, as the security, being a term, is always wearing out, pay- ment will not be permitted to be so long deferred. A power of sale also is frequently inserted in a mortgage of leaseholds, and the statutory powers given by the act already referred to (a) extend also to leaseholds. From what has been said in the last chapter {b), it will appear that, as the mortgagee is an assignee of the term, he Avill be liable to the landlord, during the continuance of the mortgage, for the payment of the rent and the performance of the covenants of the lease ; against this liability the covenant of the mort- gagor is his only security. In order, therefore, to obviate this liability, when the rent or covenants are onerous, mortgages of leaseholds are frequently made by way of demise or underlease : the mortgagee by IMmto-age by this means becomes the tenant only of the mortgagor, and consequently a mere stranger with regard to the landlord (c). The security of the mortgagee in this (2) 1 Scriv. Cop. 242; 1 Watk. (h) Ante, p. 382. •♦ Cop. 117, 118. Qr) See ante, p. 39^. (ff) Ante, p. 414. K.P. EE 418 OF PERSONAL INTERESTS IN REAL ESTATE. case is obviously not the whole term of the mortgagor, but only the new and derivative term created by the morto;ao;e. Deposit of title deeds. In some cases the exigency of the circumstances will not admit of time to prejiare a regular mortgage ; a deposit of the title deeds is then made with the mort- gagee ; and notwithstanding the stringent provision of the Statute of- Frauds to the contrary [d), it has been held by the Court of Chancery that such a deposit, even without any writing, operates as an equitable mortgage of the estate of the mortgagor in the lands comprised in the deeds (e). And the same doctrine applies to copies of court roll relating to copyhold lands (f), for such copies are the title deeds of copy- holders. Vendor's lien. Sale for an- nuity. When lands are sold, but the whole of the purchase- money is not paid to the vendor, he 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 (ff). And the circumstance of the vendor having taken from the purchaser a bond or a note for the payment of the money will not destroy the lien (A). But if the vendor take a mortgage of part of the estate, or any other independent security, his lien will be gone. If the sale be made in consideration of an annuity, it appears that a lien will subsist for such (d) 29 Car. II. c. 3, ss. 1, 3 ; ante, p. 147. (e) Russell v. Russell, 1 Bro. C. C. 269. See Ex jyarte Haigh, 11 Ves. 403. (/) Whithread \. Jordan, 1 You. & Coll. 303-, Lewis v. John, 1 C. P. ®oop. 8. See, however, Sugd. Vend. & Pur. 630; 13th ed. ; Jones v. Smith, 1 Hare, 56 ; 1 Phill. 244. {g) Chapman v. Tanner, 1 Vern. 267; Pollexfen v. Moore, 3 Atk. 272 ; Mackreth v. Symmons, 15 Ves. 328; Sugd. Vend. & Pur. 552, 13th ed. (70 Grant v. Mills, 2 Ves. & Bea. 306; Winter v. Lord Anson, 3 Russ. 488. OF A MORTGAGE DEBT. 419 annuity (z), unless a contrary intention can be inferred from the nature of the transaction (A). A curious illustration of the anxiety of the Court of A stipulation -~, . . . , . . • J 1- to raise the Chancery to prevent any imposition bemg practised by interest on the mortQ-ao-ee upon the morts;ao;or occurs in the fol- failure of punc- o a I ^ o o ^ ^ygl payment lowing doctrine : that, if money be lent at a given is void. 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 same effect may be effectually accomplished by other words. If the But a stipula- stipulation be, that the higher rate shall be paid, but J^^P'^ the^inte- on punctual payment a lower rate of interest shall be rest on punc- accepted, such a stipulation, being for the benefit of ig'o-ood. the mortgagor, is valid, and will be allowed to be enforced (/). The highest rate of interest which could be taken upon the mortgage of any lands, tenements or hereditaments, or any estate or interest therein, was formerly 51. per cent, per annum ; and all con- bI. per cent. tracts and assurances, whereby a greater rate of in- hiehesVrate^of terest was reserved or taken on any such security, interest on were deemed to have been made or executed for an lands! " illegal consideration (m). By a modern statute (w), the previous restriction of the interest of all loans to 51. per cent, was removed, with respect to contracts for the loan or forbearance of money above the sum of 101. sterling ; but loans upon the security of any lands, tenements or hereditaments, or any estate or interest (i) Matthew \. Bowler, & Hare, (w) Stat. 12 Anne, st. 2, c. 16; 110. 5 & 6 Will. IV. c. 41; 2 & 3 (^) Bucldand v. Pocknell, 13 Vict. c. 37 ; Thibault v. Gibson, Sim. 496 ; Blxon v. Gayfere, 21 12 Mee. & Wels. 88 ; Hodgskinson Beav. 118 ; 1 De Gex & Jones, v. Wyatt, 4 Q. B. 749. 655. (w) 2 & 3 Vict. c. 37, continued (0 3 Burr. 1374 ; 1 Fonb. Eq. by stat. 13 & 14 Vict. c. 56. 398. EE 2 420 OF PERSONAL INTERESTS IN REAL ESTATE. Eepeal of the therein, were exj^ressly excepted (o). But, by an act usury laws. ^^ parliament passed on the 10th of August, 1854 {p), all the laws against usury were repealed; so that, now, any rate of interest may be taken on a mort- gage of lands which the mortgagor is willing to pay. Mortgages to trustees. The loan of money on mortgage is an investment 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 ex- pressed, to have been lent in equal shares by each (§-) ; if this were the case, the executor or administrator of any one of the parties would, on his decease, be entitled to receive his share (r). In order, therefore, to prevent the application of this rule, it is usual to declare, in all mortgages made to trustees, that the money is advanced by them on a joint account, and that, in case of the decease of any of them in the life- time of the others, the receipts of the survivors or survivor shall be an effectual discharge for the whole of the money. Judgment "We have already defined a mortgage debt as an in- on mortgagee's terest in land of a personal nature (5) ; and in accord- interest in the ^nce with this view, it has been held that iudgment lands. ' JO (0) See Follett v. Moore, 4 Ex. Rep. 410. ip) Stat. 17 & 18 Vict. c. 90. iq) 3 Atk. 734 ; 2 Ves. sen. 258; 3 Ves. jun. 631. (;•) Petty v. Styward, 1 Cha. Rep. 57 ; 1 Eq. Ca. Ab. 290 ; Vickers v. Cowell, 1 Beav. 529. («) Ante, p. 407. OF A MORTGAGE DEBT. 421 debts against the mortgagee are a charge upon his interest in the mortgaged lands (t). But it has been provided by a recent statute (ii), that where any mort- New enact- gage shall have been paid oil prior to, or at the time of, the conveyance of the lands to a purchaser or morto-ao-ee for valuable consideration, the lands shall be discharged both from the judgment and crown debts of the mortgagee. And by a still more recent statute, to which we have already referred (v), the lien of all judgments, of a date later than the 29th of July, 1864, has been abolished. Mortgages are frequently transferred from one Transfer of =" ^ X ./ • 1 i u niortgagfcs. person to another. The mortgagee may wish to be paid off, 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 ; that is, subject to the right in equity of the mortgagor or his representatives to redeem the premises on payment of the principal sum secured by the mortgage, with all interest and costs. By the recent act to amend the laws relating to the Stamp duty on . i -, N 1 • 1 1 xu cj-i, 4^ transfers of inland revenue (?<;), which was passed on the oth ol mortgages. July, 1865, every transfer of a mortgage is charged with the duty of sixpence for every 100/., or fractional part of 100/., of the amount or value of the principal money or stock transferred ; and if any further sum of (t) Russell V. M' Culloch, V.-C. 434. Wood, 1 Jur., N. S. 157; S. C. 1 (v) Stat. 27 & 28 Vict. c. 112, Kay & J. 313. ante, p. 83. («) Stat. 18 & 19 Vict. c. 15, («') Stat. 28 & 29 Vict. c. 96, s. s. 11; Greaves v. Wilson, Rolls, 17. 4 Jur., N. S. 802; S. C. 25 Beavan, 422 OF PEESONAL INTERESTS IN REALr ESTATE. money or stock shall be added to the principal money or stock already secured, there shall be charged and paid also the same duty as on a mortgage for the amount or value of such further money or stock (x). Mortgages are occasionally made for securing the re-transfer of stock transferred to the mortgagor, as well as for se- curing the repayment of money advanced to him by the mortgagee. Equity of re- demption is an equitable estate. The mortgage debt now pri- marily payable out of the mortgaged lands. During the continuance of a mortgage, the equity of redemption which belongs to the mortgagor is re- garded by the Court of Chancery as an estate, which is alienable by the mortgagor, and descendible to his heir, in the same manner as any other estate in equity (?/) ; the Court in truth regards the mortgagor as the owner of the same estate as before, subject only to the mortgage. In the event of the decease of the mortgagor, the lands mortgaged will consequently devolve on the devisee under his will, or, if he should have died intestate, on his heir. And the mortgage debt, to which the lands are subject, was until recently payable in the first place, like all other debts, out of the personal estate of the mortgagor (z). As in equity the lands are only a security to the mortgagee, in case the mortgagor should not pay him, so also in equity the lands still devolved as the real estate of the mort- gagor, subject only to be resorted to for payment of the debt, in the event of his personal estate being in- sufficient for the purpose. But by a recent act of parliament («) it is now pro-sdded, that when any person shall, after the 31st of December, 1854, die seised of or entitled to any estate or interest in any land or (ar) Ante, p. 408. (y) See ante, p. 156 et seq. (z) See Yates v. Aston, i Q. B. 182 ; Matherv v. Blackmore, 1 H. & N. 762 ; Essay on Real Assets, p. 27. (a) Stat. 17 & 18 Vict. c. 113; see Essay on Real Assets, pp. 36, 106. OF A MORTGAGE DEBT. ^^^^ Other hereditaments which shall at the time of his death be charged with the payment of any sum of money by way of mortgage, and such person shall not, by his will or deed or other document, have signified any contrary or other intention, the heir or devisee, to whom such lands or hereditaments shall descend or be devised, shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of such person ; but the land or hereditaments so charged shall, as between the dif- ferent persons claiming through or under the deceased person, be primarily liable to the payment of all mort- gage debts with which the same shall be charged; every part thereof, according to its value, bearing a proportionate part of the mortgage debts charged on the whole thereof; provided that nothing therein con- tained shall affect or diminish any right of the mort- gagee to obtain full payment of his mortgage debt either out of the personal estate of the person so dying as aforesaid or otherwise ; provided also, that nothing therein contained shall affect the rights of any person claiming under any deed, will or document made before the 1st of January, 1855. This act, having given rise Act to explain, to many doubts, has been explained by another act {b), which provides (c), that in the construction of the will of any person who may die after the 31st of December, 1867, a general direction that the debts, or that all the debts of the testator, shall be paid out of his personal estate, shall not be deemed to be a declaration of an intention contrary to or other than the rule established by the act, unless such contrary or other intention shall be further declared by words expressly or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate. It is further provided (<^), (jb) Stat. 30 & 31 Vict. c. 69. (i) Sect. 2. \c) Sect. 1. 424 OF PERSONAL INTERESTS IN REAL ESTATE. that the word " morto;ao;e " shall be deemed to extend to auy lien for unpaid purchase-money upon any lands or hereditaments purchased by a testator. Mortgage of The equity of redemption belonging to the mort- demption. g^g^r may again be mortgaged by him, either to the former mortgagee by way of further charge, or to any other person. In order to prevent frauds by clandes- tine mortgages, it is provided by an act of William and Mary (e), that a person twice mortgaging the same lands, without discovering the former mortgage to the second mortgagee, shall lose his equity of re- demption. Unfortunately, however, in such cases the equity of redemption, after payment of both mort- gages, is generally worth nothing. And if the mort- gasfor should ao;ain morts^ao-e the lands to a third person, the act will not deprive such third mortgagee of his right to redeem the two former mortgages if). "When lands are mortgaged, as occasionally happens, to several persons, each ignorant of the security granted to the other, the general rule is, that the several mortgages rank as charges on the lands in the order of time in which they were made, according to the maxim qui prior est tempore, potior est jure {g^. But as the first mortgagee alone obtains the legal estate, he has this advantage over the others, that if he takes a further charge on a subsequent advance to the mortgagor, without notice of any intermediate second mortgage, he will be preferred to an intervening second mortgagee (A). And if a third mortgagee, who has made his advance without notice of a second mortgage, can procure a transfer to himself of the first mortgage, (e) Stat. 4 & 5 Will. & Mary, Wiltshire v. Raihits, 14 Sim. c. 16, s. 3; see Kennard v. Put- 76; Wilmot v. Pike, 5 Hare, 14. voye, 2 Giff. 81. (A) Goddard v. Complin, 1 (/) Sect. 4. Cha. Ca. 119. (^) Jones V. Jones, 8 Sim. 633; OF A MORTGAGE DEBT. 425 he may tack, as it is said, his third mortgage to the Tacking. first, and so postpone the intermediate incumbrancer (z). For, in a contest between innocent parties, each having equal right to the assistance of a Court of Equity, the one who happens to have the legal estate is preferred to the others ; the maxim being, that when the equities are equal, the law shall prevail. A mortgage, how- Mortgage for i ' , „ . , . n future debts. ever, may be made for securmg the payment ot money which may thereafter become due from the mortgagor to the mortgagee ; with this exception, that a solicitor is forbidden to take from his client such a security for future costs, lest he should be tempted on the strength Future costs. of it to run up a long bill (J). Where a mortgage extends to future advances, it has recently been Future ad- decided, that the mortgagee cannot safely make such ^""^^s- advances, if he have notice of an intervening second mortgage (Jt). (i) Bi'ace v. Diicliess of Marl- borough, 2 P. Wms. 491 ; Bates v, Johnson, 1 JohnsoD, 304. ( j) Jones V. Tripp, Jac. 322. {k) Bolt V. Hopkinson, L. C, 4 Jur., N. S. 1119 ; S. C.'d De Gex & Jones, 177, aflSrmed in the H. of L. 9 W. R. 900 ; S. C. ^ H. of L. Cas. 514 ; overruling Gordon v. Graham, 7 Vin. Ab. 52, pi. 3. ( 426 ) PART V. OF TITLE. It is evident that the acquisition of property is of little benefit, unless accompanied with a prospect of retain- ing it without interruption. In ancient times con- veyances were principally made from a superior to an inferior, as from the great baron to his retainer, or from a father to his daughter on her marriage (a). The grantee became the tenant of the grantor ; and if any consideration were given for the grant, it more frequently assumed the form of an annual rent, than the immediate payment of a large sum of money {b). Under these circumstances, it may readily be sup- posed, 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 feoffinent usually ending with Warranty. 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 (c). Even if this warranty were not expressly inserted, still Warranty im- it would seem that the word pive, used in a feoffment, ^ive. *^ ^^"' bad the effect of an implied warranty ; but the force of such implied warranty was confined to the feoffor only, exclusive of his heirs, whenever a feoffment was made of lands to be holden of the chief lord of the Kxi)rcss war- fgg t^\ Under an express warranty, the feoffor, and runty. ' (a) Sec ante, p. 36. 17 a. Xb) Ante, p. 36. () Ante, pp. 75, 76. (w) See Appendix (D). (x) Sugd. Vend. & Pur. 463, 13th ed. (y) See Appendix (D). OF TITLE. 431 sible security for its repayment ; and, notwithstanding these absolute covenants, the title is investigated on every mortgage, with equal, and indeed with greater strictness, than on a purchase. When a sale is made Covenants by trustees by trustees, who have no beneficial interest in the property themselves, they merely covenant that they have respectively done no act to encumber the pre- mises. If the money is to be paid over to A. or B. or any persons in fixed amounts, the persons who take the money are expected to covenant for the title (z) ; but, if the money belongs to infants, or other persons who cannot covenant, or is to be applied in payment of debts or for any similar purpose, the purchaser must rely for the security of the title solely on the accuracy of his own investigation (a). The period for which the title is investigated is the Sixty years' last sixty years (b) ; and every vendor of freehold pro- ^ ^ lequne . perty is bound to furnish the intended purchaser with an abstract of all the deeds, wills and other instru- ments which have been executed, with respect to the lands in question, during that period ; and also to give him an opportunity of examining such abstract with the original deeds, and with the probates or office copies of the wills ; for, in every agreement to sell is implied by law an agreement to make a good title to the property to be sold (c). The proper length of title Advowson. to an advowson is, however, 100 years (c?), as the pre- sentations, which are the only fruits of the advowson, and, consequently, the only occasions when the title is likely to be contested, occur only at long intervals. On a purchase of copyhold lands, an abstract of the Copyholds. copies of court roll, relating to the property for the (z) Sugd. Vend. & Pur. 464, 388. 13th ed. (c) Sugd. Vend. & Pur. 281, (a) Ibid. 463. 13th ed. (J) Cooper V. Emery, 1 Phill. (d) Ibid. 307. 432 OF TITLE. Leaseholds. last sixty years, is delivered to the purchaser. And even on a purchase of leasehold property, the pur- chaser is strictly entitled to a sixty years' title (e) ; that is, supposing the lease to have been granted within the last sixty years, so much of the title of the lessor must be produced as, with the title to the term since its commencement, will make up the full period of sixty years. Reason for re- It is not easy to say how the precise term of sixty Jelrsnidc.'''*^"^ jears came to be fixed on as the time for which an ab- stract of the title should be required. It is true, that by a statute of the reign of Hen. VIII. (/), the time within which a writ of right (a proceeding now abo- lished (^)) might be brought for the recovery of lands was limited to sixty years ; but still in the case of re- mainders after estates for life or in tail, this statute did not prevent the recovery of lands long after the period of sixty years had elapsed from the time of a conveyance by the tenant for life or in tail ; for it is evident, that the right of a remainder-man, after an estate for life or in tail, to the possession of the lands does not accrue until the determination of the par- ticular estate (A). A remainder after an estate tail may, however, be barred by the proper means ; but a Duration of remainder after a mere life estate cannot. The ordi- hiuiiaii lite. ^^y.j duration of himaan life is therefore, if not the orio-in of the rule requiring a sixty years' title, at least a o-ood reason for its continuance. For, so long as the law permits of vested remainders after estates for life, and forbids the tenant for life, by any act, to destroy such remainders, so long must it be necessary to carry (e) Purvis v. Bayer, 9 Price, (ff) By stat. 3 & 4 Will. IV. 488; Sontei- v. Drake, 5 B. & c. 27, s. 36. Adol. 992. (/') Ante, p. 242. See Sugd. ). But it is now provided that no purchase. New enact- ment. (r)) Sugd. Vend. & Tur. 4G8, • (j)) Lord Aldhorough y. Tinje, llthed. 7 CI. & Fin. 436; Davies \. 440 OF TITLE. Covenant to produce deeds. Attested copies. Covenant to produce deeds runs with the land. made bond fide, 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 ( q). Where the title-deeds relate to other property, and cannot consequently be delivered over to the pur- chaser, he is entitled, at the expense of the vendor, to a covenant for their production (r), and also to attested copies of such of them as are not enrolled in any court of record (5); but as the expense thus incurred is usually great, it is in general thrown on the purchaser, by express stipulation in the contract. The covenant for the production of the deeds will run, as it is said, with the land ; that is, the benefit of such a covenant Avill belong to every legal owner of the land sold for the time being ; and the better opinion is, that the obligation to perform the covenant will also be binding on every legal owner of the laud, in respect of which the deeds have been retained (0- Accordingly, when a purchase is made without delivery of the title-deeds, the only deeds that can accompany the lands sold are the actual conveyance of the land to the purchaser, and the deed of covenant to produce the former title- deeds. On a future sale, thejrefore, these deeds will be delivered to the new purchaser, and the covenant, running with the land, Avill enable him at any tune to Cooper, 5 My. & Cr. 270 ; Sugd. Vend. & Pur. 235, 13th ed.; Ed- narcU v. Burt, 2 De Gcx, M. & G. 55. ((?) Stat. 31 Vict. c. 4. (r) Sugd. Vend. & Pur. 376, 13th ed. i Cooper v. Emery, 10 Sim. G09. By stat. 13 & 14 Vict. c. 97, the stamp duty on a scpai'ate deed of covenant for the produc- tion of tit^c deeds on a snlr or mortgage is lO.s., and if the ad valorem duty on the sale or mort- gage is less than that sum, then a duty of equal amount only is payable, with a progressive duty similar to that on a purchase. See ante, p. 185. (*•) Sugd. Vend. & Pur. 373, 13th ed. (f) Ibid. 377. OF TITLE. 441 obtain production of the former deeds to which the covenant relates. "When the lands sold are situated in either of the Search in Mid- counties of Middlesex or York, search is made in the y^i^^'regis- registries established for those counties (n) : this search tries, is usually confined to the period which has elapsed from the last purchase-deed, — the search presumed to have been made on behalf of the former purchaser being generally relied on as a sufficient guarantee against latent incumbrances prior to that time ; and a memorial of the purchase-deed is of course duly regis- tered as soon as possible after its execution. As to lands in all other counties also, there are certain matters affecting the title, of which every purchaser can readily obtain information. Thus, if any estate tail has existed in the lands, the purchaser can always learn whether or not it has been barred; for the records of Search for all fines and recoveries, by which the bar was formerly J^^^Jj^g" .