is somewhat curious. In the time of Edward I., non compos was a sufficient plea to avoid a man's own bond: (x) and there is a writ in the register (y) for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suae, ut dicit, &c. But under Edward III. a scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own insanity: (2) and, afterwards, a defendant in assise having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus, as the manner then was) that he was out of his mind when he gave it, the court adjourned the assise; doubting, whether as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked, how he came to remember the release, if out of his senses when he gave it (a) Under Henry VI. this way of reasoning (that a man shall not be allowed [292] to disable himself, by pleading his own incapacity, because he can not know what he did under such a situation) was seriously adopted by the judges in argument; (b) upon a question, whether the heir was barred of his right of entry by the feoffment of his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason, (c) the maxim that a man shall not stultify himself hath been handed down as settled law: (d) though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it. (e) 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. (f) And so too, if he purchases 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. (g) In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him (h) Persons also, who purchase or convey under duress, may affirm or avoid such transaction, whenever the duress is ceased. (i) 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. 7 The case of a feme-covert is somewhat different. She may purchase x Britton, c. 28. fol. 66. y fol. 228. See also Memorand, Scacch. 22 Edw. I. (prefixed to Maynard's year-book, Edw. 11.) fol. 23. e Com. 469. C Mod. 310, 311. 1 Equ. cas. abr. 279. f Perkins, § 21. g Co. Litt. 2. (6) In Cro. Eliz. 398. the opinion of Fitzherbert is denied to be law, and de non sane memory held to be a bad plea to an action of debt upon an obligation. The defence might clearly be gi ven in evidence under the general issue, non assumpsit, or non est factum. 3 Camp. 128. 2 Atk. 412. 3 Mod. Cases, $10. 2 Stra. 1104. 4 Co. 123. Ld. Raym. 315. See much learning respecting lunatics, collected in Mr. Fonblanque's edition of the Treatise of Equity, p. 40. & seq. and Collinson on Lunatics. In the ecclesiastical courts such a rule prevails, where lord Stowell annulled a marriage on the ground of the insanity of the husband; saying, " It is, I conceive, perfectly clear in law, that a party may come forward to maintain his own past incapacity." I Hagg. Rep. 414. Christian (7) And see 6 Geo. IV. c. 74. an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids it by some act declaring [293] his dissent. (k) 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. (1) But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable; (m) and therefore cannot be affirmed or made good by any subsequent agreement. 8 The case of an alien born is also peculiar. For he may purchase any thing; 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;" k Co. Litt. 3. 1 Ibid. m Perkins, § 154. 1 Sid. 120. (8) If, says lord Coke, (Co. Litt. 2. a. b. Com. Dig. Aliens, C. 2. see the reasons, Bac. Ab. Aliens, C.)" an alien purchase houses, lands, tenements, or hereditaments, to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fec-simple, but not to hold: for upon office found, that is, upon the inquest of a proper jury, the king shall have it by his prerogative of whomsoever the land is holden; and so it is if the alien doth purchase land and die, the law doth cast the freehold and inheritance upon the king." And if an alien purchase to him and the heirs of his body, he is tenant in tail; and if he suffer a recovery, and afterwards an office is found, the recovery is good to bar the remainder, (9 Cc. 141. 2 Roll. 31. 4 Leon. 84. Com. Dig. Aliens, C. 2.); but the estate purchased by an alien does not vest in the king till office found, until which the ali en is seised, and may sustain actions for injuries to the property. (5 Co. 52. b. 1 Leonard, 47. 4 Leon. 82. Com. Dig. Aliens, C. 4.) But though an alien may take real property by purchase, yet he cannot take by descent, by dower, or by the curtesy of England, which are the acts of the law, for the act of law, says sir Edward Coke, (7 Co. 25. a. Com. Dig. Aliens, C. 1. Bac. Ab. Aliens, c. 2 Bla. Com. 249.) giveth the alien nothing. Therefore, by the common law (Co. Litt. 8. a.) an alien could not inherit to his father, though the father were a natural born subject, and the statutes have made no alteration in this respect in favour of persons who do not obtain denization or naturalization. So that an alien is at this day excluded, not only from holding what he has taken by purchase after office found, but from even taking by descent at all; and the reasons of this distinction between the act of the alien himself, by which he may take but cannot hold, and the act of the law by which he cannot even take, is marked by lord Hale in his judgment in the case of Collingwood v. Pace, 1 Vent. 417., where he says, though an alien may take by purchase by his own contract that which he cannot retain against the king, yet the law will