BOOK 2, CHAPTER 20 Of Alienation by Deed

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

IN treating of deeds I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided.

1. FIRST than, a deed is a writing sealed and delivered by the parties.1 It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, xat exochn [by way of pre-eminence], because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed.2 If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium [like teeth], but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a strait or indented line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists;3 and with us chirographa, or hand-writings;4 the word cirographum or cyrographum being usually that which was divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose, than to give name to the species of the deed. When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and is therefore called a deed-poll, or a single deed.5

II. WE are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with, for the purposes intended by the deed; and also a thing, or subject matter to be contracted for; all which must be expressed by sufficient names.6 So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised.

SECONDLY; the deed must be founded upon good and sufficient consideration. Not upon an usurious contract;7 nor upon fraud or collusion, either to deceive purchasers bona fide,8 or just and lawful creditors;9 any of which bad considerations will vacate the deed. A deed also, or other grant, made without any consideration, is, as it were, of no effect; for it is construed to inure, or to be effectual, only to the use of the grantor himself.10

The consideration may be either a good, or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded in motives of generosity, prudence, and natural duty: a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant;11 and is therefore founded in motives of justice. Deeds, made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favor of creditors, and bona fide purchasers.

THIRDLY; the deed must be written, or I presume printed; for it may be in any character or any language; but it must be upon paper, or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed.12 Wood or stone may be more durable, and linen less liable to erasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps, imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing, but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3. enacts, that no lease or estate in lands, tenements, or hereditaments, (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two thirds of the real value) shall be looked upon as of greater force than a lease or estate at will; unless put in writing, and signed by the party granting, or his agent lawfully authorized in writing.

FOURTHLY; the matter written must be legally and orderly set forth: that is, there must be words sufficient to specify the agreement and bind the parties: which sufficiency must be left to the courts of law to determine.13 For it is not absolutely necessary in law, to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party’s meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity; and therefore I will here mention them in their usual14 order.

1.THE premises may be used to set forth the number and names of the parties, with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded: and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted.15

2. 3. NEXT come the habendum [to have] and tenendum [to hold].16 The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum cannot lessen, but it may enlarge, the estate granted in the premises; as if a grant be “to A and the heirs of his body” in the premises, habendum “to him and his heirs for ever,” here A has an estate-tail, and a fee-simple expectant thereon.17 But had it been in the premises “to him and his heirs,” the habendum would be utterly void;18 for the larger and more beneficial estate is vested in him before the habendum comes, and shall not afterwards be narrowed, or divested, by it. The tenendum, “and to hold,” is now of very little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure, by which the estate granted was to be held; viz. “tenendum per servitium militare, in burgagio, in libero socagio,” [“to hold by military service, in burgage, in free socage”] etc. But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 Edw. I. it was also sometimes used to denote the lord of whom the land should be held; but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum has been also antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be held de capitalibus dominis feodi [of the chief lords of the fee]:19 but, as this expressed nothing more than the statute had already provided for, it gradually grew out of use.

4. NEXT follow the terms or stipulations, if any, upon which the grant is made: the first of which is the reddendem or reservation, whereby the grantor does create or reserve some new thing to himself out of what he had before granted. As “rendering therefore yearly the sum of ten shillings, or a pepper corn, or two days plowing, or the like.”20 This render, reditus, return, or rent, under the pure feudal system consisted, in chivalry, principally of military services; in villenage, of the most slavish offices; and, in socage, it usually consists of money, though it may consist of services still, or of any other certain profit.21 To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed.22 But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the fee.23

5. ANOTHER of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated; as “provided always, that if the mortgagor shall pay the mortgagee 500£ upon such a day, the whole estate granted shall determine,” and the like.24

6. NEXT may follow the clause of warranty; whereby the grantor does, for himself and his heirs, warrant and secure to the grantee the estate so granted.25 By the feudal constitution, if the vassal’s title to enjoy the feud was disputed, he might vouch, or call, the lord or donor to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense.26 And so, by our ancient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feudal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originall stipulated to be rendered.27 Or if a man and his ancestors had immemorially held land of another and his ancestors by the service of homage (which was called homage auncestral) this also bound the lord to warranty;28 the homage being an evidence of such a feudal grant. And, upon a similar principle, in case, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty,29 because they enjoy the equivalent. And, so even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title.30 But in a feoffment in fee by the verb dedi, since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs;31 because it is a mere personal contract on the part of the feoffor, the tenure (and of course the ancient services) resulting back to the superior lord of the fee. And in other forms of alienation, gradually introduced since that statute, no warranty whatsoever is implied;32 they bearing no sort of analogy to the original feudal donation. And therefore in such cases it became necessary to add an express clause of warranty, to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant.33

THESE express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feudal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet, if a clause of warranty was added to the ancestor’s grant, this covenant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him recompense in lands of equal value: the law, in favor of alienations, supposing that no ancestor would wantonly disinherit his next of blood;34 and therefore presuming that he had received a valuable consideration, either in land, or in money which had purchased land, and that this equivalent descended to the heir together with the ancestor’s warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir: and this, whether that warranty was lineal, or collateral to the title of the land. Lineal warranty was where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty; as where a father, or an elder son in the life of the father, released to the disseizor of either themselves or the grandfather, with warranty, this was lineal to the younger son.35 Collateral warranty was where the heir’s title to the land neither was, nor could have been, derived from the warranting ancestor; as where a younger brother released to his father’s disseizor, with warranty, this was collateral to the elder brother.36 But where the very conveyance, to which the warranty was annexed, immediately followed a disseizin, or operated itself as such (as, where a father tenant for years, with remainder to his son in fee-simple with warranty) this, being in its original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseizin; and, being too palpably injurious to be supported, was not binding upon any heir of such tortious warrantor.37

IN both lineal and collateral warranty, the obligation of the heir (in case the warrantee was evicted, to yield him other lands in their stead) was only on condition that he had other sufficient lands by descent form the warranting ancestor.38 But though, without assets, he was not bound to insure the title of another, yet, in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for, if he could succeed in such claim, he would then gain assets by descent (if he had them not before) and must fulfil the warranty of his ancestor: and the same rule39 was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title; upon the presumption of law that he might hereafter have assets by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtesy took upon them to aliene their lands with warranty; which collateral warranty of the father descending upon his son (who was the heir of both his parents) barred him from claiming his maternal inheritance: to remedy which the statute of Gloucester, 6 Edw. I. c. 3. declared, that such warranty should be no bar to the son, unless assets descended from the father. It was afterwards attempted in 50 Edw. III. to make the same provision universal, by enacting that no collateral warranty should be a bar, unless where assets descended from the same ancestor,40 but it then proceeded not to effect. However, by the statute II Hen. VII. c. 20. notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he be also heir to the wife. And by statute 4 & 5 Ann. c. 16. all warranties by any tenant for life shall be void against those in remainder or reversion; and all collateral warranties by any ancestor who has no estate of inheritance in possession shall be void against his heir. By the wording of which last statute it should seem, that the legislature meant to allow, that the collateral warranty of tenant in tail, descending (though without assets) upon a remainder-man or reversioner, should still bar the remainder or reversion. For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Gloucester, a lineal warranty by the tenant in tail without assets should not bar the issue in tail, yet they held such warranty with assets to be a sufficient bar:41 which was therefore formerly mentioned42 as one of the ways whereby an estate tail might be destroyed; it being indeed nothing more in effect, than exchanging the lands entailed for others of equal value. They also held that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue: and therefore collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of the estate-tail and all remainders and reversions expectant thereon.43 And so it still continues to be, notwithstanding the statute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases make a good conveyance in fee-simple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion.

7. AFTER warranty usually follow covenants, or conventions; which are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus the grantor may covenant that he has a right to convey, or for the grantee’s quiet enjoyment; or the like: the grantee may covenant to pay his rent, to repair the premises, etc.44 If the covenanter covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise: if he covenants also for his executors and administrators, his personal assets as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty, and it has therefore in modern practice totally superseded the other.

8. LASTLY, comes the conclusion, which mentions the execution and date of the deed, or the time of its being given or executed, either expressly, or by reference to some day and year before-mentioned.45 Not but a deed is good, although it mention no date; or has a false date; or even if it has an impossible date, as the thirtieth of February; provided the real day of its being dated or given, that is, delivered, can be proved.46

I PROCEED now to the fifth requisite for making a good deed; the reading of it. This is necessary, wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is misrecited: unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party.47

SIXTHLY, it is requisite that the party, whose deed it is, should seal, and in most cases I apprehend should sign it also. The use of seals, as a mark of authenticity to letters and other instruments in writing, is extremely ancient. We read of it among the Jews and Persians in the earliest and most sacred records of history.48 And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase.49 In the civil law also,50 seals were the evidence of truth; and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use here. For though Sir Edward Coke51 relies on an instance of king Edwyn’s making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation: and perhaps the charter he mentions may be of doubtful authority, from this very circumstance, of being sealed; since we are assured by all our ancient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross: which custom our illiterate vulgar do, for the most part, to this day keep up; by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters.52 In like manner, and for the same unsurmountable reason, the Normans, a brave but illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names: which custom continued, when learning made its way among them, though the reason for doing it had ceased; and hence the charter of Edward the confessor to Westminster abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England.53 At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross.54 The impressions of these seals were sometimes a knight on horseback, sometimes other devises: but coats of arms were not introduced into seals, not indeed into any other use, till about the reign of Richard the first, who brought them from the crusade in the holy land; where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every Christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained.

THIS neglect of signing, and resting only upon the authenticity of seals, remained very long among us; for it was held in all our books that sealing alone was sufficient to authenticate a deed: and so the common form of attesting deeds, — “sealed and delivered,” continues to this day; notwithstanding the statute 29 Car. II. c. 3. before-mentioned revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of deeds; in which therefore signing seems to be now as necessary as sealing, though it has been sometimes held, that the one includes the other.55

A SEVENTH requisite to a good deed is that it be delivered, by the party himself or his certain attorney: which therefore is also expressed in the attestation; “sealed and delivered.” A deed takes effect only from this tradition or delivery; for, if the date be false or impossible, the delivery ascertains the time of it. And if another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing,56 and by a parity of reason the signing also, and makes them both his own. A delivery may be either absolute, that is, to the party or grantee himself; or to a third person, to hold till some conditions be performed on the part of the grantee: in which last case it is not delivered as a deed, but as an escrow; that is, as a scrowl or writing, which is not to take effect as a deed till the conditions be performed; and then it is a deed to all intents and purposes.57

THE last requisite to the validity of a deed is the attestation, or execution of it in the presence of witnesses: though this is necessary, rather for preserving the evidence, than for constituting the essence, of the deed. Our modern deeds are in reality nothing more than an improvement or amplification of the brevia tastata [short evidences] mentioned by the feudal writers;58 which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture, when grants by parol only became the foundation of frequent dispute and uncertainty. To this end they registered in the deed the persons who attended as witnesses, which was formerly done without their signing their names (that not being always in their power) but they only heard the deed read; and then the clerk or scribe added their names, in a sort of memorandum; thus; “Hiis testibus Johanne Moore, Jacobo Smith, et aliis, ad hanc rem convocatis.“59 [“Witness John Moore, Jacob Smith and others, for this purpose assembled.”] This, like all other solemn transactions, was originally done only coram paribus [before the peers],60 and frequently when assembled in the court baron, hundred, or county court; which was then expressed in the attestation, teste comitatu, hundredo, &c. [witness the county, hundred, etc.]61 Afterwards the attestation of other witnesses was allowed, the trial in case of a dispute being still reserved to the pares; with whom the witnesses (if more than one) were associated, and joined in the verdict:62 till that also was abrogated by the statute of York, 12 Edw. II. St. I. c. 2. And in this manner, with some such clause of hiis testibus, are all old deeds and charters, particularly Magna Carta, witnessed. And, in the time of Sir Edward Coke, creations of nobility were still witnessed in the same manner.63 But in the king’s common charters writs, or letters patent, the style is now altered: for, at present, the king is his own witness, and attests his letters patent thus; “teste meipso, witness ourself at Westminster, etc:” a form which was introduced by Richard the first,64 but not commonly used till about the beginning of the fifteenth century; nor the clause of hiis testibus entirely discontinued till the reign of Henry the eighth:65 which was also the era of discontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general: and therefore ever since that time the witnesses have subscribed their attestation, either at the bottom, or on the back, of the deed.66

III. WE are next to consider, how a deed may be avoided, or rendered of no effect. And from what has been before laid down it will follow, that if a deed wants any of the essential requisites before-mentioned; either, 1. Proper parties, and a proper subject matter: 2. A good and sufficient consideration: 3. Writing, on paper or parchment, duly stamped: 4. Sufficient and legal words, properly disposed: 5. Reading, if desired, before the execution: 6. Sealing; and, by the statute, in many cases signing also: or, 7. Delivery: it is a void deed ab initio [from the beginning]. It may also be avoided by matter ex post facto [after the fact]: as, 1. By erasure, interlining, or other alteration in any material part; unless a memorandum be made thereof at the time of the execution and attestation.67 2. By breaking off, or defacing, the seal.68 3. By delivering it up to be cancelled; that is to have lines drawn over it, in the form of lattice work of cancelli; though the phrase is now used figuratively for any manner of obliteration or defacing it. 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as, the husband, where a feme covert is concerned; an infant, or person under duress, when those disabilities are removed; and the like. 6. By the judgment or decree of a court of judicature. This was anciently the province of the court of star chamber, and now of the chancery: when it appears that the deed was obtained by fraud, force, or other foul practice is proved to be an absolute forgery.69 In any of these cases the deed may be voided, either in part or totally, according as the cause of avoidance is more or less extensive.