^j^^i effected (v), are preserved in the offices of the Court disentailing of Common Pleas ; and now, the deeds which have been substituted for those assurances are enrolled in the Court of Chancery (w). Conveyances by married Deeds acknow- women can also be discovered by a search in the index, ried women. which is kept in the Court of Common Pleas, of the certificates of the acknowledgment of all deeds ex- ecuted and acknowledged by married women (x). So, we have seen, that debts due from the vendor, or any Crowti and former owner, to the crown, prior to the 1st of No- ^j^^^jf™^'^*' vember, 1865 (?/), or secured by judgment prior to the 23rd of July, 1860 (z), together Avith suits Avhich may • (w) Ante, p. ISO. (x) Stat. 3 & 4 Will. IV. c. 74, (r) Ante, pp. 44, 4G. ss. 87, 88; ante, p. 222. See Jolli/ («') Ante, pp. 4G, 48. As to v. Handcock, Ex. IG Jur. 550 ; fines and recoveries in Wales and S. C. 7 Kxch. Kcp. 820. Cheshire, sec stat. 5 & G Vict. (//") Ante, j). 8G. c. 32. (z) Ante, p. 82. 443 OF TITLE. be pending concerning the land (a), all which are in- cumbrances on the land, are always sought for in the indexes provided for the purpose in the office of the Life annuities. Court of Common Pleas. Life annuities, also, which may have been charged on the lands for money or money's worth prior to August, 1854, may generally be discovered by a search in the office of the Court of Chancery, amongst the memorials of such an- nuities (Z*). And those which have been granted since the 26th of April, 1855, otherwise than by marriage-settlement or will, may be found in the registry now established in the Court of Common Bankruptcy or Pleas (c). And, lastly, the bankruptcy or insolvency msolvencj. ^^ ^^^ vendor or mortgagor may be discovered by a search in the records of the Bankrupt 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 (fZ). Some mention should here be made of two acts of parliament which have recently been passed, one of which is intituled " An Act to facilitate the Proof of Title to and the Conveyance of Keal Estates" (e), and the other, " An Act for obtaining a Declaration of Act for obtain- Title" (/). The latter of these acts empowers persons S^of Tittr' claiming to be entitled to land in possession for an estate in fee sunple, or claiming power to dispose of such an estate, to apply to the Court of Chancery by petition in a summary way for a declaration of title. The title is then investigated by the Court, and if the (a) Ante, p. 87. (d) Coojyery. Stejjhrnson, Q. B. (&) Ante, p. 317. The lands 16 Jur. 424. charged are not, however, neccs- (^) Stat. 2.5 & 20 Vict. c. F>3. sarily mentioned in the memorial. (/) Stat. 2o & 20 Vict. c. 07. (c) Ante, p. 318. OF TITLE. 443 Court shall be satisfied that such a title is shown as it would have compelled an unwilling purchaser to ac- cept, an order is made establishing the title, subject, however, to appeal as mentioned in the act. The former act establishes an office of land registry, Act to facili- fv^ • 1 • .• .• r tate the prooi and contams provisions for the otticiai investigation ot ^f ^^1^ ^ and titles, and for the registration of such as appear to be J^J^^e^^ good and marketable. Lands may be registered either with or without an indefeasible title. For the provi- sions of this act reference should be made to the act itself. It has not yet attained sufficient success to justify any lengthened account of it in an elementary work like the present. The system of official investi- gation of title once for all is a good one. Compensa- tion, however, ought to be made to those w-hose estates may by any error be taken from them in their absence. AVhen land is once registered under this act, it ceases, if situate in Middlesex or Yorkshire, to be subject to the county registry of deeds. All land which is placed under the operation of the act becomes subject to the system of registration thereby established. If the act should lead to an efficient system of registration of assurances throughout the kingdom, it would, in the author's opinion, be the means of conferring a great benefit on the community. This, however, cannot be advantageously done without resort to the printing of registered deeds and of probates of wills, and above all the abolition of payment by length. The author's views on this subject will be found in a paper read by him before the Juridical Society, on the 24th of March, 1862, intituled " On the true Ecmedies for the Evils Avhich affect the Transfer of Land" (^), and to which he begs to refer the reader. ( fj) rulilislied in a separate form, hj TT. Sweet, H, Cliinieery Lane. 444 OF TITLE. Such is a very brief and exceedingly imperfect out- line of the methods adopted in this country for render- ing 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 treatise of Lord St. Leonards on the 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 principles 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 regu- lating the enjoyment and transfer of property ; that the laws of real estate, though venerable for their an- tiquity, are in the same degree ill adapted to the re- quirements of modern society ; whilst the laws of personal property, being of more recent origin, are proportionably 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, Avhich the various necessities of society have required. Added to this have been continual enactments, 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 remahi. For the future, perhaps the Avisest course to be followed Avould be to aim as far as possible at a uniformity of system in the OF TITLE. 445 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 con- form, than on the one hand to preserve untouched all the ancient rules, because they once were useful, or, on the other, to be annually plucking oif, by parlia- mentary enactments, the fruit which such rules must, until eradicated, necessarily produce. ( 447 ) APPENDIX (A). Referred to, p. 9G. — ♦ — The case of Mugglcton v. Bamctt was shortly as fol- lows (a) :— Edward Miiggleton purchased iu 1772 certain copyhold property, held of a manor iu which the custom was proved to be, that the laud desceuded to the youugest 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, then to the youngest brother of the person last seised, and to the youngest son of such youngest brother. There was, hoAV- ever, no formal record upon the rolls of the Court of the custom of the manor with respect to descents, hut the custom was proved by nmnerous entries of admission. The pur- chaser died intestate in 1812, leaving two granddaughters, the only children of his only sou, who died in his lifetime. One of the granddaughters died intestate and unmarried, and the other died leaving an only son, who died iu 1854 without issue, and apparently intestate, and who was the person last seised. On his death the youngest son of the youngest brother of the pm"chaser brought an ejectment, and the Court of Exchequer, by two agaiust one, decided against him. On appeal, this decision was confirmed by the Court of Exchequer Chamber, by four judges against thi-ee. But much as the judges differed amongst themselves as to the extent of the custom amongst collaterals, 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, ex- pressly extends to lands descendible according to the custom of borough English or any other custoin; and it enacts that («) The substance of these oh- newspaper, 4 Jiu'. N. S., Pai't 2, servations has already appeared in pp. 5, 5G. letters to the editor of the " Jurist" 448 APPENDIX. in every case descent 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 legislatm-e itself has placed this interpretation upon the above enactment. A well known statute, commonly called the Wills Act {b), enacts, " that it shall be lawful for every person to devise or dispose of by his will, executed in manner hereinafter required, all real estate which he shall be entitled to, either at law or in equity, at the time of his death, and ivMch, if not so de- vised or disposed of, rvould devolve upon the heir at law or customary heir of him, or, if he became entitled by de- scent, of his ancestor." Now the old doctrine of possessio fratris was that, — that if a purchaser died seised, leaving a son and a 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 was entitled as heir to his father, the purchaser. This doctrine was abolished by the statute. Descent in every case is to be traced from the jjurchaser. 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. AYho is the next heir since the statute ? Clearly the brother of the half-blood, for he is the customary heir of the pur- chaser. As the common law, whicli is the general custom {b) Stat. 7 Will. IV. & 1 Vict. Statutes, pp. 280, 281 (1st ed.) ; c. 26, s. 3, ante, p. 196. 2G7, 2C8 (2nd ed.) (r) SecSugden'sKcal Property APPENDIX. of the realm, was altered by the statute, aud a person became entitled to inherit who before hatl no right, so the custom of borough English, and every other special custom, being ex- pressly comprised in the statnte, is in the same manner altered ; and the stock of descent, which was formerly the person last seised, is now, in every case, the purchaser and the purchaser only. Suppose, therefore, that Edward Muggleton, the pur- chaser, who died in 1812, had left a son by his first wife, and a son and a daughter by his second wife, and that the youngest sou, having entered as customary heir, died intes- tate in 1854, — Avho 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 l)rother, and the elder brother, being of the half-blood to the jierson 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 thea 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 pur- chaser is substituted for the person last seised, and whoever would be entitled as heir to the purchaser, 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 failed. 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 inherit who before was not. Suppose, again, that the father of Edward Muggleton had been the purchaser, and that Edward Muggleton was his R.P. G G 449 450 APPENDIX. youngest son, and that the estate, instead of being a fee- simple, had been an estate tail. Estates tail, it is well known, follow customary 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 plaintiff as youngest son of the next youngest son of the purchaser, although the plaintiff was but the first cousin twice removed of the per- son last seised. The change, however, which the act has accomplished is simply to assimilate the descent of 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 customary heir. The step from this case to that which actually occurred is very easy. On failure of the issue of the purchaser (whether after his decease or in his lifetime it matters not), the heir to be sought is the heir of the purchaser, and not the heir of the person last 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. Burnett expressly states, that the land descends, 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 that the land descends, for want of issue, to the eldest son APPENDIX. 451 of the eldest brother of the person last seised. It would have been taken for granted that every body 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 show^ing that the person last seised was mentioned in the statement of the custom simply in accordance with the ordi- nary 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 the 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 then existing. The act alters the stock of descent, and so far alters the custom. It substitutes the purchaser for the person last seised, whatever may be the custom as to descents. It follows, therefore, that the plain- tiff in 3Iuggleton v. Burnett, 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 Muggleton v. Barnett ;— " In the result, the Exchequer and Exchequer Chamber, with much diversity of opinion as to the extent of the custom, decided the case against the claimant, who claimed as heir by the custom to the last {(l) Payne \. Barlter, 0. Bridg. 18; Rider v. Wood, 1 Kay & J. 644. GG 2 452 APPENDIX. purchaser, which he was ; because he was uot heir by the custom to the person last seised. And yet the act extends to all customary tenures, and alters the descent in all such cases as well as in descents by the common law, by substi- tuting the last purchaser as the stock from whom the descent is to be traced for the person last seised. The Court, per- haps, hardly explained the grounds upon which they held the statute uot to apply to this case" (e). (e) Lord St. Leonards' Essay on the Eeal Property Statutes, p. 271 C2nd ed.). ( 453 ) APPENDIX (B). Referred to, p. 107. The poiut iu question is as follows («) : Suppose a man to be the purchaser of freehold land, and to die seised of it intestate, leaving two daughters, say Susannah and Cathe- rine, but no sons. It is clear that the land will then descend to the two daughters, Susannah and Catherine, in equal shares as coparceners. Let us now suppose that the daughter Catherine dies on or after the 1st of January, 1834, intes- tate, and without having disposed of her moiety in her life- time, leaving issue one son. Under these circumstances the question arises, to whom shall the inheritance descend ? The act to amend the law of inheritance enacts, " that in every case descent shall be traced from the purchaser." In this case Catherine is clearly not the purchaser, but her father ; and the descent of Catherine's moiety is accordingly to be traced from him. Who, then, as to this moiety, is his heir? Supposing that, instead of the moiety in question, some other land were, after Catherine's decease, to be given to the heir of her father, such heir would clearly be Susan- nah, the surviving daughter, as to one moiety of the land, and the son of Catherine as to the other moiety. It has been argued, then, that the moiety which belonged to Cathe- rine, by descent from her father, must, on her decease, (rt) The substance of the follow- sion is recognized by Lord St. ing observations has already ap- Leonards in his Essay on the Real peared in the "Jurist" newspaper Property Statutes, p. 282 (1st ed.), for February 28, 1 84G. The point 26'J (2nd ed.) But as the grounds has since been expressly decided, on which the judgment of the Vice- in accordance with the opinion for Chancellor was rested do not ap- which the author has contended, in pear to the autiior to be quite con- Coopcr Y. Fivnirr, Y.-C.Vj.yMJnr. elusive, he has not thought it de- 214, the authority of which deci- suable to omit his remarks. 454 APPENDIX. descend to the heir of her father, in the same manner as other land woukl have done had she been dead in her father's lifetime ; that is to say, that one moiety of Cathe- rine's moiety will descend to her surviving sister Susannah, and the other moiety of Catherine's moiety will descend to her son. But the following reasoning seems to show that, on the decease of Catherine, her moiety will not descend equally between her surviving sister and her own son, but will descend entirely to her son. In order to arrive at our conclusion it will be necessary to inquire, first, into the course of descent of an estate tail, under the circumstances above described, according to the old law ; secondly, into the course of descent of an estate in fee simple, according to the old law, supposing the circum- stances as above described, with this qualification, that neither Susannah nor Catherine shall be considered to have obtained any actual seisin of the lands. And, when these two points shall have been satisfactorily ascertained, we shall then be in a better position to place a correct interpre- tation on the act by which the old law of inheritance has been endeavoured to be amended. 1. First, then, as to the course of descent of an estate tail according to the old law. Let us suppose lands to have been given to the purchaser and the heirs of his body. On his decease, his two daughters, Susannah and Catherine, are clearly the heirs of his body, and as such will accord- ingly have become tenants in tail each of a moiety. Now there is no proposition more frequently asserted in the old books than this : that the descent of an estate tail is per formam doni to the heirs of the body of the donee. On the decease of one heir of the body, the estate descends not to the heir of such heir, but to the heir of the body of the original donee per formam doni. Suppose, then, that Catherine should die, her moiety would clearly have descended, by the old law, to the heir of the body of her father, the original donee in tail. Whom, then, under the above circumstances, did the old law consider to be the heir of his body quoad this moiety? The Tenures of Littleton, APPENDIX. 455 as explained by Lord Coke's Commentary, supply us with au answer. Littleton says, " Also, if lands or tenements be given to a man in tail who hath as much laud in fee simple, and hath issue two daughters, and die, and his two daugh- ters make partition lietween them, so as the land in fee simple is allotted to the younger daughter, in allowance for the land and tenements in tail allotted to the elder daughter ; if, after such partition made, the younger daughter alieneth her land in fee simple to another in fee, and hath issue a sou or daughter, and dies, the issue may enter into the lands in tail, and hold and occupy them in purparty with her aunt" (b). On this case Lord Coke makes the following comment : — " The eldest coparcener hath, by the partition, and the matter subsequent, barred herself of her right in the fee-simple lands, insomuch as wheu the youngest sister alieneth the fee-simple lands and dieth, and her issue entereth into half the lands entailed, yet shall not the eldest sister enter into half of the lands in fee sim})le upon the alienee (c). It is evident, therefore, that Lord Coke, though well acquainted with the rule that an estate tail should descend per yb/'wam doni, yet never for a moment supposed that, on the decease of the younger daughter, her moiety would descend half to her sister, and half to her issue ; for he presumes, of course, that the issue would enter into half the lands entailed, that is, into the whole of the moiety of the lauds which had originally belonged to their mother. After the decease of the younger sister, the heirs of the body of her father were no doubt the elder sister and the issue of the younger ; but, as to the moiety which had belonged to the younger sister, this as clearly was not the case ; the heir of the body of the father to inherit this moiety was exclusively the issue of such younger daughter, who were entitled to the whole of it in the place of their parent. This incidental allusion of Lord Coke is as strong, if not stronger, tluui a direct assertion by him of the doctrine : for it seems to show that a doubt on the subject never entered into his mind. {h) Litt. sect. 2G0. (c) Co. Litt. 172 b. 456 APPENDIX. At the end of the section of Littleton, to which we have referred, it is stated that the contrary is holdeu, M., 10 Hen. VI. sell. ; that the heir may not enter upon the par- cener who hath the entailed land, but it is put to a for- niedon. On this Lord Coke remarks (d), that it is no part of Littleton, and is contrary to law ; and that the case is not truly vouched, for it is not in 10 Hen. VI., but in 20 Hen. VL, and yet there is but the opinion of Newton, obiter, by the way. On referring to the case in the Year Books, it appears that Yelverton contended, that, if the sister, who had the fee simple, aliened, and had issue, and died, the issue would be barred from the land entailed by the partition, which would be a mischief. To this Newton replied, " No, sir ; but he shall have formedon, and shall recover the half" (e). Newton, thei'efore, though wrong in supposing that a formedon was necessary, thought equally v^ith Lord Coke, that a moiety of the land was the share to be recovered. This appears to be the NeAvton whom Littleton calls (/') "my master. Sir Richard Newton, late Chief Justice of the Common Pleas." There is another section in Littleton, which, though not conclusive, yet strongly tends in the same direction ; namely, section 255, where it is said, that, if the tenements whereof two parceners make partition " be to them in fee tail, and the part of the one is better in yearly value than the pai't of the other, albeit they be concluded during their lives to defeat the partition, yet, if the parcener who hath the lesser part in value hath issue and die, the issue may disagree to the partition, and enter and occicpy in common the other part which was allotted to her aunt, and so the other may enter and occupy i?i common the other part allotted to her sister, &c., as if no partition had been made." Had the law been that, on the decease of one sister, her issue were en- titled only to an undivided fourth part, it seems strange that Littleton should not have stated that they might enter into (id) Co. Litt. 173 a. (/) Sect. 72y. (e) Year Book, 20 Hen. VI. 14 a. APPENDIX. a fourth ouly, aiul tli.at the other sister might occupy the remainiug three-fourths. Tu addition to these authorities, there is a modern case, which, when attentively considered, is an authority on tlie same side ; namely. Doe d. Gregory and Gcere v. Whi- chelo (g). This case, so far as it relates to the point in question, was as follows: Richard Lemmon was tenant in tail of certain premises, and died, leaving issue by his first wife one sou, Richard, and a daughter, Martha ; and by his second wife three daughters, Anne, Elizabeth and Grace. Richard Lemmon, the son, as heir of the body of his father, was clearly tenant in tail of the whole premises during his life. He died, however, without issue, leaving his sister Martha of the whole blood, and his three sisters of the half blood, him surviving. Martha then intermarried with John Whichelo, and afterwards died, leaving John Whichelo, the defendant, her eldest son and heir of her body. John Whichelo, the defendant, then entered into the whole of the premises, under the impression that as he was heir to Richard Lemmon, the son, be was entitled to the whole. Li this, however, he Avas clearly mistaken ; for the descent of an estate tail is, as we have said, traced from the purchaser, or first donee in tail, per formam doni. The heirs of the purchaser, Richard Lemmon, the father, were clearly his four daughters, or their issue ; for the daughters by the second wife, though of the half blood to their brother by the former wife, were, equally with their half sister Martha, of the whole blood to their common fiither. The only question then is, in what shares the daughters or their issue became entitled. At the time of the ejectment all the daughters were dead. Elizabeth was dead, without issue : whereupon her one equal fourth part devolved, without dispute, on her three sisters, Martha, Anne and Grace : each of these, there- fore, became entitled to one equal third part. Martha, as we have seen, died, leaving John Whichelo, the defendant, her eldest son and heir of her body. Anne died, leaving James Gregory, one of the lessors of the phiintift", her grand- er) 8 T. E. 211. 