successors, whose estates are to take effect after the determina- 3 & 4 Will. 4, tion or in defeasance of any such estate tail: saving always the c. 74, s. 15. rights of all persons in respect of estates prior to the estate tail in respect of which such disposition shall be made, and the rights of all other persons, except those against whom such disposition is by this act authorized to be made (n).

The remainder of the corresponding clause in the Irish Act (4 & 5 CorrespondWill. 4, c. 92, s. 12), runs thus: "whose estates are to take effect after the ing clause of determination or in defeazance of any such estate tail, including the Irish Act. King's most Excellent Majesty, his heirs and successors, as regards the title to his Majesty to any reversion or remainder created or reserved by any settlement or will, and which reversion or remainder shall have come or shall hereafter come to the crown in consequence of the attainder of any person to whom the forfeited reversion or remainder was previously to such forfeiture limited by any settlement or will, but not in any other case, or where the title to the crown shall have accrued by any other means; saving always the rights of all persons in respect of estates prior to the estate tail in respect of which such disposition shall be made, and the rights of all other persons except those against whom such disposition is by this act authorized to be made."

(n) The words" actual tenant in tail" are defined by sect. 1, ante, p. 241. Actual tenant As to equitable tenants in tail, and the form of assurance made necessary in tail. in that case by this act, see 1 Hayes, Conv. 155, 5th ed. As to fines and Equitable recoveries of equitable estates, see note to sect. 11, ante, p. 250. The tenants in tail. owner of a contingent estate tail was deemed incompetent to suffer a Tenant in common recovery with effect (1 Prest. Conv. 142); but tenants in tail in tail in concontingency are expressly within the words of this section (See Sugd. R. tingency. P. Stat. 192; 1 Hayes, Conv. 194, 5th ed. As to the alienation of contingent interests, see note to sect. 20, post). Where land was devised to trustees on trust for sale for certain purposes, and subject thereto to certain persons in tail, it was held not necessary to bar the entail on a sale by the trustees (Re Skerrett, 2 Dru. & War. 585).

A disentailing deed executed by a tenant for life has no operation under Disposition this section (Slater v. Dangerfield, 15 M. & W. 263; as to the effect of aby tenant recovery suffered by a tenant for life, see Smith v. Clifford, 1 T. R. 738; for life. Meredith v. Leslie, 6 Br. P. C. 388; Doe v. Scarborough, 3 Ad. & Ell. 43). But a proper disentailing deed will bar the entail, though the tenant in tail who executes it is recited in it to be tenant for life (Evans v. Jones, Kay, 29).

An alien might suffer a common recovery (Leon. 404; Shep. Touch. by an alien, 404), and may execute a disentailing deed (1 Jarm. Wills, 41, 4th ed.) lunatic, &c. Where the tenant in tail is a lunatic, the Court of Lunacy can bar the entail, but the power will not be exercised so as to affect the remaindermen (Re Pares, Lillingston v. Pares, 12 Ch. Div. 333; see Lunacy Act, 1890, s. 123). An infant has been ordered under 1 Will. 4, c. 47, s. 11, to execute a disentailing deed (Radcliffe v. Eccles, 1 Keen, 130). A married woman is not prevented by a restraint on anticipation from barring an entail (Cooper v. Macdonald, 7 Ch. Div. 288). Where a settlor gives an estate tail, he cannot restrict the power of the tenant in tail to bar it (Dawkins v. Penrhyn, 4 App. Cas. 64).

A disentailing deed executed by a tenant in tail does not destroy the Operation of interest he possesses in the estate, but enables him, by the exercise of the disentailing power which that interest gives him, to render it perpetual (Lilford v. deeds under A. G., L. R. 2 H. L. 63). As to the destruction of powers by a disposi- this section. tion under the statute, see Sugden, Powers, 91, 8th ed.; Hill v. Pritchard (Kay, 394); Re Wright and Marshall (28 Ch. D. 93).

