CHAPTER XIX. OF TITLE BY ALIENATION. alienation. ALIENATION, conveyance, or purchase, in its limited sense is of title by any method whereby estates are voluntarily resigned by one man and accepted by another, whether by sale, gift, marriage, settlement, devise, or other transmission of property. the feodal law. Co. Litt. 94. By the feodal law, the feudatory could not aliene without Alienation by the consent of his lord and of his own next apparent or presumptive heir. Afterwards, a man was allowed to dispose of lands which he himself had purchased. But all restrictions were removed by the statute of quia emptores, 18 Edw. 1, c. 1, and by 1 Edw. 3, c. 12, which latter statute enabled tenants in capite to aliene on paying a fine to the king; fines for 2 Inst. 67. alienations were abolished by 12 Car. 2, c. 24; and now all persons in possession are prima facie capable of conveying and purchasing, unless by law under particular disabilities; assigned. but no person can convey the right only of possession or property. 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, What may conveyed or Touchstone, be Co. Litt. 214. Shepherd's 238, 239, 322. 1 Mod. 152. Stra. 132. 1 P. Wms. 574. perty sold under any commission are not to be impeached by the bankrupt, or any person, unless the commission be superseded within twelve months. The act extends to aliens, denizens, and women, both to make them subject thereto, and to entitle them to its benefits. For protection of purchasers against secret fiats in bankruptcy, it was enacted by 2 Vict. c. 11, s. 12, that all conveyances by any bankrupt, bona fide made and executed before the date and issuing of the fiat against such bankrupt shall be valid, notwithstanding any prior act of bankruptcy by him committed, provided the person or persons to whom such bankrupt so conveyed, had not at the time of such conveyance notice of any prior act of bankruptcy by him committed. And by s. 13, that no purchases from bankrupts boná fide, and for a valuable consideration, even when the purchaser had notice of an act of bankruptcy, shall be impeached, unless the commission shall be sued out within twelve calendar months after such act of bankruptcy; and by 2 Vict. c. 29, all contracts bona fide made with a bankrupt, and executions against his lands bona fide levied before the date and issuing of the fiat, are valid, notwithstanding a prior act of bankruptcy, if no notice was had thereof, provided that all fraudulent preferences are still void. The statute 13 Eliz. c. 7, was repealed by 6 Geo. 4, c. 16, which consolidates the bankrupt laws. Persons incapable of conveying. Co. Litt. 42. Infants, lunatics, &c. Co. Litt. 2. 2 Inst. 483. 5 Rep. 119. Co. Litt. 3. Feme covert. Co. Litt. 3. Aliens. Co. Litt. 2. Common as surances. or may pass to the heir or executor, yet cannot be assigned to a stranger unless coupled with some present interest. Persons attainted of treason, felony, and præmunire, from the time of the offence committed, provided attainder follows, are incapable of conveying; so also are feme coverts and aliens born. The conveyances and purchases of idiots and persons of non-sane memory, infants, and persons under duress are voidable, but not actually void. But 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 his grant; though 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. An infant may waive his purchase or conveyance when he comes to full age; or if he does not then agree to it, his heirs may waive it after him. Persons, also, who purchase or convey under duress, may affirm or avoid such transaction, when the duress has ceased. The committees of a lunatic may, by 11 Geo. 3, c. 20 (a), renew any lease for lives or years, and apply the profits for the benefit of such lunatic, his heirs, or executors. The purchase of a feme covert may be avoided by the husband during coverture, or by herself after the death of her husband, or by her heirs, if she dies before her husband; or if she outlives him and does not assent to it in her widowhood. But her conveyance or other contract is absolutely void and not merely voidable. An alien, although he may purchase, can hold nothing except a lease for years of a house for convenience of merchandize, in case he be an alien friend. The legal evidences of alienations are called the common assurances of the kingdom. These are of four kinds. By matter in pais or deed; which is an assurance transacted be (a) By 11 Geo. 4 and 1 Wm. 4, c. 65,, the act of 11 Geo. 3, c. 20, was repealed, and new provisions made for the surrender of such existing leases, and for their renewal by the committees of lunatics, and also for the acceptance of surrenders and granting new leases where the lunatic might have done so. Powers of leasing, &c. of lunatics having a limited estate may be executed by the committee. Where lunatics are seised in fee or in tail, or have an absolute interest in freehold estates, the chancellor may direct leases to be made for the erection of buildings or for farming purposes. The committees of lunatics may also convey land in performance of contracts. The chancellor may order the estates of lunatics to be sold or charged by mortgage for raising money for the payment of debts. Lunatics may be admitted to copyhold estates by their committees. And by 11 Geo. 4 and 1 Wm. 4, c. 60, where trustees or mortgagees of land are lunatic, the chancellor may direct the committees of such persons to convey land. tween 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; by matter of record, or an assurance transacted only in the king's public courts of record; and by special custom, obtaining in some particular places, and relating only to some particular species of property. These take effect during the life of the party conveying or assuring. But there is another which takes no effect till after his death; and that is by devise contained in his last will and testament. CHAPTER XX. OF ALIENATION BY DEED. Co. Litt. 171. A DEED in its general nature is a writing sealed and delivered Of deeds. by the parties. If made by more parties than one, there ought to be regularly as many copies of it as there are parties, each copy being cut or indented on the top or side to correspond with the other; thus made, the deed is called an indenture. When the several parts of an indenture are interchangeably executed, that part which is executed by the grantor is called the original, and the rest are counterparts. A deed made by one party only is not indented, but polled or shaved even; Litt. 371, 372. and therefore called a deed poll. deed. The requisites to a deed are: that there be persons able to Requisites of a 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. The Co. Litt. 35. deed must be founded upon good and sufficient consider- 13 Eliz. c. 8. ation. It must be written or printed. 