AND, having thus explained the general nature of deeds, we are next to consider their several species, together with their respective incidents. And herein I shall only examine the particulars of those, which, from long practice and experience of their efficacy, are generally used in the alienation of real estates: for it would be tedious, nay of in personal concerns, but which fall under our general definition of a deed; that is, a writing sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements from man to man, are commonly denominated conveyances: which are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses.

I. Of conveyances by the common law, some may be called original, or primary conveyances; which are those by means whereof the benefit or estate is created or first arises: others are derivative or estate, originally created, is enlarged, restrained, transferred, or extinguished. Original conveyances are the following; 1. Feoffment: 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeasance.

1. A feoffment, feoffamentum, is a substantive derived from the verb, to enfeoff, feoffare or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi [the gift of a fee].70 It is the most ancient method of conveyance, the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called the feoffor; and the person enfeoffed is denominated the feoffee.

THIS is plainly derived from, or is indeed itself the very mode of the ancient feudal donation; for though it may be performed by the word “enfeoff” or “grant,” yet the aptest word of feoffment is “do or dedi.”71 And it is still directed and governed by the same feudal rules; insomuch that the principal rule relating to the extent and effect of a feudal grant, “tenor est qui legem dat feudo” [“the tenor of the deed gives validity to the fee”], is in other words become the maxim of our law with relation to feoffments, “modus legem dat donationi” [“measure gives validity to the grant”].72 And therefore as in pure feudal donations the lord, from whom the feud moved, must expressly limit and declare the continuance or quantity of estate he meant to confer, “ne quis plus donasse praesumatur quam in donatione expresserit” [“lest any one be presumed to have given more than is expressed in the donation”];73 so, if one grants by feoffment lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law being performed) has barely an estate for life.74 For, as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, the feoffee’s estate ought to be confined to his person, and subsist only for his life; unless the feoffor, by express provision in the creation and constitution of the estate, has given it a longer continuance. These express provisions are indeed generally made, for this was for ages the only conveyance, whereby our ancestors were wont to create an estate in fee-simple,75 by giving the land to the feoffee, to hold to him and his heirs for ever; though it serves equally well to convey any other estate of freehold.76

BUT by the mere words of the deed the feoffment is by no means perfected. There remains a very material ceremony to be performed, called livery of seizin; without which the feoffee has but a mere estate at will.77 This livery of seizin is no other than the pure feudal investiture, or delivery of corporal possession of the land or tenement; which was held absolutely necessary to complete the donation. “Nam feudum sine investitura nullo modo constitui potuit” [“For a fee can in no wise be perfected without investiture”];78 and an estate was then only perfect, when, as Fleta expresses it in our law, “fit juris et seizinae conjunctio” [“a conjunction of law and seisin”].79

INVESTITURES, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord; and that he did not grant a bare litigious right, which the soldier was ill qualified to prosecute, but a peaceable and firm possession. And, at a time when writing was seldom practiced, a mere oral gift, at a distance from the spot that was given, was not likely to be either long or accurately retained in the memory of bystanders, who were very little interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and testify the transfer of the estate; and that such as claimed title by other means might know against whom to bring their actions.

IN all well-governed nations, some notoriety of this kind has been ever held requisite, in order to acquire and ascertain the property of lands. In the Roman law plenum dominium [complete ownership] was not said to subsist, unless where a man has both the right, and the corporal possession; which possession could not be acquired without both an actual intention to possess, and an actual seizin, or entry into the premises, or part of them in the name of the whole.80 And even in ecclesiastical promotions, where the freehold passes to the person promoted, corporal possession is required at this day, to vest the property completely in the new proprietor; who, according to the distinction of the canonists,81 acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in dignities possession is given by installment; in rectories and vicarages by induction, without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands, by our law, which are cast on the heir by act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seized.82 It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner; so ad to transmit the inheritance to his own heirs: non jus, sed seisina, facit stipitem [not right, but seizin makes the stock].83

YET, the corporal tradition of lands being sometimes inconvenient, a symbolic delivery of possession was in many cases anciently allowed; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was permitted as equivalent to occupancy of the land itself. Among the Jews we find the evidence of a purchase thus defined in the book of Ruth:84 “now this was the manner in former time in Israel, concerning redeeming and concerning changing, for to confirm all things: a man plucked off his shoe, and gave it to his neighbor; and this was a testimony in Israel.” Among the ancient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses, who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession: and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses.85 With our Saxon ancestors the delivery of a turf was a necessary solemnity, to establish the conveyance of lands.86 And, to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or virge, and then from the lord to the purchaser by re-delivery of the same, in the presence of a jury of a jury of tenants.

CONVEYANCES in writing were the last and most refined improvement. The mere delivery of possession, either actual or symbolic, depending on the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities, introduced by the advancement of commerce, required means to be devised of charging and encumbering estates, and of making them liable to a multitude of conditions and minute designations for the purposes of raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere, simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimited dominion. Written deeds were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed: yet still, for a very long series of years, they were never made use of, but in company with the more ancient and notorious method of transfer, by delivery of corporal possession.

LIVERY of seizin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impossible to be made; for they are not the object of the senses: and in leases for years, or other chattel interests, it is not necessary. In leases for years indeed an actual entry is necessary; to vest the estate in the lessee: for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse termini; and, when he enters in pursuance of that right, he is then and not before in possession of his term, and complete tenant for years.87 This entry by the tenant himself serves the purpose of notoriety, as well as livery of seizin from the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence in futuro, because they cannot be made but by livery of seizin; which livery, being an actual manual tradition of the land, must take effect in praesenti, or not at all.88

ON the creation of a freehold remainder, at one and the same time with a particular estate for years, we have before seen that at the common law livery must be made to the particular tenant.89 But if such a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for years, for then it operates nothing; “nam quod semel meum est, amplius meum esse non potest” [“for what is once mine, cannot be mine more fully”]:90 but it must be made to the remainder-man himself, by consent of the lessee for years: for without his consent no livery of the possession can be given;91 partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before given92 for introducing the doctrine of attornments.

LIVERY of seizin is either in deed, or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or hid attorney, (for this may as effectually be done by deputy or attorney, as by the principals themselves in person) come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then the feoffor, if it be of land, does deliver to the feoffee, all other persons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect. “I deliver these to you in the name of seizin of all the lands and tenements contained in this deed.” But, if it be of a house, the feoffor must take the ring, or latch of the door, the house being quite empty, and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others.93 If the conveyance or feoffment be of diverse lands, lying scattered in one and the same county, then in the feoffor’s possession, livery of seizin of any parcel, in the name of the rest, suffices for all;94 but, if they be in several counties, there must be as many liveries as there are counties. For, if the title to these lands comes to be disputed, there must be as many trials as there are counties, and the jury of one county are no judges of the notoriety of a fact in another. Besides, anciently this seizin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighborhood, who attested such delivery in the body or on the back of the deed; according to the rule of the feudal law,95 pares debent interesse investiturae feudi, et non alii [the peers, and no others, should be present at the investiture of the fee]: for which this reason is expressly given; because the peers or vassals of the lord, being bound by their oath of fealty, will take care that no fraud be committed to his prejudice, which strangers might be apt to connive at. And though, afterwards, the ocular attestation of the pares was held unnecessary, and livery might be made before any credible witnesses, yet the trial, in case it was disputed, (like that of all other attestations96) was still reserved to the pares or jury of the county.97

Also, if the lands be out on lease, though all lie in the same county, there must be as many liveries as there are tenants: because no livery can be made in this case, but by the consent of the particular tenant; and the consent of one will not bind the rest.98 And in all these cases it is prudent, and usual, to endorse the livery of seizin on the back of the deed, specifying the manner, place, and time of making it; together with the names of the witnesses.99 And thus much for livery in deed.

LIVERY in law is where the same is not made on the land, but in sight of it only; the feoffor saying to the feoffee, “I give you yonder land, enter and take possession.” Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise; unless he dares not enter, through fear of his life or bodily harm: and then his continual claim, made yearly, in due form of law, as near as possible to the lands,100 will suffice without an entry.101 This livery in law cannot however be given or received by attorney, but only by the parties themselves.102

2. THE conveyance by gift, donatio, is properly applied to the creation of an estate-tail, as feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of the estate passing by it: for the operative words of conveyance in this case are do or dedi;103 and gifts in tail are equally imperfect without livery of seizin, as feoffments in fee-simple.104 And this is the only distinction that Littleton seems to take, when he says,105 “it is to be understood that there is feoffor and feoffee, donor and donee, lessor and lessee;” viz. feoffor is applied to a feoffment in fee-simple, donor to a gift in tail, and lessor to a lease for life, or for years, or at will. In common acceptation gifts are frequently confounded with the next species of deeds: which are,

3. GRANTS, concessiones; the regular method by the common law of transferring the property of incorporeal hereditaments, or, such things whereof no livery can be had.106 For which reason all corporeal hereditaments, as lands and houses, are said to lie in livery; and the others, as advowsons, commons, rents, reversions, etc, to lie in grant.107 And the reason is given by Bracton:108 “traditio nihil aliud est quam rei corporalis de persona in personam, de manu in manum, translatio aut in possessionem inductio; sed res incorporales, quae sunt ipsum jus rei vel corpori inhaerens, traditionem non patiuntur.” [“Livery is merely the transferring from one person to another, from one band to another, or the induction into possession of a corporeal hereditament; but an incorporeal hereditament, which is the right itself to a thing, or inherent in the person, does not admit of delivery.”] These therefore pass merely by the delivery of the deed. And in seigniories, or reversions of lands, such grant, together with the attornment of the tenant (while attornments were requisite) were held to be of equal notoriety with, and therefore wquivalent to, a feoffment and livery of lands in immediate possession. It therefore differs but little from a feoffment, except in its subject matter: for the operative words therein commonly used are dedi et concessi, “have given and granted.”

4. A LEASE is properly a conveyance of any lands or tenements, (usually in consideration of rent or other annual recompense) made for life, for years, or at will, but always for a less time than the lessor has in the premises: for if it be for the whole interest, it is more properly an assignment than a lease. The usual words of operation in it are, “demise, grant, and to farm let; dimisi, concessi, et ad firmam tradidi.” Farm, or feorme, is an old Saxon word signifying provisions:109 and it came to be used instead of rent or, render, because anciently the greater part of rents were reserved in provisions; in corn, in poultry, and the like; till the use of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme: though at present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent. By this conveyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments: though livery of seizin is indeed incident and necessary to one species of leases, viz. leases for life of corporeal hereditaments; but to no other.