not enable him by act of his own to transfer by hereditary descent, or to take by an act in law; for the law, quæ nihil frustra, (which does nothing in vain) will not give an inheritance or freehold by act in law, for he caunot keep it. The general rule of the law therefore appears to be, that an alien by purchase, which is his own act, may take real property but cannot hold it; by descent, dower, or curtesy, or any other conceivable act of the law, he cannot even take any lands, tenements, or hereditaments whatsoever, much less hold them. The reason of the law's general exclusion of aliens, we have seen ante, 1 Book, 371, 2. Chitty. (9) In former times no alien was permitted even to occupy a house for his habitation, and the alteration in that law was merely in favour of commerce and merchants. (See 1 Rapin Hist. Eng. 361. n. 9. Bac. Ab. Aliens, C.) There is a diversity, says sir Edward Coke, (Co. Litt. 2. b. Com. Dig. Aliens, C. 3.) between a lease for years of a house for the habitation of a merchant stranger, being an alien, whose king is in a league with ours, and a lease for years of lands, meadows, pastures, woods, and the like; for if he take a lease for years of lands, meadows, &c. upon office found, the king shall have it; but if a house for habitation, he may take a lease for years as incident to commerce, for without habitation, he cannot merchandise or trade; but if he depart or relinquish the realm, the king shall have the lease, &c. (Co. Litt. 2. b. Com. Dig. Aliens, C. 3. but in Toller, 12. it is said an alien may bequeath a lease.) But there is a note in the margin of Dyer, 2. b. Com. Dig. Aliens, C. S. which asserts that the alien does not forfeit bis interest in the house to the king by going beyond sea, if there be servants residing in it during the time of his absence. If an alien (continues sir Edward Coke, Co. Litt. 2. b. Com. Dig. Aliens, C. 3.) die possessed of a lease for years of a house, neither his executors nor administrators shall have it, but the king, for he had it only for habitation as necessary to his trade, and not for the benefit of his executors or administrators. So if the alien be no merchant, then the king shall have the lease for years, albeit it were for his habitation. (Co. Litt. 2. b. 1 Rol. 194. 130. Com. Dig. Aliens, 3. C. Bac. Ab. Aliens, C.) So that at this day no alien can hold a lease of any house, even for his habitation, unless he be engaged in mercantile pursuits, a strong proof of the peculiar partiality of the British law to commerce." But the indulgence which is thus shewn VOL. I. 77 all other purchases (when found by an inquest of office) being immediately forfeited to the king. (n) 1o 10 Papists, lastly, and persons professing the popish religion, and neglecting to take the oath prescribed by statute 18 Geo. III. c. 60. within the time limited for that purpose, 11 are by statute 11 and 12 W. III. c. 4. dis n Co. Litt. 2. to alien merchants, is not extended to alien traders of a lower kind, artificers and handicraftsmen, for the 16 chap. of 32 Hen. VIII. sect. 18. enacts, that all leases of any dwelling-house or shop within this realm, or any the king's dominions, made to any stranger artificer or handicraftsman born out of the king's obeisance, not being denizen, shall be void. Still, however, the British courts, anxious to advance every species of industry to the utmost extent which the letter of the written law will permit, have construed this statute most strictly in favour of aliens, and therefore, though the words of the act forbid them to sanction an actual lease made to an alien artificer or handicraftsman, they have held that an agreement for the occupation of a house not amounting to a lease, or a tenancy at will, may be supported by an artificer or handicraftsman, though he be an alien. In the case of Pilkington against Peach, 2 Shower, 135. 1 Saund. 8. n. 1., the court even took the pains to point out these methods of evasion in the following words; "There are ways to evade the statute; as to make an agreement, for so long as you and I please, at the rate of 201. per annum, and an action of assumpsit will lie thereon; or you shall have my house for so long as you and I please, for so much as it is worth. And Mr. Serjt. Williams, in his note on this case, 1 Saund. 8. n. 1., considers it to be decisive of the right of an alien artificer to hold a dwelling-house or shop under an agreement, which does not amount to a lease, as if he be a tenant from year to year, or for one year, or a shorter time; and this note was referred to, apparently with approbation, by lord Ellenborough, in giving judgment in the case of the king against the inhabitants of Eastbourne, on a question of parish settlement, 4 East, 103., where his lordship decided, that the foreigner whose claim to a settlement constituted the question in dispute, though he might not take a lease of a dwelling-house or shop, by reason of the statute, 32 Hen. VIII. c. 16. yet might occupy a tenement of 10l. a year, the amount necessary in order to give a right of settlement, and carry on his trade there, like any other person. The same liberality of construction appears to have prevailed is the case of Jevens and Harridge, 1 Saund, 6. 