his signiory 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 apprised 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. (e) This consent of the vassal was expressed by what was called attorning, (f) 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: (g) which was also an additional clog upon alienations.

But by degrees this feudal severity is worn off; and experience hath 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; (h) *a doctrine which is countenanced by the feudal con[ *289 ] stitutions themselves; (i) 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. (k) 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; () and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heir. (m) By the great charter of Henry III, (n) 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. (0) But these restrictions were in general removed, by the statute of quia emptores, (p) 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. (q) 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. (r) By the temporary statutes 7 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, which (s) 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, [*290] 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,

(e) Gilb. Ten. 75.

(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. D'Argentre Antiq. Consuet. Brit. apud Dufresne, i. 819, 820.

(g) Litt. § 551.

(h) Emptiones vel acquisitiones suas det cui magis velit. Terram autem quam ei parentes dederunt, non mittat extra cognationem suam. LL. Hen. I, c. 70.

(i) Feud. 1. 2, t. 39.

voluerit, tunc quidem hoc ei licet; sed non Glanvil. l. 7, c. 1. from the feudal law. Feud. 1. 2, t. 48. (0) Dalrymple of Feuds, 95. (8) 13 Edw. I, c. 18.

(1) Si questum tantum habuerit is, qui partem terræ suæ donare totum questum, quia non potest filium suum hæredem exhæredare. (7) Mirr. e. 1.33. This is also borrowed (m) Mirr. ibid. (n) 9 Hen. III, c. 32. (q) See pages 72, 91. (r) 2 Inst. 67.

(p) 18 Edw. I, c. 1.

except in some places by particular custom, lasted longer; that not being totally removed till the abolition of the military tenure. 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 to complete the grant or conveyance, by statute 4 and 5 Ann. c. 16; nor shall, by statute 11 Geo. II, c. 19, the attornment of any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice. (1)

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.

I. 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. (t) (2) Yet reversions and vested remainders may be granted;

(t) Co. Litt. 214.

(1) [An attornment at the common law was an agreement of the tenant to the grant of the signiory, or of a rent, or of the donee in tail, or tenant for life or years, to a grant of reversion, or remainder made to another. Co. Litt. 309 a. And the attorument was necessary to the perfection of the grant. However, the necessity of attornments was in some measure avoided by the statute of uses, as by that statute the possession was immediately executed to the use, I Term R. 384, 386, and by the statute of wills, by which the legal estate is immediately vested in the devisee. Yet attornment continued after this to be necessary in many cases: but both the necessity and efficacy, of attornments have been almost totally taken away by the statutes referred to. An attornment, nevertheless, is not altogether useless, for after an attornment, in an action by the landlord against the tenant, it is unnecessary to adduce evidence of the plaintiff's title; unless indeed the tenant shows that he has attorned by mistake. 6 Taunt. 202; Doe v. Thompson, 6 A. and E. 721.]

(2) [It is a very ancient rule of law that rights not reduced into possession should not be assignable to a stranger, on the ground that such alienation tended to increase maintenance. and litigation, and afforded means to powerful men to purchase rights of action, and oppress others. Co. Litt. 214, 265, a. n. 1, 232, b. n. 1. Our ancestors were so anxious to prevent alienation of choses, or rights in action, that we find it enacted by the 32 Hen. VIII, c. 9, (which it is said was in affirmance of the common law, Plowd. 88), that no person should buy or sell, or by any means obtain any right or title to any manors, lands, tenements, or hereditaments, unless the person contracting to sell or his ancestor, or they by whom he or they claim the same, had been in possession of the same, or of the reversion or remainder thereof, for the space of one year before the contract: and this statute was adjudged to extend to the assignment of a copyhold estate, 4 Co. 26, a., and of a chattel interest, or a lease for years, of land. whereof the grantor was not in possession. Plowd. 88. At what time this doctrine, which, it is said, had relation originally only to landed estates, 2 Woodd. 388, was first adjudged to be equally applicable to the assignment of a mere personal chattel not in possession, it is not easy to decide: it seems, however, to have been so settled at a very early period of our history, as the works of our oldest text writers, and the reports, contain numberless observations and cases on the subject. Lord Coke says, Co. Litt. 214, a.; see also, 2 Bos. and Pul. 541, that it is one of the maxims of the common law, that no right of action can be transferred, "because under color thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth."]