WHATEVER restrictions, by the severity of the feudal law, might in times of very high antiquity be observed with regard to leases; yet by the common law, as it has stood for many centuries, all persons seized of any estate might let leases to endure so long as their own interest lasted, but no longer. Therefore tenant in fee-simple might let leases of any duration; for he has the whole interest: but tenant in tail, or reversioner; nor could a husband, seized jure uxoris [in right of his wife], make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his interest expired. Yet some tenants for life, where the fee-simple was in abeyance, might (with the concurrence of such as have the guardianship of the fee) make leases of equal duration with those granted by tenants in fee-simple: such as parsons and vicars with consent of the patron and ordinary.110 So also bishops, and deans, and such other sole ecclesiastical corporations as are seized of the fee-simple of lands in their corporate right, might, with the concurrence and confirmation of such persons as the law requires, have made leases for years, or for life, estates in tail, or in fee, without any limitation or control. And corporations aggregate might have made what estates they pleased, without the confirmation of any other person whatsoever. Whereas now, by several statutes, this power where it was unreasonable, and might be made an ill use of, is restrained; and, where in the other cases the restraint by the common law seemed too hard, it is in some measure removed. The former statutes are called the restraining, the latter the enabling statute. We will take a view of them all, in order of time.

AND, first, the enabling statute, 32 Hen. VIII. c. 28. empowers three manner of persons to make leases, to endure for three lives or one and twenty years, which could not do so before. As, first, tenant in tail, may by such leases bind his issue in tail, but not those in remainder or reversion. Secondly, a husband seized in right of his wife, in fee-simple or fee-tail, provided the wife joins in such lease, may bind her and her heirs thereby. Lastly, all persons seized of an estate of fee-simple in right of their churches, except parsons and vicars, may (without the concurrence of any other person) bind their successors. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding.111 1. The lease must be by indenture; and not by deed poll, or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time. 3. If there be any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty one years, or three lives; and not for both. 5. It must not exceed the term of three lives, or twenty one years, but may be for a shorter term. 6. It must be of corporeal hereditaments, and not of such things as lie merely in grant; for no rent can be reserved thereout by the common law, as the lessor cannot resort to them to distrain.112 7. It must be of lands and tenements most commonly letten for twenty years past; so that if they have been let for above half the time (or eleven years out of the twenty) either for life, for years, at will, or by copy of court roll, it is sufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards, imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here given.

NEXT follows, in order of time, the disabling or restraining statute, 1 Eliz. c. 19. (made entirely for the benefit of the successor) which enacts, that all grants by archbishops and bishops (which include even those confirmed by the dean and chapter; the which, however long or unreasonable, were good at common law) other than for the term of one and twenty years or three lives from the making, or without reserving the usual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this statute, and therefore valid; provided they do not exceed (together with the lease in being) the term permitted by the act.113 But, by a saving expressly made, this statute of I Eliz. did not extend to grants made by any bishop to the crown; by which means queen Elizabeth procured many fair possessions to be made over to her by the prelates, either for her own use, or with intent to be granted out again to her favorites, whom she thus gratified without any expense to herself. To prevent which114 for the future, the statute I Jac. I. c. 3. extends the prohibition to grants and leases made to the king, as well as to any of his subjects.

NEXT comes the statute 13 Eliz. c. 10. explained and enforced by the statutes 14 Eliz. c. 11 & 14. 18 Eliz. c. II. and 43 Eliz. c. 29. which extend the restrictions, laid by the last mentioned statute on bishops, to certain other inferior corporations, both sole and aggregate. From laying all which together we may collect, that all colleges, cathedrals, and other ecclesiastical, or eleemosynary corporations, and all parsons and vicars, are restrained from making any leases of their lands, unless under the following regulations: 1. They must not exceed twenty one years, or more, must be yearly reserved thereon. 2. The accustomed rent, or more, must be yearly reserved thereon. 3. Houses in corporations, or market towns, may be let for forty years; provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them; and provided the lessee be bound to keep them in repair: and they may also be aliened in fee-simple for lands of equal value in recompense. 4. Where there is an old lease in being, no concurrent lease shall be made, unless where the old one will expire within three years. 5. No lease (by the equity of the statute) shall be made without impeachment of waste.115 6. All bonds and covenants tending to frustrate the provisions of the statutes 13 & 18 Eliz. shall be void.

CONCERNING these restrictive statutes there are two observations to be made. First, that they do not, by any construction, enable any persons to make such leases as they were by common law disabled to make. Therefore a parson, or vicar, though he is restrained from making longer leases than for twenty one years or three lives, even with the consent of patron and ordinary, yet is not enabled to make any lease at all, so as to bind his successor, without obtaining such consent.116 Secondly, that though leases contrary to these acts are declared void, yet they are good against the lessor during his life, if he be a sole corporation; and are also good against an aggregate corporation so long as the head of it lives, who is presumed to be the most concerned in interest. For the act was intended for the benefit of the successor only; and no man shall make an advantage of his own wrong.117

THERE is yet another restriction with regard to college leases, by statute 18 Eliz. c. 6. which directs, that one third of the old rent, then paid, should for wheat for each 6 s 8 d, or a quarter of malt for every 5 s; or that the lessees should pay for the same according to the price that wheat and malt should be sold for, in the market next adjoining to the respective colleges, on the market-day before the rent becomes due. This is said118 to have been an invention of lord treasurer Burleigh, and Sir Thomas Smith, then principal secretary of state; who, observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the newfound Indies, (which effects were likely to increase to a greater degree) devised this method for upholding the revenues of colleges. Their fore-fight and penetration has in this respect been very apparent: for, though the rent so reserved in corn was at first but one third of the old rent, or half of what was still reserved in money, yet now the proportion is nearly inverted; and the money arising from corn rents is, communibus annis [on average], almost double to the rents reserved in money.

THE leases of beneficed clergymen are farther restrained, in case of their non-residence, by statutes 13 Eliz. c. 20. 14 Eliz. c. II. and 18 Eliz. c. II. which direct, that, if any beneficed clergyman be absent from his cure above fourscore days in any one year, he shall not only forfeit one year’s profit of his benefice, to be distributed among the poor of the parish; but that all leases made by him, of the profits of such benefice, and all covenants and agreements of like nature, shall cease and be void: except in the case of licensed pluralists, who are allowed to demise the living, on which they are non-resident, to their curates only; provided such curates do not absent themselves above forty days in any one year. And thus much for leases, with their several enlargements and restrictions.119

5. AN exchange is a mutual grant of equal interests, the one in consideration of the other. The word “exchange” is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word or expressed by any circumlocution.120 The estates exchanged must be equal in quantity;121 not of value, for that is immaterial, but if interest; as fee-simple for fee-simple, a lease for twenty years for a lease for twenty years, and the like. And the exchange may be of things that lie either in grant or in livery.122 But no livery of seizin, even in exchanges of freehold, is necessary to perfect the conveyance:123 for each party stands in the place of the other and occupies his right, and each of them has already had corporal possession of his own land. But entry must be made on both sides; for, if either party die before entry, the exchange is void, for want of sufficient notoriety.124 And so also, if two parsons, by consent of patron and ordinary, exchange their preferments; and the one is presented, instituted, and inducted, and the other is presented, and instituted, but dies before induction; the former shall not keep his new benefice, because the exchange was not completed, and therefore he shall return back to his own.125 For if, after an exchange of lands or other hereditaments, either party be evicted of those which were taken by him in exchange, through defect of the other’s title; he shall return back to the possession of his own, by virtue of the implied warranty contained in all exchanges.126

6. A PARTITION, is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the lands so held among them in severalty, each taking a distinct part. Here, as in some instances there is a unity of interest, and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates, which they are to take and enjoy separately. By the common law coparceners, being compellable to make partition, might have made it by parol only; but joint-tenants and tenants in common must have done it by deed: and in both cases the conveyance must have been perfected by livery of seizin.127 And the statutes of 31 Hen. VIII. c. I. and 32 Hen. VIII. c. 32. made no alteration in this point. But the statute of frauds 29 Car. II. c. 3. has now abolished this distinction, and made a deed in all cases necessary.

THESE are the several species of primary, or original conveyances. Those which remain are of the secondary, or derivative sort; which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. As,

7. RELEASES; which are a discharge or conveyance of a man’s right in lands or tenements, to another that has some former estate in possession. The words generally used therein are “remised, released, and for ever quit-claimed.”128 And these releases may inure either, 1. By way of enlarging an estate, or enlarger l’ estate: as, if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee.129 But in this case the relessee must be in possession of some estate, for the release to work upon; for if there be lessee for years, and, before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void for want of possession in the relessee.130 2. By way of passing an estate, or mitter l’ estate: as when one of two coparceners releases all her right to the other, this passes the fee-simple of the whole.131 And in both these cases there must be a privity of estate between the relessor and relessee;132 that is one of their estates must be so related to the other, as to make but one and the same estate in law. 3. By way of passing a right, or mitter le droit: as if a man be disseized, and releases to his disseizor all his right; hereby the disseizor acquires a new right, which changes the quality of his estate, and renders that lawful which before was tortious.133 4. By way of extinguishment: as if my tenant for life makes a lease to A for life, remainder to B and his heirs, and I release to A; this extinguishes may right to the reversion, and shall inure to the advantage of B’s remainder as well as of A’s particular estate.134 5. By way of entry and feoffment: as if there be two joint disseizors, and the disseizee releases to one of them, he shall be sole seized, and shall keep out his former companion; which is the same in effect as if the disseizee had entered, and thereby put an end to the disseizin, and afterwards had enfeoffed one of the disseizors in fee.135 And hereupon we may observe, that when a man has in himself the possession of lands, he must at the common law convey the freehold by feoffment and livery; which makes a notoriety in the country: but if a man has only a right or a future interest, he may convey that right or interest by a mere release to him that is in possession of the land: for the occupancy of the relessee is a matter of sufficient notoriety already.

8. A CONFIRMATION is of a nature nearly allied to a release. Sir Edward Coke defines it136 to be a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased: and the words of making it are these, “have given, granted, ratified, approved, and confirmed.”137 An instance of the first branch of the definition is if tenant for life leases for forty years, and dies during that term; her the lease for years is voidable by him in reversion: yet, if he has confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sure.138 The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release, which operates by way of enlargement.

9. A SURRENDER, sur sumeredditio, or rendering up, is of a nature directly opposite to a release; for, as that operates by the greater estate’s descending upon the less, a surrender is the falling of a less estate into a greater by deed. It is defined,139 a yielding up of an estate for life or years to him that has the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is done by these words, “has surrendered, granted, and yielded up.” The surrenderor must be in possession;140 and the surrenderee must have a higher estate, in which the estate surrendered may merge: therefore tenant for life cannot surrender to him in remainder for years.141 In a surrender there is no occasion for livery of seizin;142 for there is a privity of estate between the surrenderor, and the surrenderee; the one’s particular estate, and the other’s remainder are one and the same estate; and livery having been once made at the creation of it, there is no necessity for having it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes; since the reversion of the relessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate; and where there is already a possession, derived from such a privity of estate, any farther delivery of possession would be vain and nugatory.143

10. AN assignment is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied to an estate for life or years. And it differs from a lease only in this: that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place of the assignor.

11. A DEFEASANCE is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated144 or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeasance, whereby the feoffment was rendered void on re-payment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law;145 and, therefore only, indulged: no subsequent secret revocation of a solemn conveyance, executed by livery of seizin, being allowed in those days of simplicity and truth; though. When uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seizin could be had till the time of payment; and so also annuities, conditions, warranties, and the like) were always liable to be recalled by defeasances made subsequent to the time of their creation.146

II. THERE yet remain to be spoken of some few conveyances, which have their force and operation by virtue of the statute of uses.

USES and trusts are in their original of a nature very similar, or rather exactly the same: answering more to the fidei-commissum [trust] than the usus-fructus [the usufruct], of the civil law; which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance.147 But the fidei-commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence that he should convey it or dispose of the profits at the will of another. And it was the business of a particular magistrate, the praetor fidei-commissarius [judge of trusts], instituted by Augustus, to enforce the observance of this confidence.148 So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which occasioned that known division of rights by the Roman law, into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarium, a right in trust, for which in courtesy, for which the remedy was only by entreaty or request.149 In our law, a use might be ranked under the rights of the second kind; being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que, or him to whose use it was granted, and suffer him to take the profits.150 As, if a feoffment was made to A and his heirs, to the use of (or in trust for) B and his heirs; here at the common law A the terre-tenant had the legal property and possession of the land, but B the cestuy que use was in conscience and equity to have the profits and disposal of it.