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 deter mine. It must be read before execution; it must be signed Co. Litt. 225. and sealed; it must be delivered by the party himself or his attorney. The usual formal and orderly parts of a deed are: the The formal premises; the habendum and tenendum; the reddendum; the parts of a deed condition; the clause of warranty; the covenants, and the conclusion. The premises are used to set forth the number The premises. and names of the parties, with their additions or titles; the recital (if any) of such deeds, agreements, or matters of fact, P The habendum Co. Litt. 21. 2 Roll. Rep. 19. 2 Rep. 23. 8 Rep. 56. The reddendum. Condition. Warranty. Litt. s. 733. Lineal war ranty. as are necessary to explain the reasons upon which the transaction is founded; the consideration, and the certainty of the grantor, grantee, and thing granted. The office of the habendum is to determine what estate is granted by the deed; though this may be, and sometimes is, performed in the premises; in which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be repugnant to 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," or vice versá; here A. has an estate tail and a fee simple expectant thereon. But had it been in the premises "to him and his heirs" habendum “to him for life," the habendum would be void; for an estate of inheritance is vested in him before the habendum comes, and cannot afterwards be taken away or devested by it. The tenendum is of little use and only retained by custom. Next follow the terms of stipulation upon which the grant is made; the first of which is the reddendum or reservation, whereby the grantor creates or reserves some new thing to himself out of what he has granted. The reservation must be to the grantor, and not to any stranger to the deed, unless it be of ancient services or the like annexed to the land, and then it be to the lord of the fee. Another of the terms may 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 that if the mortgagor shall pay the mortgagee 500l. upon such a day the estate granted shall determine." Next may follow the clause of warranty, by which the grantor for himself and his heirs, warrants and secures to the grantee the estate so granted, which is a kind of covenant real, and can only be created by the word warrant. Express warranties were introduced prior to the statute of quia emptores, to evade the strictness of the feodal doctrine of non alienation, without the consent of the heir. So that when an ancestor being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, and added 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 it was lineal or collateral. Lineal warranty was where the heir derived, or might possibly derive, his title to the land warranted, either from or through the ancestor who made the warranty: as where a Litt. s. 703, 706, 707, Collateral. 707. father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with warranty, this was lineal to the younger son. 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 disseisor, with warranty, this was collateral to the elder brother. But where the conveyance Litt. s. 705, to which the warranty was annexed, immediately followed a disseisin, or operated itself as such, (as where a father, tenant for years, with remainder to his son in fee, aliened in fee simple with warranty,) this, being founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseisin, and was not binding upon any heir of such tortious warrantor. In both lineal and collateral warranty, the obliga- Ibid. 698, 702. tion 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 from the warranting 712. ancestor. But, though without assets, he was not bound to Co. Litt. 102 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, and must fulfil the warranty of his ancestor; and the same rule was Litt. s. 711, adopted in collateral warranties upon the presumption that the heir might afterwards derive assets by descent, either from or through the same ancestor. But now, by statute 4 & 5 Ann. c. 16, all warranties by any tenant for life are void against those in remainder or reversion; and all collateral warranties by any ancestor, who has no estate of inheritance in possession, are void against his heir. Collateral warranty, (though without assets), was at common law a sufficient bar of the estate tail, and all remainders and reversions expectant thereon. And so Co. Litt. 374. it still continues to be, notwithstanding the statute of Anne, if 2 Inst. 335. made by tenant in tail in possession (a). After warranty usually follow covenants, which are clauses of The covenants. agreement, whereby either party stipulates for the truth of (a) Estates tail, and estates expectant thereon, are no longer barrable by warranty. All warranties of lands by tenants in tail, after 31st of December, 1833, are void both against the issue in tail, and those whose estates are to take effect after the determination, or in defeasance of the estate tail. But tenants in tail, in possession, are now enabled, by a statute deed, to convey absolutely in fee simple, subject to the provisions of 3 & 4 Wm. 4, c. 74. See the act, ante, p. 138. |