Chancellor Kent has well remarked that the ancient policy, which prohibited the sale of pretended titles, and adjudged the conveyance to a third person of lands held adversely at the time to be an act of maintenance, was founded upon a state of society which does not exist in the United States. 2 Kent, 447. Accordingly, many of the states have abolished by statute the rule stated in the text But where not abolished, it does not apply to judicial sales. Frizzle v. Veach, 1 Dana, 216; Jarrett v. Tomlinson, 3. W. and S. 114; Tuttle v. Jackson, 6 Wend. 213. And a deed of lands adversely possessed is void only as to the person in possession, and those claiming in privity with him; as to the grantor and his heirs it is good, by way of estoppel, and the grantee may sue for and recover possession in the name of the grantor, and then protect himself in his title under such deed. Williams v. Jackson, 5 Johns. 489; Brinley v. Whiting, 5 Pick. 348; Livingston v. Proscus, 2 Hill, 526.

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521

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, (3) or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest. (u)

Persons attainted of treason, felony, and præmunire, are incapable of conveying, from the time of the offence committed, provided attainder follows: (v) for such conveyance by them may tend to defeat the king of his forfeitures, or [*291] 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. (w) (4) 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 non-sane memory, infants and persons under duress, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases are voidable, but not actually void. The king, indeed, on behalf of an idiot, may avoid his grants or other acts. (x) But it hath 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: (y) and there is a writ in the register (z) for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suæ, ut dicit, &c. But under Edward III a scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own insanity: (a) and, afterwards, a defendant in assise having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus, as the manner was) that he was out of his mind when he gave it, the court adjourned the assise; 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 [ *292 ] senses when he gave it. (b) Under Henry VI 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; (c) 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, (d) the maxim that a man shall not stultify himself hath been handed down as settled law: (e) though later opinions, feeling the

(u) Sheppard's Touchstone, 238, 239, 322. 11 Mod. 152. 1 P. Wms. 574. Stra. 132. (v) Co. Litt. 42. (w) Ibid. 2. (x) Ibid. 247. (y) Britton, c. 28. fol. 66. (2) Fol. 228. See also Memorand. Scacch. 22 Edw. I (prefixed to Maynard's year-book. Edw. II), fol. 23. (a) 5 Edw. III, 70. (b) 35 Assis. pl. 10. (c) 39 Hen. VI, 42. (d) F. N. B. 202. (e) Litt. § 405. Cro. Eliz. 398. 4 Rep. 123. Jenk, 40.

(3) [It is now well established, as a general rule, that possibilities (not meaning thereby mere hopes of succession, Carlton v. Leighton, 3 Meriv. 671; Jones v. Roe, 3 T. R. 93, 96,) are devisable for a disposition of equitable interests in land, though not good at law, may be sustained in equity. Perry v. Phelips, 1 Ves. Jun. 251; Scawen v. Blunt, 7 Ves. 300; Moor v. Hawkins, 2 Eden, 343.]

(4) [After attainder a man is civiliter mortuus; all feudal relation between himself and his lord is at an end, and therefore there can be no escheat. Neither, strictly speaking, can there be forfeiture, which is a kind of punishment, and operates on the relation of king and subject. Indeed, by mere forfeiture in felons, the king's title would only be for a year and a day. Lord Coke expresses himself therefore cautiously, calling it neither escheat nor forfeiture; he says, "the king shall have it by his prerogative, and not the lord of the fee; for a man attainted hath no capacities to purchase (being a man civiliter mortuus), but only for the benefit of the king; no more than an alien hath."]

inconvenience of the rule, have in many points endeavoured to restrain it. (ƒ) (5) 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. (g) 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. (h) 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. (i) Persons also, who purchase or convey under duress, may affirm or avoid such transaction, whenever the duress is ceased. (j) (6) 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. Yet the guardians or committees of a lunatic, by the statute of 11 Geo. III, c. 20, are empowered to renew in his right, under the directions of the court of chancery, any lease for lives or years, and apply the profits of such renewal for the benefit of such lunatic, his heirs or executors. (7) 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. (k) And, though he does nothing to avoid it, or even if he actually consents, the [*293] 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.(7) But the conveyance or other contract of a feme-covert (except (f) Comb. 469. 3 Mod. 310, 311. 1 Equ. cas. abr. 279. I bid. (j) 2 Inst. 483. 5 Rep. 119.

(g) Perkins, § 21
(1) Ibid.

(k) Co. Litt. 2.

(h) Co. Litt. 2.