THIS notion was transplanted into England from the civil law, about the close of the reign of Edward III,151 by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to their religious houses directly, but to the use of the religious houses:152 which the clerical chancellors of those times held to be fidei-commissa, and binding in conscience; and therefore assumed the jurisdiction, which Augustus had vested in his praetor, of compelling the execution of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, yet if a testator had enfeoffed another to his own use, and so was possessed of the use only, such, use was devisable by will. But we have seen153 how this evasion was crushed in its infancy, by statute 15 Ric. II. c. 5. with respect to religious houses.

YET, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will, and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till at length, during our long wars in France and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal: through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore about the reign of Edward IV, (before whose time, lord Bacon remarks,154 there are not six cases to be found relating to the doctrine of uses) the courts of equity began to reduce them to something of a regular system.

ORIGINALLY it was held that the chancery could give no relief, but against the very person himself entrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI, with respect to the heir;155 and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use.156 But a purchaser for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And also it was held, that neither the king or queen, on account of their dignity royal,157 nor any corporation aggregate, on account of its limited capacity,158 could be seized to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust. And, if the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife who was assigned her dower, were liable to perform the use;159 because they were not parties to the trust, but came in by act of law: though doubtless their title in reason was no better than that of the heir.

ON the other hand the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities, quae ipso usu consumuntur [consumed by the use itself]:160 or whereof the seizin could not be instantly given.161 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another without any consideration, equity presumes that he meant it to the use of himself:162 unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions.163 But, if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration.164 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession;165 for in this and many other respects aequitas sequitur legem [equity follows law], and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties,166 or be devised by last will and testament:167 for, as the legal estate in the soil was not transferred by these transactions, no livery of seizin was necessary; and, as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee;168 to whom he was accounted by law to be only tenant at sufferance.169 5. Uses were not liable to any of the feudal burdens; and particularly did not escheat for felony or other defect of blood; for escheats, ac, are the consequence of tenure, and uses are held of nobody: but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use.170 6. No wife could be endowed, or husband have his curtesy, of a use:171 for no trust was declared for their benefit, at the original grant of the estate. And therefore it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives; which was the original of modern jointures.172 7. A use could not be extended by writ of elegit, or other legal process, for the debts of cestuy que use.173 For, being merely a creature of equity, the common law, which looked no farther than to the person actually seized of the land, could award no process against it.

IT is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties, which the ingenuity of the times (abounding in subtle disquisitions) deduced from this child of the imagination; when once a departure was permitted from the plain simple rules of property established by the ancient law. These principal outline will be fully sufficient to show the ground of lord Bacon’s complaint,174 that this course of proceeding “was turned to deceive many of their just and reasonable rights. A man, that had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife was defrauded of her thirds; the husband of his curtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; and the poor tenant of his lease.” To remedy these inconveniences abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestuy que use;175 allowed actions for the freehold to be brought against him, if in the actual pernancy or enjoyment of the profits;176 made him liable to actions of waste;177 established his conveyances and leases made without the concurrence of his feoffees;178 and gave the lord the wardship of his heir, with certain other feudal perquisites.179

THESE provisions all tended to consider cestuy que use as the real owner of the estate; and at length that idea was carried into full effect by the statute 27 Hen. VIII. c. 10. which is usually called the statute of uses, or, in conveyances and pleadings, the statute for transferring uses into possession. The hint seems to have been derived from what was done at the accession of king Richard III; who having, when duke of Gloucester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use. But, to obviate so notorious an injustice, an act of parliament was immediately passed,180 which ordained that, where he had been so infeoffed jointly with other persons, the land should vest in the other feoffees, as if he had never been named; and that, where he stood solely infeoffed, the estate itself should vest in cestuy que use in like manner as he had the use. And so the statute of Henry VIII, after reciting the various inconveniences before-mentioned and many others, enacts, that “when any person shall be seized of lands, etc., to the use, confidence, or trust, of any other person or body politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life, or years, or otherwise, shall from thenceforth stand and be seized or possessed of the land, etc., of and in the like estates as they have in the use, trust, or confidence; and that the estate of the person so seized to uses shall be deemed to be in him or them that have the use, in such quality, manner, form, and condition, as they had before in the use.” The statute thus executes the use, as our lawyers term it; that is, it conveys the possession to the use, and transfers the use into possession: thereby making cestuy que use complete owner of the lands and tenements, as well at law as in equity.

THE statute having thus, not abolished the conveyance to uses, but only annihilated the intervening estate of the feoffee, and turned the interest of cestuy que use into a legal instead of an equitable ownership; the courts of common law began to take cognizance of uses, instead of sending the party to seek his relief in chancery. And, considering them now as merely a mode of conveyance, very many of the rules before established in equity were adopted with improvements by the judges of the common law. The same persons only were held capable of being seized to a use, the same considerations were necessary for raising it, and it could only be raised of the same hereditaments, as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents, that formerly attended it in its fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor be aliened to any purchaser discharged of the use, nor be liable to dower or curtesy on account of the seizin of such feoffee; because the legal estate never rests in him for a moment, but is instantaneously transferred to cestuy que use, as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seizin of cestuy que use, who was now become the terre-tenant also; and they likewise were no longer devisable by will.

THE various necessities of mankind induced also the judges very soon to depart from the rigor and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyances to uses than upon others. Hence it was adjudged, that the use need not always be executed the instant the conveyance is made: but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the mean while the ancient use shall remain in the original grantor: as, when lands are conveyed to the use of A and B, after a marriage shall be had between them,181 or to the use of A and his heirs till B shall pay him a sum of money, and then to the use of B and his heirs.182 Which doctrine, when devises by will were again introduced, and considered as equivalent in point of construction to declarations of uses, was also adopted in favor of executory devises.183 But herein these, which are called contingent or springing, uses differ form an executory devise; in that there must be a person seized to such uses at the time when the contingency happens, else they can never be executed by the statute; and therefore, if the estate of the feoffee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed for ever:184 whereas by an executory devise the freehold itself is transferred to the future devisee. And, in both these cases, a fee may be limited to take effect after a fee;185 because, though that was forbidden by the common law in favor of the lord’s escheat, yet. When the legal estate was not extended beyond one fee-simple, such subsequent uses (after a use in fee) were before the statute executed the legal estate in the same manner as the use before subsisted. It was also held that a use, though executed, may change from one to another by circumstances ex post facto;186 as if A makes a feoffment to the use of his intended wife and her eldest son for their lives, upon the marriage the wife takes the whole use in severalty; and, upon the birth of a son, the use is executed jointly in them both.187 This is sometimes called a secondary, sometimes a shifting, use. And, whenever the use limited by the deed expires, or cannot vest, it returns back to him who raised it, after such expiration or during such impossibility, and is styled a resulting use. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the use of her first-born son in tail: here, till he marries the use results back to himself; after marriage, it is executed in the wife for life; and, if the dies without issue, the whole results back to him in fee.188 It was likewise held, that the uses originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow, was a deed of defeasance coeval with the grant itself (and therefore esteemed a part of it) upon events specifically mentioned.189 And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead.190 And this was permitted, partly to indulge the convenience, and partly the caprice of mankind; who (as lord Bacon observes191) have always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards.

BY this equitable train of decisions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminished. But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held in the first place, that “no use could be limited on a use;”192 and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a farther use to another person is repugnant and therefore void.193 And therefore, on a feoffment to A and his heirs, to the use of B and his heirs, in trust for C and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting, that the instant the first use was executed in B, he became seized to the use of C, which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down, through a hundred uses upon uses, till finally executed in the last cestuy que use. Again; as the statute mentions only such persons as were seized to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the tremor is not seized, but only possessed;194 and therefore, if a term of one thousand years be limited to A, to the use of (or in trust for) B, the statute does not execute this use, but leaves it as at common law.195 And lastly, (by more modern resolutions) where lands are given to one and his heirs, in trust to receive and pay over the profits to another, this use is not executed by the statute: for the land must remain in the trustee to enable him to perform the trust.196

OF the two more ancient distinctions the courts of equity quickly availed themselves. In the first case it was evident, that B was never intended by the parties to have any beneficial interest; and, in the second, the cestuy que use of the term was expressly driven into the court of chancery to seek his remedy: and therefore that court determined, that though these were not uses, which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed. To this the reason of mankind assented, and the doctrine of uses was revived, under the denomination of trusts: and thus, by this strict construction of the courts of law, a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance.197

HOWEVER, the courts of equity, in the exercise of this new jurisdiction, have wisely avoided in a great degree those mischiefs which made uses intolerable. They now consider a trust-estate(either when expressly declared or resulting by necessary implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity, which the other is subject to in law: and, by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, without their inconvenience or frauds. The treason is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchaser without notice;198 which, as cestuy que use is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to forfeiture, to leases and other encumbrances, nay even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subjected to dower, more from a cautious adherence to some hasty precedents,199 than from any well-grounded principle. It has also been held not liable to escheat to the lord, in consequence of attainder or want of heirs:200 because the trust could never be intended for his benefit. But let us now return to the statute of uses.

THE only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seizin, the only ancient conveyance of corporeal freeholds: the security and notoriety of which public investiture abundantly overpaid the labor of going to the land, or of sending an attorney in one’s stead. But this now has given way to

12. A TWELFTH species of conveyance, called a covenant to stand seized to uses: by which a man, seized of lands, covenants in consideration of blood or marriage that he will stand seized of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefitted, having thus acquired the use, is thereby put at once into corporal possession of the land,201 without ever seeing it, by a king of parliamentary magic. But this conveyance can only operate, when made upon such weighty and interesting considerations as those of blood or marriage.

13. A THIRTEENTH species of conveyance, introduced by this statute, is that of a bargain and sale of lands; which is a kind of a real contract, whereby the bargainor for some pecuniary consideration bargains and sells, that is, contracts to convey, the land to the bargainee; and becomes by such bargain a trustee for, or seized to the use of, the bargainee; and then the statute of uses completes the purchase:202 or, as it has been well expressed,203 the bargain first vests the use, and then the statute vests the possession. But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law assurances were calculated to give; to prevent therefore clandestine conveyances of freeholds, it was enacted in the same session of parliament by statute 27 Hen. VIII. c. 16. that such bargains and sales should not inure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminster-hall or with the custos rotulorum [keeper of the rolls] of the county. Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious till about six years before;204 which also occasioned them to be overlooked in framing the statute of uses: and therefore such bargains and sales are not directed to be enrolled. But how impossible is it to foresee, and provide against, all the consequence of innovations! This omission has given rise to

14. A FOURTEENTH species of conveyance, viz. by lease and release; first invented by sergeant Moore, soon after the statute of uses, and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr. Noy) have formerly doubted its validity.205 It is thus contrived. A lease, or rather bargain and sale, upon some pecuniary consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Now this, without any enrollment, makes the bargainor stand seized to the use of the bargainee, and vest in the bargainee the use of the term for a year; and then the statute immediately annexes the possession. He therefore, being thus in possession, is capable of receiving a release of the freehold and reversion; which, we have seen before,206 must be made to a tenant in possession: and accordingly, the next day, a release is granted to him.207 This is held to supply the place of livery of seizin; and so a conveyance by lease and release is said to amount to a feoffment.208

15. TO these may be added deeds to lead or declare the uses of other more direct conveyances, as feoffments, fines, and recoveries; of which we shall speak in the next chapter: and,

16. DEEDS of revocation of uses; hinted at in a former page,209 and founded in a previous power, reserved at the raising of the uses,210 to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation.211 And this may suffice for a specimen of conveyances founded upon the statute of uses; and will finish our observations upon such deeds as serve to transfer real property.

BEFORE we conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but to charge or encumber, lands, and discharge them again: of which nature are, obligations or bonds, recognizances, and defeasances upon them both.

1. AN obligation, or bond, is a dead212 whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio [a simple obligation]; but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as, payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the lands. How it affects the personal property of the obligor, will be more properly considered hereafter.

