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to enable the tenant in tail to bar the entail and dispose of the lands as a tenant in fee simple, and such consent may be given either by the same assurance by which the disposition is effected or by a distinct deed, and is to be executed on or at any time before the day on which the assurance effecting such disposition shall be made. Every disposition of lands by à tenant in tail, is to be effected by some one of the common assurances to pass an estate in fee simple absolute, but must be by deed and not by will or by contract incomplete. The assurance by deed must also be registered in the Registry Office of the county or city in which the lands are situated, within six calendar months from the execution thereof and the consent of the protector, if given by distinct deed, must also in like manner be registered either at or before the time of registering of such assurance. The protector is under no restraint in giving or withholding his consent, but is left entirely to his own discretion. When the estate tail is in possession, that is when there is no previous estate for life, there can very seldom be any protector, and the tenant in tail may at any time by deed duly registered, bar the entail remainder and reversions at his own pleasure. A tenant in tail is empowered however to make leases without the necessity of registration, for any term not exceeding twenty-one years from the date, or from any time not exceeding twelve calendar months from date, where a rack rent or five-sixth parts of a rack rent shall be thereby reserved.
The above sketch gives a brief and therefore very imperfect view of the provisions of the statute. To secure anything like a correct idea of the law most careful attention must be given to the whole statute.
ESTATE IN FEE SIMPLE. This is the greatest estate or interest which the Law of England allows any person to possess in land. A tenant in fee simple is one that holds land to him and his heirs, so that the estate descends not merely to the heirs of his
body but to collateral relations according to the canons of descent. The unfettered right of alienation, which is now inseparably incident to this estate, is by far its most valuable quality. A tenant in fee simple holds his land free from any qualification or condition, save such as are contained in the Patent from the Crown, and he may alien his estate subject to any conditions not repugnant to law.
Aliens in this Province may hold and transmit real estate as natural born subjects. Infants or all
persons under the of twenty-one years, and also idiots and lunatics, though they may
hold lands, are incapacitated from making a binding disposition of any estate in them. Revised Statutes, cap. 40, contain provisions for the sale of estates of lunatics and infants.
Married women are under a limited incapacity to alienate as will hereafter appear.
And a conveyance can be made only to such corporations as are authorised by their Acts of Incorporation to purchase, hold, and convey lands for the uses of the corporation.
Prior to the 15th of August, 1866, Crown debts formed a lien on the lands of the debtor, but by cap. 43 of 29 & 30 Vic. Crown debts were placed on the same footing as obligations entered into between subject and subject. By 36 V. cap. 6, sec. 5 (O), lands theretofore bound were re leased in so far as the authority of the Government of Ontario extended, except where proceedings had been taken on such obligations. No similar provision as to release exists as to the bonds or obligations given to the Dominion Government.
LIABILITY OF ESTATES IN FEE SIMPLE TO
THE PAYMENT OF DEBTS.
This liability is not so extensive in this Province as in England, as we have no statute corresponding with the Imperial Act 3 & 4 Wm. IV. c. 104.
This liability to what may be called an involuntary alienation has been established by slow degrees.
It is laid down by Britton, who wrote in the reign of Edward I., that the heir was not bound to pay the debt of his ancestor to any other person than the King, unless the heir were by the deed of his ancestor specially bound to
On this footing the law of England long continued. The heir was liable only to the value of the assets which had descended from his ancestor. When the power of testamentary alienation was granted, a debtor who had thus bound his heirs became enabled to defeat his creditors by devising his estate by his will to some other person than his heir, and in this case neither heir nor devisee was under any liability to the creditors. At length by 3 & 4 Wm. & Mary, c. 14, all devises by will are made void as against creditors by specialty, in which the heirs were bound, but not further or otherwise. This statute was made perpetual by 6 & 7 Wm. III. c. 14. A testator may, however, of his own accord by will charge his lands with the payments of his debts, in which case the Court of Chancery allows all creditors to be equally entitled to the benefit, and the lands are then called equitable assets.
The courts in Upper Canada had held, that under the Imperial Act of 5 Geo. II. c. 7, the title of a testator or intestate in real estate in Upper Canada might be seized and sold under a judgment and execution by a creditor of the testator or intestate, recovered against an executor or administrator of the deceased, in the same manner and under the same process that the same could be seized and sold if the judgment and execution had been against the testator or intestate if living, and many sales had taken place and titles been acquired under such proceedings, and it being desirable to quiet the same, it was enacted by 27 Vic. c. 15, entitled, An Act respecting sales of land under execution against executors and administrators, that under the said Imperial Statute the title and interest of a testator or intestate in real estate in Upper Canada
might be seized and sold under a judgment and execution recovered by a creditor of the testator or intestate against his executor or administrator, in the same manner and under the same process that the same could be sold under a judgment and execution against the deceased if living. And all such sales theretofore made and titles given thereunder are thereby declared to have passed and conveyed the title or interest of the testator or intestate in his real estate so sold and conveyed as against any objection that might be made, on the ground that real estate could not be seized and sold in manner aforesaid under the said act; Provided always, that that act should not affect any case pending at the time of the passing of the same in or theretofore finally adjudged by the courts of law or equity in Upper Canada.
The lands of a defendant as also a contingent, an executory, and a future interest and a possibility coupled with an interest in any land, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry whether immediate or future, and whether vested or contingent into or upon any. and also a mortgagor's legal and equitable interest in the lands mortgaged may be sold by the sheriff of the county where the lands lie under an execution against lands; and the moment such execution is placed in the sheriff's hands any land or interest therein as aforesaid of the defendant in that sheriff's county becomes bound for the payment of the judgment upon which such execution has been issued.
Lease-hold interest in lands may be sold under execution against goods. The law is consolidated by cap. 66 of the Revised Statutes.
DESCENT OF AN ESTATE IN FEE SIMPLE. A person is said to die intestate when he departs this life without having made a will. If he make a will sufficient according to the statute to pass real estate, the latter will be distributed in accordance with the wishes of the testator, but if he does not exercise the right of making a
will, then the statute law declares how his real estate shall
There are two acts on the subject in this Province, viz.,
The real estate in Upper Canada of all persons dying intestate, after 1st January, 1852, descends as follows:
1. To lineal descendants and those claiming by or under
2. To the father.
5. To the brothers and sisters of the father of intentate,
6. To their descendants.
7. To the brothers and sisters of the mother of intestate, equally, and their descendants.
8. To the next of kin according to the English Statute of Distribution of Personal Estate, 22 & 23 Car. II. cap. 10.
This Important Act brought in the doctrines of the Civil Law, abolished the right of primogeniture in Upper Canada and enables the half blood to inherit equally with the whole blood, unless the inheritance came by descent devise, or gift of some one of intestate's ancestors, in which case those not of blood of the ancestor shall be excluded. All the children take equally, males and females, as under the Roman Law. Posthumous children inherit equally with those born in the intestate's lifetime. Illegitimate children cannot inherit. Where an inheritance descends to several persons, they take as tenants in common. Advancements to children by settlement or portion, are taken into consideration, and affect the shares of the