A common law grant by deed of land to a person who does not execute the deed and afterwards disclaims, is not effectual to bar an entail under this section (Peacock v. Eastland, 10 Eq. 17). But the fact that, in the. case of a conveyance under the Statute of Uses, the grantee to uses does

3 & 4 Will. 4, c. 74, s. 15. Leases by

not execute the deed and afterwards disclaims, will not render the deed ineffectual to bar the entail (Re Dudson, 8 Ch. Div. 631).

The power of leasing conferred by this section on tenants in tail (See sect. 41, post) has become less material since the Settled Land Act, 1882, tenant in tail. which last act (sect. 58, sub-sect. 1, post) has enabled a tenant in tail to exercise the powers under that act of a tenant for life.

Entail of rent.

Form of disposition.

Where a tenant in tail is a lunatic, the judge in lunacy may authorize the committee to grant leases binding on all reversioners (Lunacy Act, 1890, ss. 120, 122; see S. L. Act, 1882, s. 62).

“Lands” in this act includes rents (sect. 1, ante). As to the effect of a recovery on entailed rents, see Smyth v. Farnaby, Carter, 52; Sid. 285; 2 Keb. 29, 55, 84; Weeks v. Peach, Lutw. 1218, 1224; S. C., Salk. 577; Chaplin v. Chaplin, 3 P. Wms. 229; Butl. Co. Litt. 298 a, n. 2; 1 Prest.

on Conv. 3.

A declaration of trust is not such a disposition as is referred to in this section (Green v. Paterson, 32 Ch. Div. 108). See further, as to the mode in which the disposition can be made, sect. 40, post, p. 271.

Ex provisione Viri, &c. Restraining Clause.

16. Provided always, that where under any settlement made before the passing of this act, any woman shall be tenant in tail of lands within the provisions of an act passed in the eleventh year of the reign of his Majesty King Henry the Seventh, intituled "Certain Alienations made by the Wife of the Lands of her deceased Husband shall be void," the power of disposition herein before contained as to such lands shall not be exercised by her except with such assent as, if this act had not been passed, would, under the provisions of the said act of King Henry the Seventh, have rendered valid a fine or common recovery levied or suffered by her of such lands (0).

(e) By stat. 11 Hen. 7, c. 20. a woman who had any estate in dower or for life, or in tail jointly with her husband, or only to herself, or to her use, in any lands or hereditaments of the inheritance or purchase of her husband (Co. Litt. 326 b), or given to the husband and wife in tail or for life, by any of the ancestors of the husband, or by any other person seised to the use of the husband, or of his ancestors, could not, being sole, or with any after-taken husband, except with the consent of the persons next entitled to the inheritance, or for the term of her life only, alien such estate (See Foster v. Pitfal, Cro. Eliz. 2, 524; Symson v. Turner, 1 Eq. Cas. Abr. 220; Gretton v. Haward, 6 Taunt. 94; Tillars v. Beaumont, Dyer, 145a; Watkins v. Lewis, 1 Russ. & M. 390; Cro. Eliz. 2; 1 Leon. 261; Curtis v. Price, 12 Ves. 97; Rochfort v. Fitzmaurice, 2 Dru. & War. 19; 1 Roper on Hus. & W. by Bright, pp. 497, 515; Cruise's Dig. tit. 36, c. 10; Prest. Conv. 19-21, 146-149).

[Sect. 17, repealing 11 Hen. 7, c. 20, was repealed by 37 & 38 Vict. c. 35, without reviving the former act.]

The power of disposition

not to extend

Reversion in Crown, &c. not to be barred.

18. Provided always, that the power of disposition hereinbefore contained shall not extend to tenants of estates tail, who,

c. 74, s. 18.

by an act passed in the thirty-fourth and thirty-fifth years of 3 & 4 Will. 4, the reign of his Majesty King Henry the Eighth, intituled, "An Act to embar feigned Recovery of Lands wherein the to certain King is in Reversion," or by any other act, are restrained from tenants in tail. barring their estates tail, or to tenants in tail after possibility of

issue extinct (p).