IF the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single and unconditional: for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se [wrong in itself], the obligation itself is void: for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And if the condition be possible at the time of making it, and afterwards becomes impossible by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved: for no prudence or foresight of the obligor could guard against such a contingency.213 On the forfeiture of a bond, or its becoming single, the whole penalty was recoverable at law: but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon non-performance of covenants; and the like. And the statute 4 & 5 Ann. c. 16. has also enacted, in the same spirit of equity, that in case of a bond, conditioned for the payment of money, the payment or tender of the principal sum due, with interest, and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge.

2. A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorized,214 with condition to do some particular act; as to appear at the assizes, to keep the peace, to pay a debt, or the like. It is in most respects like another bond: the difference being chiefly this; that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowledgment of a former debt upon record; the form whereof is, “that A. B. does acknowledge to owe to our lord the king, to the plaintiff, to C. D. or the like, the sum of ten pounds,” with condition to be void on performance of the thing stipulated: in which case the king, the plaintiff, C. D. etc, is called the cognizee, “is cui cognoscitur” [“he who is acknowledged”]; as he that enters into the recognizance is called the cognizor, “is qui cognoscit” [“he who acknowledges”]. This, being either certified to, or taken by the officer of some court, is witnessed only by the record of that court, and not by the party’s seal: so that it is not in strict property a deed, though the effects of it are greater than a common obligation; being allowed a priority in point of payment, and binding the lands of the cognizor, from the time of enrollment on record.215 There are also other recognizances, of a private kind, in nature of a statute staple, by virtue of the statute 23 Hen. VIII. c. 6. which have been already explained,216 and shown to be a charge upon real property.

3. A DEFEASANCE, on a bond, recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeasance of an estate before-mentioned. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate and frequently a subsequent deed.217 This, like the condition of a bond, when performed, discharges and disencumbers the estate of the obligor.

THESE are the principal species of deeds or matter in pais, by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any; though in these there is certainly one palpable defect, the want of sufficient notoriety: so that purchasers or creditors cannot know with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the ancient feudal method of conveyance (by giving corporal seizin of the lands) this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and encumbrances; since the disuse of the old Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or ledger-book of some adjacent monastery;218 and the failure of the general register established by king Richard the first, for mortgages made to Jews, in the capitula de Judaeis, of which Hoveden has preserved a copy. How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record.219 And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature220 to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it has been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omissions of parties, than prevented by the use of registers.

NOTES

     1.    Co. Litt. 171.

     2.    Ploed. 434.

     3.    Lyndew. L. 1. t. 10. c. 1.

     4.    Mirror. C. 2. § 27.

     5.    Ibid. Litt. § 371, 372.

     6.    Co. Litt. 35.

     7.    Stat. 13 Eliz. c. 8.

     8.    Stat. 27. Eliz. c. 4.

     9.    Stat. 13 Eliz. c. 5.

   10.    Perk. § 533.

   11.    3 Rep. 83.

   12.    Co. Litt. 229. F. N. B. 122.

   13.    Co. Litt. 225.

   14.    Ibid. 6.

   15.    See appendix, No. 2. § 2. pag. V.

   16.    Ibid.

   17.    Co. Litt. 21.

   18.    S Kep. 154.

   19.    Append. No. I Madox. Formul. passim.

   20.    Append. No. II. § 1. pag. Iii.

   21.    See pag. 41.

   22.    Plowd. 13. 8. Rep. 71.

   23.    Append. No. I. pag. I.

   24.    Append. No. II. § 2. pag. Viii.

   25.    Ibid. No. I. pag. I.

   26.    Feud. l 2. t. 8, &25;.

   27.    Co. Litt. 384.

   28.    Litt. § 143.

   29.    Co. Litt. 174.

   30.    Ibid. 384.

   31.    Ibid.

   32.    Co. Litt. 102.

   33.    Litt. § 733.

   34.    Co. Litt. 373.

   35.    Litt. § 703. 706. 707.

   36.    Litt. § 705. 707.

   37.    Ibid. § 698. 702.

   38.    Co. Litt. 102.

   39.    Litt. § 711. 712.

   40.    Co Litt. 373.

   41.    Litt. § 712. 2 Inst. 293.

   42.    pag. 116.

   43.    Co. Litt. 374. 2 Inst. 335.

   44.    Append. No. II. § 2. pag. Viii.

   45.    Ibid. pag xiii.

   46.    Co. Litt. 46. Dyer. 28.

   47.    2 Rep. 3. 9. II Rep. 27.

   48.    1 Kings. C. 21. Daniel. C. 6. Esther. c. 8.

   49.    “And I bought the field of Hanameel, and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it, and took witnesses, and weighed him the money in the balances. And I took the evidence of the purchase, both that which was sealed according to the law and custom, and also that which was open.” c. 32.

   50.    Inst. 2. 10. 2 &3;.

   51.    I Inst. 7.

   52.    “Propria manu pro ignorantia literarum signum sanctae crucis expressi et subscripsi.” [“On account of my ignorance of letters, I impress and subscribe the sign of the holy cross.”] Seld. Tan Angl. l. I. § 42. And this (according to Procopius) the emperor Justin in the east, and Theodoric king of the Goths in Italy, had before authorized by their example, on account of their inability to write.

   53.    Lamb. Arcbeiou. 51.

   54.    “Normanni chirographorum confectionem, cum crutibus aureis, aliisque signaculis sacris, in Anglia firmari solitam, in caeram impressam mutant, modumque scribendi Anglicum rejiciunt.” [“At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross.”] Ingulph.

   55.    3 Lev. I. Stra. 764.

   56.    Perk. § 130.

   57.    Co. Litt. 36.

   58.    Feud. l. I. t. 4.

   59.    Co. Litt. 7.

   60.    Feud. l. 2. t. 32.

   61.    Spelm. Gloss. 228. Madox. Formul. No. 221. 322. 660.

   62.    Co. Litt. 6.

   63.    2 Inst. 77.

   64.    Madox, formul. No. 515.

   65.    Ibid. Dissert. fol. 32.

   66.    2 Inst. 78.

   67.    II Rep. 27.

   68.    5 Rep. 23.

   69.    Toth. No. 24. 1 Vern. 348.

   70.    Co. Litt. 9.

   71.    Ibid.

   72.    Wright. 21.

   73.    pag. 108.

   74.    Co. Litt. 42.

   75.    See Appendix. No. I.

   76.    Co. Litt. 9.

   77.    Litt. § 66.

   78.    Wright. 37.

   79.    l. 3. c. 15.§ 5.

   80.    Nam apiscimur possessionem corpore et animo; neque per se corpore, neque per se animo. Non autem ita accipiendum est, ut qui fundum possidere velit, omnes glebas circumambulet; sed sufficit quamlibet partem ejus fundi introire. [To obtain possession, we must enter on the land with an intention to possess, neither entry nor intention alone being sufficient. But it is not to be understood, that he who wishes to take possession must walk over every clod, for it is enough if he enter on any part of the land.] (Cod. 2. 3. 20.)

   81.    Decretal. I. 3. t. 4. c. 40.

   82.    See pag. 209. 227, 228.

   83.    Flet. I. 6. c. 2. § 2.

   84.    ch. 4. v. 7.

   85.    Stiernhook. de jure Suton. I. 2. c. 4.

   86.    Hickes. Dissert. epistolar. 8.

   87.    Co. Litt. 46.

   88.    See pag. 165.

   89.    pag. 167.

   90.    Co. Litt. 49.

   91.    Co. Litt. 48.

   92.    pag. 288.

   93.    Co. Litt. 48. West. Symb. 251.

   94.    Litt. § 414.

   95.    Feud. l. 2. t. 58.

   96.    See pag. 307.

   97.    Gilb. Ten. 35.

   98.    Dyer. 18.

   99.    See appendix. No. I.

   100.    Litt. § 421, etc.

   101.    Co. Litt. 48.

   102.    Ibid. 52.

   103.    West’s symbol. 206.

   104.    Litt. § 59.

   105.    § 57.

   106.    Co. Litt. 9.

   107.    Ibid. 172.

   108.    l. 2. c. 18.

   109.    Spelm. Gl. 229.

   110.    Co. Litt. 44.

   111.    Co. Litt. 44.

   112.    But now by the statute 5 Geo. III. c. 17. a lease of tithes or other incorporeal hereditaments, alone, may be granted by any bishop or ecclesiastical or eleemosynary corporation, and the successor shall be entitled to recover the rent by an action of debt, which (in case of a freehold lease) he could not have brought at the common law.

   113.    Co. Litt. 45.

   114.    II Rep. 71.

   115.    Co. Litt. 45.

   116.    Ibid. 44.

   117.    Ibid. 45.

   118.    Strype’s annals of Eliz.

   119.    For the other learning relating to leases, which is very curious and diffusive, I must refer the student to 3 Bac. Abridge. 295. (title, leases) leases and terms for years) where the subject is treated in a perspicuous and masterly manner; being supposed to be extracted from a manuscript of Sir Geoffrey Gilbert.

   120.    Co. Litt. 50, 51.

   121.    Litt. § 64, 65.

   122.    Co. Litt. 51.

   123.    Litt. § 62.

   124.    Co. Litt. 50.

   125.    Perk. § 288.

   126.    Pag. 301.

   127.    Litt. § 250.

   128.    Co. litt. 169.

   129.    Litt. § 445.

   130.    Ibid. § 459.

   131.    Co. Litt. 273.

   132.    Ibid. 272, 273.

   133.    Litt. § 466.

   134.    Ibid. § 470.

   135.    Co. Litt. 278.

   136.    I Inst. 295.

   137.    Litt. § 515. 531.

   138.    Ibid. § 516

   139.    Co. Litt. 337.

   140.    Ibid. 338.

   141.    Perk. § 589.

   142.    Co. Litt. 50.

   143.    Litt. § 460.

   144.    From the French verb defaire, infectum reddere [to defeat].

   145.    Co. litt. 236.

   146.    Ibid. 237.

   147.    Ff. 7. 1. 1.

   148.    Inst. 2. tit. 23.

   149.    Ff. 43. 26. 1. Bacon on uses. 8 o. 306.

   150.    Plowd. 352.

   151.    Stat. 50 Edw. III. c. 6. I Ric. II. c. 9.

   152.    See pag. 271.

   153.    pag. 272.

   154.    on uses. 313.

   155.    Keilw. 42. Yearbook 22 Edw. IV. 6.

   156.    Keilw. 46. Bacon of uses. 312.

   157.    Bro. Abr. tit. Feoffm. al uses. 31. Bacon of uses. 346, 347.

   158.    Bro. Abr. tit. Feoffm. al uses. 40. Bacon. 347.

   159.    1 Rep. 122.

   160.    1 Jon. 127.

   161.    Cro. Eliz. 401.

   162.    See pag 296.

   163.    1 And. 37.

   164.    Moor. 684.

   165.    2 Roll. Abr. 780.

   166.    Bacon of uses. 312.

   167.    Ibid. 308.

   168.    Stat. 1 Ric. III. c. 1.

   169.    Bro. Abr. ibid. 23.

   170.    Jenk. 190.

   171.    4 Rep. 1. 2 And. 75.

   172.    See pag. 137.

   173.    Bro. Abr. tit. executions. 90.

   174.    Use of the law. 153

   175.    Stat. 50 Edw III. c. 6. 2 Ric. II. Sess. 2. c. 3. 19 Hen V I c. 15.

   176.    Stat 1 Ric. II. c. 9. 4 Hen. IV. C. 7. II. Hen VI. C. 3. 1 Hen. VII. C. 1.

   177.    Stat. II Hen. VI. C. 5.

   178.    Stat. I Ric. III. c. 1.

   179.    Stat. 4 Hen. VII. C. 17. 19 Hen. VII. C. 15.

   180.    1 Ric. III. c. 5.

   181.    2 Roll. Abr. 791. Cro. Eliz. 439.

   182.    Bro. Abr. tit. Feoffm. al uses. 30.

   183.    See pag. 173.

   184.    1 Rep. 134. 138. Cro. Eliz. 439.