457 458 APPENDIX. son and heir of her body ; and Gi'ace died, leaving Diones Geere, the other lessor of the plain tiiF, her only son and heir of her body. Under these circumstances, an action of ejectment was brought by James Gregory and Diones Geere ; and on a case reserved for the opinion of the Court, a ver- dict was directed to be entered for the plaintiiF for tivo- fhirds. Neither the counsel engaged in the cause, nor the Court, seem for a moment to have imagined that James Gregory and Diones Geere could have been entitled to any other shares. It is evident, therefore, that the Court sup- posed that, on the decease of Martha, the heir of the body of the purchaser, as to her share, was her son, John Whichelo, the defendant ; that, on the decease of Anne, the heir of the body of the purchaser, as to her share, was James Gregory, her grandson ; and that, on the decease of Grace, the heir of the body of the purchaser, as to her share, was her son, Diones Geere. On no other suppo- sition can the judgment be accounted for, which awarded one-third of the whole to the defendant, John Whichelo, one other third to James Gregory, and the remaining third to Diones Geere. For let us suppose that, on the decease of each coparcener, her one-third was divided equally amongst the then existing heirs of the body of the pur- chaser; and ^ the result will be, that the parties, instead of each being entitled to one-third, would have been entitled in fractional shares of a most complicated kind ; unless we presume, which is next to impossible, that all tlie three daughters died at one and the same moment. It is not stated, in the report of the case, in what order the decease of the daughters took place ; but according to the principle suggested, it will appear, on w^orking out the fractions, that the heir of the one who died first would have been entitled to the largest share, and the heir of the one who died last would have been entitled to the smallest. Thus, let us sup- pose that Martha died first, then Anne, and then Grace. On the decease of Martha, according to the principle sug- gested, her son, John Whichelo, would have taken only one- third of her share, or one-ninth of the whole, and Anne and Grace, the surviving sisters, would each also have taken one-third of the share of Martha, in addition to their own APPENDIX. one-third of the Avhole. The shares Avouhl then have stood thus : John Whichelo ■^, Anne ^ + h ^^'^^^ ^ + i- ^""^ HOW dies. Her share, according to the same principle, woukl be equally divisible amongst her own issue, James Gregory, and the heirs of the body of the purchaser, namely, John Whiclielo and Grace. The shares would then stand tlius: John Whichelo ^ + } (\ + ^) ; namely, his own share and one-third of Anne's share, = -g'y : James Gre- gory, h ih + W=v\- Grace, i -f- ^ + i (i -f ^) ; namely, her own share and one-third of Anne's share = if. Lastly, Grace dies, and her share, according to the same principle, would be equally divisible between her own issue, Diones Geere and John Whichelo and James Gregory, the other co-heirs of the body of the purchaser. The shares would then have stood thus : John Whichelo, /^ + ( * X |4) ; namely, his own share and one-third of Grace's share, = |^ of the entirety of the land. James Gregory, ^S + (l X i^) I namely, his own share and one-third of Grace's share, = gf : Diones Geere, i X i-f = ^f. On the principle, therefore, of the descent of the share of each co-parcener amongst the co-heirs of the body of the purchaser for the time being, the heir of the body of the one who died first would have been entitled to thirty-seven eighty-first parts of the whole premises ; the heir of the body of the one who died next would have been entitled to twenty-eight eighty-first parts ; and the heir of the body of the one who died last would have been entitled only to sixteen eighty-first parts. By the judgment of the Court, however, the lessors of the plaintitf were entitled each to one equal third part; thus showing that, although the descent of an estate tail under the old law was always traced from the purchaser (other- wise John Whichelo would have been entitled to the whole), yet this rule was qualified by another of equal force, namely, that all the lineal descendants of any person deceased should represent their ancestors ; that is, should stand in the same place, and take the same share, as the ancestor would have done if living. 2. Let us now inquire into the course of descent of an estate in fee simple, according to the old law, in case the 4.09 460 APPENDIX. purchaser should have died, leaving tAVo daughters. Susan- nah and Catherine, neither of whom should have obtained any actual seisin of the lands, and that one of them (say Catherine) should afterwards have died, leaving issue one son. In this case, it is admitted on all sides, that the share of Catherine would have descended to the heir of the purchaser, and not to her own heir, in the character of heir to her ; for the maxim was seisina facit stipitem. Had either of the daughters obtained actual seisin, her seisin would have been in law the actual seisin of the sister also ; and on the decease of either of them, her share would have descended, not to the heir of her father, but to her own heir, the seisin acquired having made her the stock of descent. In such a case, therefore, the title of the son of Catherine to the whole of his mother's moiety woidd have been iudis- piitable ; for, while he was living, no one else could possibly have been her heir. The supposition, however, on which we are now to proceed is, that neither of the daughters ever obtained any actual seisin ; and the question to be solved is, to whom, on the death of Catherine, did her share descend ; whether equally between her sister and her son, as being together heir to the purchaser, or whether solely to the son, as being heir to the purchaser, quoad his mother's share. In Mr. Sweet's valuable edition of Messrs. Jarman and Bythewood's Conveyancing (//), it is stated to be " appre- hended that the share of the deceased sister would have descended in the same manner as by the recent statute it will now descend in every instance," which manner of de- scent is explained to be one-half of the share, or a quarter of the whole only, to the son, and the remaining half of the share to the surviving sister, thus giving her three-quarters of the whole. This doctrine, however, the writer submits, is erroneous ; and in proof of such error, it might be suf- ficient simply to call to mind the fact, that the law of Eng- land had but one rule for the discovery of the heir. The heirs of a purchaser were, first the heirs of his body, and (//) Vol. i. p. 130. This point opinion in Patrr.ton v. Mills, has, however, since been decided V.-C. K. Bruce, lo Jiu'. 1. ill accordance with the author's APPEND! X. then his collateral heirs ; and an estate tail was merely an estate restricted in its descent to lineal heirs. If, therefore, the heir of a person had been discovered for the purpose of the descent of an estate tail, it is obvious that the same individual would also be heir of the same person for the pur- pose of the descent of an estate in fee simple. No dis- tinction between the two is ever mentioned by Lord Coke, or any of the old authorities. Now, we have seen that the heir of the purchaser, under the circumstances above men- tioned, for the purpose of inheriting an estate tail, was the son of the deceased daughter solely, quoad the share xvhich such daughter had held; and it would accordingly appear that the heir of the purchaser, to inherit an estate in fee simple, was also the son of the deceased daughter quoad her share. That this was in fact the case appears inci- dentally from a passage in the Year Book {i), where it is stated, that " If there be two coparceners of a reversion, and their tenant for term of life commits waste, and then one of the parceners has issue and dies, and the tenant for term of life commits another waste, and the aunt and niece bring a writ of waste jointly, for they cannot sever, and the yfvii of waste is general, still their recovery shall be special ; for the aunt shall recover treble damages for the waste done, as well in the life of her parcener as after- wards, and the niece shall only recover damages for the waste done after the death of her mother, and the place wasted they shall recover jointly. And the same law is, if a man has issue two daughters and dies seised of certain land, and a stranger abates, and afterwards one of the daughters has issue two daughters and dies, and the aunt and the two daughters bring assize of mort d'ancestor ; here, if the aunt recover the moiety of the land and da- mages from the death of the ancestor, and the nieces recover each one of them the moiety of the moiety of the land, and damages from the death of their mother, still the writ is general." Here we have all the circumstances required ; the father dies seised, leaving two daughters, neither of whom obtains any actual seisin of the land ; for (0 35 ITcn. VI. 23. 461 462 APPENDIX. a stranger abates, — that is, gets possession before them. One of the daughters then dies, without having had pos- session, and her share devolves entirely on her issue, not as heirs to her, for she never was seised, but as heirs to her father quoad her share. The surviving sister is en- titled only to her original moiety, and the two daughters of her deceased sister take their mother's moiety equally between them. There is another incidental reference to the same subject in Lord Coke's Commentary upon Littleton (k) : " If a man hath issue two daughters, and is disseised, and the daugh- ters have issue and die, the issues shall join in a praecipe, because one right descends from the ancestor, and it maketh no difference whether the common ancestor, being out of possession, died before the daughters or after, for that, in both cases, they must make themselves heirs to the grand- father which was last seised, and when the issues have recovered, they are coparceners, and one prfecipe shall lie against them." " It maketh no diflereuce," says Lord Coke, "whether the common ancestor, being out of possession, died before the daughters or after." Lord Coke is cer- tainly not here speaking of the shares which the issue would take ; but had any difference in the quantity of their shares been made by the circumstance of the daughters surviving their father, it seems strange that so accurate a writer as Lord Coke should not " herein " have " noted a diversity." The descent is traced to the issue of the daughters not from the daughters, but from their father, the common grand- father of the issue. On the decease of one daughter, there- fore, on the theory against which we are contending, the right to her share should have devolved, one-half on her own issue and the other half on her surviving sister ; and, on the decease of such surviving sister, her three quarters should, by the same rule, have been divided, one-half to her own issue and the other half to the issue of her deceased sister ; whereas it is admitted, that had the daughters both died in their father's lifetime, their issue would have inhe- (/O Co. Litt. 164 a. APPENDIX. 463 rited in equal shai-es. Lord Coke, however, remarks no difterence whether the father died before or after his daughters. Surely, then, he never could have imagined that so great an equality in the shares could have been produced by so mere an accident. It should be remem- bered that the rule of representation for which we are con- tending is the rule suggested by natural justice, and might well have been passed over without express notice ; but had the opposite rule prevailed, the inequality and injustice of its operation could scarcely have failed to elicit some remark. This circumstance may, perhaps, tend to explain the fact that the "n^-iter has been unable, after a lengthened search, to find any authority expressly directed to the point ; and yet, when we consider that in ancient times the title by descent was the most usual one (testamentary alienation not having been permitted), we cannot doubt but that the point in question must very frequently have occurred. In what manner, then, can we account for the silence of our ancient writers on this subject, but on the supposition, which is confirmed by every incidental notice, that, in tracing de- scent from a purchaser, the issue of a deceased daughter took the entire share of their parent, whether such daughter should have died in the lifetime of the purchaser or after his decease ? Having now ascertained the course of descent among coparceners under the old law, whenever descent was traced fi'om a purchaser, we are in a better situation to place a construction on that clause of the act to amend the law of inheritance which enacts, " that in every case descent shall be traced from the purchaser" (/). What was the nature of the alteration which this act was intended to effect ? Was it intended to introduce a course of descent amongst coparceners hitherto unknown to the law, and tending to the most intricate and absurd subdivision of their shares ? or did the act intend merely to say that descent from the purchaser, which had hitherto occurred only in the case of an estate tail, and in the case where the heir to a fee (0 Stat. 3 St 4 Will. IV. c. lOG, s. 2. 464 APPENDIX. simple tlied without obtaining actual seisin, should now apply to every case ? In other words, has the act abolished the rule that, in tracing the descent from the purchaser, the issue of deceased heirs shall stand, quoad their entire shares, in the place of their parents? We have seen that, pre- viously to the act, the rule that descent should be traced from the purchaser whenever it applied, was guided and governed by another rule, that the issue of every deceased person should, quoad the entire share of such person, stand in his or her place. Why, then, should not the same rule of representation govern descent, now that the rule tracing descent from the purchaser has become applicable to every case ? Had any modification been intended to be made of so important a rule for tracing descent from a purchaser, as the rule that the issue, and the issue alone, represent their an- cestor, surely the act would not have been silent on the subject. A rule of law clearly continues in force until it be repealed. No repeal has taken place of the rule that, in tracing descent from a purchaser, the issue shall always stand in the place of their ancestor. It is submitted, there- fore, that this rule is now in full operation ; and that, although in every case descent is now traced from the pur- chaser, yet the tracing of such descent is still governed by the rules to which the tracing of descent from purchasers was in former times invariably subject. If this be so, it is clear, then, that, under the circumstances stated at the com- mencement of this paper, the share of Catherine will descend entirely to her own issue, as heir to the purchaser quoad her share, and will not be divided between such issue and the surviving sister. It is said, indeed, that, by giving to the issue one-half of the share which belonged to their mother, the rule is satis- fied which requires that the issue of a person deceased shall, in all cases, represent their ancestor ; for it is argued that the issue still take one-fourth by representation, notwith- standing that the other fourth goes to the svu-viving sister, who constitutes, together with such issue, one heir to their common ancestor. This, however, is a fallacy ; the rule is, " that the lineal descendants in infinitum of any person APPENDIX. 465 deceased shall represent their ancestor, that is, shall stand in the same place as the person himself would have done had lie been living" (/«). Now, in what place would the deceased daughter have stood had she been living ? Would she have been heir to one-fourth only, or would she not rather have been heir to the entire moiety ? Clearly to the entire moiety ; for had she been living, no descent of her moiety would have taken place ; if, then, her issue are to stand in the place which she would have occupied if living, they cannot so represent her unless they take the whole of her share. But it is said, again, that the surviving daughter may have aliened her share ; and how can the descent of her deceased sister's share be said to be traced from the purchaser, if the survivor, who constitutes a part of the purchaser's heir, is to take nothing ? The descent of the whole, it is argued, can- not be considered as traced over again on the decease of any daughter, because the other daughter's moiety may, by that time, have got into the hands of a perfect stranger. The proper reply to this objection seems to be, that the laws of descent were prior in date to the liberty of aliena- tion. In ancient times, when the rules of descent were settled, the objection could scarcely have occurred. Estates tail were kept from alienation by virtue of the statute De Donis for about 200 years subsequent to its passing. Rights of entry and action were also inalienable for a very much longer period. Reversions expectant on estates of free- hold, in the descent of which the same rule of tracing from the purchaser occurred, could alone have afforded an instance of alienation by the heir; and the sale of reversions appears to have been by no means frequent in early times. In addi- tion to other reasons, the attornment then required from the particular tenant on every alienation of a reversion operated as a check on such transactions. It may, therefore, be safely asserted as a general proposition, that on the decease of any coparcener, the descent of whose share was to be traced from the purchaser, the shares of the other coparceners (w() 2 Black. Com. 2 If.. R.r. H H 466- APPENDIX. had not been aliened ; and to have given them any part of their deceased sister's share, to the prejudice of her own issue, would have been obviously unfair, and contrary to the natural meaning of the rule, that " every daughter hath a several stock or root"(?^). If, as we have seen, the rule remained the same with regard to estates tail, notwith- standing the introduction of the right of alienation (o), surely it ought still to continue unimpaired, now that it has become applicable to estates in fee, which enjoy a still more perfect liberty. Rules of law which have their foundation in natural justice, should ever be upheld, not- withstanding they may have become applicable to cases not specifically contemplated at the time of their creation. (h) Co. Litt. lG4b. (o) Doe v. Whichelo, 8 T. R, 211; ante, p. 457. ( 4G7 ) APPENDIX (C.) Referred to, p. 114. Ft has been renifirked that the author differs from the view of the Court of Exchequer Chamber in the case o^ Lord Diinraven v. LlcwcUj/n («), without stating his reason (b). In that case the Court hekl that there was no general common law right of tenants of a manor to common on the waste ; but the author remarked that, in his humble opinion, the authorities cited by the Court tend to the opposite con- clusion (c). The judgment of the Court is as follows : — " The question in this case is, whether my brother Piatt The judgment. " was ri"-lit in rejecting evidence of reputation, offered on " the trial before him, to show the title of the lord of the " manor of Ogmore to certain lands within the ambit of the " manor. " The evidence was that there were very many lands and " tenements held of tlie' manor, the tenants whereof, in " respect of those lands, had always exercised rights of " common for all their commonable cattle on a certain waste " adjoining to which was the locus in quo; and that the " deceased persons, being such tenants and exercising rights " ante litem motam, declared that the locus in quo was " parcel of the waste. Another description of evidence " was, that certain deceased residents in the manor had " made similar declarations. No evidence was given of the " exercise of the rights of those tenants over the locus in (a) 15 Q. B. 791. O. Crump, p. 188. (ft) Six. Essays on Commons (r) Ante, p. 114, n. (J). Preservation, Essay 3, by Mr, F. HIT 2 468 APPENDIX. " quo. My brother Piatt rejected the evidence, and, we " think, rightly. " In the course of the argument we intimated our opinion " that the want of evidence of acts of enjoyment of the " rights did not affect the admissibility of the evidence, but " only its value when admitted. We also stated that no ob- " jeetion could be made to the evidence on the ground that " it proceeded from persons who had not competent know- *' ledge upon the subject, or from persons who were them- " selves interested in the question. The main inquiry was, " whether this was a subject of a sufficiently public nature to "justify the I'eception of hearsay evidence relating to it. " If this question had been one in which all the inhabitants " of the manor, or all the tenants of it, or a particular dis- " trict of it, had been interested, reputation from any " deceased inhabitant or tenant, or even deceased residents " in the manor, would have been admissible, such residents " having presumably a knowledge of such local customs ; " and if there had been a common law right for every tenant " of the manor to have common on the wastes of it, reputa- " tion from any deceased tenant as to the extent of those " wastes, and therefore as to any particular land being waste "of the manor, would have been admissible. But although " there are some books which state that common appendant " is of common right, and that common appendant is the " common law right of every free tenant in the lord's wastes ; " for example, note (/) to Mellorv. Spateman (d); Bennett " V. Reeve (e) ; Com. Dig. Common (B), it is not to be un- " derstood that every tenant of a manor has by common law " such a right, but only that certain tenants have such a " right, not by prescription, but as a right by common law, " incident to the grant. " This is explained in Lord Coke's Commentaries on the " Statute of Merton (/), 2 Inst. 85. He says, 'By this . id) 1 Wras. Saund. 