(p) By statute 34 & 35 Hen. 8, c. 20, no feigned recovery by assent of Tenants in parties against any tenant in tail of any lands given by the crown, whereof tail of the gift the reversion shall be in the king, shall bind the heirs in tail (See Perkins of the crown. v. Sewell, 1 Bl. Rep. 654; Co. Litt. 372 b, 373 a; Cruise's Dig. tit. 36, 34 & 35 Hen. 8, c. 10, ss. 42–51; 1 Prest. Conv. 18, 19, 144-146, 221; Chesterfield's case, c. 20. Hardr. 409; 1 Anne, sess. 1, c. 7; 34 Geo. 3, c. 75; 39 & 40 Geo. 3, cc. 86, 88; 47 Geo. 3, c. 24; S. E. Act, 1877, sect. 55, post). As to the law before 34 & 35 Hen. 8, c. 20, see 2 Roll. Abr. 293, 294; Hob. R. 339; Bro. Tail. 41; Cro. Car. 430; Plowd. 555; Dyer, 32 a; Neal v. Wilding, 1 Wils. 275; Blosse v. Clanmorris, 3 Bligh, 62.

Notwithstanding 34 & 35 Hen. 8, c. 20, the entail of lands granted by letters patent to the first Duke of Grafton was held effectually barred by a bargain and sale, under sect. 15, ante (Grafton v. London & Birmingham R. Co., 6 Scott, 719; see Com. Dig. Estates, B. 21; Bac. Abr. Fines and. Recoveries, 2nd Div. C.)

Where tenant in tail of the gift of the crown was disseised, and the Tenant in disseisor levied a fine with proclamations, and five years elapsed; it was tail of the gift held that the issue in tail was not barred (Stratfield v. Dover, Cro. Eliz. of the crown 595; but see 1 Sid. 166; 1 Roll. R. 171; and Abergavenny v. Brace, L. R. disseised; 7 Exch. 176).

fine

by disseisor.

In several acts of parliament conferring estates on eminent individuals, Inalienable tenants in tail are restrained from aliening such estates, except for their estates tail. own lives, as in the case of the Duke of Marlborough, by 5 Anne, cc. 3, 4 (See Davis v. Marlborough, 1 Swanst. 74; Osborn v. Marlborough, 14 W. R. 886), the Duke of Wellington (See statutes 41 Geo. 3, c. 59, s. 6; 42 Geo. 3, c. 113, s. 6; 54 Geo. 3, c. 161, s. 28), and the Earl of Abergavenny (2 & 3 Ph. & M. c. 23; see Abergavenny v. Brace, L. R. 7 Exch. 145). An attempt to bring under the parliamentary settlement estates larger than those originally settled was held void (Howard v. Shrewsbury, 2 Ch. 760).

By statute 14 Eliz. c. 8 (repealed by 26 & 27 Vict. c. 125), recoveries Tenants in against tenant by the curtesy, tenant in tail after possibility of issue tail after extinct, or otherwise, for term of life, or estate determinable upon life, possibility of were void against the reversioner, unless by the assent of the reversioner. issue extinct. See, however, Doe v. Gatacre (5 Bing. N. C. 609). A tenant in tail after possibility of issue extinct had no power of barring the estate tail or the remainders expectant thereon, but for all purposes of alienation was considered merely as tenant for life (Co. Litt. 28 a; 11 Rep. 80), although not impeachable for waste.

Where lands were settled to the use of the wife for life for her jointure and in bar of dower, remainder to the sons and daughters successively of the marriage in tail, remainder to the heirs of the body of the husband and wife, and there was no issue of the marriage, the widow was held tenant in tail after possibility of issue extinct (Williams v. Williams, 15 Ves. 419; see Platt v. Ponvles, 2 M. & S. 65).