   185.    Pollex f. 78. 10 Mod. 423.

   186.    Bro. Abr. tit. Feoffm. al uses. 30.

   187.    Bacon of uses. 351.

   188.    Ibid. 350. 1 Rep. 120.

   189.    See pag. 327.

   190.    Co. Litt. 237.

   191.    on uses. 316.

   192.    Dyer. 155.

   193.    1 And. 37. 136.

   194.    Bacon law of uses. 335. Jenk. 244.

   195.    Poph 76. Dyer. 369.

   196.    1 Equ. Cas. abr. 383, 384.

   197.    Vaugh. 50. Atk. 591.

   198.    2 Freem. 43.

   199.    1 Chanc. Rep. 254. 2 P. Wms. 640.

   200.    Hardr. 494. Burgess & Wheate. Hil. 32 Geo. II. in Cano.

   201.    Bacon. Use the law. 151.

   202.    Ibid. 150.

   203.    Cro. Jac. 696.

   204.    See pag. 142.

   205.    2 Mod. 25.

   206.    pag. 324.

   207.    Co. Litt. 270.

   208.    Cro. Jac. 604.

   209.    pag. 335.

   210.    See Appendix. No. II. pag. xi.

   211.    Co. Litt. 237.

   212.    See Appendix. No. III. pag. xiii.

   213.    Co. Litt. 206.

   214.    Bro. Abr. tit. recognizance 24.

   215.    Stat. 29 Car. II. c. 3. § 18.

   216.    See pag. 160.

   217.    Co. Litt. 237. 2 Saund. 47.

   218.    Hickes Dissertat. epistolar. 9.

   219.    Dalrymple on feudal property. 262, etc.

   220.    Stat. 2 & 3 Ann. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. II. c. 6.

Continuación 

BOOK 2, CHAPTER 19 Of Title by Alienation

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense: under which may be comprised any method wherein estates are voluntarily resigned by one man, and accepted by another; whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties.

THIS means of taking estates, by alienation, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feudal law,1 a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him, to perform the feudal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feudal restraint of alienation would have been easily frustrated and evaded.2 And, as he could not aliene it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent, or presumptive, heir.3 And therefore it was very usual in ancient feoffments to express, that the alienation was made by consent of the heirs of the feoffor; or sometimes for the heir apparent himself to join with the feoffor in the grant.4 And, on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his seigniory without the consent of his vassal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seizing of his cattle by the lord of a neighboring clan.,5 This consent of the vassal was expressed by what was called attorning6 or professing to become the tenant of the new lord; which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incomplete:7 which was also an additional clog upon alienations.

BUT by degrees this feudal severity is worn is worn off; and experience has shown, that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained. The road was cleared in the first place by a law of king Henry the first, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power, than over what had been transmitted to him in a course of descent from his ancestors:8 a doctrine, which is countenanced by the feudal constitutions themselves:9 but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate.10 Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase deed, he was not empowered to aliene:11 and also he might part with one fourth of the inheritance of his ancestors without the consent of his heir.12 By the great charter of Henry III,13 no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one half or moiety of the land.14 But these restrictions were in general removed by the statute of quia emptores,15 whereby all persons, except the king’s tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion.16 And even these tenants in capite were by the statute 1 Edw. III. c. 12. permitted to aliene, on paying a fine to the king.17 By the temporary statutes 11 Hen. VII. c. 3. and 3 Hen. VIII. c. 4. all persons attending the king in his wars were allowed to aliene their lands without license, and were relieved from other feudal burdens. And, lastly, these

very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging lands with the debts of the owner, this was introduced so early as statute Westm. 2. which18 subjected a moiety of the tenant’s lands to executions, for debts recovered by law; as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatoribus, made the same year, and in a statute staple by statute 27 Edw. III. c. 9. and in other similar recognizances by statute 23 Hen. VIII. c. 6. And now, the whole of them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed, till the abolition of the military tenures. The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till, at last, they were made no longer necessary, by statutes 4 & 5 Ann. c. 16. and 11 Geo. II. c. 19.

IN examining the nature of alienation, let us first inquire, briefly, who may aliene and to whom; and then, more largely, how a man may aliene, or the several modes of conveyance.

1.WHO may aliene, and to whom; or, in other words, who is capable of conveying and who of purchasing. And herein we must consider rather the incapacity, than capacity, of the several parties: for all persons in possession are, prima facie, capable both of conveying and purchasing, unless the law has laid them under any particular disabilities. But, if a man has only in him the right of either possession or property, he cannot convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down, and the weak oppressed.19 Yet reversions and vested remainders may be granted; because the possession of the particular tenant is the possession of him in reversion or remainder: but contingencies, and mere possibilities, though they may be released, or devised by will, or may pass to the heir or executor, yet cannot (it has been said) be assigned to a stranger, unless coupled with some present interest.20

PERSONS attainted of treason, felony, and praemunire [forewarning], are incapable of conveying, from the time of the offense committed, provided attainder follows:21 for such conveyance by them may tend to defeat the king of his forfeiture, or the lord of his escheat. But they may purchase for the benefit of the crown, or the lord of the fee, though they are disabled to hold: the lands so purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime.22 So also corporations, religious or others, may purchase lands; yet, unless they have a license to hold in mortmain, they cannot retain such purchase; but it shall be forfeited to the lord of the fee.

IDIOTS and persons of nonsane memory, infants, and persons under duress, are not totally disabled either to convey or purchase, but sub modo [to a degree] only. For their conveyances and purchases are voidable, but not actually void. The king indeed, in behalf of an idiot, may avoid his grants or other acts.23 But it has been said, that a non compos himself, though he be afterwards brought to a right mind shall not be permitted to allege his own insanity in order to avoid such grant: for that no man shall be allowed to stultify himself, or plead his own disability. The progress of this notion is somewhat curious. In the time of Edward I, non compos was a sufficient plea to avoid a man’s own bond:24 and there is a writ in the register25 for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suae, ut dicit [while he was of unsound mind, as he says], etc. But under Edward III a scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own insanity:26 and, afterwards, a defendant in assize having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus [by word of mouth], as the manner then was) that he was out of his mind when he gave it, the court adjourned the assize; doubting, whether as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked, how he came to remember the release, if out of his senses when he gave it.27 Under Henry V1 this way of reasoning (that a man shall not be allowed to disable himself, by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument;28 upon a question, whether the heir was barred of his right of entry by the feoffment of his insane ancestor. And from these loose authorities which Fitzherbert does not scruple to reject as being contrary to reason,29 the maxim that a man shall not stultify himself has been handed down as settled law:30 though later opinions, feeling the inconvenience of the rule, have in many points endeavored to restrain it.31 And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant.32 And so too, if he purchases under this disability, and does not afterwards upon recovering his senses agree to the purchase, his heir may either waive or accept the estate at his option.33 In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him.34 Persons also, who purchase or convey under duress is ceased.35 For all these are under the protection of the law; which will not suffer them to be imposed upon, through the imbecility of their present condition; so that their acts are only binding, in case they be afterwards agreed to, when such imbecility ceases.

THE case of a feme-covert is somewhat different. She may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids it by some act declaring his dissent.36 And, though he does nothing to avoid it, or even if he actually consents, the feme- covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement.37 But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable;38 and therefore cannot be affirmed or made good by any subsequent agreement.

THE case of an alien born is also peculiar. For he may purchase any thing; but after purchase he can hold nothing, except a lease for years of a house for convenience of merchandise, in case he be an alien-friend: all other purchases (when found by an inquest of office) being immediately forfeited to the king.39

PAPISTS, lastly, and persons professing the popish religion, are by statute 11 & 12 W. III. c. 4. disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void. But this statute is construed to extend only to papists above the age of eighteen; such only being absolutely disabled to purchase: yet the next protestant heir of a papist under eighteen shall have the profits, during his life; unless he renounces his errors within the time limited by law.40

II. WE are next, but principally, to inquire, how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

IN consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired; which, we have more than once observed was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man’s dereliction of the thing he had seized, it would again become common, and all those mischiefs and contentions would ensue, which property was introduced to prevent. For this purpose therefore, of continuing the possession, the municipal law has established descents and alienations: the former to continue the possession in the heirs of the proprietors, after his involuntary dereliction of it by his death; the latter to continue it in those persons, to whom the proprietor, by his own voluntary act, shall choose to relinquish it in his lifetime. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred; or with regard to the subject matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man’s estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.

THESE common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is (according to the old common law) upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the king’s public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect, till after his death, and that is by devise, contained in his last will and testament. We shall treat of each in its order.

NOTES

     1.    See pag. 57.

     2.    Feud. l. 1. t. 27.

     3.    Co. Litt. 94. Wright, 168.

     4.    Madox, Formul. Angl. No. 316. 319. 427.

     5.    Gilb. Ten. 75.

     6.    The same doctrine and the same denomination prevailed in Bretagne. Possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attournances et avirances, ut loqui solent; cum vasallus, ejurato prioris domini obsequio et fide, novo se sacramento novo item domino acquirenti obstringebat; idque jussu auctoris. [Possessions with a right of jurisdiction can only be taken by attorning or professing to become tenant, as it is usually called; when the vassal resigning his former obedience and faith, bound himself by a fresh oath to the new lord, and that by the command of his ancient lord.] D’Argentre Antiq. Consuet. Brit. apud Dufresne. I. 819, 820.

     7.    Litt. § 551.

     8.    Emptiones vel acquisitiones suas det cui magis velit. Terram autem quam ei parentes dederunt non mittat extra cognationem suam. [He may give his purchases or acquisitions to whomsoever he pleases. But the land which descended to him he cannot alien from his kindred.] LL. Hen. 1. c. 70.

     9.    Feud. l. 2. t. 39.

   10.    Si questum tantum habuerit is, qui partem terrae suae donare voluerit, tunc quidem hoc ei licet: sed non totum questum, quia non potest filium suum haeredem exhaeredare. [If he, who wishes to give a part of his land, has only what he has acquired himself, he may lawfully do it: but he cannot alien the whole, because he cannot disinherit his son and heir.] Glanv. l. 7. c. 1.

   11.    Mirr. C. 1. § 3. This is also borrowed from the feudal law. Feud. l. 2. t. 48.

   12.    Mirr. ibid.

   13.    9 Hen. 111. c. 32.

   14.    Dalrymple of feuds. 95.

   15.    18 Edw. 1. c. 1.

   16.    See pag. 72.

   17.    2 Inst. 67.

   18.    13 Edw. 1. c. 18.

   19.    Co. Litt. 214.

   20.    Sheppard’s touchstone. 238, 239, 322. 11 Mod. 152. 1p. Wms. 574. Stra. 132.

   21.    Co. Litt. 42.

   22.    Ibid. 2.

   23.    Ibid. 247.

   24.    Britton, c. 28. fol. 66.

   25.    fol. 228.

   26.    5 Edw. 111. 70

   27.    35 Affif. pl. 10.

   28.    39 Hen. V1. 42.

   29.    F. N. B. 202.

   30.    Litt. § 405. Cro. Eliz. 398. 4 Rep. 123.

   31.    Comb. 469. 3 Mod. 310, 311. 1 Equ. Cas. Abr. 270.

   32.    Perkins. § 21.

   33.    Co. Litt. 2.

   34.    Ibid.

   35.    2 Inst. 483. 5 Reo. 119.

   36.    Co. Litt. 3.

   37.    Ibid.

   38.    Perkins. § 154. 1 Sid. 120.

   39.    Co. Litt. 2.

   40.    I p. Wms. 354.

Continuación

BOOK 2, CHAPTER 18 Of Title by Forfeiture

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, has sustained.

Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: i. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

I. The foundation and justice of forfeitures for crimes and misdemeanors, and the several degrees of those forfeitures, preceding volume;1 but will be more properly considered, and more at large, in the fourth book of these commentaries. At present I shall only observe in general, that the offenses which induce a forfeiture of lands and tenements to the crown are principally the following six; 1. Treason. 2. Felony. 3. Misprision of treason. 4. Praemunire. 5. Drawing a weapon on a judge, or striking any one in the presence of the king’s principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists. But at what time they severally commence, how far they extend, and how long they endure, will with greater propriety be reserved as the object of our future inquiries.

II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.