340 d. (Cth (<") Willcs, 227, 2.'51. edit.) (/) Stat. 20 Hen. III. c. 4. <( ( Ari'ENDIX. ' recitiil' (of tlmt statute) ' a point of the ancient common ' law appeareth, that Avhen a lord of a manor (whereon ' was great waste grounds) did enfeoff others of some ' parcels of arable laud, the feoffees ad marmtcncntr ser- vitium socce, should have common in the said wastes of " ' the lord for two causes. 1. As incident to the feoff- " <■ ment, for the feoffee could not plough and manure his « ' ground without beasts, and they could not be sustained «' ' without pastm-e, and by consequence the tenant should " ' have common in the wastes of the lord for his beasts " ' which do plough and manure his tenancy as appendant " ' to his tenancy, and this was the beginning of common " ' appendant. The second reason was, for maintenance " ' and advancement of agriculture and tillage, which was " ' much favoured in law.' The same law is laid down by " Coke and Foster, 1 Rol. Abr. 396, 1. 45, tit. Common " (C), pi. 4. " This right, therefore, 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 it " is as much a peculiar right of the grantee as one derived " by express grant or by prescription, though it differs in " its extent, being limited to such cattle as are kept for " ploughing and manuring the arable land granted, and as " are of a description fit for that purpose ; whereas the " right by grant or prescription has no such limits, and " depends on the will of the grantor. " We are therefore of opinion that this case is precisely in " the same situation as if evidence had been offered that " there were many persons, tenants of the manor, who had " separate prescriptive rights over the lord's wastes; and " reputation is not admissible in the case of such separate " rights, each being private, and dc]icnding on each separate " prescription, unless the i)roposition can be supported " that, because there are many such i-ights, the rights have " a public character, and the evidence, therefore, becomes " admissible. 469 470 APPENDIX. " We think this position cannot be maintained. It is im- " possible to say in such a case where the dividing point is. " What is the number of rights which is to cause their natm-e " to be changed, and to give them a public character ? " But it is said that there are cases which have decided " that where there are numerous private prescriptive rights " reputation is admissible ; and the case of Weeks v. " Sparke {g) is relied \x])0\\ as establishing that proposition. " The reasons given by the diflfereut judges in that case " would certainly not be satisfactory at this day ; some put- *' ting it on the ground of the custom of the circuits, some " upon the ground that where there was proof of the enjoy- " ment of the right, reputation was admissible. Both these " reasons are now held to be insufficient. It may be that " the evidence admitted was that of reputation from deceased " commoners, which Avould be admissible on the same prin- " ciple that the statement of a deceased person in possession " of land abridging or limiting his interest is admissible ; " but that reason does not apply to the present case, because " the statements are used to extend, not to limit the rights. " It was also said that the case of Weeks v. Sparke {g) had " since been sanctioned by the Court of Queen's Bench in " that of Prifckard v. Powell (h), where it was held that " reputation was admissible to prove common between two " wastes pur cause de vicinage. But the claim in that case " was treated as a matter of immemorial custom (see p. 603); ♦' and reputation in support of a custom is admissible. " We are of opinion, therefore, that the evidence of rcpu- •* tation offered in this case was, according to the well-estab- " lished rule in the modern cases, inadmissible, as it is in " reality in support of a mere private prescription ; and the *' number of these private rights docs not make them to be " of a public nature. " Therefore the judgment must be affirmed." Judgment affirmed. O) 1 M. & S. G79. (//) 10 Q. B. 589. APPENDIX. ^7 ^ The substaucc of the argument of the Court appears to be ^;);«^;;^^';^™ this : Common appendant is not a right of all tenants, but ^^^^j^^ ^f f^^ only of certain of the tenants, namely, the tenants of arable Court. land ; and being the individual right of some, and not the general right of all, it is not of so public a nature as to war- rant the admission of evidence of reputation concerning it. The authorities cited arc : — 1. Note (I) to Mellor v. Spateman {i). This is as fol- Serjeant AVil- ^ ' , 1 • 1 + liaius s iiote. lows :— " Common appendant, bemg the common law right " of every free tenant of a manor on the lord's wastes (Com. " Dig. tit. Common (B) ), is confined to such and so many " cattle as the tenant has occasion for, to plough and manure " his land, in proportion to the quantity thereof." 2. The case of Bennett v. Reeve (k). It is there said- ^^J^^^^''- " The reason for common appendant appears to be this, that " as the tenant would necessarily have occasion for cattle, " not only to plough but likewise to manure his own laud, " he must have some place to keep such cattle in whilst the " corn is growing on his own arable land, and therefore of " common right (if the lord had any Avaste) he might put his " cattle there Avhen they could not go on his own arable laud. " This is a simple and intelligible reason for this custom, and " is said to be the reason in Co. Litt. 122 a." 3. Comyn's Digest, tit. Common (B). It is there said— gomyn's " Common appendant is of common right. 1 Rol. 396, 1. 44. " For if a man had enfeoffed others, before the Statute of " Quia.Emptores Terrarum, of lands parcel of his manoi-, " the feoffees should have common for their commonable " cattle within the Avastes, &c. of the lord, as incident to " their feofl'ment. 2 Inst. 85, 6, per 2 J. ; 1 Rol. 396, 1. 45 ; " 4 Co. 37." The last authority is Lord Coke's Commentary on the Statute of Mcrton, Avhich is set out at length in the judgment of the Court. (i) 1 Wms. Saiind. 31G d. ((5th edit.) (/•) Willes, 227, 231. 472 APPENDIX. Admitted ex- It is admitted that common appendant cannot belong to ccjjtioiis, ^j^j |jy^ arable land. It cannot belong to a house, as such, exclusive of any yard or place for cattle, nor can it belong to ancient meadow or pastui'e, nor to an ancient wood (/), nor to the bed of a river, nor, it is presumed, to the soil of a highway, nor to mines and minerals, of all which there may be tenants. All these are admitted exceptions. But the admission of an exception is not necessarily the destruc- The rule. tion of a rule. And it is submitted that, as a rule, in the times of the Normans, all tenants were tenants of arable land, that the meadow and pasture lands were subservient to the arable, that by land was primarily meant arable land, that the exceptions depend simply on the nature of their subject-matter, and that the rights of the owners of arable land in a manor were the rights of the whole agricultural public in that manor, and, as such, of a sufficiently public nature to make reputation properly admissible in questions concerning them. A tenant in former times required a house to live in, arable land for his maintenance, pasture for his cattle, acorns for his pigs, and wood for fuel and repairs. Accordingly, in the argument in Hill v. Grange (m), it is said, " Every- " thing is placed in writs by the rule of the register accord- " ing to its dignity; for which reason a messuage is placed " before land, and land before meadow, and meadow before " pasture, et sic de similibus. And everything is ranked " and distinguished in dignity according to its necessary use " in life ; for to have a house for a man to dwell in, and to " defend his body against the coldness and inclemency of the " air, is more necessary than to have land to plough for " bread ; and to have land for bread is again more neces- *' sary than to have meadow for hay for cattle ; and to have " meadow for hay, which will serve the whole year, is more " necessary than pasture, et sic de similibus." Here it is said that land is for bread. By " land " is meant " arable land," according to the well-understood meaning of the (I) See Earl of Sef ton V. Court, {m) Plowd. Itj4, IGt). 5 B. & C. 917, 922. APPENDIX. 473 won! iu ancient times. And the liuul was for bread. The liuid was Every tenant took land because he desired to live upon the f"^' ^^'^'"^• corn it grew. Meadow, pasture or Avood, Avitliout arable land, was of no use, and therefore not taken alone. The meadow and pasture were required to support the horses, cattle and sheep, by means of which the land was tilled and manured, and the woods in those days were chiefly valuable ns affording sustenance for the pigs. Porci inanmdati, or unruug pigs, are the objects of frequent animadversion in sundry old court rolls {n). In Domesday Book the meadow In Domesday, land is frequently measured by ploughs. Thus in Ken- ^^^^.^^ , sington (Chcuesit) there was land to ten ploughs, meadow ploughs. for two ploughs, pasture for the cattle of the village, and pannage for two hundred hogs (o). By " meadow for two ploughs " was meant so much meadow as would support the oxen necessary for tw^o ploughs (/?). So in the ancient Meadows be- Saxon grants (7), and also iu the Norman grants made prior j^JJ^^' to the statute of Quia Emptoj-es (r), meadows and pastures are mentioned with other appurtenances as belonging to the land (s). So in the Abbreviatio Placitorum it is recorded that in Michaelmas term, 2 John, Walter de Witifeld re- covers his seisin of twenty acres of pasture and forty acres of Avood belonging to Ms free tenement {£). The land was measured amongst the Saxons by hides and Hides and yard lands (virgatcB), of Avliich four usually Avent to a hide. ^^^ ^^ *' Thus the Saxon Chronicle, iu speaking of Domesday, says — " So very narroAvly, indeed, did he commission them to trace it out, that there was not one single Jiide nor yard land, nay, moreover (it is shameful to tell, though he thought it no shame to do it), not even an ox, nor a cow, («) Sec those of the manor of (?•) Stat. IS Edw. I. c. 1. Wimbledon. {s) Mad. Form. Angl. No. 288, (0) Bawdwcn's Translation of p. 178 ; No. 29G, p. 181 ; No. 298, Domesday, Middlesex, p. 25. p. 182; No. 338, p. 257; No. 3G0, (/;) Sir H. Ellis's Introduction p. 274 ; No. 3G2, p. 275 ; No. 3G4, to Domesday, vol. 1, pp. 103, p. 270 ; No. 580, p. 328. 149, n. (4). (t) Abbreviatio Placitoi-um, p. ((/) Sharon Turner's Anglo- 27. Sec also Ilil. 4 John, p. 37. Saxons, vol. 2, pp. 555, 55G. 474 APPENDIX. oxgangs. 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 {x), though in some rare cases the term " hide " appears to have been apj^lied to plowlands and pasture and wood (y). But amongst the Normans lands were measured by plowlands (carucatcB) and oxgangs {hovatce), terms exclusively applicable to arable land, a plowlaud being as much as a plough could till, and an ox- gang as much as an ox-team could till {z). A Avrit for an oxgang of marsh was held ill, " because an oxgang is always of a thing which lies in tillage " ia). Though, as Lord Coke observes (i), " a plowland may contain a messuage, wood, meadow, and 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 gainure tillage. So beasts of the plough and Gain and tillage syno- nymous. (w) Sax.Cliro. Anno 1085,p. 289, Ingram's edit. The learned trans- lator puts " yard of land," which he explains to be the fourth part of an acre ; but the expression is jyribe lanbe J-, yard land, which comprised several acres, varying in different places. Gibson rightly translates the passage thus : " ut ne nnica esset lujda ant virgata terreej" Gibson's Sax. Chron. p. 186. (a-) Co. Litt. 69a; Sir H. Ellis's Introduction to Domesday, vol. 1, p. 145. (y) Sir H. Ellis's Introduction to Domesday, vol. 1, p. 148. (z) Ibid. vol. 1, p. 156. Lord Coke, however, says that an oxgang was as much as an ox could till. (a) Fitz. Abr. tit. Briefs, 241. The learned editor of Co. Litt. erroneously supposes that the writ was held ill on account of the un- certainty of the term oxgang ; Co. Litt. 09 a, n. (z). And he further adds, " See infra, a like case as to the uncertainty of virgata." The case refeiTcd to appears to be that mentioned by Lord Coke in Co. Litt. 69 a — " A fine shall not be received de una virgata terrce, for the uncertainty; vide 39 Hen. VI. 8." But on reference to the Year Book it will be found that all that was decided was, that if a grant was anciently made of two ^irgates of land, on which two messuages have since been built, and part of which has since been converted into meadow, pasture and wood, the deed of grant must be pleaded in its terms, and the land de- manded by the names appropriate to its present state of messuage, land, meadow, pasture and wood, the change being alleged. And in Sheppard's Touchstone, p. 12, buvata and virgata are both men- tioned amongst the proper terms to pass land by fine. (Jj) Co. Litt. 69 a. APPENDIX. 475 cattlo, which tilled and mauuicd the laud, were exempt from distress if any other could be found (c). And the ancient Distress. law with respect to tithe corresponded with this state of Tithes, things. As a rule, every kind of produce was titheable. But no tithe was payable for grass used for the agistment or feeding of any cattle or sheep employed in the tillage or nianurance of arable land Avithin the parish ; because the parson thereby got better tithes from the arable land {d). 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 (e) and Westminster the second (f) The Statutes treat tenants entitled to common appendant as a well-known ^^t^^i°ste° class, the former speaking of them as feoffees, the latter as the second. 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 any one in any other mauner than of common right he ought to have, " alio modo quam de jure communi habere deberet.''^ By these statutes the loi'd was enabled to improve his wastes, pro- vided he left sufficient common for the tenants. The tenants exercising these rights of common were often The lord's called generally the lord's freemen. Thus, in the reign of ^*^*^^"^'^- King John, Amauricus Comes Hebraicarnm grants to a tenant as to his freeman, for his service and homage, a yard land, with a messuage to the same land belonging, and with all its appurtenances, to hold of him and his heirs to the tenant and his heirs at a certain rent ; " and I will," the deed proceeds, " that he shall have common in my town of M. like my other freemen {sicut alii liberi mei homines) in woods and Avaters and pastures and ways and paths " {g). So, in the second year of the reign of King fTohn, the men of PrunlmU, in Sussex, complain that the abbot of Battle (<;) Com. Dig. tit. Distress (C); (/ ) Stat, i;; Kdu. I. c. 40. And 2 lust. 132. see stat. ;5 & A Edw. VI. c. 3, s. 2. {(l) 1 Eagle on Tithes, 289, 290. {) Tgrriiigliam's case, i 1\Q\K (r) Co. Litt. 48 b. 478 APPENDIX. that of common right every freeholder is entitled to common appendant in the lord's wastes. Coramon ap- pendant need not be pre- scribed for. The authorities above cited from Williams's Saunders, Willes's Reports, and Comyn's Digest (s), ai-e strictly in accordance with the principles above stated. And Lord Coke's Commentary on the Statute of Merton, which is cited at length by the court in the judgment in Lo7'd Diinraven V. Lleioellyn (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 Emiitores, of arable land by virtue of his individual grant, and as an incident thereto, and is as much a 'peculiar right of the grantee as one derived by express grant or by pre- scription. But the principle that common appendant is not 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 that this kind of common is of common right, whilst other kinds are not. These doctrines are two. First, because common appendant is of common right, therefore a man need not prescribe for it (?<). Lord Coke, who lays down this doctrine, had previously said that appendants are ever by prescription {x). Mr. Hargrave, in his note, reconciles the two doctrines thus : that " as appendancy cannot be without prescription, the former always implies the latter ; and therefore, if one pleads common appendant, it is unnecessary to add the usual form of prescribing " {y). In other words, common appendant is not a peculiar right belonging to each grantee, but a common right belonging to all, and so well known to the law as such, that it is sufficient in pleading merely to mention its name, without entering is) Ante, p. 471. (0 Ante, p. 408. (7t) Co. Litt. 122 a; Year Book, 21 lien. YI., 10 a ; Fitz. Nat. Brev. 179, n. (J). (ar) Co. Litt. 121b. (y) Co. Litt. 122 a, n. (2); Jen- l.'in V. Mr'iaii, Pojiham, 201. APPENDIX. 479 into a more minute description. Had it been a peculiar right belonging to each grantee, it would have been neces- sary to set it out, the tenant claiming that he, and all those whose estate he had, from time immemorial used to place so many beasts of such a kind upon such a common. In this respect common appendant resembles the customs of gavel- kind and borough English, which are known to the law and need not be particularly described, whereas any other cus- tomary mode of descent requires to be particularly stated (z). Secondly, " If a man purchase part of the land wherein Common ap- common appendant is to be had, the common shall be appor- jJ^'^J^ "*;..''^^^^ tioued because it is of common right; but not so of a com- tioned. mon appurtenant, or of any other common of what nature soever " (a). Here common appendant is distinguished from all other kinds of common, on the simple ground of its being of common right or a right given by the law. Ti/rringham'' s Tyrringhani's case (b) turned on this distinction. The tenant there lost ''**^' his common by claiming it as annexed to meadow and pas- ture ; whereby was understood ancient meadow and pasture, to which, as we have seen (c), common cannot be a}jpe7idant. Common may, however, by a grant or prescription, be apptirtenajit to meadow and pasture ; and such in this case it was held to be. The owner of part of the land over which the common was claimed, 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, with 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 appurtenant. " Forasmuch as the court resolved that the common was appurtenant and not appendant, and so against common right, it was adjudged that by the said purchase all the common was extinct " {d). Common appurtenant is Common ap- {z) Bac. Abr. tit. Customs (H). {c) Ante, p. 477. (n) Co. Lift. 122a. ((/) 4 Rep. 38a. (/;) 4 Kcp. ,%I). 480 APPENDIX. purtenant is " against" common riftht. against common right because it depends upon a special grant, either expi'essed or implied from long usage; and the law accordingly allows it to fail altogether whenever it can- not be exercised in its 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 tenements in respect of which it is claimed with part of the lands over which the right is exercised. Had the common been appendant in Tyrring- hani'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, that common appendant is the common law right of every tenant of freehold lands, is as accurate as any general proposition can be, and is not to be explained away into a number of distinct and peculiar grants, made only to certain tenants individually. The court in Lord Dunraven V. Llewelhjn assumes as a fact that such grants were actually made in the case before it, according to the explanation given by Lord Coke. And in many cases it may be taken as historically true that such grants were made. But rights 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 Common fields, origin. And there is reason to believe that the rights of common over common field lands, about which the Court of Exchequer, in the tAventy-seventh year of the reign of Queen Elizabeth, confessed themselves " at first altogether ignorant" (/), were at least of Saxon, if not in many cases (e) See Mr. Beale's suggestive Essay on Commons Preservation, Ussays, p. 100 ; Aljliroviatio Pln- cituniiii, Mich. 4 Julm, ]). ofi ; Trin. 4 John, p. 40; Easter, 7 & 8 John, p. 51. (/) Sir Miles Corbet's Case, 7 Ivt'p. 5 I). APPENDIX. ^81 of ancicut British origin {g). Agriculturists were not then very enterprising. An " assart," or reclamation of Avaste, Assart, was of rare occuri'cnce (/«). The British cultivators were often left by the Saxon conquerors, and the Saxons by the Normans ; and each retained their ancient customs, which by degrees grew up into rights {i). The Norman lawyers applied as best they could the feudal rules of tenure to the PtHte of things they found actually existing. The notions about property were then unripe {k). 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 fuel or repairs, it was not of the slightest consequence to him whe- ther 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 quite unpro- H table and often inaccessible, do not appear to have been taken into account. When it became necessary that 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 in 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. The following passage from Maine's Ancient Law (/), Maine on illustrates the sort of change that probably took place. I'l'imogeniture. Speaking of the rule of primogeniture he says: — " The ideas (^) See Archteologia, vol. 3-1, Domesday, vol. 1, p. 102. p. Ill, vol. 37, p. 383. See also (0 1 Sharon Turner's Anglo- post, as to the Welsh custom of Saxons, 324, 325 ; 2 ib. 542, 543; co-tillage. The Saxon term " yard Palgrave's Riscand Progress of the land" is, according to the author's En) Fitz. Nat. Brev. vol. Commissioners. 179. (a) Vol. 2, p. 179. 486 APPENDIX. tain tenants, but in the adaptation of tlie ancient rights of the freeholders as a class to the remedies prescribed by English law. In the case of Lord Dunraven v. Llewellyn, the lord who claimed the land in dispute as part of the waste tendered, as we have seen, evidence of reputation — that so it was consi- dered by the commoners. This evidence was rejected, and the commoners were not considered as a body or class, because certain tenants only— namely, the tenants of arable Modns. lands — have by law a right to common appendant. If, how- ever, the dispute had been between the 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 have been clearly admissible (c). 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 Avas a small tithe only {d). This exception, however, arising as it did from the nature of the subject of occupancy, did not 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 prevent 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, with 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. ^een admissible on the ground that a custom was in dis- pute (e). But such evidence is admissible in the case of a (c) ^^^ute v. Llsle, 4 Mad. 214, 225. {d) 1 Eagle on Tithes, 44. (e) Damercll v. Prothcroc, 10 Q. B. 20; Prlchard v. Po)vell, 10 Q. B. 589, 603, as explained in Lord Dunraven v. Llewellyn, ante, p. 470. APPENDIX. 