How has forfeiture on alienation now been materially affected? By the abolition of fines and recoveries by 3 & 4 Will. IV. c. 74, and also by the 4th section of 8 & 9 Vict. c. 106 enacting that from and after the 1st October, 1845, no feoffment should have a tortious operation. What is a disclaimer ? It is the denial to hold of any lord, by a tenant who has had an action brought against him by his lord for refusing to render him proper services, or claiming to have in the estate a larger interest. CHAPTER XV. TITLE BY ALIENATION. What is the most usual title to real estates? By alienation, or conveyance, or purchase in its more limited sense, which is a means of transferring real estates, wherein they are voluntarily resigned by one man and accepted by another. What was and what is the present law on alienation? Alienation by the tenant could not originally take place without licence from his lord; nor even with the consent of the lord, unless he had also got consent from his immediate heir; neither could the lord alien without the consent of his tenant, which was called attorning. By various acts of Parliament, the above restrictions wore off, and as a general rule all estates are now freely transferable, unless granted with a special stipulation to the contrary. Who may alien? All persons are capable of purchasing, and all that are in possession of any estates are capable of conveying them, unless under peculiar disabilities by law, such as— (i.) Attainted persons, who could purchase lands, but were disabled to hold as against the Crown and the lord, and were incapable of conveying. (ii.) Corporations, i.., religious or municipal. (iii.) Idiots and insane persons, whose feoffments are void and (iv.) Infants, whose conveyances are void and voidable. consent of their husbands; indeed they may purchase during coverture until the husband avoids it by some act during coverture. And by the Married Woman's Property Act, 1882 (45 & 46 Vict. c. 75), s. 2, all investments of a married woman's earnings in any separate trade, &c., are deemed property held and settled to her separate use. (vi.) Aliens, subject to 33 Vict. c. 14. How has the position in this respect of a married woman been affected by statute? By 3 & 4 Will. IV. c. 74, a married woman may, with the concurrence of her husband, dispose of her real estate by deed duly acknowledged, after having been first separately examined, and a certificate of the acknowledgment must be duly enrolled in the Common Pleas. But see particularly 45 & 46 Vict. c. 39, s. 7. And by 8 & 9 Vict. c. 106, s. 7, conformably to the above provisions, a married woman may disclaim. What is the position of an alien? He is, as we have before seen, on p. 56, in the position of a natural-born British subject, assuming he acquired his estate after the passing of 33 Vict. c. 14. But he cannot be the owner of a British ship or any part of her. Neither is he qualified for any parliamentary or other franchise. State shortly the legislative provisions which have removed the other incapacities not before alluded to. By various statutes the Lord Chancellor or the committees and guardians are empowered to execute conveyances on the lunatic's and infant's behalf. By 40 & 41 Vict. c. 18 (The Settled Estates Act, 1877), the Chancery Division, upon petition in the ordinary way, allows leases and sales of settled estates with the consent of the trustees of unborn children, and the guardians and committees of infants and lunatics; unless such consent be dispensed with by the Court; and these powers shall only be exercised where they seem consistent with the rights of the parties under the settlement and there is no contrary intention expressed, or where a similar application has been rejected by Parliament. And see also the Settled Land Act, 1882 (45 & 46 Vict. c. 38). Why is it necessary that a transfer of property should be properly evidenced? In order to avoid disputes (i.) as to the fact of transfer; (ii.) the persons by whom it was made; (iii.) what was transferred; or (iv.) for what estate and interest. How may a man alien? By common assurances or conveyances CHAPTER XVI. OF DEEDS. What is a deed, and why is it so called? What are the different kinds? A writing sealed and delivered by the parties, so called from the Latin word fuctum, on account of its solemnity and authenticity. (i.) Deeds indented or indentures; (ii.) Deeds poll. Mention some of the peculiarities of deeds? (i.) A man is always estopped by his deed, that is, prevented from contradicting it. (ii.) A deed merges a simple contract on the same subject matter. (iii.) An instrument under seal can only be varied, &c., by another under seal. Distinguish between an indenture