1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this has occasioned the general appellation of mortmain to be applied to such alienations,2 and the religious houses themselves to be principally considered in forming the statutes of mortmain: in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses; how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, has obtained a decisive victory.

By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feudal restraints of alienation were worn away. Yet in consequence of these it was always, and is still, necessary,3 for corporations to have a license of mortmain from the crown, to enable them to purchase lands: for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feudal profits, by the vesting of lands in tenants that can never be attainted or die. And such licenses of mortmain seem to have been necessary among the Saxons, above sixty years before the Norman conquest.4 But, besides this general license from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his license also (upon the same feudal principles) for the alienation of the specific land. And if no such license was obtained, the king or other lord might respectively enter on the lands so aliened in mortmain, as a forfeiture. The necessity of this license from the crown was acknowledged by the constitutions of Clarendon,5 in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations.6 Yet such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a license could not be obtained) their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands to the religious house, and instantly took them back again, to hold as tenant to the monastery; which kind of instantaneous seizin was probably held not to occasion any forfeiture: and then, by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newly acquired seigniory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feudal services, ordained for the defense of the kingdom, were every day visibly withdrawn; that the circulation of landed property from man to man began to stagnate; and that the lords were curtailed of the fruits of their seigniories, their escheats, wardships, reliefs, and the like: and therefore, in order to prevent this, it was ordained by the second of king Henry III’s great charters,7 and afterwards by that printed in our common statute-books, that all such attempts should be void, and the land forfeited to the lord of the fee.8

But, as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, Sir Edward Coke observes,9 in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bona fide held of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis [of religious persons], 7 Edw. I; which provided, that no person, religious or other whatsoever, should buy, or sell, or receive, under pretense of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself, any lands or tenements in mortmain; upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and in default of all of them, the king, might enter thereon as a forfeiture.

This seemed to be a sufficient security against all alienations in mortmain: but, as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to bring an action to recover it against the tenant; who, by fraud and collusion, made no defense, and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. And thus they had the honor of inventing those fictitious adjudications of right. which are since become the great assurance of the kingdom, under the name of common recoveries. But upon this the statute of Westminster the second, 13 Edw. I. c. 32. enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land, and if the religious house or corporation be found to have it, they shall still recover seizin; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lord’s default. And the like provision was made by the succeeding chapter,10 in case the tenants set up crosses upon their lands (the badges of knights templars and hospitallers [knights of Malta]) in order to protect them from the feudal demands of their lords, by virtue of the privileges of those religious and military orders. And so careful was this provident prince to prevent any future evasions, that when the statute of quia emptores, 18 Edw. I. abolished all subinfeudations, and gave liberty for all men to alienate their lands to be held of the next immediate lord,11 a proviso was inserted12 that this should not extend to authorize any kind of alienation in mortmain. And when afterwards the method of obtaining the king’s license by writ of ad quod damnum [at what loss] was marked out, by the statute 27 Edw. I. St. 2. it was farther provided by statute 34 Edw. I. St. 3. that no such license should be effectual, without the consent of the mesne or intermediate lords.

Yet still it was found difficult to set bounds to ecclesiastical ingenuity: for when they were driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and receiving the actual profits, while the seizin of the land remained in the nominal feoffee: who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it is to these inventions that our practitioners are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device, for the statute 15 Ric. II. c. 5. enacts, that the lands which had been so purchased to uses should be amortized by license from the crown, or else be sold to private persons; and that, for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of church-yards, such subtle imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those salutary laws. And, lastly, as during the times of popery lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore, at the dawn of the reformation, the statute 23 Hen. VIII. c. 10. declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.

But, during all this time, it was in the power of the crown, by granting a license of mortmain, to remit the forfeiture, so far as related to its own rights; and to enable any spiritual or other corporation to purchase and hold any lands or tenements in perpetuity: which prerogative is declared and confirmed by the statute 18 Edw. III. St. 3. c. 3. But, as doubts were conceived at the time of the revolution how far such license was valid,13 since the king had no power to dispense with the statutes of mortmain by a clause of non obstante,14 which was the usual course, though it seems to have been unnecessary;15 and as, by the gradual declension of mesne seigniories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass; it was therefore provided by the statute 7 & 8 W. III. c. 37. that the crown for the future at its own discretion may grant licenses to aliene or take in mortmain, of whomsoever the tenements may be held.

After the dissolution of monasteries under Henry VIII, though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years by the statute 1 & 2 P. & M. c. 8. and, during that time, any lands or tenements were allowed to be granted to any spiritual corporation without any license whatsoever. And, long afterwards, for a much better purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II. c. 3. that appropriators may annex the great tithes to the vicarages; and that all benefices under 100£ per annum may be augmented by the purchase of lands, without license of mortmain in either case: and the like provision has been since made, in favor of the governors of queen anne’s bounty.16 It has also been held,17 that the statute 23 Hen. VIII. before-mentioned did not extend to any thing but superstitious uses; and that therefore a man may give lands for the maintenance of a school, an hospital, or any other charitable uses. But as it was apprehended from recent experience, that persons on their deathbeds might make large and improvident dispositions even for these good purposes, and defeat the political ends of the statutes of mortmain; it is therefore enacted by the statute 9 Geo. II. c. 36. that no lands or tenements, or money to be laid out thereon, shall be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after its execution, (except stocks in the public funds, which may be transferred within six months previous to the donor’s death) and unless such gift be made to take effect immediately, and be without power of revocation: and that all other gifts shall be void. The two universities, their colleges, and the scholars upon the foundation of the colleges of Eaton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons, than are equal in number to one moiety of the fellows or students, upon the respective foundations.

2. Secondly, alienation to an alien is also a cause of forfeiture to the crown of the lands so alienated, not only on account of his incapacity to hold them, which occasions him to be passed by in descents of land,18 but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding volume.19

3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and divest the remainder or reversion,20 are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee; these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate to him in remainder or reversion.21 For which there seem to be two reasons. First, because such alienation amounts to a renunciation of the feudal connection and dependence; it implies a refusal to perform the due renders and services to the lord of the fee, of which fealty is constantly one; and it ends in its consequences to defeat and divest the remainder or reversion expectant: as therefore that is put in jeopardy, by such act of the particular tenant, it is but just that, upon discovery, the particular estate should be forfeited and taken from him, who has shown so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire and to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law, which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold, or of chattel interests; but if tenant in tail alienes in fee, this is no immediate forfeiture to the remainder-man, but a mere discontinuance (as it is called22) of the estate-tail, which he issue may afterwards avoid by due course of law:23 for he in remainder or reversion has only a very remote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law.24 For the law will not hurt an innocent lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it, and defeat the interest which he himself has created.

Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; as where a tenant, who holds of any lord, neglects to render him the due services, and upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord,25 upon reasons most apparently feudal. And so likewise, if in any court of record the particular tenant does any act which amounts to a virtual disclaimer; if he claims any greater estate than was granted him at the first infeudation, or takes upon himself those rights which belong only to tenants of a superior class;26 if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like;27 such behavior amounts to a forfeiture of his particular estate.

III. Lapse is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary by neglect of the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For it being for the interest of religion, and the good of the public, that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken the patron; who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority28) of the council of Lateran,29 which was in the reign of our Henry the second, when the bishops first began to exercise universally the right of institution to churches.30 And therefore, where there is no right of institution, there is no right of lapse: so that no donative can lapse to the ordinary,31 unless it has been augmented by the queen’s bounty.32 But no right of lapse can accrue, when the original presentation is in the crown.33

The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar months;34 (following in this case the computation of the church, and not the usual one of the common law) and this exclusive of the day of the avoidance.35 But, if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in;36 for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also, if the bishop does not collate his own clerk immediately to the living, and the patron presents, though after the six months are lapsed, yet his presentation is good, and the bishop is bound to institute the patron’s clerk.37 For as the law only gives the bishop this title by lapse, to punish the patron’s negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the presentation to lapse to the metropolitan, the patron also has the same advantage if he presents before the arch-bishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the arch-bishop.38 For he had no permanent right and interest in the advowson, as the patron has, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But if the presentation lapses to the king, prerogative here intervenes and makes a difference; and the patron shall never recover his right, till the king has satisfied his turn by presentation: for nullum tempus occurrit regi [no time runs against the king].39 And therefore it may seem, as if the church might continue void for ever, unless the king shall be pleased to present; and a patron thereby be absolutely defeated of his advowson. But to prevent this inconvenience, the law has lodged a power in the patron’s hands, of as it were compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron’s clerk; but if he does not, and the patron’s clerk dies incumbent, or is canonically deprived, the king has lost his right, which was only to the next or first presentation.40

In case the benefice becomes void by death, or cession through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is perfumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can take no advantage by way of lapse.41 Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the arch-bishop or the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months, and has exceeded his time: for the first step or beginning fails, et quod non habet principium, non habet finem [and that which has no beginning has no end].42 If the bishop refuse or neglect to examine and admit the patron’s clerk, without good reason assigned or notice given, he is styled a disturber by the law, and shall not have any title to present by lapse; for no man shall taken advantage of his own wrong.43 Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided.44

IV. BY simony, the right of presentation to a living is forfeited, and vested pro hac vice [for this time] in the crown. Simony is the corrupt presentation of any one to an ecclesiastical benefice for money, gift, or reward. It is so called from the resemblance it is said to bear to the sin of Simon Magus, though the purchasing of holy orders seems to approach nearer to his offense. It was by the canon law a very grievous crime: and is so much the more odious, because, as Sir Edward Coke observes,45 it is ever accompanied with perjury; for the presentee is sworn to have committed no simony. However it is not an offense punishable in a criminal way at the common law;46 it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect the simoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, diverse acts of parliament have been made to restrain it by means of civil forfeitures; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, because they divest the corrupt patron of the right of presentation, and vest a new right in the crown.

BY the statute 31 Eliz. c. 6. it is for avoiding of simony enacted, that if any patron for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclesiastical benefice or dignity; such presentation shall be void, and the presentee be rendered incapable of ever enjoying the same benefice: and the crown shall present to it for that turn only.47 Also by the statute 12 Ann. stat. 2. c. 12. if any person for money or profit shall procure, in his own name or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, this is declared to be a simoniacal contract; and the party is subjected to all the ecclesiastical penalties of simony, is disabled from holding the benefice, and the presentation devolves to the crown.

UPON these statutes many questions have arisen, with regard to what is, and what is not simony. And, among others, these points seem to be clearly settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious simony;48 this being expressly in the face of the statute. 2. That for a clerk to bargain for the next presentation, the incumbent being sick and about to die, was simony, even before the statute of queen Anne:49 and now, by that statute, to purchase, either in his own name or another’s, the next presentation, and be thereupon presented at any future time to the living, is direct and palpable simony. But, 3. It is held that for a father to purchase such a presentation, in order to provide for his son, is not simony: for the son is not concerned in the bargain, and the father is by nature bound to make a provision for him.50 4. That if a simoniacal contract be made with the patron, the clerk not being privy thereto, the presentation for that turn shall indeed devolve to the crown, as a punishment of the guilty patron; but the clerk, who is innocent, does not incur any disability or forfeiture.51 5. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal,52 provided the patron or his relations be not benefitted thereby;53 for this is no corrupt consideration, moving to the patron. 6. That bonds of resignation, in case of non-residence or taking any other living, are not simoniacal.;54 there being no corrupt consideration herein, but such only as is for the good of the public. So also bonds to resign, when the patron’s son comes to canonical age, are legal; upon the reason before given, that the father is bound to provide for this son.55 7. Lastly, general bonds to resign at the patron’s request are held to be legal:56 for they may possibly be given for one of the legal considerations before-mentioned; and where there is a possibility that a transaction may be fair, the law will not suppose it iniquitous without proof. But, if the party can prove the contract to have been a corrupt one, such proof will be admitted, in order to show the bond simoniacal, and therefore void. Neither will the patron be suffered to make an ill use of such a general bond of resignation; as by extorting a composition for tithes, procuring an annuity for his relation, or by demanding a resignation wantonly and without good cause, such as is approved by the law; as, for the benefit of his own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbent.57

V. THE next kind of forfeitures are those by breach or nonperformance of a condition annexed to the estate, either expressly by deed at its original creation, or impliedly by law from a principle of natural reason. Both which we considered at large in a former chapter.58

VI. I THEREFORE now proceed to another species of forfeiture, viz. by waste. Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison [disinheritance] of him that has the remainder or reversion in fee-simple or fee-tail.59

WASTE is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance is waste.60 Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is waste.61 If a house be destroyed by tempest, lightening, or the like, which is the act of providence, it is no waste: but otherwise, if the house be burnt by the statute 6 Ann. c. 3. no action will lie against a tenant for an accident of this kind, lest misfortune be added to misfortune. Waste may also be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance.62 Timber also is part of the inheritance.63 Such are oak, ash, and elm in all places: and in some particular countries, by local custom, where other trees are generally used for building, they are thereupon considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste.64 But underwood the tenant may cut down at any seasonable time that he pleases;65 and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions.66 The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture into woodland; or to turn arable or woodland into meadow or pasture; are all of them waste.67 For, as Sir Edward Coke observes,68 it not only changes the course of husbandry, but the evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable, and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value.69 To open the land to search for mines of metal, coal, a, is waste; for that is a detriment to the inheritance:70 but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use;71 for it is now become the mere annual profit of the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever tends to the destruction, or depreciating the value, of the inheritance, is considered by the law as waste.