487 custom solely ou the ground that a custom affects a class or botly of persous m a particular place {f). Can it be said that the commoners are less a class when the custom of the manor coincides with the common law, which is the general custom of the realm, than when it differs from it ? It may be said that common appendant at the present day Extinguish- is comparatively rare, that many such rights have now i"eut ot ngi s. become extinguished, and that, supposing a single right to remain in a manor, ought evidence of reputation to be giveu in support of it ? The answer is, that this depends upon the manner in which the claimant frames his claim. He may choose to rely on his continuous enjoyment of the right of common in respect of his tenement, and in that case he will have the benefit of the provisions and also be liable to the limitations of the Prescription Act {g) ; but will not 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 appen- dant, there seems no reason why, in relying on a general right, he should not have the benefit of evidence of repu- tation 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 manor as such has ceased to exist (/<). The cesser, therefore, of any general right ought not to prevent the admission of evidence of reputation as to its former existence. The cases as to customs afford an Customs. analogy. If all the copyholds but one, parcel of a certain manor, should become extinct, the tenant of that one may, if he pleases, allege a customary right of common as belong- ing to that tenement only {i) ; but in that case he cannot adduce evidence of the enjoyment of a similar right by other tenants of the same manor {k). He must prove the (/) Jones V. Eohin, 10 Q. B. v. Mawson, 1 Mau. & Sel. 77. 581, 583, 620, 635. (/) Bac. Ahr. tit. Copyhold (J.) ; (//) Stat. 2 & 3 Will. IV. c. 71. Foiston and Orach roodc's case, 4 {h) Steel V. Priekett, 2 Stark. Rep. 31b. 463 ; Doe d. Molesworth v. Slee- (^) Wilson v. Page, 4 Esp. 71. 7)tan, 9 Q. B. 298; and see Barnes 488 APPENDIX. custom as he alleges it (Z). He may, however, if he pleases allege the right as belonging by custom to all the customary tenements of the manor (ni), and in that case evidence as to the other tenements will be admissible in his behalf; but at the same time he will expose his claim to be met by evidence relating to any other tenement in the manor standing in the same situation as his own (n). For these reasons the author is of opinion that the case of Lord Dunraven\. Llewellyn was, on the point in question, wrongly decided. There was another point decided, namely this, that evidence of actual exercise is not essential to the admission of evidence of reputation. With this decision the author has no fault to find. {V) Dunstanv. Tresider, 5 T. {n) 1 Scriv. Cop. 597; 3rd edit.; Rep. 2. Cort v. Birlibeck, 1 Doug. 218, (to) See Potter v. JSTorth, 1 219, 223 ; Freeman v. Phillijjjjs, Wms. Saund. 346, 348 ; 1 Lev. 4 Mau. & Sel. 486, 495. 268. ( 489 ) APPENDIX (DV Referred to, pp. 19-', 293, 430. A Deed of Grant. This Indenture made the second day of January (a) [in Date, the eleventh year of the reign 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 1848 Between A. B. of Parties. Cheapside in the city of London 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 Inn aforesaid gentleman of the third part (b) Whereas by indentures of Recital of the lease and release bearing date respectively on or about the j^" v^en^({J)*r^ first and second days of January 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 with the appurtenances 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 Whereas Recital of the the said A. B. hath contracted and agreed with the said l^f^^^^ C. D. for the absolute sale to him of the inheritance in fee simple in possession of and in the said messuage or tenement lands and hereditaments hereinbefore referred to and herein- after described with the appurtenances free from all incum- brances at or for the price or sum of one thousand pounds (a) The words within brackets ante, pp. 292, 293. If this should are now most frequently omitted. not be intended, the deed would {!)) The reason why Y. Z. is be made between A. B. of the one made a party to this deed is, that part, and C. D. of the other part, the widow of C. D. may be barred as in the specimen given, p. 182. or deprived of her dower. See 490 APPENDIX. Testatum. Consideration Keceipt, Now THIS IxDEXTURE WITNESSETH tliat for Carrying the said contract for sale into effect and in consideration of the sum of one thousand pounds of lawful money of Great Britain to the said A. B. in hand well and truly paid by the said C. D. upon or immediately before the sealing and de- livery of these presents ';the receipt of which said sum of one thousand pounds in full for the absolute purchase of the inheritance in fee simple in possession of and in the mes- suage or tenement lands and hereditaments hereinafter de- scribed and intended to be hereby granted with the appurte- nances 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 C. D. his heirs executors administrators and assigns [and every of them for ever by these presents]) He the said A. B. Hath granted and confirmed and by these presents Doth grant and confirm unto the said C. D. and his heirs (c) All that messuage or tenement situate lying and being at &c. commonly called or known by the name of &c. {here describe the pre- General words, wises) Together with all and singular the houses out- houses edifices buildings barns dovehouses stables yards gardens orchards lights easements ways paths passages waters watercourses trees woods underwoods commons and commonable rights hedges ditches fences liberties privileges emoluments commodities advantages hereditaments and appurtenances whatsoever to the said messuage or tene- ment lands hereditaments and premises hereby granted or intended so to be or any part thereof belonging or in any- wise appertaining or with the same or any part thereof Operative Avords. Pai-cels. (c) If the deed were dated at any time between the month of May, 1841 (the date of the statute 4 & 5 Vict. c. 21 ; ante, pp. 172, 179), and the first of January, 1845 (the time of the commence- ment of the operation of the Trans- fer of Property Act, ante, p. 172), the form would be as follows : — " He the said A. B. doth by these " presents (being a deed of release " made in pursuance of an Act of Parliament made and jjassed in the fourth year of the reign of • her present Majesty Queen Vic- • toria intituled An Act for ren- ' dering a Release as effectual for ' the Conveyance of Freehold Es- ' tates as a Lease and Release by ' the same Parties) grant bargain ' sell alien release and confirm ' unto the said C. D. and his ' heks." APPENDIX. 491 now or at any time heretofore usually held used occupied or enjoyed [or accepted reputed taken or known as part parcel or member thereof] And the reversion and reversions re- Estate. mainder 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 pro- perty 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 or intended so to be and every part and parcel of the same with their and every of their appurtenances And all deeds evidences and writings re- And all deeds, lating to the title of the said A. B. to the said hereditaments and premises hereby granted or intended so to be now in the custody of the said A. B. or which he can procure without suit at law or in equity To have and To hold the said Habendum, messuage or tenement lands and hereditaments hereinbefore described and all and singular other the premises hereby granted or intended so to be with their and every of their rights members and appurtenances unto the said C. D. and his heirs (d) To such uses upon and for such trusts intents Uses to bar and 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 instru- ments 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 credible wit- nesses direct limit or appoint 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. and his assigns for and during the term of his natural life without impeach- ment 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 (^) If the dower of C. D.'s simply bo " To the use of the said widow should not be intended to " C. D. his heirs and assigns for be ban-ed, the form would here " ever." 492 APPENDIX. Covenants for title. That the ven- dor is seised in fee. That the ven- dor has good right to con- vey. For quiet en- joyment. assigns and after the decease of the said C. D. To the use of the said C. D. his heirs and assigns for ever And the said A. B. doth herehy for himself his heirs (e) executors and administrators covenant promise and agree with and to the said C. D. his appointees heirs and assigns in manner follow- ing 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 to the contrary {f) [he the said A. B. is at the time of the sealing and delivery of these presents lawfully rightfully and absolutely seised of or well and sufficiently entitled to the messuage or tenement lands hereditaments and premises hereby granted or intended so to be with the appurtenances of and in a good sure perfect lawful absolute and indefeasible estate of inheritance in fee simple without any manner of condition contingent proviso power of revo- cation 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 And that for and notwithstanding any such act matter or thing as aforesaid] he the said A. B. now hath in himself good right full power and lawful and absolute authority to grant and confirm the said messuage or tenement lands hereditaments and premises hereinbefore granted 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 And that the same messuage or tenement lands hereditaments and premises with the ajipurtenances shall and lawfully 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 hind- rance eviction ejection molestation disturbance or inter- ruption whatsoever of from or by the said A. B. or any person or persons lawfully or equitably claiming or to (e) See ante, pp. 75, 7G. (/) See ante, p. 430. APPENDIX. 493 claim by from through under or iu trust for him And that (a) free and clear and freely and clearly acquitted For freedom , , , • 1 1 • xi_ -I from nifiuii- exoncrated and discharged or otherwise by him the said brj^ces. A. B. his heirs executors or administrators well and suf- ficiently saved defended kept harmless and indemnified of fi'om 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 For further the said A. B. and his heirs and all and every persons and assurance. person having or lawfully claiming 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 hereditaments and premises hereinbefore granted or intended so to be with their appur- tenances 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 and at the costs and charges of the said C. D. his appointees heirs and assigns make do and execute or cause or procure to be made done and exe- cuted all and every or any such further and other lawful and reasonable acts deeds things grants conveyances and assurances in the law whatsoever for further better more perfectly and effectually granting conveying and assuring the said messuage or tenement lands hereditaments and pre- mises hereinbefore granted 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 as by him the said C. D. his appointees heirs or assigns or his or their counsel in the law {(j) The word that is here a pronoun. 49-i APPENDIX. shall or may be reasonably advised or devised and required [so that 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 and administrators 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 their dwelling or respective dwellings or usual place or places of abode or residence] In Witness, &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! of One Thousand Pounds being the consider- /^^l^^O- ation within mentioned to be paid by him to me. (Signed) A. B. Witness John Doe Richard Roe. ( 495 ) APPENDIX (E). Referred to p. 219, n. (v). On the decease of a woman entitled by descent to an estate in fee simple, is her husband, having had issue by her, en- titled, according to the present law, to an estate for life, by the curtesy of England, in the whole or any part of her share ? In order to answer this question satisfactorily, it will be necessary, firet, to examine into the principles of the ancient law, and then to apply those principles, when ascertained, to the law as at present existing. Unfortunately the authori- ties whence the principles of the old law ought to be derived do not appear to be quite consistent with one another ; and the consequence is, that some uncertainty seems unavoidably to hang over the question above propoimded. Let us, how- ever, weigh carefully the opposing authorities, and endea- vour to ascertain on which side the scale preponderates. Littleton, " not the name of the author only, but of the law itself," thus defines curtesy : " Tenant by the curtesie of England is where a man taketh a wife seised in fee simple or in fee tail general, or seised as heir in tail especial, and hath issue by the same wife, male or female, born alive, albeit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the land during his life by the law of England. And he is called tenant by the curtesie of England, because this is used in no other realme, but in England only" (6). And, in a subsequent section, he adds, "Memorandum, that, in every case where a man taketh a wife seised of such an («) The substance of the fol- paper for March 1-4, 1846. lowing ohscrvations has already (b) Litt. s, 35. appeared in the " Jurist" news- 496 APPENDIX. estate of tenements, &c., as the issue which he hath by his wife may by possibility inherit tlie same tenements of such an estate as the Avife hath, as heir to the wife; in this case, after the decease of the wife, he shall have the same tene- ments by the curtesie of England, but othertvise tiot" (c). " Memorandum," says Lord Coke, in his Commentary (d), " this word doth ever betoken some excellent point of learn- " ing." Again, " As heir to the wife. This doth imply a secret of law ; for, except the wife be actually seised, the heir shall not (as hath been said) make himself heir to the wife ; and this is the reason, that a man shall not be tenant by the curtesie of a seisin in law." Here, we find it asserted by Littleton, that the husband shall not be tenant by the curtesy, unless he has had issue by his wife capable of in- heriting the land as her heir; and this is explained by Lord Coke to be such issue as would have traced their descent from the wife, as the stock of descent, according to the maxim, " seisina facit stipitem." Unless an actual seisin had been obtained by the wife, she could not have been the stock of descent ; for the descent of a fee simple was traced from the person last actually seised ; " and this is the reason," says Lord Coke, " that a man shall not be tenant by the cur- tesy of a mere seisin in law." The same rule, with the same reason for it, will also be found in Paine's case (e\ where it is said, "And when Littleton saith, as heir to the wife, these words are very material ; for that is the true reason that a man shall not be tenant by the curtesy of a seisin in law ; for, in such case, the issue ought to make himself heir to him who was last actually seised." The same doctrine again appears in Blackstone (/). "And this seems to be the principal reason why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised ; because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife ; but no one, by the standing rule of law, can be heir to the an- cestor of any land, whereof the ancestor was not actually seised ; and, therefore, as the husband had never begotten (r) Litt. s. m. (e) 8 Rep. 3G a. {(l) Co. Litt. 40 a. (/) 2 Black. Comm. 128. APPENDIX. any issue that can be heir to those lands, he shall not be tenant of them by the curtesy. And hence," continues Black- stone, in his usual laudatory strain, " we may observe, with how much nicety and consideration the old rules of law were framed, and how closely they are connected and interwoven together, sujDporting, illustrating and demonstrating one an- other," Here we have, indeed, a formidable array of autho- rities, all to the point, that, in order to entitle the husband to his curtesy, his wife must have been the stock from whom descent should have been traced to her issue ; for the prin- cipal and true reason that there could not be any curtesy of a seisin in law is stated to be, that the issue could not, in such a case, make himself heir to the wife, because his descent was then required to be traced from the person last actually seised. Let us, then, endeavour to apply this principle to the pre- sent law. The act for the amendment of the law of inherit- ance (^) enacts (A), that, in every case, descent shall be traced from the purchaser. On the decease of a woman entitled by descent, the descent of her share is, therefore, to be now traced, not from herself, but from her /mcestor, the pur- chaser from whom she inherited. With respect to the per- sons to become entitled, as heir to the purchaser on this descent, if the woman be a coparcener, the question arises, which has already been discussed (i), whether the surviving sister equally with the issue of the deceased, or whether such issue solely, are now entitled to inherit ? And the conclu- sion at which we arrived was, that the issue solely succeeded to their mother's share. But, whether this be so or not, nothing is clearer than that, on the decease of a woman en- titled by descent, the persons who next inherit take as heir to the purchaser, and not to her ; for, from the purchaser alone can descent now be traced ; and the mere circumstance of having obtained an actual seisin does not now make the heir the stock of descent. How, then, can her husband be entitled to hold her lands as tenant by the curtesy ? If (y) 3 & 4 Will. IV. c. 106. (0 Appendix (B), ante, p. 453. (A) Sect. 2. K.P. K K 497 498 APPENDIX. tenancy by the curtesy was allowed of those lands only of which the wife had obtained actual seisin, because it was a neces- sary condition of curtesy that the wife should be the stock of descent, and because an actual seisin alone made the wife the stock of descent, how can the husband obtain his curtesy in any case where the stock of descent is confessedly not the wife, but the wife's ancestor ? Amongst all the recent alter- ations of the law, the doctrine of curtesy has been left un- touched ; there seems, therefore, to be no means of deter- mining any question respecting it, but by applying the old principles to the new enactments, by which, indirectly, it may be affected. So far, then, as at present appears, it seems a fair and proper deduction from the authorities, that, whenever a woman has become entitled to lands by descent, her husband cannot claim his curtesy, because the descent of such lands, on her decease, is not to be traced from her. But, by carrying our investigations a little further, we may be disposed to doubt, if not to deny, that such is the law ; not that the conclusion drawn is unwarranted by the authorities, but the authorities themselves may, perhaps, be found to be erroneous. Let us now compare the law of curtesy of an estate tail with the law of cui'tesy of an estate in fee simple. In the section of Littleton, which we have already quoted (I), it is laid down, that, if a man taketh a wife seised as heir in tail especial, and hath issue by her, born alive, he shall, on her decease, be tenant by the curtesy. And on this Lord Coke makes the following commentary : " And here Littleton intendeth a seisin in deed, if it may be attained unto. As if a man dieth seised of lands in fee simple ox fee tail general, and these lands descend to his daughter, and she taketh a husband and hath issue, and dieth before any entry, the husband shall not be tenant by the curtesy, and yet, in this case, she had a seisin in law ; but, if she or her husband had, during her life, entered, he should have been tenant by the curtesy "(w). Now, it is well known that (Z) Sect. 35. (ot) Co. Litt. 29 a. APPENDIX. 499 the descent of an estate tail is always traced from the pur- chaser or original donee in tail. The actual seisin which might be obtained bj- the heir to an estate tail never made him the stock of descent. The maxim was, " Possessio fratris de feudo simplici faeit sororem esse ha^redem." Where, therefore, a woman who had been seised as heir or coparcener in tail died, leaving issue, such issue made them- selves heir not to her, but to her ancestor, the purchaser or donee ; and whether the mother did or did not obtain actual seisin Avas, in this respect, totally immaterial. When actual seisin was obtained, the issue still made themselves heir to the purchaser only, and yet the husband was entitled to his curtesy. When actual seisin was not obtained, the issue were heirs to the purchaser as before ; but the husband lost his curtesy. In the case of an estate tail, therefore, it is quite clear that the question of curtesy or no curtesy depended entirely on the husband's obtaining for his wife an actual seisin, and had nothing to do with the circumstance of the. wife's being or not being the stock of descent. The reason, therefore, before mentioned given by Lord Coke, and repeated by Blackstone, cannot apply to an estate tail. An actual seisin could not have been required in order to make the wife the stock of descent, because the descent could not, under any circumstances, be traced from her, but must have been traced from the original donee to the heir of his body per formam doni. Again, if we look to the law respecting curtesy in incor- poreal hereditaments, we shall find that the reason above given is inapplicable ; for the husband, on having issue born, was entitled to his curtesy out of an advowson and a rent, although no actual seisin had been obtained, in the wife's lifetime, by receipt of the rent or presentation to the advow- son (n). And yet, in order to make the wife the stock of descent as to such hereditaments, it was necessary that an actual seisin should be obtained by her (o). The husband, therefore, was entitled to his curtesy where the descent to (w) Watk. Descents, 39 (47, (o) Watk. Descents, CO (G7, 4th ed.) 4th ed.) K K 2 500 APPENDIX. the issue was traced from the ancestor of his wife, as well as where traced from the wife herself. In this case also, the right to curtesy was, accordingly, independent of the wife's being or not being the stock from which the descent was to be traced. We are di'iveu, therefore, to search for another and more satisfactory reason why an actual seisin should hare been required to be obtained by the wife, in order to entitle her husband to his curtesy out of her lands ; and such a reason is furnished by Lord Coke himself, and also by Blackstone. Lord Coke says (p), " Where lands or tenements descend to the husi^and, before entry he hath but a seisin in law, and yet the wife shall be endowed, albeit it be not reduced to an actual possession, for it lieth not in the power of the wife to bring it to an actual seisin, as the husband may do of his wife's land when he is to be tenant by curtesy, which is worthy the observation." It would seem from this, therefore, that the reason why an actual seisin was required to entitle the husband to his curtesy was, that his wife may not suffer by his neglect to take possession of her lands ; and, in order to induce him to do so, the law allowed him curtesy of all lands of which an actual seisin had been obtained, but refused him his curtesy out of such lands as he had taken no pains to obtain possession of. This reason also is adopted by Blackstone from Coke : " A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable : for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands ; which is one reason why he shall not be tenant by the curtesy but of such lands whereof the wife, or he himself in her right, was actually seised in deed " {q). The more we investigate the rules and principles of the ancient law, the greater will appear the probability that this reason Avas indeed the true one. In the troublous times of old, an actual seisin was not always easily acquired. The doctrine of continual claim shows that peril was not unfrequently incurred in entering (^) Co. Litt. 31 a. (-/) 2 Black. Com. 131. APPENDIX. 