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such as, for instance, the royal franchises of deodands, felons' goods, and the like.
9. What distinction must be made with regard to the manner of prescribing ?—265, 266.
If a man prescribe in a que estate, nothing is claimable but such things as are incident, appendant, or appurtenant to lands. But, if he prescribe in himself and his ancestors, he may prescribe for anything whatsoever that lies in grant. 10. How are estates gained by prescription descendible ?—266.
Not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule.
1. What is forfeiture ?—267.
It 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, hath sustained.
2. For what causes may lands, tenements, and hereditaments, be forfeited ?—267.
They may be forfeited in various degrees, and by various means: 1. By crimes and misdemeanors. 2. By alienation contrary to law. 3. By non-presentation to the benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By nonperformance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.
3. What are the offences which induce a forfeiture of lands and tenements to the crovon 2-267, 268.
They are : 1. Treason. 2. Felony. 3. Misprision of trea
BOD. 4. Præmunire. 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.
4. Of what kinds is the alienation, contrary to laro, which induces n forfeiture ?—268.
1. Alienation in mortmain. 2. Alienation to an alien. j. Alienation by particular tenants.
5. What is alienation in mortmain ?—268.
Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal.
6. Can corporations purchase lands without a license ?–269.
They cannot without a license in mortmain from the crown
7. By whom, and why, were common recoveries invented ?—270.
By the religious houses, to evade the statute De Religiosis, 7 Edw. I.
8. Horo are these recoveries obtained ?—271.
The religious houses set up a fictitious title to the land, which it was intended they should have, and brought an action to recover it against the tenant; who, by fraud and collusion, made no defence; and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. 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.
9. What was the origin of uses and trusts?—272.
They originated in ecclesiastical ingenuity, to evade the statutes in mortmain.
10. Horo were uses created ?—271, 272.
By granting the lands, not to themselves directly, but to dominal 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 lands remained in the nominal feoffee, who was held, by the courts of equity, to be bound, in conscience, to account to his cestuy que use for the rents and emoluments of the estate.
11. What arose out of these inventions ?—272.
To them we are indebted for uses and trusts, the foundation of modern conveyancing.
12. What is the consequence of alienations by particular tenants, when they are greater than the law entitles them to make, and divest the remainder or reversion ?-274.
They are forfeitures to him whose right is attacked thereby.
13. What is disclaimer, in its nature and consequences ?—275, 276.
Equivalent 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, upon reasons most apparently feodal.
14. What is forfeiture by lapse?—276.
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. 15. When can no right of lapse accrue ?—276.
In two cases : lst. Where there is no right of institution. 2d. Where the original presentation is in the crown. 16. What is simony ?—278.
It is the corrupt presentation of any one to an ecclesiastical benefice, for money, gifts, or reward.
17. Of what kinds are conditions, the breach, or non-performance of which, induces a forfeiture ?—281.
There are two kinds : a condition annexed to the estate, either expressly by deed, at its original creation; or a condition implied by law, from a principle of natural reason.
18. What is waste ?–281.
Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail. It is either voluntary or permissive.
19. What will amount to waste in houses, in timber, and in lands -281, 282.
Whatever does a lasting damage to the freehold or inheritance is waste. Therefore, removing wainscot, floors, or other things once fixed to the freehold of a house, is waste. Timber, , also, is part of the inheritance ; such as oak, ash, and elm, in all places; and in some particular counties, by local custom ; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste. The conversion of land from one species to another, is waste ; to convert wood, meadow, or pasture into arable ; to turn arable into meadow, or pasture into woodland ; or to turn arable or woodland into meadow or pasture, are all of them waste. To open lands to search for mines is waste.
20. Who are liable to be punished for waste, and who are not ? --282, 283.
By the feodal law, we find that the rule was general for all vassals or feudatories : “si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur.” But in the 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 the three persons : guardian in chivalry, tenant in dower, and tenant by the curtesy; and not in tenant for life or years.
21. What is the punishment for committing waste ? --283, 284.
By common law and statute only single damages, except in the case of a guardian, who also forfeited his wardship by the provisions of the great charter : 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 hath the inheritance.
22. How may copyhold estates be forfeited ?---284.
By breach of the customs of the manor.
23. Define a bankrupt ?—285.
He is a trader who secretes himself, or does certain other acts, tending to defraud his creditors.
24. What becomes of a bankrupts lands and tenements ?—285, 286.
By 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, 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 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, also, by this and the former act, all fraudulent conveyances, to defeat the intent of these statutes, are declared void. *
OF TITLE BY ALIENATION,
1. What is alienation, conveyance, or purchase, in its limited sense ?-287.
Under it 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,
* The provisions of the English bankrupt law have been simplified in some re spects, and otherwise modified, by more modern statutes.