LET us next see, who are liable to be punished for committing waste. And by the feudal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; “si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur” [“if a vassal shall have wasted the fee, or lessened its value by any notorious injury, he shall be deprived of it”].72 But in our ancient common law the rule was by no means so large; for not only he that was seized of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the curtesy;73 and not in tenant for life or years.74 And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them: but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. But, in favor of the owners of the inheritance, the statutes of Marlbridge75 and Gloucester76 provided, that the writ of waste shall not only lie against tenants by the law of England (or curtesy) and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants for life or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him, for waste committed.

THE punishment for waste committed was, by common law and the statute of Marlbridge, only single damages;77 except in the case of a guardian, who also forfeited his wardship78 by the provisions of the great charter:79 but the statute of Gloucester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages, to him that has the inheritance. The expression of the statute is, “he shall “forfeit the thing which he has wasted;” and it has been determined, that under these words the place is also included.80 And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a house, the whole house shall be forfeited;81 because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood (or perhaps in one room of a house) if that can be conveniently separated from the rest, that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner.82

VII. A SEVENTH species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste; whereupon the lord may seize them without any presentment by the homage;83 but also to peculiar forfeitures, annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. and we may observe that, as these tenements were originally held by the lowest and most abject vassals, the marks of feudal dominion continue much the strongest upon this mode of property. Most of the offenses, which occasioned a resumption of the fief by the feudal law, and were denominated feloniae, per quas vasallus amitteret feudum [felonies, by which the vassal would lose his fee],84 still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service;85 si dominum deservire noluerit:86 by disclaiming to hold of the lord, or swearing himself not his copyholder;87 si dominum ejuravit, i.e. negavit se a domino feudum habere:88 by neglect to be admitted tenant within a year and a day;89 si per annum et diem cessaverit in petenda investitura:90 by contumacy in not appearing in court after three proclamatons;91 si a domino ter citatus non comparuerit:92 or by refusing, when sworn of the homage, to present the truth according to his oath;93 si pares veritatem noverint, et dicant se nescire, cum sciant.94 In these, and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offenses are presented by the homage, or jury of the lord’s court baron;95 per laudamentum parium suorum:96 or, as it is more fully expressed in another place,97 nemo miles adimatur de possessione sui beneficii, nisi convicta culpa, quae sit laudanda98 per judicium parium suorum [no soldier shall be removed from the possession of his benefice, unless convicted of some offence, which must be declared by the judgment of his peers].

VIII. THE eighth and last method, whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined; a trader, who secretes himself, or does certain other acts, tending to defraud his creditors.

WHO shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter; when we shall endeavor more fully to explain its nature, as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements are transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.

BY the statute 13 Eliz. c. 7. the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as he may lawfully part with) or purchased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and enrolled, or divide them proportionably among the creditors. The statute expressly includes not only free, but copyhold, lands: but did not extend to estates tail, farther than for the bankrupt’s life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I. c. 19. enacts, that the commissioners shall be empowered to sell or convey, by deed indented and enrolled, any lands or tenements of the bankrupt, wherein he shall be seized of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remaindermen, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means: and that all equities of redemption upon mortgaged estates, shall be at the disposal of the commissioners; for they shall have power to redeem the same, as the bankrupt himself might have done, and after redemption to sell them. And also, by this and a former act,99 all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchaser bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptcy committed.

BY virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred by his commissioners to their assignees, without his participation or consent.

NOTES

     1.    Vol. I. pag. 289.

     2.    See Vol. 1. pag. 467.

     3.    F. N. B. 121.

     4.    Selden. Jan. Angl. l. 2. § 45.

     5.    Ecclesiae de feudo domini regis non possunt in perpetuum dari, absque assensu et consensione ipsius. [Advowsons, of which the king has the fee, cannot be given in perpetuity without his consent and approval.] c. 2. A. D. 1164.

     6.    See Vol. I. pag. 373.

     7.    A.D. 1217. cap. 43. edit. Oxon.

     8.    Non licet alicui de caetero dare terram suam alicui domui religiosae, ita quod illam resumat tenendam de eadem domo; nec liceat alicui domui religiosae terram alicujus sic accipere, quod tradat illam ei a quo ipsum recepit tenendam: si quis autem de caetero terram suam domui religiosae sic dederit, ut super hoc convincatur, donum suum penitus cassetur, ut terra illa domino suo illius feodi incurratur. [It is not lawful for any one to give his land to a religious house for the purpose of taking it again to hold of that house; neither is it lawful for any religious house thus to receive land in order to restore it to its original owner to hold of that house: but if any one shall have so given his land, and can be convicted of the fact, his gift shall be utterly void, and the land escheat to the lord of the fee.] Mag. Cart. 9 Hen. III. c. 36.

     9.    2 Inst. 75.

   10.    capt. 33.

   11.    2 Inst. 501.

   12.    cap. 3.

   13.    2 Hawk. P. C. 391.

   14.    Stat. 1. W. & M. St. 2. c. 2.

   15.    Co. Litt. 99.

   16.    Stat. 2 & 3 Ann. c. 11.

   17.    1 Rep. 24.

   18.    See pag. 249. 250.

   19.    Book I. ch. 10.

   20.    Co. Litt. 251.,

   21.    Litt. § 415.

   22.    See Book III.

   23.    Litt. § 595, 6, 7.

   24.    Co. Litt. 233.

   25.    Finch. 270, 271.

   26.    Co. Litt. 252.

   27.    Ibid. 253.

   28.    2 Roll. Abr. 336. pl. 10.

   29.    Bracton. l. 4. tr. 2. c. 3.

   30.    See pag. 23.

   31.    Bro. Abr. tit. 2uar. Imped. 131. Cro. Ja c. 518.

   32.    Stat. 1 Geo. I. St. 2. c. 10.

   33.    stat. 17 Edw. II. c. 8. 2 Inst. 273.

   34.    6 Rep. 62. Registr. 42.

   35.    2 Inst. 361.

   36.    Gibf. Cod. 769.

   37.    2 Inst. 273.

   38.    2 Roll. Abr. 368.

   39.    Dr. & St. d. 2. c. 36. Cro. Car. 355.

   40.    7 Rep. 28. Cro. Eliz. 44.

   41.    4 Rep. 75. 2 Inst. 632.

   42.    Co. Litt. 344. 345.

   43.    2 Roll. Abr. 369.

   44.    Co. Litt. 344.

   45.    3 Inst. 156.

   46.    Moor. 564.

   47.    For other penalties inflicted by this statute, see Book IV.

   48.    Cro. Eliz. 788. Moor. 914.

   49.    Hob. 165.

   50.    Cro Eliz. 686. Moor. 916.

   51.    3 Inst. 154. Cro. Jac. 385.

   52.    Noy 142.

   53.    Star. 534.

   54.    Cro. Car. 180.

   55.    Cro. Jac. 248. 274.

   56.    Cro. Car. 180. Star. 227.

   57.    1 Vern. 411. 1 Equ. Cas. abr. 86, 87. Stra. 534.

   58.    See chap. 10. pag. 152.

   59.    Co. Litt. 53.

   60.    Hetl. 35.,

   61.    4 Rep. 64.

   62.    Co. Litt. 53.

   63.    4 Rep. 62.

   64.    Co. Litt. 53.

   65.    2 Roll. Abr. 817.

   66.    Co.Litt. 41.

   67.    Hob. 296.

   68.    1 Inst. 53.

   69.    1 Lev. 309.

   70.    5 Rep. 12.

   71.    Hob. 295.

   72.    Wright. 44.

   73.    It was however a doubt whether waste was punishable at the common law in tenant by the curtesy. Regist. 72. Bro. Abr. tit. waste. 88. 2 Inst. 301.

   74.    2 Inst. 299.

   75.    52 Hen. III. c. 24.

   76.    6 Edw. I. c. 5.

   77.    2 Inst. 146.

   78.    Ibid. 300.

   79.    9 Hen. III. c. 4.

   80.    2. Inst. 303.

   81.    Co. Litt. 51.

   82.    2 Inst. 304.

   83.    2 Ventr. 38. Cro. Eliz. 499.

   84.    Feud. l. 2. t. 26. in cale.

   85.    3 Leon. 108. Dyer. 211.

   86.    Feud. l. 1. t. 21.

   87.    Co. Copyh.§ 57.

   88.    Feud. l. 2. t. 34. & t. 26. § 3.

   89.    Plowd. 372.

   90.    Feud. l. 2. t. 24.

   91.    8 Rep. 99. Co. Copyh. § 57.

   92.    Feud. l. 2. t. 22.

   93.    Co. Copyh. § 57.

   94.    Feud. l. 2. t. 58.

   95.    Co. Copyh. § 58.

   96.    Feud. l. 1. t. 21.

   97.    Ibid. t. 22.

   98.    i.e. arbitranda, definienda [to be judged, to be declared]. Du Fresne. IV. 79.

   99.    1 Jac. 1. c. 15.

Continuación

BOOK 2, CHAPTER 17 Of Title by Prescription

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

A THIRD method of acquiring real property by purchase is that by prescription; as when a man can show no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries.1 At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then show, what sort of things may be prescribed for.

AND, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to any person; such as, a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius, and his ancestors, or those whose estate he has, have used time out of mind to have such an advantage or privilege.2 As for example: if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation; (which is held3 to be a lawful usage) this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the tenant, who is seized of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he has in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he has;4 which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors of predecessors at any distance of time, though his or their enjoyment of it had been suspended5 for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. C.2. it is enacted, that no person shall make any prescription by the seizin or profession has been within threescore years next before such prescription, unless such seizin or profession has been within threescore years next before such prescription made.6

Secondly, as to the several species of things which may, or may not, be prescribed for: we may in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right way, a common, etc; but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had.7 For no man can be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seizin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal seizin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates.8For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord’s estate, and the tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead, that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with its appurtenances, to him the said tenant for life. 3. A prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus a lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by any grant, it shall not be good by prescription9 4. A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record: such as for instance, the royal franchises of deodands, felons’ goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record.10 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribes in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds) nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix, of an estate, with which the thing claimed has no connection: but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross.11 Therefore a man may prescribe, that he, and those whose estate he has in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor: but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates pained by prescription ane not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule, For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as a acquisition de novo: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase: for every accessory follows the nature of its principal.

NOTES

     1.    See Vol. I. pag. 75, etc.

     2.    Co. Litt. 113.

     3.    I Lev. 176.

     4.    4 Rep. 32.

     5.    Co Litt. 113.

     6.    This title, of prescription, was well known in the Roman law by the name of usucapio; (Ff. 41.3.3.) so called, because a man, that gains a title by prescription, may be said usu rem capere [to take the thing by use].

     7.    Dr & St. dial. I. c. 8. Finch. 132.

     8.    Rep. 31, 32.

     9.    I Ventr. 387.

   10.    Co. Litt.114

   11.    Litt.§ 183.Finch. L.104.

Continuación