lord may seize them without any presentment by the homage; but also to peculiar forfeitures annexed to this species of tenures, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular

manors.

By Bankruptcy.

VIII. The eighth and last method whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt; which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined: a trader who secretes himself, or does certain other acts tending to defraud his creditors.

Chapter XIX.

V. OF TITLE BY ALIENATION.

287-295.

The most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense; under which 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, devise, or other transmission of property, by the mutual consent of the parties.

History of the Right to Aliene.

This means of taking estates by alienation is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law, a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord. Neither could the feudatory then subject the land to his debts. And, as he could not aliene it in his lifetime, so neither could he by will defeat the succession by devising his feud to another family; nor even alter the course of it by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir. And therefore it was very usual in ancient feoffments to express that the alienation was made by consent of the heirs of the feoffer; or sometimes for the heir-apparent himself to join with the feoffer in the grant. And, on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vassal. This

consent of the vassal was expressed by what was called attorning, or professing to become the tenant of the new lord, which doctrine of attornment was afterwards extended to all lessees for life or years.

But by degrees this feodal 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; 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. 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. By the great charter of Henry III., 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. But these restrictions were in general removed by the statute of quia emptores, 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. As to the power of charging lands with the debts of the owner, this was introduced so early as stat. Westm. 2, which 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, 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, except in some places by particular custom, lasted longer; that not being totally removed till the abolition of the military tenures. 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 Anne, c. 16; nor shall, by statute II 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.

Who May Aliene and to Whom.

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. Yet reversions and vested remainders may be granted; 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, 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.

Persons Attainted, etc.

Persons attainted of treason, felony, and praemunire, are incapable of conveying from the time of the offense committed, provided attainder follows: for such conveyance by them may tend to defeat the king of his forfeiture, or 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 escheats as well as forfeiture, according to the nature of the crime. 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, Infants, and Others.

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. 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. 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. And so, too, if he purchase 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. In like manner an infant may waive such purchase or conveyance

when he comes to full age; or, if he does not actually agree to it, his heirs may waive it after him. Persons also, who purchase or convey under duress, may affirm or avoid such transactions whenever the duress is ceased. 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.

Feme-Coverts.

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. And though he does nothing to avoid it, or even if he actually consents, the 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. But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable; and therefore cannot be affirmed or made good by any subsequent agreement.

Aliens.

The case of an alien born is also peculiar. For he may purchase anything: but after purchase he can hold nothing except a lease for years of a house for convenience of merchandise, in case he be an alien friend; all other purchases (when found by an inquest of office) being immediately forfeited to the crown.

Modes of Conveyance.

II. We are next, but principally, to inquire how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

For the purpose of continuing the possession of property, the municipal law has established descents and alienations; the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons to whom the proprietor, by his own voluntary act, should choose to relinquish it in his lifetime. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced; in order to prevent disputes, either about the fact, as whether there was any

transfer at all; or concerning the persons by whom and to whom it was transferred; or with regard to the subject-matter, as what the thing transferred consisted of: or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts and difficulties are either prevented or removed.

These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is (according to the old common law), upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the king's public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect till after his death; and that is by devise, contained in his last will and testament.