501 on lands for the sake of asserting a title; for, in order to obtain an actual seisin, any person entitled, if unable to approach the premises, was bound to come as near as he dare (r). And " it is to be observed," says Lord Coke, " that every doubt or fear is not sufficient, for it must con- cern the safety of the person of a man, and not his houses or goods ; for if he fear the burning of his houses or the taking away or spoiling his goods, this is not suffi(^ient " (s). That actual seisin should be obtained was obviously most desir- able, and nothing could be more natural or reasonable than that the husband should have no curtesy where he had failed to obtain it. Perkins seems to think that this was the reason of the rule; for in his Profitable Book he answers an objection to it, founded on an extreme case. "But if pos- session in law of lands or tenements in fee descend unto a married Avoman, which lands are in the county of York, and the husband and his wife are dwelling in the county of Essex, and the wife dieth within one day after the descent, so as the husband could not enter during the coverture, for the shortness of the time, yet he shall not be tenant by the curtesy, &c. ; and yet, according to common pretence, thei'e is no default in the husband. But it may be said that the husband of the woman, before the death of the ancestor of the woman, might have spoken unto a man dwelling near unto the place where the lands lay, to enter for the woman, as in her right, immediately after the death of her ancestor," &c. (t). This reason for the rule is also quite consistent with the circumstance that the husband was entitled to his curtesy out of incorporeal heredita- ments, notwithstanding his failure to obtain an actual seisin. For if the advowson were not void, or the rent did not become payable during the wife's life, it was obviously impossible for the husband to present to the one or receive the other ; and it would have been unreasonable that he should suffer for not doing an impossibility, the maxim being " impoteutia excusat legem." This is the reason, indeed, usually given to explain this circumstance ; and it (?•) Lltt. ss. 419, 421. (0 Perk. 470. is) Co. Litt. 253 b. 502 APPENDIX. will be found both in Lord Coke {u) and Blackstone {x). This reason, however, is plainly at variance with that mentioned in the former part of this paper, and adduced by them to explain the necessity of an actual seisin, in order to entitle the husband to his curtesy out of lands in fee simple. There still remains, however, the section of Littleton, to which we have before referred (y), as an apparent authority on the other side. Littleton expressly says, that when the issue may, by possibility, inherit, of such an estate as the wife hath, as heir to the toife, the husband shall have his curtesy, but otherwise not; and we have seen that, accord- ing to Lord Coke's interpretation, to inherit as heir to the ivife, means here to inherit from the wife as the stock of descent. But the legitimate mode of interpreting an author certainly is to attend to the context, and to notice in what sense he himself uses the phrase in question on other occa- sions. If now we turn to the very next section of Littleton, we shall find the very same pla-ase made use of in a manner, which clearly shows that Littleton did not mean, by inherit- ing as heir to a person, inheriting from that person as the stock of descent. For, after having thus laid down the law as to curtesy, Littleton continues : " And, also, in every case where a woman taketh a husband seised of such an estate in tenements, &c., so as, by possibility, it may happen that the wife may have issue by her husband, and that the same issue may, by possibility, inhei'it the same tenements of such an estate as the husband hath, as heir to the husband, of such tenements she shall have her dower, and otherwise not^^ (z). Now, nothing is clearer than that a wife Avas en- titled to dower out of the lands of which her husband had only seisin in law (a) ; and nothing, also, is clearer than that a seisin in law only was insufficient to make the husband the stock of descent : for, for this purpose, an actual seisin was requisite, according to the rule " seisina facit stipitem." In this case, therefore, it is obvious that Littleton could not («) Co. Litt. 29 a. (z) Litt. s. 53. {x) 2 Black. Com. 127. (a) Watk. Descents, 32 (42, iy) Sect. 52. 4th ed.) APPENDIX. mean to say that the husband must have been made the stock of descent, by virtue of having obtained an actual seisin : for that Avould have been to contradict the plainest rules of law. What, then, was his meaning ? The subse- quent part of the same section affords an explanation : " For, if tenements be given to a man and to the heirs which he shall beget of the body of his Avife, in this case the wife hath nothing in the tenements, and the husband hath an estate tail as donee in special tail. Yet, if the husband die without issue, the same wife shall be endowed of the same tenements, because the issue which she, by possibility, might have had by tlie same husband, might have inherited the same tenements. But, if the wife dieth leaving her husband, and after the husband taketh another wife and dieth, his second wife shall not be endowed in this case, for the reason aforesaid." This example shows what was Littleton's true meaning. He was not thinking, either in this section or the one next before it, of the husband or wife being the stock of descent, instead of some earlier ancestor. He was laying down a general rule, applicable to dower as well as to curtesy; namely, that if the issue that might have been born in the one case, or that Avere born in the other, of the surviving parent, could not, by possibility, inherit the estate of their deceased parent, by right of representation of such parent, then the surviving parent was not entitled to dower in the one case, or to curtesy in the other. It is plain that, in the example just adduced, the issue of the hus- band by his second marriage could not possibly inherit his estate, which was given to him and the heirs of his body by his first wife; the second wife, therefore, was excluded from dower out of this estate. And, in the parallel case of a gift to a woman and the heirs of her body by her first husband, it is indisputable that, for a precisely similar reason, her second husband could not claim his curtesy on having issue by her ; for such issue could not possibly inherit their mother's estate. All that Littleton then intended to state with respect to curtesy, was the rule laid down by the Statute de Donis {b), which (5) 13 Edw. I. c. 1. 503 )04. APPENDIX. provides that, where any person gives lands to a man and his wife and the heirs of their bodies, or where any person gives land in frankmarriage, the second husband of any such woman shall not have any thing in the land so given, after the death of his wife, by the law of England, nor shall the issue of the second husband and wife succeed in the inheritance (c). When the two sections of Littleton are read consecutively, without the introduction of Lord Coke's commentary, their meaning is apparent ; and the intervening commentary not only puts the reader on the wrong clue, but hinders the recovery of the right one, by removing to adis- tance the explanatory context. If our construction of Littleton be the true one, it throws some light on the question discussed in Appendix (B), on the course of descent amongst coparceners. We there en- deavoured to show that the issue of a coparcener always stood in the place of their parent, by right of represen- tation, even where descent Avas traced from some more remote ancestor as the stock. Littleton, with this view of the subject in his mind, and never suspecting that any other could be entertained, might well speak generally of issue inheriting as heir to their parent, even though the share of the pai'ent might have descended to the issue as heir to some more remote ancestor. The authorities adduced in Appendix (B) thus tend further to explain the language of Littleton ; whilst the language of Littleton, as above explained, illustrates and confirms the authorities previously adduced. Having at length arrived at the true principles of the old law, the application of them to the state of circumstances produced by the new law of inheritance will be very easy. A coparcener dies leaving a husband who has had issue by her, and leaving one or more sisters surviving her. The descent of her share is now traced from their common parent, the purchaser. But, in tracing this descent, we have seen, in Appendix (B), that the issue of the deceased coparcener (c) See Bac. Abr. tit. Curtesy of England (C), 1. APPENDIX. 505 would inherit her entire share by representation of her. And the condition which will entitle her husband to curtesy out of her share appears to be, that his issue might possiljly inherit the estate by right of representation of their de- ceased mother. This condition, therefore, is obviously ful- filled, and our conclusion consequently is, that the husband of a deceased coparcener, who has had issue by her, is en- titled to curtesy out of the whole of her share. But in order to arrive at this conclusion, it seems that we must admit, first, that Lord Coke has endeavoured to support the law by one reason too many ; and, secondly, that one laudatory flourish of Blackstone has been made without occasion. ( 506 ) APPENDIX (F). Eefen-ed to, p. 265. If the rule of perpetuity, which restrains executory interests within a life or lives in being and twenty-one years after- Avards, be, as is sometimes contended (a), the only limit to the settlement of real estate by way of remainder, the follow- ing limitations would be clearly unobjectionable : — To the use of A., a living unmarried person, for life, with remainder to the use of his first son for life, with remainder to the use of the first son of such first son, born in the lifetime of A., or within twenty-one years after his decease, for life, with remainder to the use of the first and other sons of such first son of such first son of A., born in the lifetime of A., or within twenty-one years after his decease, successively in tail male, with remainder to the use of the first son of the first son of A., born in his lifetime, or within twenty-one years after his decease, in tail male, with remainder to the use of the second son of such first son of A,, born in the lifetime of A., or within twenty-one years after his decease, for life, with remainder to the use of his first and other sons, born in the lifetime of A., or within twenty-one years after his decease, successively in tail male, with remainder to the use of the second son of the first son of A., born in his life- time, or within twenty-one years after his decease, in tail male, with remainder to the use of the third son of such first son of A., born in the lifetime of A., or within twenty-one years after his decease, for life, with remainder to the use of his first and other sons, born as before, successively in tail male, with remainder to the use of such third son of the first son of A., born as before, in tail male, with like remainders to the use of the fourth and every other son of such first son (a) Lewis on Perpetuity, p. 408 et scq. APPENDIX. 507 of A., born as before, for life respectively, followed by like remainders to the use of their respective first and other sons, born as before, successively in tail male, followed by like remainders to the use of themselves in tail male ; with remainder to the use of the first son of A. in tail male, with remainder to the use of the second son of A. for life ; with similar remainders to the use of his sons, and sons' sons, born as before ; with remainder to the use of such second son of A. in tail male, and so on. It is evident that every one of the estates here limited must necessarily arise within a life in being (namely, that of A.) and twenty-one years afterwards. And yet here is a settlement which will in all probability tie up the estate for three generations : for the eldest son of a man's eldest son is very frequently born in his lifetime, or, if not, will most pro- bably be born within twenty-one years after his decease. And great grandchildren, though not often born in the life- time of their great grandfather, are yet not unusually born within twenty-one years of his death. Now if a settlement such as this were legal, it would, we may fairly presume, have been adopted before now ; for conveyancers are fre- quentlv instructed to draw settlements containing as strict an entail as possible ; and the Court of Chancery has also sometimes had occasion to carry into effect executory trusts for making strict settlements. In these cases it would be the duty of the draftsman, or of the court, to go to the limit of the law in fettering the property in question. But it may be safely asserted that in no single case has a settle- ment, such as the one suggested, been drawn by any con- veyancer, much less sanctioned by the Court of Chancery. The utmost that on these occasions is ever done is, to give life estates to all Uving persons, with remainder to their first and other sons successively in tail male. As, therefore, the best evidence of a man's having had no lawful issue is that none of his family ever heard of any, so the best evidence that such a settlement is illegal is that no conveyancer ever heard of such a draft being drawn. ( 508 ) APPENDIX (G). Referred to, pp. 361, 363. Consideration. Surrender. Parcels. Estate. The Manor of ^ A General Court Baron of John Freeman Fairfield in / Esq. Lord of the said Manor holden in and the County of ( for the said Manor on the 1st day of Janu- Middlesex. J arj in the third year of the reign 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 Before John Doe Steward of the said Manor. At this Court comes A. B. one of the customary tenants of this manor and in consideration of the sum of £1000 of law- ful money of Great Britain to him in hand well and truly paid by C. D. of Lincoln's Inn in the county of Middlesex Esq. in open court surrenders into the hands of the lord of this manor by the hands and acceptance of the said steward by the rod according to the custom of this manor All that messuage &c. [Acre describe the premises^ with their appurtenances (and to which same premises the said A. B. was admitted at the general Court holden for this manor on this 12th day of October 1838) And the reversion and reversions remainder and remainders rents issues and profits thereof And all the estate right title interest trust benefit property claim and demand whatsoever of the said A. B. in to or out of the same premises and every part thereof To the use of the said C. D. his heirs and assigns for ever according: to the custom of this manor. Admittance. Now at this Court comes the said C. D. and prays to be admitted to all and singular the said customary or copy- hold hereditaments and premises so surrendered to his use at this Court as aforesaid to whom the lord of this manor APPENDIX. 509 by the said steward grants seisin thereof by the rod To HAVE and To hold the said messuage hereditaments and Habendum. premises with their appurtenances unto the said C. D. and his heirs to be holden of the lord by copy of court roil at the will of the lord according to the custom of this manor by fealty suit of court and the ancient annual rent or rents and other duties and services therefore due and of right accustomed And so (saving the right of the lord) the said C. D. is admitted tenant thereof and pays to the lord on such his admittance a fine certain of £50 and his fealty is Fine £50. respited. (Signed) John Doe Steward. INDEX. Abeyance, inheritance in, 256. Abstract of title, vendor bound to furnish an, 431. Accumulation, restriction on, 307. Acknowledgment of deeds by married women, 222, 441. Actions, real and personal, 7. Administrator, 10. Admittance to copyholds, 338, 362, 363, 508. AdvowSON appendant, 313. agreements for resignation, 329. conveyance of, 330. in gross, 314, 330. of rectories, 329. of vicarages, 330. proper length of title to, 431. limitation of actions and suits for, 436. Agreements, what required to be in writing, 161. stamps on, 162, n. for lease, 378. stamps on, 379, n. Aids, 115, 117. Alien, 62, 160. „ ^. ^. Alienation of real estate, 17, 18, 36, 39, 40, 42, 58, 60, 62, 63, 6o, /5, 88, 89, 90, 240. power of, unconnected with ownership, 289. of executory interests, 304. of copyholds, 349, 359, 361, 363, 364, 508. Ambassadors, children of, 63. Ancestor, descent to, 100, 108. formerly excluded from descent, 100, Ancient demesne, tenure of, 125, 342. incidents of tenure in fee, 113, 467. Annuities for lives, enrolment of memorial of, now unnecessary, 318. registration of, 318. search for, 442. Anticipation, clause against, 316. 512 INDEX. Appexdaxt incorporeal hereditaments, 309, 310, 311. common appendant, 114, n., 4G7. Application of purchase-money, necessity of seeing to the, 433. Appoiktment, powers of, 194, 285, 288. — See Powers. Apportionment of rent, 28, 386. of rent-charge, 323. hy Inclosure Commissioners, 324. Appurtenances, 315. Appurtenant incorporeal hereditaments, 315, 316. rights of common and of way, 315. Arms, grant of, 140, n. directions for use of, 281. Assart, 481. Assets, 76. Assignee of lease liable to rent and covenants, 382. Assignment of satisfied terms, 402. of lease, 388. of chattel interest must be by deed, 388. Assigns, 62, 141. Assurance, further, in deed of grant, 493. Attainder of tenant in tail, 55, 121. of tenant in fee, 65, 121. Attendant terms, 401, 402, 404. Attestation to deeds, 184, 286. to wills, 196, 288, 364. to deeds exercising powers, 287, 288. Attested copies, 440. Attornment, 237, 310. now abolished, 238, 311. Auction, sale of land by, 162. opening of biddings abolished, 163. Autre di-oit, estates in, 400. Autre vie, estate pur, 20, 22. quasi entail of, 57. in a rent-charge, 321. in copyholds, 345. B. Bankruptcy, 88, 352, 391. of tenant in tail, 56. of cestui que trust, 105. of tenant in fee, 88. of trustee, 165. search for, 442. exercise of powers by assignees in, 285. of owner of land subject to rent-charge, 324. INDEX. ^1^ Bankkuptcy, sale of copyholds in, 352. composition with the lord before entry for liues, &c., 352. as to leaseholds in, 391. Bargain and sale, 175, 177, 103, 104, 381. required to be enrolled, 177, 193. for a year, 177, 179. of lands in Yorkshire, 428. Bastardy, 121. Bedford Level registry, 187. Benefice with cure of souls, 00. Biddings, opening of, abolished, 1G2. Borough English, tenure of, 125. Breach of covenant, waiver of, 386. actual waiver of, 380. implied waiver, 38G. Calvin's case, G3. Canal shares, personal property, 8. Cesser of a term, proviso for, 308. Cestui que trust, 156, 275. is tenant at will, 376. que vie, 20, 21. Chambers, 14. Chancery Amendment Act, 1858.. 170. ancient, 150, 157. modern, 157, 170. interposition of, between mortgagor and mortgagee, 411. Charities, Incorporated, 73. Charity, conveyance to, 66, 67. inrolment of, 71. new trustees of, 167. commissioners, 71. official trustee, 71. Chattels, 6, 7, n., 8. Cheltenham, manor of, 372. Codicil, 201. Collation, 328. Commissioners of Inclosures, 129, 312, 324. Common, tenants in, 133. forms, 101. rights of, 114, n.. 311,315, 407. of copyholds, 358. R.P. L L 514 INDEX. Common — continued. appendant, 476. commonable beasts, 476. no common for a house, 477. ancient meadow, 477. appendant need not be prescribed for, 478. shall be apportioned, 479. appurtenant is against common right, 480. writ of novel disseisin, 485. the remedy ascertained the right, 485. extinguishment of rights, 487. fields, 311, 312, 480. metropolitan commons, 312. in gross, 827. limitation of rights of, 437. Law Procedure Act, 1854. . 109, 184. Commutation of tithes, 334. of manorial rights, 356. Companies, joint stock, 73. Condition of re-entry for nonpayment of rent, 235. demand of rent formerly required, 235. modern proceedings, 235. formerly inalienable, 236. for breach of covenants, 384. effect of licence for breach of covenant, 384, 385, 386. effect of waiver, 386. Conditional gift, 35, 41. Consent of protector, 51. as to copyholds, 350, 367. Consideration on feoffment, 143, 151, 153, 157. a deed imports a, 144. Construction of wills, 19, 204. of law as to attendant terms, 404. Contingent remainders, 252. anciently illegal, 253. Mr. Feame's Treatise on, 257. definition of, 257. example of, 258, 266. rules for creation of, 259, 260, 264. formerly inalienable, 268. destruction of, 269. now indestructible, 269. trustees to preserve, 273, 274. of trust estates, 275. of copyholds, 369. Continuing breach of covenant, 386. INDEX. '^15 Conveyance, fraudulent, 74. of tithes, 333. by tenant for life, 31. voluntarv, Ti. by cleed,"l44, 145, 178, 229, 333. by married women, 222. to uses, 181, 182. Coparceners, 97. descent amongst, 107, 453. Copyholds, definition of, 33G. origin of, 336. for lives, 337, 345. of inheritance, 338. history of, 338, 339. estate tail in, 346, 349. estate pui- autre vie, 345. customary recovery, 349. forfeiture and re-grant, 350. equitable estate tail in, 368. ancient state of copyholders, 336, 347. alienation of, 349, 359, 361, 363, 508. subject to debts, 351. sale of, by court of bankruptcy, 352. descent of, 353. tenure of, 353. commutation of manorial rights in, 356. enfranchisement of, 357. mortgage of, 416. grant of, 360, 361. seizure of, 365. contingent remainders of, 369. deposit of copies of court roll, 418. abstract of title on purchase t)f, 431. Copyhold Acts, 1852, and 1858 . . . 