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to the distinct notions conveyed by the word 'relation' in our law (1).
Difference as to In the case of the disseisin before adverted to, the the effect of disseisin and subse- relation is of a very forcible kind. By his re-entry quent entry, where the dis the disseisee is circumstanced exactly as if he had scisin is before and where it is never been disseised, for the new possession unites after the will.
so immediately with the former possession as to destroy the tortious estate, as well as all the legal effects of the tortious act. But it may, perhaps, be reasonably doubted, (2) upon the strong words of statute of wills, and the established maxim of the law, which make the actual having either the estate itself, or an interest amounting to a jus in re, so essential to the operation of a devise of land, whether if after disseisin a devise be made of the land by the disseisee, and afterwards an entry be made by him, the relation be such as to make the will operate to carry the land. For it has been said that relation shall never operate to make an act good
(1) It would be too much to undertake to introduce in this place a general explanation of the law on the subject, for being of great difficulty in itself it is rendered more so by the want of an uniform principle in the decisions upon it. A short view of it, however, as far as it is connected with the revocation of wills is called for by the present enquiry.
(2) This same distinction I have since found adverted to by the present Chancellor, in the case of the Attorney General v. Vigor, 8 Vez. jun. 282.
which was void for defect of power (3). In the case which was in the contemplation of Lord Holt, the devisor had the estate when he devised; the disseisin only broke the continuance of the ownership; but in the case last supposed, the devisor would have had no estate, but a right of entry only when he made the devise.
In the foregoing case of disseisin the law seems to help and favour the relation on account of the in-, tervening title's being tortious. For as this species of relation is a fiction, and all fictions of law are governed by equity (4), the odiousness of the
(3) See Vent. 304, and see also 3 Rep. 29, Butler and Baker's case, 29, that relations will, in many cases, help acts in law, but will never help acts of the parties, that is to say, to make void acts of the parties good, and therefore if a man enfeoffs an infant or femme covert, and then devises the land, and afterwards the infant or the husband disagrees, that without question shall have relation between the parties ab initio, to this intent that the infant or husband shall not be charged in damages, or receive any prejudices, but shall never make a void grant, gift, or devise, good by relation. But I have endeavoured to shew, that there is a relation of a stricter kind, (and which can hardly be called a mere fiction of law,) which may have the effect of giving validity and efficacy to an intermediate act, which, at the time of its being performed could not have any present operation.
(4) In the case of the Attorney General v. Vigor, 8 Vez. jun. 979, the reader will find an attempt made to reason analogously from this case of disseisin and entry by the disseisee after will, to a case where after his will the testator exchanged the devised lands for others, and an eviction happen after the testator's death, so as to raise a title to recover back the exchanged property. Those who argued against the revocation contended, that as the attempted exchange had
wrong (5), induces such favour to the relation of the recovered right, that the intermediate act is wholly obliterated and out of the remembrance of the law,
Of the effect of
Whether a re-entry for a condition broken by an alienee, or performed by an alienor, restores the old estate so as to remove all consequences of the alienation, seems open to doubt. It does not stand quite upon the grounds of the case, just above put, of
completely failed, the whole transaction was avoided, and the old estate was remitted, precisely as if it had never been out of the devisor. There was an implied condition, upon the presumed title to the land, that if either party was evicted, there was a total end of the exchange, and the other party might enter ; that it must be considered as only a parting with the possession without transferring any title, and that as the old estate continued in the devisor, the devise was no more revoked than it would have been by the grant of a lease. But Lord Eldon, after admitting the perfect propriety of Lord Holt's opinion, as to the effect of the re-entry after disseisin by the disseisee in his life-time, adverted to a striking difference between the cases of disseisin and exchange, viz that the disseisin was not the act of the party but a wrong and violence done to him ; neither did it escape his Lordship that even in the case of the disseisin, if the disseisee neglects to enter, his mere right to enter would not pass by the will, and that the case put by Lord Holt supposed the entry to be actually made ; whereas in the case before him, as it stood upon the facts, the eviction did not happen till after the death of the party, so that the lands conveyed in exchange continued through the life of the party, and at the time the will became operative, under the effect of that conveyance.
(5) Relation will not defeat collateral acts which are lawful, espe. cially if they concern strangers, 13 Rep. 21.
is the will re
the disseisin, there being no wrongful act to aid the construction of relation. In the first volume of Roll's Abridgment it is said, that if a man devise if teftator aliens and then alien upon condition, and afterwards per- after making his form the condition, and enter and die, it seems the enters for the devise is revoked; but in a case mentioned in the broken-query, reports of the same Judge, it is said, arguendo and yoked? without contradiction, that entry for a condition broken makes a man by relation in as of his first estate, so as if the possession had never been out of him. And whether the entry be for a condition broken or on a condition performed, the principle must be the same. All agree that after entry, upon condition performed or broken, the party is in as of his old estate, but the doubt is whether it is not too strong to say that he is in as if the estate had never been out of him.
This effect can only be given to the entry by sup. posing it to work by the same forcible sort of relation which has been observed to take place in the case of the disseisin. And indeed it would seem to follow as of course, that if the entry could operate as a continuance as well as a restoration of the title, the will of the party would be made good by such entry. But it appears to be very questionable whether this is strictly a case of relation at all.
0 617 Pl. 3.
If any forfeiture is incurred or privilege lost by the alienation, such forfeiture or loss of privilege continues, notwithstanding the alienor's subsequent entry for breach of condition. Thus if a tenant for life makes a feoffment and re-enters for a breach, he shall be tenant for life again, but still subject to the forfeiture. So if tenant by homage auncestrel had made a feoffment on condition, the uninterrupted continuance of the privity in the blood of the tenant was dissolved by the alienation, and after a re-entry for a breach, the tenant would not have holden by homage auncestrel again. For the same reason also if a lord of a manor makes a common law conveyance of an escheated copyhold (which is an enfranchisement) upon condition, and re-enters for breach of the condition, no relation takes place to save the privilege, but the continuance of the custom is broken, and the estate returns without the right of re-granting it as copyhold". These cases shew that though the re-entry for a condition broken restores the estate, it restores the estate affected and modified by the act of alienation; and that the law takes notice that it has been once out of the party; so that the weight of reasoning and analogy seems to be on the side of the above cited dictum from Roll's Abridgement; since the inference from these examples is, that the return or restoration of the old estate upon an act of alienation does not imply an unbroken continu
• Co. Litt. Estates upon Condition.