Tenants in tail where the reversion is in the crown, or who are restrained S. L. Act, by Act of Parliament from barring the entail (with certain exceptions), 1882. and tenants in tail after possibility of issue extinct, can exercise the powers given to tenants for life by the S. L. Act, 1882 (See sect. 58, sub-sect. 1, (i.), (iii.), (vii.), of that act, post). See also the powers of leasing in the case of a lunatic tenant in tail under Lunacy Act, 1890, ss. 120, 122.

rights of

certain persons.

Power to enlarge Base Fees.

3 & 4 Will. 4, c. 74, s. 19. 19. After the thirty-first day of December, one thousand Power after eight hundred and thirty-three, in every case in which an 31st December, 1833, to estate tail in any lands shall have been barred and converted enlarge base into a base fee, either before or on or after that day, the person fees; saving who, if such estate tail had not been barred, would have been actual tenant in tail of the same lands, shall have full power to dispose of such lands as against all persons, including the King's most excellent Majesty, his heirs and successors, whose estates are to take effect after the determination or in defeasance of the base fee into which the estate tail shall have been converted, so as to enlarge the base fee into a fee simple absolute (9); saving always the rights of all persons in respect of estates prior to the estate tail which shall have been converted into a base fee, and the rights of all other persons, except those against whom such disposition is by this act authorized to be made.

Corresponding clause of

Irish Act.

* Sic.

Cases on sect. 19.

(9) The remainder of the corresponding section of the Irish statute 4 & 5 Will. 4, c. 92, s. 16, runs thus:-"including the King's most excellent Majesty, his heirs and successors, as regards the title to his Majesty to any reversion or remainder created or reserved by any settlement or will, and which reversion or remainder shall have come or shall hereafter come to the crown in consequence of the attainder of any person to whom the forfeited reversion or remainder was, previously to such forfeiture, limited by any settlement or will, but not in any other case, or where the title to the crown shall have accrued by any other means; saving always the rights of all persons in respect of estates prior to the estate tail which shall have been converted into a base fee and the rights of all other persons, except those against whom such disposition is by this act authorized to be made: provided always, that nothing in this act contained shall authorize any tenant in tail or other person to defeat or bar any estate or interest which may at the time of passing this act have been granted to any person or persons by his Majesty, or any of his predecessors, in any reversion or remainder which may have come to the crown by attainder or otherwise."

A tenant in tail can under this section enlarge a base fee, notwithstanding that he has parted with it to a purchaser (Bankes v. Small, 36 Ch. Div. 726). And where the tenant in tail is a woman married since 1882, she may enlarge a base fee without the concurrence or acknowledgment required by sect. 40 (Re Drummond and Davie, 1891, 1 Ch. 524).

Issue inherit

able not to bar expectancies.

Corresponding clause of the Irish Act.

Disposition by Heirs Expectant restrained.

20. Provided always, that nothing in this act contained shall enable any person to dispose of any lands entailed in respect of any expectant interest () which he may have as issue inheritable to any estate tail therein (s).

(r) The words in the corresponding section of the Irish statute 4 & 5 Will. 4, c. 92, s. 17, are "expectant interest or possibility."

By sect. 22 of the same statute it is enacted, "that from and after the 31st day of October, 1834, it shall be lawful for any person, either before or after he shall become entitled in any manner, except as expectant heir of a living person, or as expectant heir of the body of a living person, to

c. 74, s. 20.

an estate in lands, not being a vested estate, and whether he be or be not 3 & 4 Will. 4, ascertained as the person or one of the persons in whom the same may become vested, to dispose of such lands for the whole or any part of such estate therein by any assurance, whether deed, will, or any other instrument by which he could have made such disposition if such estate were a vested estate in possession: provided nevertheless, that no such disposition shall be valid or have any effect where the person making the same shall not at the time of the disposition have become entitled to such estate, unless the deed, will, or other instrument by virtue of which he may become entitled be existing and in operation at the time of the disposition." As to the nature of this provision, see 1 Hayes, Conv. 219, 5th ed., and compare 8 & 9 Vict. c. 106, s. 6, post. This provision is not in terms confined to Ireland, but from the context it would probably be held to be so confined (Sugd. R. P. Stat. 243).