357. Corporation, conveyance to, 73. Corporeal hereditaments, 10, 13. now lie in grant, 229. Costs, mortgage to secure, 425. Counter-part, stamp on, 145. Counties palatine, 84. County Courts, 158, 167, 413. agreements for sale or lease, 163. Court of Probate, 109. suit of, 116, 117, 120. customary, 337, 359, 361. Kolls, 33G, 360, 361. Covenant to stand seised, 194. L L 2 516 INDEX. Covenants in a lease, 382. run -inth the land, 383. effect of licence for breach of, 384, 386. waiver of breach of, 386. for quiet enjoyment, implied by certain words, 428. for title, 429, 430, 492. to produce title deeds, 440. Coverture, 214, 436. Creditors, conveyances to defi-aud, 74. judgment, 78.— See Judgment Debts. may mtness a Avill, 199. sale of copyhold estates for benefit of, 351. Crown debts, 56, 85, 165, 336. registration of, 86, 87. search for, 88, 441. forfeiture to the, 121. limitation of rights of, 435. Curtesy, tenant by, 218. of gavelkind lands, 124, n., 219. as affected by the new law of inheritance, 220, 495. of copyholds, 358, 371. Customary freeholds, 342, 343. recovery, 349. Customs, 336, 486, 487. Cy pres, doctrine of, 265. D. Daughters, descent to, 96, 106, 453. Death, civil, 23. gift by will in case of, without issue, 206. Debts, cro^\Ti, 56, 85, 165, 351. where trustees and executors may sell or mortgage to pay, 212. devise in fee or in tail charged with, 212. of deceased ti-aders, 77. judgment, 56, 78, 164, 284, 351, 390. liability of lands to, 75, 77. of leaseholds to, 390. simple contract, 70. charge of, by will, 78, 211, 213. copyholds now liable to, 351. liability of trust estates to, 163. Deed, 144. of grant, 173, 192, 489. alteration or rasure in, 144. whether signing necessary to, 148. poll, 146. INDEX. .017 Deed required to transfer incorporeal hereditaments, 229. on grant of rent-charge, 317. of grant, conveyance of reversion by, 232, Deeds, stamps on, 145. similarity of, 189. Demand for rent, 235. Demandant, 45. Demesne, the lord's, 114, 337. Demise, implies a covenant for quiet enjoyment, 428. Denizen, 63. Descent, 10. of an estate in fee simple, 94, 447. of an estate tail, 99. gi-adual progress of the law of, 92. of gavelkind lands, 124. of borough English lands, 125. of an equitable estate, 1(5 1. of tithes, 332, 333. of copyholds, 353. Destruction of entails, 43. Devise.— See Will. Disabilities, time allowed for, 436. Disclaimer, 91, 209. Distress, 235, 475. clause of, 320. for rent reserved by underlease, 392. Dockets, 80. Donative advowsons, 328. Donee in tail, 34. Doubts, legal, 148. Dower, 222. action for, 228. of gavelkind lands, 224. under old law independent of husband's debts, 224. old method of barring, 224. under the recent act, 226. declaration against, 227. modern method of barring, 292. uses to bar, 293, 491. of copyholds, 358, 372. formerly defeated by assignment of attendant term, 403. release of, by acknowledgment of purchase deed, 433. leases by tenant in, 228. Draining, 29, 30, 312. Duplicate Deed, stamp on, 145. 518 INDEX. E. Easements, limitations of right to, 437. Ejectment of mortgagor by mortgagee, 410. Elegit, writ of, 79, 81, 351. Emblements, 27, 376. Enclosure, 311. conyeyance of, will carry adjoining waste, 313. Enfranchisement of copyholds, 357. Enrolment.— See Inrolment. Entail. — See Tail. Entirety, 98, 217. Entireties, husband and wife take by, 217. Entry, necessary to a lease, 173, 380. tenant's position altered by, 173, 174. right of, supported a contingent remainder, 270. on court roll of deed, barring estate tail, must be made within six months, 3G7, n. power of, to secure a rent-charge, 320. Equitable assets, 76. waste, 25. estate, 156, 158, 320. no escheat of, 160. forfeiture of, 160. creation and transfer of, 161. descent of, 161. liable to debts, 163. tail in copyhold may be barred by deed, 367. sun-ender of, 368. of alien, 160. curtesy of, 218. Equity follows the law, 158. a distinct system, 169. of redemption, 411. is an equitable estate, 422. mortgage of, 424. Erasure, 144. Escheat, 120, 121, 122, n. none of trust estates, 160. none of a rent-charge, 327. of copyholds, 353. Escrow, 144. ESCUAGE, 117. Estate during widowhood, 22. legal, 156. pur autre vie, 20, 22, 321, 345. in anlre droit, 400. INDEX. 519 Estate leases of settled, 25, 26, 31, 52. sale of settled, 31, 32, grant of, 35. tail, 33, 34, 42, 50, 52, 140, 157, 203, 207, 208, 248, 249. for life, IG, 17, 22, 32, 140, 158, 205, 320. in copyholds, 845. in fee simple, 140, 322. ancient incidents of the tenure, 113, 467. no escheat of trust, 160. forfeiture of trust, 160. of life, 270. creation and transfer of trust, 1()1. must be marked out, 180. of wife, 216. particular, 231. one person may have more than one, 243. words of limitation, 245. in remainder, 246, 248. where the first estate is an estate tail, 240. forfeiture of life, 142, 270. in copyhold, 340, 345, 508. sale of, by court of bankruptcy, 352. at will, 340. equitable, 156. equitable for life and in tail, 158. equitable, in mortgaged lands, 422. Estoppel, lease by, 381. Exchange, implied effect of, 428. power of, 295, 297, 298. statutory provision for, 312, n. Execution of a deed, 144, 286, 287. Executors, directions to, to sell land, 301, 302. devise of real estate independent of assent of, 211. where they may sell or mortgage to pay debts, 212. exoneration of, from liability to pay rent-charges, 325. exoneration of, from rents and covenants in leases, 390. Executory devises.— See Executory Interest. interest, 252, 253, 278, 303. creation of, under Statute of Uses, 279. by ^vill, 300, 370. alienation of, 304. limit to creation of, 306. - in copyholds, 370. where preceded by estate tail, 307. 520 INDEX. Father, descent to, 100, 107. his power to appoint a guardian, 118. Fealty, 116, 117, 120, 233, 353. Fee, meaning of term, 42. simple, 58, 112. joint tenants in, 129. equitable estate in, 159. gift of, by will, 205, 20G. estate of, in a rent-charge, 320. customary estate in, 34:3, 351. Fee tail, 41, 140. Feme Covert. — See Married "Woman and Wife. Feoffment, 37, n., 136, 151, 153. to the use of feoffor, 151. forfeiture by, 142. deed required for, 148. by idiots and lunatics, ] 42. by infants of gavelkind lands, 142. by tenant for life, 142. writing formerly nnnecessary to a, 143. Feudal system, introduction of, 3. abolition of, 6, 61. feuds originally for life, 17, 244. tenancies become hereditary, 34, 244. Feudum novum ut antiquum, 100. Fields, common, 311, 312. Fine, 47, 48, 509. formerly used to convey wife's lands, 221. attornment could be compelled on conveyance by, 238. payable to lord of copyholds, 344. Fines, search for, 441. Fire, relief against forfeiture for non-insurance, 387. protection of purchasers of leaseholds as to insurance, 389. power to insure against, in mortgages, 388, 414. Foreclosure, 413. com't may direct sale of property instead of, 413. Forfeiture for treason, 55, 121, 122, n., 354. by feoffment, 142. and re-grant of copyholds, 350. Formedon, 43. Frankalmoign, 37, 126. Frankmarriage, 36. Frauds, Statute of- (see Statute 29 Car. II. c. 3), 20, 141, 147, 161, 163, 165, 196, 234, 377, 378, 388, 418. INDEX. 521 FreEBENCH, 358, 372. Freehold, 22, 34, 58, 61. customary freeholds, 342, 343. any estate of, is larger than estate for term of years, 398. G. Gain, 474. Gavelkind, 124, 142. curtesy of gavelkind lands, 210. dower of gavelkind lands, 224. General occupant, 20. residuary de^dsee, 202. registiy, 438, 443. words, 183, 490. Gestation, period of, included in time allowed by rule of perpetuity 306. Gift, conditional, 35, 41. in tail, 112,208. in fee, 112, 208. to use of feoffee, 143. with livery of seisin, 136, 150. to husband and wife and a third person, 216. their heirs, 217. Give, word used in a feoffment, 139. warranty formerly implied by, 42G, 428. Goods, 6, 7, n., 8. Grand Serjeanty, 123. Grant, deed of, 173, 192, 489. an innocent conveyance, 193. construed most strongly against grantor, 18. incorporeal hereditaments lay in, 229. proper operative word for a deed of grant, 193. of copyholds, 300, 361. implied effect of the word, 193, 428. Gross, incorporeal hereditaments in, 316. seignory in, 316. common in, 327. advowson in, 327, 330. Guardian, 118. H. Habendum, 183, 188, 189, 491, 509. Half-blood, descent to, 103, 109, 448. Heir, anciently took entirely from grantor, 18. at first meant only issue, 34. alienation as against, 36. 522 INDEX. Heik, is appointed by the law, 62, 91. bound by specialty, 75. at law, 91. appai'ent, 91. presumptive, 91. cannot disclaim, 91. word " heirs" used in conveyance of estate of inheritance, 14:0. is a word of limitation, 140, 245. devise to, 210. contingent remainder to, 251, 255. gift to " heirs," 255. Hereditaments, 5, 8. incorporeal, 10, 222, 309. Heeiots, 354, 358. Hides and yard lands, 473. High treason, 88, 121, 354. Homage, 115, 359. Honour, titles of, 8, 334. Hull registry, 186. Husband, right of, in his wife's lands, 214, 220, 394. and wife one person, 216. cannot convey to his wife, 217. unless by Statute of Uses, 217. holding over, is a trespasser, 220. appointment by, to his wife, 278. Idiots, 64, 142, 365. Immoveable property, 2, 5. Implication, gifts in a will by, 208. Improvements, 30, 31. Inclosure, 311. commissioners, 312, 312, n., 324. Incorporated charities, 73. Incorporeal property, 11, 229, 309, 32G. not subject to tenure, 326. Indenture, 146. Indestructibility of land, 1. Induction, 327. Infants, 64, 142, 290, 304, 366, 436. marriage settlements, 64, 290. Inheritance, law of. — See Descent. trust of terms to attend the, 401, 402. owner of, subject to attendant term, had a real estate in equity, 404. Innocent com-eyancc, 193. INDEX. 523 InrolmENT of (Iccils barring estate tail, 40, 48, 307. of conveyance for charitable uses, 71. of bargain and sale, 177, 10;?. of memorial of deeds as to lands in ;MidS. Modus decimandi, 437, n. Money land, 159. MOETGAGE, 373, 407. construction of, in law, 409. for payment of debts, 212, 213. legacies, 212, 213. stamps on, 408. origin of term, 409. legal estate in, 410. to trustees, 420. equity of redemption of, 411, 422. foreclosure of, 413. power of sale in, 414. statutory powers of sale in, 414. appointment of receiver in, 414. fire insurance in, 388, 414. repayment of, 415. of copyholds, 416. of leaseholds, 417. by underlease, 417. interest on, 419. to joint mortgagees, 420. now primarily payable out of mortgaged lands, 420. 30 & 31 Vict. c. 69.. 423. tacking, 425. for future advances, 425. for long term of years, 415. transfer of, 421. stamps on transfer of, 421. Mortgagee and mortgagor, relative rights of, 410. judgment against, 420. Mortgagor, covenants for title by a, 430. limitation of his rights to redeem, 436. must give notice of intention to repay mortgage money, 4 1 5 Mortmain, 43, 65, 68, 71. Mother, descent to, 108, 109. Moveables, 2, 5. Murder, 88, 90. N. Natural life, 22. Naturalization, 63. New trustees, 166, 167, 168. INDEX. 527 Next presentation, 331, 332. Norman conquest, 2. Notice of an incumbrance, 82, 403. for repayment of mortgage money, 415. O. Occupant, 20. of a rent-charge, 321. Operative words, 183, 188, 490. Ownership, no absolute ownership of real property, 1 i OXGANGS, 474. P. Palatine, judgments in counties, 84. Paramount, queen is lady, 2, 113. Parcels, 183, 188, 490, 508. Particular estate, 231. Parties to a deed, 182, 188, 489. Partition, 98, 134, 135, 312, n. 428. 31 & 32 Vict. c. 40, 135. of copyholds, 341. Paternal ancestors, descent to, 102, 103, 107. Patron of a living, 327. Perpetuity, 50, 264, 265, 305, 506. Personal property, 7, 373. Petit serjeanty, 123. Play grounds, 72. Ploughlands, 474. Portions, terms of years used for securing, 398. Possession, mortgagee in, 436. Possibility, alienation of, 267, 268. of issue extinct, tenant in tail after, 52. on a possibility, 262. common and double, 263. Posthumous children, 260. Power, 277, 283. vested in bankrupt or insolvent, 284. compliance with formalities of, 285. attestation of deeds executing, 286. etiuitable relief on defective execution of, 287, exercise of, by will, 288, 291, extinguishment of, 291, 300. suspension of, 291. of leasing, 294, 295. estates under, how they take ci'foct, 299. 528 iXDEx. Power, release of, 300. of sale in mortgages, 414. of sale and exchange in settlements, 295, 297, 299. Precipe, tenant to the, 45. Premises, term, 14. PRESCEIPTIOlSr, 315. Presentation, 327. next, 831. sale or assignment of, by spiritual person, when void, 332. Presentment of surrender of copyholds, 362. of will of copyholds, 364. Primogeniture, 49, 97, 481. Privity between lessor and assignee of term, 383. none between lessor and under-lessee, 393. Probate, Com-t of, 199. Proclamations of line, 47. Professed persons, 23. Protector of settlement, 51, 350, 367. Pur autre vie, estate, 20, 22, 321, 345. Purchase, meaning of term, 94. when heir takes by, 210. deed, specimen of a, 182. deed, stamps on, 185, 186. money, application of, 433. Purchaser, voluntary conveyances void as to, 74. judgments formerly binding on, 79, 87. protection of, without notice, 82, 351, 403. descent traced fi'om the last, 94, 447. conveyance to the use of, 182. relief against mistaken payment by, 296. pi'otection against non-insm"ance against fire, 389. Q- Quasi entail, 57. Queen is lady paramount, 2, 113. Quia emptoi-es, statute of (see statute 18 Edw. I. c. 1). Quit rent, 119, 123. R. Rack-rent, new enactment as to tenants at, 27. Railway shares, personal property, 8. Real property, 7, 10, 180. Receiver, power to appoint in a mortgage, 414. Recital of contract for sale, 183, 489. of conveyance to vendor, 182, 188. INDEX. 529 IvECOGNIZANCES, 85. Recoveries, search for, 441. Recovery, 43, 45, 4G. customary, 349. Rectories, advowsons of, 327. Redemption, equity of, 411, 422. Re-entry, condition of, 236, 383. not now destroyed by licence for breach of covenant, 384. not now destroyed by waiver of breach of covenant, 3SG. Register of judgments, 81. of deeds, 18G, 438, 442. search in the, 441. of annuities, 318. Registration of title, 438. Regrant after forfeiture, 350. Release, proper assurance between joint tenants, 132. conveyance by, 172, 174, 178, 193, 238. from rent-charge of part of hereditaments not an extinguish- ment, 323. of powers by married women, 300. Relief, 115, 117, 120, 123, 354. Remainder, 232. bar of, after an estate tail, 44, 51. arises from express grant, 232. no tenure between particular tenant and remainder- man, 240. vested, 241, 242. vested, may be conveyed by deed of grant, 242. estates in remainder, 240. definition of vested, 243. example of vested, 258. contingent.— See CONTINGENT REMAINDER, of copyholds, 309. Remuneration, professional, 190. Renewable leases, 239, 394, 395. Rent, quit, 119, 123. demand for, 235. remedy by statute, 237. reservation of, 234. apportionment of, 28, 323. of estate in fee simple, 117, 119. service, 234, 237, 240, 354. passes by grant of reversion, 238. not lost now by merger of reversion, 240. none incident to a remainder, 240. seek, 316, 320. limitations of actions and suits for, 437. E.P. ^' -"*! 530 INDEX. Rent charge, 317, 437. power to grantee to distrain for, 320. estate for life in, 320. estate in fee simple in, 322. release of, 323. apportionment of, 323. accelerated by merger of prior term, 402. gi-antee of, lias no right to the title deeds, 438. creation of, under the Statute of Uses, 318. bankruptcy of owner of land subject to, 324. Eesiduaey devise, 202. Resignation, agreement for, 328. Resulting use, 153. Reversion, 232, 237. bar of, expectant on an estate tail, 44, 51. on a lease for years, 232. severance of, 385. on lease for life, 233. difficulty in making a title to, 439. purchaser of, 439. 31 Vict. c. 4 ; 440. Revocation, conveyance •with clause of, 74. of -ivills, 200, 201. RiVEK, soil of, 314. rights of owner of adjoining lands to, 314. Road, soil of, 313. Rule in Shelley's case, 244, 246, 250, 251, n. Rules, technical, in construing a -svill, 205. S. Sale of copyhold estates by Court of Bankruptcy, 352. of settled estates, 25, 26, 31, 32, 52. for pajTuent of debts, 211, 212, 304. power of, in settlements, 295, 296, 297. contract for, 489. Satisfied terms, 401, 404. Scholastic logic, 262. Schools, sites for, 72. Scientific institutions, 72, 1 67. Scintilla juris, 282, 283. Sea-shoee, rights of owner of adjoining lands to, 314. rights of the Cro'mi to, 314. SeIGNORY, 309. in gross, 316. INDEX. 531 Seisin, 95, 136, 344. transfer ol', reqviircil to be notorious, 2')d. actual seisin required for curtesy, 219. legal seisin required for dower, 224. of copyhold lands, is in the lord, 342. Seizure of copyholds, 3()5. Separate property of wife, 90, 214, 215, 3G7. Serjeanty, grand, tenure of, 123. petit, tenure of, 123. Services, feudal, 39. Settled Estates, leases and sales of, 25, 20, 31, 32, 52. Settlement, 48. protector of, 51, 350, 3G7. on infants on marriage, 04, 298. extract from a, 274. of copyholds, 307. Severalty, 98, 133. Severance of joint tenancy, 132. of reversion, 385. Shelley's case, rule in, 244, 246, 250, 251, n. Shifting use, 279, 280, 281, 283. no limitation construed as, which can lie rogardcd as a remainder, 282. in copyhold surrenders, 371. Signing of deeds, 148, Simony, 331. Sites for schools, 72. Socage, tenure of free and common, 116, 117, derivation of word, 110, n. Soil of river, 314. of road, 313. Sons, descent to, 96, 105. Special occiapant, 20. Specialty, heir bound by, 75. Springing uses, 279, 280, 281, 283. Stamps on deeds, 145, 185, 186, 230. on pm'chase deeds, 185, 186. on conveyances in consideration of annuities, 323. on agreements, 102, n. on agreements for leases, 379. on orders of court vesting trust property, 167. on lease for year now repealed, 173. on licence to demise copyholds, 341, n. on surrender of copyholds, 302, n. on admittance to copyholds, 363, n. on leases, 379, n. on assignment of leases, 388, n. IM M 2 532 INDEX. Stamps on sun-ender of a lease, 399, n. on covenant to surrender copyholds, 429, n. on appointment of new trustees, 168. on covenant for production of title deeds, 440, n. on mortgages, 408. on transfer of mortgages, 421. Statutes cited: 9 Hen. III. c. 29 (Magna Charta, freemen), 348. 9 Hen. IH. c. 32 (Magna Charta, alienation), 39. 20 Hen. III. c. 4 (approvement), 5, 4G8, 475. 4 Edw. I. c. 6 (warranty), 40, 427. 6 Edw. I. c. 3 (warranty \ 427. 6 Edw. I. c. 5 (waste), 24. 13 Edw. I. c. 1 (De donis), 5, G, 17, 41, 59, 271, 347, 349, 503. 13 Edw. I. c. 18 (judgments), 78, 164, 427. 13 Edw. I. c. 32 (mortmain), 43. 13 Edw. I c. 46 (commons), 475. 18 Edw. I. c. 1 (Quia emptores), 18, 60, 78, 112, 113, 122, 268, 310, 323, 347, 469, 473. 18 Edw. I. Stat. 4 (fines), 47, 114. 25 Edw. III. Stat. 2 (natural-bom subjects), G3. 34 Edw. III. c. 16 (fines), 47. 15 Rich. II. c. 6 (vicarages), 331. 4 Hen. IV. c. 12 (vicarages), 331. 1 Rich. III. c. 1 (uses), 1.52. 1 Rich. III. c. 7 (fines), 47. 4 Hen. VII. c. 24 (fines), 47, 48. 11 Hen. VII. c. 20 (tenant in tail ex iJrovisioyie viri), 54, 427. 19 Hen. VII. c. 15 (uses), 165. 21 Hen. VIII. c. 4 (executors renouncing), 302,370. 26 Hen. VIH. c. 13 (forfeiture for treason), 55, 121. 27 Hen. VIH. c. 10 (Statute of Uses), 16, 61, 143, 149, 150, 152, 155, 164, 175, 193, 195, 209, 221, 226, 278, 279, 300, 306. ss. 4, 5 (rent charge), 318. 27 Hen. VIII. c. 16 (enrolment of bargains and sales), 177, 193. 27 Hen. VIII. c. 28 (dissolution of smaller monasteries), 333. 31 Hen. VIII. c. 1 (pai-tition), 134. 31 Hen. VIII. c. 13 (dissolution of monasteries), 333. 32 Hen. VHI. c. 1 (^vills), 18, 61, 134, 195, 19G, 302. 32 Hen. VIII. c. 2 (limitation of real actions), 432. 32 Hen. VIH. c. 7 (conveyances of tithes), 333. 32 Hen. VIH. c. 24 (dissolution of monasteries), 333. 32 Hen. VIH. c.28 (leases by tenant in tail, &c.), 54, 219, 220. 32 Hen. VIII. c. 32 (partition), 135. 32 Hen. VIII. c. 34 (condition of re-entry), 237, 383, 384. 32 Hen. VIII. c. 3G (fines), 48, 54. S3 Hen. VIII. c. 39 (crown debts), 5G, 85. INDEX. 533 Statutes cited: 34 & 35 Hen. VIII. e. 5 (wills), Gl, 195. 34 & 35 Hen. VIII. c. 20 (estates tail granted by crown), 52. 37 Hen. VIII. c. 9 (interest), 410. 3 it 4 Edw. VI. c. 3 (commons), 475. 5 & 6 Edw. VI. c. 11 (forfeiture for treason), 55, 121. 5 & 6 Edw. VI. c. 16 (offices), 90. 5 Eliz. c. 2G (palatine courts), 193. 13 Eliz. c. 4 (crown debts), 5G, 85. 13 Eliz. c. 5 (defrauding creditors), 74. 13 Eliz. c. 20 (charging benefices), 90. 14 Eliz. c. 7 (collectors of tenths), 5G. 14 Eliz. c. 8 (recoveries), 53. 27 Eliz. c. 4 (voluntary conveyances), 74. 31 Eliz. c. 2 (fines), 47. 31 Eliz. c. G (simony) 331. 39 Eliz. c. 18 (voluntary conveyances), 74. 21 Jac. I. c. 16 (limitations), 435. 12 Car. II. c. 24 (abolishing feudal tenures), 6, Gl, 118, 119, 123, 126, 354. 15 Car. II. c. 17 (Bedford level), 187. 29 Car. II. c. 3 (Statute of Frauds), s. 1 (leases. Sec, in writing), 147, 148, 161, 179, 234, 376, 377, 378, 418. s. 2 (exception), 147, 234, 377, 378. s. 3 (assignments, &c. in writing), 388, 392, 418. s. 4 (agreements in writing), 161. s. 5 (wills), 196. ss. 7, 8, 9 (trusts in writing), 161, 162. s. 10 (trust estates), 163, 164. s. 12 (estate pur autre vie), 18, 21. s. 16 (chattels), 390. 2 Will. & Mary, c. 5 (distress for rent), 235. 3 & 4 Will. & Mary, c. 14 (creditors), 76, 77, 164. 4 & 5 Will. & Mary, c. 16 (second mortgage), 424. 4 & 5 Will. & Mary, c. 20 (docket of judgments), 80. C & 7 Will. III. c. 14 (creditors), 76. 7 & 8 Will. III. c. 36 (docket of judgments), 80. 7 & 8 Will. III. c. 37 (conveyance to corporations), 73. 10 & 11 Will. III. c. 16 (posthumous children), 260. 11 & 12 Will. III. c. 6 (title by descent), G3. 2 & 3 Anne, c. 4 (West Riding registry), 187. 4 & 5 Anne, c. 16, ss. 9, 10 (attornment), 238, 311. s. 21 (warranty), 427. 5 Anne, c. 18 (West Riding registry), 187, 194. G Anne, c. 18 (production of cestui que vie), 21, 22, 220. G Anne, c. 35 (East Riding registry), 1 87, 194, 429, 7 Anne, c. 5 (natural-born subjects), 63. 7 Anne, c. 20 (Middlesex registry), 187. 534 INDEX. Statutes cited: 8 Anne, c. 14 (tlistrcss for rent), 235. 10 Anne, c. 18 (copy of enrolment of bargain and sale), 193. 12 Anne, stat. 2, c. 12 (presentation), 332. 12 Anne, stat. c. 16 (usury), 419. 4 Geo. 11. C.21 (aliens), G3. 