held to supply the place of livery of seisin: and so a conveyance by lease and release is said to amount to a feoffment. or declare 15. To these may be added deeds to lead or declare the Deeds to lead uses of other more direct conveyances, as feoffments, fines, uses. and recoveries now out of use:' and 16. Deeds of revocation of uses; hinted at in a former Deeds of revo cation of uses, page (a), and founded on a previous power, reserved at the and new appointment. raising of the uses, to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation (b). 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. *S. 340. Of deeds to discharge *Before we conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but charge or to charge or incumber, lands, and to discharge them again: lands. of which nature are, obligations or bonds, recognizance, and defeasances upon them both. or bond. 1. An obligation, or bond, is a deed whereby the obligor 1. Obligation 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: 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 How a bond or its condition may be avoided. * S. 341. Recogniz ance. assets by descent as a recompense. So that it may be called, though not a direct, yet collateral, charge upon the lands; 'and now the lands of a deceased obligor descended to his heir can be reached, though the heir be not bound in the bond, as the lands can be sold under execution against the personal representatives.' * 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, 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. On the forfeiture of a bond, or its becoming single, the whole penalty was formerly 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 like practice having gained some footing in the courts of law, the statute 4 & 5 Ann. c. 16, at length 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 3. A defeazance, on a bond, or recognizance, or judgment 3. Defeazances. recovered, is a condition, which when, performed, defeats or undoes it, in the same manner as a defeazance 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. This, like the conditions of a bond, when performed, discharges and disencumbers the estate of the obligor. These are the principal species of deeds or matters in pais, Conclusion. by which estates may be either conveyed, or at least affected. (a) See Rev. Stat. Ont. c. 93. * S. 343. 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 lend their money. In the antient feodal method of conveyance (by giving corporal seisin 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 incumbrances, 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, and the failure of the general register established by King Richard the First, for the starrs or mortgages made to *Jews, in the Capitula de Judæis, of which Hovenden 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 even regarding the transmissionof property, is regularly entered on record. And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the Legislature to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omission of parties, than prevented by the use of registers; and, at the present day even, many eminent lawyers in England doubt the policy of registry laws' (a). (a) See evidence before the Real Property Commisioners of 1830, and Broom's Commentaries, Vol. 2. p. 549. CHAPTER XX. OF ALIENATION BY DEVISE. doctrine of It seems sufficiently clear, that, before the conquest, lands Effects of the were devisable by will. But, upon the introduction of the mili- devises. tary tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of non-alienation without the consent of the lord (a). And some have questioned whether this restraint (which we may trace even from the ancient Germans) was not founded upon truer principles of policy, than the power of wantonly disinheriting the heir by will, and transferring the estate, through the dotage or caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbours; since it rarely happens, * that *S. 374. the same man is heir to many others, though by art and management he may frequently become their devisee. Thus the ancient law of the Athenians directed that the estate of the deceased should always descend to his children; or, on failure of lineal descendants, should go to the collateral relations: which had an admirable effect in keeping up equality, and preventing the accumulations of estates. And in France and some other countries at the present day the power to disinherit by will is limited.' 'But when Solon made a slight alteration, by permitting testators (though only on failure of issue) to dispose of their lands by testaments, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others; which. by a natural progression, first produced popular tumults and (a) See s. 57, p. 85. 1 |