(5) The old doctrine that a man shall not be allowed to stultify himself by alleging his mental incompentency in avoidance of his contract, is no longer accepted in the law, either in England or in this country. As Mr. Parsons has well said, those who have no mind cannot agree in mind with another; and as this is the essence of a contract, they cannot enter into a contract. 1 Pars. on Cont. 383. And if one has not made a contract, it is difficult to discover any sound reason which should preclude his saying so when he is charged with having become a party to one. The modern authorities allow want of mental capacity to be made à defense at law as well as a ground for affirmative relief in equity, not only by the party himself while living, but by his representatives afterwards. Lang v. Whidden, 2 N. H., 435; Mitchell v. Kingman, 5 Pick. 431; Grant v. Thompson, 4 Conn. 203; Horner v. Marshall, 5 Munf. 466; Rice v. Peet, 15 Johns. 503. And if a man is so intoxicated at the time of entering into a contract as to be incapable of comprehending its meaning, nature or effect, and the other party is aware of that fact, this is sufficient answer to an action upon it. Gore v. Gibson, 13 M. and W. 623. And see Foot v. Tewksbury, 2 Vt. 97; Duncan v. McCullough, 4 S. and R. 484; Harrison v. Lemon, 3 Blackf. 54; Prentice v. Achorn, 2 Paige, 30; Reinicker v. Smith, 2 Har. and J. 421.

(6) Where a deed has been prepared in pursuance of personal instructions of the conveying party, yet, if it be proved that such party, though appearing to act voluntarily, was in fact not a free agent, but so subdued by harshness and cruelty that the deed spoke the mind, not of the party executing, but of another, such deed cannot, in equity, stand: though it may be difficult to make out a case of legal duress. Peel v. 16 Ves. 159, citing Lady Strathmore v. Bowes, 1 Ves. Jun. 22. When an execution of a deed is prevented, or compelled, by force or artifice, equity will give relief, Middleton v. Middleton, 1 Jac. and Walk. 96; in favor of a volunteer, and even, in some cases, as against innocent parties: Meostaer v. Gillespie, 11 Ves. 639; for, it would be almost impossible ever to reach a case of fraud, if third persons were allowed to retain gratuitous benefits, which they have derived from the fraud, imposition, or undue influence practiced by others. Huguenin v. Baseley, 14 Ves. 289; Stilwell v. Wilkins, Jacob's Rep. 282. Still, it would be pushing this principle too far to extend it to innocent purchasers: Lloyd v. Passingham, Coop. 155; it is only when an estate has been obtained by a third person without payment, or with notice of fraud, that a court of equity will take it from him, to restore it to the party who has been defrauded of it: Mackreth v. Symmons, 1 Ves. 340; a bona fide purchaser, for valuable consideration and without notice, will not be deprived of the advantage which his legal title gives him. Jerrard v. Saunders, 2 Ves. Jun. 457.]

A contract made under duress is void, inasmuch as in such case the essential element of consent is wanting. As to what is duress, see note to book 1, p. 131.

(7) There are several subsequent statutes prescribing and regulating the powers and duties of these committees. The same subject is also regulated by statute in the United States.

by some matter of record) is absolutely void, and not merely voidable; (m) and, therefore, cannot be affirmed or made good by any subsequent agreement. (8)

(m) Perkins. § 154. 1 Sid. 120.

(8) [The rule laid down in the text must be understood with some obvious qualifications. The possession by a married woman of property settled to her separate use, may, as a necessary incident. carry with it the right of disposition over such property. Rich v. Cockell, 9 Ves. 375; Fettiplace v. Gorges, 1 Ves. Jun. 49; Tappenden v. Walsh, 1 Phillim. 352; Grigby v. Cox. 1 Ves. Sen. 518; Bell v. Hyde, Prec. in Cha. 330. A court of equity has no power to set aside, but is bound to give effect to a disposition made by a feme covert of property settled to her separate use, though such disposition be made in favor of her husband, or even of her own trustee; notwithstanding it may be plain, that the whole object of the settlement in the wife's favor may be counteracted by this exercise of her power. Pybus v. Smith, 1 Ves. Jun. 194; Parker v. White, 11 Ves. 221, 222; Jackson v. Hobhouse, 2 Meriv. 487; Nantes v. Corrock, 9 Ves. 189; Sperling v. Rochfort, 8 id. 175; Sturgis v. Corp, 13 id. 190; Glyn v. Baxter, 1 Younge and Jerv. 332; Acton v. White, 1 Sim. and Stu. 432. And the assent of trustees to whom property is given for the separate use of a married woman, is not necessary to enable her to bind that property as she thinks fit; unless such assent is required by the instrument under which she is beneficially entitled to that property. Essex v. Atkins, 14 Ves. 547; Browne v. Like, 14 id. 302; Pybus v. Smith, 1 Ves. Jun. 194.