4 Geo. II. c. 28 (rent), 235, 23G, 239, 31G, 820, 393, 395. 7 Geo. II. c. 20 (mortgage), 411, 413. 8 Geo. II. c. 6 (North Riding registry), 187, 429. 9 Geo. II. C.36 (charities), GG, G7. 11 Geo. II. c. 19 (rent), 28, 235, 239. 14 Geo. II. c. 20 (common recoveries), 45, 50. s. 9 (estate pur autre vie). 21. 25 Geo. II. c. G (witnesses to wills), 198. 25 Geo. II. c. 39 (title by descent), G3. 9 Geo. III. c. IG (crown rights), 435. 13 Geo. III. c. 21 (natural-born subjects), G3. 25 Geo. III. c. 35 (crown debts), 5G, 85. 31 Geo. III. c. 32 (Roman Catholics), 23. 39 Geo. III. c. 93 (treason), 121. 39 & 40 Geo. III. c. 5G (money land), 150. 39 & 40 Geo. III. c. 88 (escheat), 122. 39 & 40 Geo. III. c. 98 (accumulation), 307. 41 Geo. in. c. 109 (General Inclosurc Act), 311. 44 Geo. III. c. 98 (stamps), 180. 47 Geo. III. c. 24 (forfeiture to the crown), 122. 47 Geo. III. c. 25 (half-pay and pensions), 90. 47 Geo. III. c. 74 (debts of traders), 77, 1C4. 48 Geo. III. c. 149 (stamps), 186. 49 Geo. III. c. 126 (offices), 90. 63 Geo. III. c. 141 (inrolment of memorial of life annuities), 318. 54 Geo. III. c. 145 (attainder), 121. 64 Geo. III. c. 1G8 (attestation to deeds exercising powers), 2SG. 65 Geo. III. c. 184 (stamps), 14G, 1G2, 18G, 362, 3G4. 55 Geo. III. e. 192 (surrender to use of will), 365. 57 Geo. III. c. 99 (benefices), 90. 59 Geo. III. c. 94 (forfeiture to the crown), 122. 1 & 2 Geo. IV. c. 121 (crown debts), 85. 3 Geo. IV. c. 92 (annuities), 318. 6 Geo. IV. c. 16 (bankruptcy), 88, 391. 6 Geo. IV. c. 17 (forfeited leaseholds), 122. 7 Geo. IV. c. 45 (money laud), 159. 7 Geo. IV. c. 75 (annuities), 318. 9 Geo. IV. c. 31 (petit treason), 121. 9 Geo. IV. c. 85 (charities), 67. 9 Geo. IV. c. 94 (resignation), 328, 329. 10 Geo. IV. c. 7 (Roman Catholics), 2.*!. 11 Geo. IV, & 1 Will. IV. c. 20 (pensi.-n,^), 90. INDEX. 535 Statutes cited: 11 Geo. IV. & 1 Will. IV. c. 47 (sale to pay debts), 31, G4, 77, 1G4, 305, 293. 11 Geo. IV. & 1 Will. IV. c. CO (trustees), 106. 11 Geo. IV. & 1 Will. IV. c. Go (infants, &c.), G4, G5, 3G5, 3GG, 395. 11 Geo. IV. & 1 Will. IV. c. 70 (administration of justice), 85, 194. 2 & 3 Will. IV. c. 71 (limitation), 437, 487. 2 & 3 Will. IV. c. 100 (tithes), 437. 2 & 3 Will. IV. c. 115 (Roman Catholics), 23. 3 & 4 Will. IV. 0. 27 (limitations), 435. s. 1 (rents, tithes, &c.), 437. s. 2 (estate in possession), 435. s. 3 (remainders and reversions), 435. s. 14 (acknowledgment of title), 43G. s. IG— 18 (disabilities), 43G. s. 28 (mortgage), 43G. s. 30 (advowson), 43G. s. 33 (advowson), 43G. s. 34 (extinguishment of right), 437. s. 3G (abolishing real actions), 24, 98, 134, 432. s. 39 (warranty not to defeat right of entry), 428. s. 40 (judgments, legacies, &c.), 437. 3 & 4 Will. IV. c. 42 (distress for rent), 235. 3 & 4 Will. IV. c. 74 (fines and recoveries abolished), 4G, 48, 222, 301, 350. ss. 4, 5, G (ancient demesne), 12G. s. 14 (warranty), 428. s. 15 (leases), 55. s. 18 (reversion in the crown), 52, 53. s. 22 (protector), 51. s. 32 (protector), 51. ss. 34, 35, 3G, 37 (protector), 51. s. 40 (will, contract), 54, 55. s. 41 (inrolment), 4G, 55. ss. 42 — 47 (protector), 51. ss. 50-52 (copyholds), 350, 351, 3G8. s. 53 (equitable estate tail in copyholds), 3G7, 3G8. s. 54 (entry on coixrt rolls), 3G7. ss. 5G — 73 (bankmptoy), 5G. ss. 55— GG (coi)yholds on bankruptcy), 3r)2. ss. 70, 71 (money land), 159. s. 74 (inrolment), 40. 536 INDEX. Statutes cited: 3 & 4 Will. IV. c. 74, ss. 77—80 (alienation by man-ied women), 222, 300, 369. ss. 87, 88 (indexof acknowledgment), 441. s. 90 (wife's equitable coi^yliolds), 3G8. 3 & 4 Will. IV. c. 87 (inclosure, inrolment of award), 311. 3 & 4 Will. IV. c. 104 (simple contract debts), 77, 1G4, 351. 3 & 4 Will. IV. c. 105 (dower), 223, 22G, 227, 372. 3 & 4 Will. IV. c. 106 (descents), 10, 93, 94, 102, 103, 104, 210, 256, 353, 463, 497. 4 & 5 Will. rV. c, 22 (apportionment), 28, 29, 4 & 5 Will. IV. c. 23 (trust estates), 122, 160, 166. 4 & 5 Will. IV. c. 30 (common fields exchange), 312. 4 & 5 Will. IV. c. 83 (tithes), 437. 5 & 6 Will. IV. c. 41 (usury), 419. 6 & 7 Will. IV. c. 19 (Durham), 85. 6 & 7 Will. IV. c. 71 (commutation of tithes), 3.34. 6 & 7 Will. IV. c. 115 (inclosure of common fields), 312. 7 Will. IV. & 1 Vict. c. 26 (wills), 196, 288, 291, 321, 346. s. 2 (repeal of old statutes), 321, 364. s. 3 (property devisable), 21, 120, 196, 267, 321, 346, 362, 364, 435, 448. ss. 4, 5 (copyholds), 364. 8. 6 (estate pur autre vie), 21, 322, 346. s. 7 (minors), 119. s. 9 (execution and attestation), 364. s. 10 (execution of appointments), 288. ss. 14 — 17 ( \vitnesses), 199. ss. 18-21 (revocation), 200, 201. s. 23 (subsequent disposition), 201. s. 24 (will to speak from death of testator), 202. s. 25 (residuary devise), 202. s. 26 (general devise), 390. s. 27 (general devise an exercise of general power), 291. s. 28 (devise without words of limi- tation), 20, 206. s. 29 (death without issue), 207. ss. 30, 31 (estates of trustees), 210. s. 32 (estate tail, lapse), 203. s. 33 (devise to issue, lajise), 203. 7 Will. IV. & 1 Vict. c. 28 (mortgagees), 435. 1 Vict. c. 39 (tithe commutation), 331. INDEX. 537 Statutes cited: 1 & 2 Vict. c. 20 (Queen Anne's bounty), 429. 1 & 2 Vict. c. G4 (tithes), P^Si. 1 & 2 Vict. c. 0)9 (trust estates), 166. 1 & 2 Vict. c. 106 (benefices), 90. 1 & 2 Vict. c. 110 (judgment debts, insolvency), 56, 79, 80, 81, 85, 88, 165, 28t, 351, 390. . 2 & 3 Vict. c. 11 (judgments, &c.), 80, 81, 82, 85, 86, 87, 165, 352, 390. 2 & 3 Vict. c. 37 (interest), 419. 2 & 3 Vict. c. 60 (mortgage to i^ay debts, infants), 31, 65, 305. 2 & 3 Vict. c. 62 (tithes), 334. 3 & 4 Vict. c. 15 (tithes), 334. 3 & 4 Vict. c. 31 (inclosure), 311, 312. 3 & 4 Vict. c. 55 (draining), 29 3 & 4 Vict. c. 82 (judgments), 80, 82. 3 & 4 Vict. c. 113 (spiritual persons), 332. 4 & 5 Vict. c. 21 (abolishing leases for a year), 172, 179, 490. 4 & 5 Vict. c. 35 (copyholds), 125, 355, 356, 357, 358, 359, 360, 361, 362, 363, 365. 4 & 5 Vict. c. 38 (sites for schools), 72. 5 Vict. c. 7 (tithes), 334. 5 & 6 Vict. c. 32 (fines and recoveiies in Wales and Cheshire), 441. 5 & 6 Vict. c. 54 (tithes), 334. 5 & 6 Vict. c. 116 (insolvency), 88. 6 & 7 Vict. c. 23 (copyholds), 356, 357. 6 & 7 Vict. c. 73 (solicitor's bills), 191. 6 & 7 Vict. c. 85 (interested witnesses), 199. 7 & 8 Vict. c. 37 (sites for schools), 72. 7 & 8 Vict. c. 55 (copyholds), 356, 357. 7 & 8 Vict. c. 66 (aliens), 62, 63, 64. 7 & 8 Vict. c. 76 (transfer of property, now repealed), 136, 137, 172, 186, 490. s. 2 (conveyance by deed), 172. s. 3 (partition, exchange, and assignment by deed), 98, 134, 388. s. 4 (leases and surrenders by deed), 234, 378, 399. s. 5 (alienation of possibilities), 304. s. 6 (the words grant and exchange'), 429. s. 7 (feoffment), 64. s. 8 (contingent remainders), 253, 269, 272. s. 10 (receipts), 433. s. 11 (indenting deeds), 146. s. 12 (merger of reversion on a lease), 230. s. 13 (time of connnenccment), 172. 538 INDEX. Statutes cited: 7 & 8 Vict. c. 96 (insolvency), 88. 8 & 9 Vict. c. 18 (lauds clauses consolidation), 429. 8 & 9 Vict. c. 56 (di-aining), 29, 30. 8 & 9 Vict. c. 99 (tenants of crown lands), 239, 385. 8 & 9 Vict. c. 106 (amending law of real property), 136, 137. 148, 180, 186, 239, 272, 274. s. 1 (contingent remainders), 253, 434. s. 2 (grant), 173, 230. s. 3 (deed), 98, 124, 134, 142, 148, 234, 241, 377, 378, 388, 392, 399. s. 4 (feofEment, &c.), 64, 142, 429. s. 5 (indentm-e), 146. s. 6 (possibilities), 268, 304. s. 7 (married women), 222. s. 8 (contingent remainders), 269, 272. s. 9 (reversion on lease), 239. 8 & 9 Vict. c. 112 (satisfied terms), 404, 405. 8 & 9 Vict. c. 118 (Inclosure Act), 135, 311, 312. 8 & 9 Vict. c. 119 (conveyances), 189, 192, 8 & 9 Vict. c. 124 (leases), 189, 192. 9 & 10 Vict. c. 70 (iuclosm-e), 135, 311, 312. 9 & 10 Vict. c. 73 (tithes), 334. 9 & 10 Vict. c. 101 (draining), 30 10 & 11 Vict. c. 11 (draining), 30. 10 & 11 Vict. c. 38 (draining), 312. 10 & 11 Vict. c. 102 (banki-uptcy and insolvency), 81, 88. 10 & 11 Vict. c. 104 (tithes), 334. 10 & 11 Vict. c. Ill (inclosure), 135, 311, 312. 11 & 12 Vict. c. 70 (proclamations of fines), 47. 11 & 12 Vict. c. 87 (infant heu-s), 65, 305. 11 & 12 Vict. c. 99 (inclosure), 135, 311, 312. 11 & 12 Vict. c. 119 (di-aining), 30. 12 & 13 Vict. c. 26 (leasing), 295. 12 & 13 Vict. c. 49 (sites for schools), 72. 12 & 13 Vict. c. 83 (inclosm-e), 135, 311, 312. 12 & 13 Vict. c. 89 (treasury commissioners;, 86. 12 & 13 Vict. c. 100 (drainage), 30. 12 & 13 Vict. c. 106 (bankruptcy), 57, 88, 284, 324,352, 353,391. 13 & 14 Vict. c. 17 (leasing), 295. 13 & 14 Vict. c. 28 (religious and educational trusts), 167. 13 & 14 Vict. c. 31 (draining), 30. 13 & 14 Vict. c. 56 (interest), 419. 13 & 14 Vict. c. 00 (trustees), 31, 65, 122, 135, 160, 161, 166, 167, 355. 13 & 14 Vict. c. 97 (stamps), 146, 162, 173, 184, 185. 230, .342, 362, 363, 379, 388, 399, 408, 429, 440. INDEX. 539 Statutes cited: 14 & 15 Vict. c. 24 (sites for schools), 72. 14 & 15 Vict. c. 25 (emblements, distress, &c.), 27, 235. 14 & 15 Vict. c. 53 (eiiclosm-e, tithes), 311, 334, 35G. 14 & 15 Vict. c. 83 (Lords Justices), 81. 14 & 15 Vict. c. 99 (evidence), 199. 15 & IG Vict. c. 24 (Wills Act Amendment), 197. 15 & 16 Vict. c. 48 (lunatics), G5. 15 & 16 Vict. c. 49 (sites for schools), 72. 15 & 16 Vict. c. 51 (copyhold enfranchisement), 35G, 357, 358. 15 & 16 Vict. c. 55 (trustees), G5, IGG, 167. 15 & 16 Vict. c. 76 (common law amendment), 236, 411. 15 & 16 Vict. c. 79 (inclosm-es), 135, 311, 312. 15 & 16 Vict. c. 86 (chancery amendment), 413. 16 & 17 Vict. c. 51 (succession duty), 276, 277, 299. 16 & 17 Vict. c. 59 (stamps), 379. 16 & 17 Vict. c. 70 (idiots and lunatics), 65, 3G5, 366, 395. 16 & 17 Vict. c. 83 (witnesses), 199. 16 & 17 Vict. c. 107 (crown bonds), 86. 16 & 17 Vict. c. 124 (copyholds, inclosnres, tithes), 334. 16 & 17 Vict. c. 137 (charity commissioners), 71, 72, 167. 17 & 18 Vict. c. 75 (alienation by married women), 222. 17 & 18 Vict. c. 83 (stamps), 322, 341, 379. 17 & 18 Vict. c. 90 (usury law repeal), 318, 420. ^ 17 & 18 Vict. c. 97 (inclosures), 135, 311, 312, 324. 17 & 18 Vict. c. 112 (literary and scientific institutions), 72, 1G7. 17 & 18 Vict. c. 113 (mortgage debts), 422. 17 & 18 Vict. c. 119 (bankruptcy), 88. 17 & 18 Vict. c. 125 (common law procedure), 25, 169, 170, 184. IS &, 19 Vict. c. 13 (estate of idiots and lunatics). Go. 18 & 19 Vict. c. 15 (purchasers' protection), 80. ss. 2, 3 (palatine courts), 85. ss. 4, 5 (notice to purchaser), 82. s. 6 (registration of judgments), 82. s. 10 (orders in bankruptcy), 82. s. 11 (mortgages), 421. ss. 12—14 (annuities), 318. 18 & 19 Vict. c. 43 (settlements on infants), 64, 290. 18 & 19 Vict. c. 124 (charity coimnissioners), 71, 72, 73, 167. 19 & 20 Vict. c. 9 (drainage), 30, 31. 19 & 20 Vict. c. 47 (joint-stock companies), 73, 429. 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act), 391, 437. 19 & 20 Vict. c. 108, s. 73 (acknowledgment of deeds by married women), 222. 19 & 20 Vi't. c. 120 (leases and sales of settled estates), 26, 31,32. s. 1 (limitation), 26. s. 2 (leases), 27. s. 11 (iulos), 25, 2G, 540 INDEX. Statutes cited: 19 & 20 Vict. c. 120, s. 23 (sales), 32. s. 25 (investment of purchase-money), 32, s. 26 (exercise of powers), 32. ss. 32, 33 (leases by tenant for life), 26, 220, 228. s. 34 (execution of counterpart), 27. s. 35 (repeal of former acts), 55. s. 42 (reversion in the cro-\vn), 52. ss. 44, 46 (commencement of act), 26. 20 & 21 Vict. c. 14 (joint-stock companies), 73. 20 & 21 Vict. c. 31 (inclosures), 135, 311, 312. 20 & 21 Vict. c. 77 (Court of Probate), 10, 199. 21 & 22 Vict. c. 27 (Chancery Amendment Act), 24, 170, 171. 21 & 22 Vict. c. 45 (county of Durham), 85. 21 & 22 Vict. c. 53 (inclosure, tithes), 135, 311, 334, 356. 21 & 22 Vict. c. 60 (joint-stock companies), 73. 21 & 22 Vict. c. 77 (settled estates), 26, 27, 32, 220, 342. 21 & 22 Vict. c. 94 (commutation of manorial rights), 356, 357, 358. 21 & 22 Vict. c. 95 (Court of Probate), 10, 199. 22 Vict. c. 27 (literary institutions), 72. 22 & 23 Vict. c. 85 (property amendment and relief of trustees), , 211,389. ss. 1, 2 (effect of licence), 385. s. 3 (severance of reversion), 385. s. 5 (relief to be recorded on lease), 3S7. s. 6 (court to grant relief once only), 388. s. 7 (lessor to have benefit of informal in- sm'ance), 388. s. 8 (protection of purchasers against non- insurance, &c.), 389. s. 10 (rent-charge), 324. s. 12 (powers), 287. s. 13 (purchase-money, mistaken payment), 297. s. 14 (trustees of wills), 211, 387. s. 15 (trustees), 212. s. 16 (executors, power to raise money), 212. s. 17 (purchasers and mortgagees), 212. ss. 19, 20 (inheritance, descent), 10, 93, 94, 96, 104. s. 21 (assignment of personalty), 182. s. 22 (index of crown debtors), 86. s. 23 (payment of mortgage or purchase- money), 434. s. 27 (liability of executors for rents, &c.), 390. INDEX. 541 Statutes cited: 22 & 23 Vict. c. 35, s. 28 (exoneration of executors from rent- charges, &c.), 325. 22 & 23 Vict. c. 43, ss. 10, 11 (inclosurc acts amendment, parti- tion), 311, 312. 23 Vict. c. 15 (stamps on agreements), 1G2, 379. 23 & 24 Vict. c. 38 (property amendment), 80, 83. s. 1 (jndgments), 82, 1G5, 352. s. 2 (writs of execution to be registered), 83, 165. s. 6 (restriction of waiver), 386. s. 7 (uses, scintilla juris), 283. 23 & 24 Vict. c. 53 (Duke of Cornwall), 435. 23 & 24 Vict. c. 81 (completing proceedings under tithe commu- tation acts), 311, 356. 23 & 24 Vict. c. 83 (infants' settlements), 64. 23 & 24 Vict. c. 93 (commutation of tithes), 334. 23 & 24 Vict. c. Ill (stamps), 388, 399. s. 12 (stamps), 162. 23 & 24 Vict. c. 115, s. 1 (crown bonds, &c.), 86. s. 2 (entering satisfaction on judgment), 81. 23 & 24 Vict. c. 124, ss. 35, 39 (purchase of reversion of lease- holds) 396. 23 & 24 Vict. c. 126 .. . 167, 236. s. 2 (relief fi'om forfeiture, &c.) 387. s. 3 (indorsement on lease), 387. ss. 26, 27 (dower), 28. 23 & 24 Vict. c. 134 (Eoman Catholic Charities), 23, 67. 23 & 24 Vict. c. 136 (charities), 71, 167. s. 16 (majority of trustees, power of, to sell, &c.), 72. 23 & 24 Vict. c. 145 (power of sale, &c.), 168, 297, 414. ss. 8, 9 (renewal of leases, and raising money), 395. s. 10 (consent to sale, &c.), 297. s, 11 (powers to sell, &c., in mortgages), 415. s. 13 (notice of sale), 415. s. 27 (powers to appoint new trustees), 168. s. 28 (appointment of new trustees notwith- standing death of testator), 168. s. 29 (trustees' receipts good discharges), 434. s. 32 (negative, declaration in settlements) 297, 415. s. 34 (extent of the act), 434. 24 Vict. c. 9 (conveyance of land to charitable uses), 67, 70. s. 1 (reservation of rent, &c.) 68. ss. 2—5 (separate deed), 68, 70. 542 INDEX. Statutes cited : 2i & 25 Vict. c. 21 (stamps), 379. 24 & 25 Vict. c. 62 (limitation as to crovm suits), 435. s. 2 (Duke of Cornwall, limitations as to suits by), 435. 24 & 25 Vict. c. 91, s. 30 (stamps on appointment of new trustees) 168. s. 31 (stamps), 146. s. 34 (registration of memorial), 187. 24 & 25 Vict. c. 95 (repeal of criminal statutes), 121. 24 & 25 Vict. c. 96, s. 28 (destruction, &c.,of title deeds), 145. 24 & 25 Vict. c. 100 (attainder), 121. 24 & 25 Vict. c. 134 (bankruptcy), 88, 284, 324, 352, 391. s. 114 (copyhold lands, &c., of bankrupt), 352. s. 232 (tenant in tail), 57. 25 Vict. c. 17 (charities), 69, 70. 25 & 26 Vict. c. 53 (title and conrcyance of real estates), 442. 25 & 26 Vict. c. 67 (declaration of title), 442. 25 & 26 Vict. c. 73 (inclosure commissioners), 311, 356. 25 & 26 Vict. c. 86 (lunatics), 65. 25 & 26 Vict. c. 89 (joint-stock companies), 73, 74. 25 & 26 Vict. c. 108 (sale, minerals), 298. 25 & 26 Vict. c. 112 (charity commission) 71. 26 & 27 Vict. c. 106 (charities), 69. 27 Vict. c. 13 (charities), 69, 70. 27 Vict. c. 18 (stamp on presentations), 328. 27 & 28 Vict. c. 45 (settled estates), 27, 32. 27 & 28 Vict. c. 112 (judgments), 56, 83, 84, 165, 284, 352, 391, 421. 27 & 28 Vict. c. 114 (improvement of land), 30. 28 & 29 Vict. c. 40 (County Palatine of Lancaster), 168. 28 & 29 Viet. c. 96 (stamps), 185, 380, 421. 28 & 29 Vict. c. 99 (county courts), 158, 167, 414. 28 & 29 Vict. c. 104 (crown suits), 86, 87. 28 & 29 Vict. c. 122 (simony), 331. 29 & 30 Vict. c. 57 (enrolment of charity deeds), 71. 29 & 30 Vict. c. 122 (metropolitan commons), 312. 30 & 31 Vict. c. 47 (lis pendens), 88. 30 & 31 Vict. c. 48 (auctions of estates), 162, 163. 30 & 31 Vict. c. 69 (mortgage debts), 423. 30 & 31 Vict. c. 87 (Court of Chancery), 65.: 30 & 31 Vict. c. 142 (county com-ts) 158, 163, 414. 31 Vict. c. 4 (sales of reversions), 440. 31 & 32 Vict. c. 40 (partition), 135. Statutes, merchant and staple, 84. Steward of manor, 360. INDEX. 543 Stops, none in deeds, 189, 192. Subinfeudation, 37, 59. Succession duty, 276, 299. Sufferance, tenant by, 376. Suit of Court, 116, 117, 120, 353. Surrender of life interest, 271. of copyholds, 338, 308, 508. nature of suiTendercc's right, 3G2. of copyholds of a married woman, 3G3. of a term of years, 391, 395. in law, 394. Survivors of joint tenants entitled to the whole, 129. of copyhold joint tenants do not require fresh ailmittance, 355. Table of descent, explanation of, 105. Tacking, 425. Tail, estate, 33, 34, 42, 49, 50, 52, 57, 140, 203. derivation of word, 42. destruction of entails, 43. quasi entail, 57. constructive estate, in a will, 207. bar of estate, 44, 46, 52, 54, 349, 307. descent of estate, 19, 57, 99. tenant in, after possibility of issue extinct, 52. tenant in, ex ]}rovisionc viri, 53. equitable estate, 152. no lapse of an estate, 203. joint tenants in, 128. estate not subject to merger, 271. in copyholds, 346, 349, 350. equitable, in copyholds, 368. Talt ARUM'S case, 42. Tenant for life, 21, 26, 31, 50.— (And sec Life.) in tail, 34.— (And sec TAIL.) for life, feoffment by, 142. in dower, leases by, 228. in fee simjile, 58. — (And sec Fee Simple.) in common, 133, 355. at will, 375. right of, to inspect court rolls, 360. by sufferance, 376. Tenements, 5, 6, 7, n., 8, 13.. Tenure of an estate in fee simple, 112. 544 INDEX. Tenure, rise of copyholders to a certaintv of, 338. of an estate tail, 112. none of jjurelj incorpoi'eal hereditaments, 32G. of copyholds, 353. by knight ser^'ice, 115. Tenures, feudal, introduction of, 3. Term of years, tenant for, 8, 373, 377, 381.— (And see Lease.) for seeming money, 396. husband's rights in his \nfe's, 391:. attendant on the inheritance, 402. mortgage for, 415. for securing portions, 39S. attendant by construction of law, 404. Testatum, 183, 188, 490. Thelluson, will of Mr., 307. act, 307. " Things real, personal, or mixed," 7, n. Tillage, 474. Timber, 23, 24, 25, 54, 75. on copyhold lands, 341. Time, unity of, in joint tenancy, 128, 131. within which an executory interest must arise, 305. limited lor making entry on court roll of deed, 3C3, n. Tithes, 332, 475. lay, 333. distinct from the land, 334. commutation of, 334. limitations of actions for, 437. Title, 426. covenants for, 429, 430, 493. sixty years' required, 431. reasons for requiring sixty years, 432. act for obtaining a declaration of, 442. act to facilitate proof of, 443. Title deeds, mortgage by deposit of, 418. impoi'tance of possession, 437. who entitled to custody of, 438. covenant to produce, 440. attested copies of, 440. Titles of honour are real property, 8. Traders, debts of, 77. Transfer of mortgages, 421. Treason, forfeiture for, 55, 88, 90, 121, 160. Trustee Act, 1850.. 1G6. Trustees, made joint tenants, 130. bankruptcy or insolvency of, 165. acts for appointing new, 166, 167. INDEX. 545 Trustees, of charity property, 167. stamps on appointment of new, 168. where they may sell or mortgage to pay testator's debts or legacies, 212. estates of, under wills, 209. to preserve contingent remainders, 273, 274. such trustees not now required, 273. of copyholds, tenants to the lord, 367. mortgages to, 420. covenants by, on a sale, 431. receipts of, good discharges, 434. Trusts, 154, 275. in a will, 209. contingent remainders of trust estates, 275. of copyholds, 3G7. for separate use, 90, 214, 215, 216, 367. for alien, 160. See Equitable Estate. Turf, 24. U, V. Vendor, lien of, for unpaid purchase-money, 418. covenants for title by a, 429, 492. Vested remainder, 242, 252. definition of, 243. See Eemainder. Vicarages, advowsons of, 330. Unborn persons, gifts to, 53, 54, 264, 265, 506. Underlease, 392. mortgage by, 417. Unities of a joint tenancy, 128, 131. Voluntary conveyance, 74. Vouching to warranty, 45. Uses, 150, 152, 175, 189, 279, 283, 302. explanation of, 151, 283, 302. statute of, does not apply to copyholds, 366. no use upon a iise, 155. conveyance to, 181, 182. doctrine of, applicable to wills, 209. springing and shifting, 279. examples of, 280, 281, 283. power to appoint a use, 285. to bar dower, 292, 491. Usury laws, repeal of the, 420. R.P. N N 546 INDEX. w. Waivee of breach of covenant in a lease, 386. Wales, common appendant in, 482. Wardship, 115, 118. Warbajnty, 43, 45, 426. formerly implied by word give, 426. effect of express, 426. now ineffectual, 427. Waste, 23, 24, 25, 75. equitable, 25. by copyholder, 342. common appendant, 114, n., 467. strips of, by the road-side, 313. Water, description of, 14. limitation of right to, 437. Way, rights of, 315, 437. Widow, dower of, 222, 226, 227. fi-eebcnch of, 372. Widowhood, estate during, 22. Wife, separate property of, 90, 214, 215, 216, 367. conveyance of her lands, 222. rights of, in her husband's lands, 222, 226, 371. appointment by, and to, 288, 289. surrender of copyholds to use of, 363, 368. husband's right in her term, 394. See Married Woman. Will, cannot bar an estate tail, 54. construction of, 20, 204. ignorance of legal rules, 205, 210. alienation by, 60, 195, 364. witnesses to, 196, 198, 288, 364. revocation of, 200, 201. of real estate, now speaks from testator's death, 202. gift of estate tail by, 203, 207, 208. gift of fee simple by, 208. uses and trusts in a, 209. exercise of powers by, 288, 289. executory devise by, 300, 303. tenant at, 375. of copyholds, 364. of leaseholds, 389. of Mr. Thelluson, 307. charge of debts by, 78, 212, 213. devise to heir, 210. devise in fee or in tail charged with debts, 212. INDEX. 547 Wills, Statute of, 195. new acts, 21, 196, 390. Amendment Act, 1852.. 197. Witnesses to a deed, 184. to a will, 196, 198, 288, 364. to a deed executing powers, 285, 286. Writ of elegit, 79, 81. registration of, 83. Writing, formerly unnecessary to a feoffment, 143. nothing but deeds formerly called writings, 144. now required, 147. required to assign a lease, 388. contracts and agreements in, 161. trusts of lands required to be in, 161. Wrong, estate by, 141. Year to year, tenant from, 376. York register, 18G, 441. Yorkshire, bargain and sale of lands in, 428. LONDON : PRINTED BY C. EOWORTH AND SONS, NEWTON STREET, W.C. ^5 JAN 2 9 isb'-i AA 000 820 118 8 .■,'.>.-,.:,>v9.7\,..r. 'A.v;,yf't'it«>w' •;'>-'vr . .... ,W^ ^'fv^;■^I!?■' ^^:^M:^ ■■^m