and a deed poll. An indenture is so called from the Latin words Instar dentium, because the top was cut like teeth or saw-wise. The deeds poll made by one party only were shaved quite even. But now by 8 & 9 Vict. c. 106 an indenture is to have the effect of one though not actually indented. What are the requisites of a deed? (i.) Sufficient and capable parties, and a proper subject matter. (ii.) Writing or printing on paper or parchment, and duly (iii.) Legal and orderly parts, which are usually (1) the pre- (v.) Sealing, and in many cases signing it also. (vii.) The attestation. What do the premises contain? (i.) The names and titles of the parties. (ii) The recitals, if any. (iii.) The consideration. (iv.) The certainty of the grantor and grantee as well as of the thing granted. What is the object of the "habendum" in a deed, and what relation has it to the "premises?" To determine what estate or interest is granted by the deed, though this may be and is sometimes performed in the premises, in which case it lessens, enlarges, explains or qualifies, but must not totally contradict or be repugnant to the estate granted in the premises. State the heads of the formal parts of an ordinary conveyance. The date, parties, recitals, operative words containing the consideration, the receipt, and the grant of the parcels, habendum, the reddendum, covenants, and the conclusion. Can a stranger to a deed take the benefit of a condition in it? By 8 & 9 Vict. c. 106, s. 5, he can, that statute enacting that an immediate estate and interest in any hereditaments, and the benefit of a covenant or condition respecting them, shall be taken though the taker be not named as a party. Are there any words which imply a covenant for quiet enjoyment? "Give," "grant" and "demise" originally did, but by 8 & 9 Vict. c. 106, s. 4, none of these words in a deed executed after 1st. October, 1845, imply any covenant except so far as they may by Act of Parliament. any What do you understand by the expression "A covenant running with the land?" and give an instance. A covenant directly relating to the land conveyed will also in general run with the land, that is, not only with the original parties or their representatives, but each successive owner of the land will be entitled to its benefit or liable to its obligation. A covenant to pay rent is an ordinary example. What is an escrow ? A deed delivered to a third party to hold until some condition be performed on the part of the grantee, when such delivery takes effect absolutely. A.executes a deed in favour of B. The deed contains a condition to be performed by B. before it can be perfected. If you were acting as solicitor for A., what course would you take with regard to the document, and what would the document be called? I should hold the deed until performance of the condition. It would be called an escrow. Give at least five of the causes which may avoid a deed, or render it of no effect, ab initio. Want of (i.) proper parties and a proper subject-matter; (ii.) writing on paper or parchment; (iii.) sufficient and legal words; (iv.) reading if desired; (v.) sealing, and by the Statute of Frauds, in most cases signing also; and (vi.) delivery. How muy a deed be avoided? (i.) Ab initio by wanting any of the aforesaid requisites. What is the meaning of the word consideration, and how many kinds are there? What is a voluntary deed? The word means the price or motive for which the thing is done. There are two kinds; (i.) valuable, such as money or marriage or the like; (ii.) good, which is natural love and affection. A voluntary deed is one made without any consideration, or only a good one; it is good as between the parties, but by 27 Eliz. c. 4 void as against subsequent purchasers with or without notice; and in this respect deeds differ from simple contracts, which if there be no consideration, are entirely void. And by 13 Eliz. c. 5, voluntary conveyances are void against creditors if the grantee was indebted to the extent of insolvency at the time. In what respect does a "deed" differ from an ordinary document in writing in reference to the "consideration?" A good consideration will support a deed as between the parties, and indeed, want of consideration will not even vitiate it in such a case; whereas a simple contract requires a valuable consideration to support it. How are deeds to be construed? (i.) According to the intention rather than the words, "Verba intentioni debent inservire." (ii.) No extraneous evidence is admissible to explain an ambiguity. (iii.) Upon the entire deed, so as to give effect to it as a (iv.) Favourably " Ut res magis valeat quam pereat.” by implication: "Quando lex aliquid alicui concedit, |