So, as Mr. Sugden, in the 3d chapter of his Treatise on Powers adduces numerous authorities to prove, it has long been settled, that a married woman may exercise a power over land, or, in other words, direct a conveyance of that land, whether the power be appendant, in gross, or simply collateral; and as well whether the estate be copyhold or freehold. Doe v. Staple, 2 T. R. 695; Tomlinson v. Dighton, 1 P. Wms. 149; Hearle v. Greenbank, 3 Atk. 711; Peacock v. Monk, 2 Ves. Sen. 191; Wright . Englefield, Ambl. 473; Driver v. Thompson, Taunt. 297. And it would operate palpable injustice, if, where a married woman held property in trust as executrix, or en autre droit, she could not convey and dispose of the same, as the duties of her trust required. Scammell v. Wilkinson, 2 East, 557; Perkins, ch. 1, § 7.

No doubt, the separate estate of a feme covert cannot be reached as if she were a feme sole without some charge on her part, either express or to be implied; it seems, however, to be settled, notwithstanding the dislike of the principle, which has been often expressed: Jones v. Harris, 9 Ves, 497; Nantes v. Corrock, 9 id. 189; Heatley v. Thomas, 15 id. 604; that when a wife joins with her husband in a security, this is an implied execution of her power to charge her separate property. Greatley v. Noble, 3 Mad. 94; Stuart v. Kirkwall, 3 id. 389; Hulme v. Tenant, 1 Brown, 20; Sperling v. Rockford, 8 Ves. 175. And by joining in a sale with her husband by fine, a married woman may clearly come under obligations affecting her separate trust estate. Parker v. White, 11 id. 221, 224. A court of equity will certainly not interfere without great reluctance, for the purpose of giving effect to the improvident engagement of a married woman, for the accommodation of her husband; but where it appears in evidence that she was a free agent, and understood what she did when she engaged her separate property, a court of equity, it has been held, is bound to give effect to her contract. Essex v. Atkins, 14 id. 547. Or rather, perhaps, it may be more correctly put, to say, that, although a feme covert cannot, by the equitable possession of separate property acquire a power of personal contract, yet she has a power of disposition as incident to property, and her actual disposition will bind her. Aguilar v. Aguilar, 5 Mad. 418. The distinction between the mere contract, or general engagement of a married woman, and an appropriation of her separate estate, has been frequently recognized: Power v. Bailey, 1 Ball. and Beat. 52; she can enter into no contract affecting her person; the remedy must be against her property. Sockett v. Wray, 4 Brown, 485; Francis v. Widville, 1 Mad. 263.

Where her husband is banished for life: Countess of Portland v. Prodgers, 2 Vern. 104; or as it seems, is transported beyond the seas: Newsome v. Bowyer, 3 P. Wms. 38; Lean v. Schutz, 2 W. Bla. 1198; or is an alien enemy: Derby v. Dutchess of Mazarine, 1 Salk. 116; and see Co. Litt. 132 b., 133 a. ; in all these cases it has been held that it is necessary the wife should be considered as a feme sole.]

Since this note was first published the statute 3 and 4 Wm. IV, c. 75, has been passed, which allows a married woman to dispose of her land by deed, with the concurrence of her husband, but the deed must be acknowleged before a judge of the superior or county courts, or before a commissioner appointed for the purpose of taking such acknowledgments, by whom she is examined apart from her husband to ascertain if her consent to the deed is voluntary. This statute establishes a mode of conveyance by married women in England, which has long been employed in the United States. In some of the states the statutes go farther, and allow married women to convey their lands without the concurrence of their husbands, and in the same manner as if they were unmarried. See Watson v. Thurber, 11 Mich. 457. Brummet v. Weaver, 2 Oregon 168.

As regards the property settled to the separate use of the married woman, and called her separate estate, the married woman has substantially the same control over it that she would have if under no disability, and this whether it is vested in her directly, or in trustees. She may make contracts which have the effect to charge it, and she may make sale of it without the intervention or consent of the husband. The contracts, however, are not enforceable at