(8) Sect. 20 of 3 & 4 Will. 4, c. 74, and the abolition of fines put an end Alienation of to some powers of alienation which previously might have been exercised expectant by persons having only expectant interests, such as the eldest son of a interests. tenant in tail or fee simple had during the life of his father. A fine levied by a person who afterwards became heir was an estoppel (1 Roll. Abr. 482 (Š.) pl. 2; Helps v. Hereford, 2 B, & Ald. 242; Doe v. Martyn, 2 Mann. & R. 485; Doe v. Oliver, 10 B. & C. 181; Edwards v. Rogers, W. Jones, 756; Wright v. Wright, 1 Ves. sen. 412); but a grant by such a person was void (Wivel's case, Hob. 45; Perk, sect. 65; 1 Anst. 11; 3 Term Rep. 365); and the fine did not bind collateral heirs unless the right to the entail descended to the cognisor or his heirs (Bradstock v. Scovel, Cro. Car. 434; see 8 Rep. 88 b).

A mere possibility could be only bound or extinguished at law by Alienation of estoppel, by a fine, or a recovery (Weale v. Lower, Pollex. 54); or in equity possibilities by contract (Beckley v. Newland, 2 P. Wms. 182; Hobson v. Trevor, Id. at law and 191; see Lyde v. Mynn, 1 M. & K. 693). But when a possibility is coupled in equity. with an interest, as where the person is fixed and ascertained, it may be released (Jewson v. Moulson, 2 Atk. 417), or be devised, though it cannot be granted or transferred by the ordinary rules of the common law (Lampet's case, 10 Rep. 46). A contingent remainderman conveyed his interest to secure a debt. The remainder was afterwards destroyed by the tenant of the prior estate. The interest which the remainderman afterwards acquired under the will of such tenant was held to be available by the creditor (Noel v. Bewley, 3 Sim. 103; see Smith v. Baker, 1 Y. & C. C. C. 223). An agreement, of which the subject is an expectancy contingent upon the will of a living person, is not illegal, but will be enforced in equity (Lyde v. Mynn, 1 M. & K. 683; see Pope v. Whitcombe, 3 Russ. 124). A specific performance was decreed of an agreement between two sons to share equally whatever property they might derive from their father either in his lifetime or at his decease (Wethered v. Wethered, 2 Sim. 183; see Harwood v. Tooke, 2 Sim. 192; Alexander v. Wellington, 2 R. & M. 55; Carleton v. Leighton, 3 Mer. 667); but a voluntary agreement will not be enforced (Meek v. Kettlewell, 1 Phil. 342).

men.

A fine by a contingent remainderman did not operate by estoppel only, Fines by but when the contingency happened the estate which then became vested contingent fed the estoppel, so that the fine operated upon that estate as if it had remainderbeen vested in the cognisors at the time the fine was levied (Rawlin's case, 4 Rep. 52; Weale v. Lower, Pollex. 54; Trevivian v. Lawrence, 6 Mod. 258; Ld. Raym. 1051; Vick v. Edwards, 3 P. Wms. 372; Doe v. Oliver, 10 Barn. & Cress. 181; Doe v. Howell, Id. 191; Doe v. Martyn, 8 B. & C. 527; Davies v. Bush, 1 M'Clel. & Y. 58; see Fearne, 365). The estoppel raised by the fine of a contingent remainderman was available only by parties and privies (Doe v. Martyn, 8 B. & C. 527).

A contingent interest in terms of years might be assigned in equity for Contingent valuable consideration, or for love and affection between parent and child interests now (1 Ves. sen. 411; Wind v. Jekyl, 1 P. Wms. 572). As to the alienation alienable and of contingent interests by married women, see sect. 77, post; Crofts v. Middleton, 8 D. M. & G. 192; Jones v. Frost, 7 Ch. 773). Contingent

S.

S

devisable.