8. Com. Dig. Aliens, C. 7., the judges there seem all to have agreed, that though a dwelling-house might not be let to an alien by a lease, yet it is lawful for him to take a lease of a barn or a stable. It should be observed, that the 21 Hen. VIII. c. 16. s. 18., which confirms an order of council therein recited, provides "that no stranger artificer or handicraftsman, born out of our obeisance, not being denizen, which at the day of making of this decree, is not a householder within this our realm, or keepeth any shop or shops within the said city or suburbs, or any other city, town, or borough within this our realm, shall from that day forward set up and keep any house or shop or chamber within our city of London, suburbs, or parishes before rehearsed, or within any other city, town, borough, or village within this our realm, wherein he shall exercise and practise any handicraft or mystery." But it is apprehended that the decisions of the courts have proceeded upon the principle that the words of 32 Hen. VIII. by confining their prohibition to actual leases, do virtually repeal the more general enactments just cited from the 21 Hen VIII. Doubts have sometimes arisen as to the precise description of persons, who are meant by the statute 32 Hen. VIII. to be included within the words handicraftsmen or artificers. There is a case upon this subject, 3 Mod. 94. Com. Dig. Alien, C. 7. Bac. Ab. Aliens, C., but the decision of the chief justice throws little light upon the question. Bridgham, the plaintiff, brought an action for the performance of covenants in a lease granted by him to an alien vintner: the question was, whether a vintner could be considered an artificer within the meaning of the act; and it was decided that he could not, but for a reason which may be considered as too special, and perhaps too ludicrous for a guide in future cases. The counsel for Frontee, the defendant, argued that mercers, drapers, or grocers, though not properly artificers, were within the meaning of this act. The chief justice said, "this statute refers to another of 1 Rich. II. c. 9. which prohibits alien artificers from exercising any handicraft in England, unless as a servant to a subject skilful in the same art, upon pain of forfeiting his goods; so that it is plain that those who useri any art or manual occupation, were restrained from using it here to the prejudice of the king's subjects; now the mystery of a vintner chiefly consists in mingling of wines, and that is not properly an art but a cheat; so the plaintiff had judgment. But even if it were possible to decide what classes of persons shall be deemed artificers or handicraftsmen within the meaning of this statute, the specification of all these classes in this place would be a tedious and unprofitable task; instead, therefore, of attempting to ascertain who are artificers or handicraftsmen, the statute 22 Hen. VIII. c. 13. may be referred to, by which it is enacted, that certain classes of persons therein mentioned shall not be so considered; these excepted persons are balcers. brewers, surgeons, and scriveners. Chitty. (10) But not before the inquest, 5 Co. 52. b. and if the purchase be made with the king's li cence, there can be no forfeiture. 14 Hen. IV. 20. Harg. Co. Litt. 2. b. n. 2. Archbold. (11) The form of that oath is superseded by that required in 31 Geo. III. c. 32. s. 1. 43 GeoIII. c. 30. ! abled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void. (o) 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. In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired; which, we have more than once observed, was that of occupancy or [294] first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man's dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would ensue, which property was introduced to prevent. For this purpose therefore of continuing the possession, 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. We shall treat of each in its order. CHAP. XX. OF ALIENATION BY DEED.' In treating of deeds I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided. o 1 P. Wms. 354. (1) See in general, Com. Dig. Fait; Cru. Dig. index, Deed; Vin. Ab. Deed; Bac. Ab. Obli I. First, then, a deed is a writing sealed and delivered by the parties. (a) It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, xar' eğoxnv, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed. (b). If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; [296] through which the parchment was cut, either in a straight or indent ed line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists; (c) and with us chirographa, or hand-writings; (d) the word ciregraphum or cyrographum being usually that which is divided in making the indenture and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose, than to give name to the species of the deed. 2 When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals, A deed made by one party only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed. (e) 3 3 II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted a Co. Litt. 171. e Lyndew. 2, 1. t. 10. c. 1. d Mirror. c. 2. § 27. b Plowd. 434. e Mirror. c. 2. § 27. Litt. § 371, $72, gations; and see 3 Chitty's Com. L. 5. to 11. as to the requisites of deeds and the distinctions between them and other contracts and instruments. (2) Com. Dig. Fait, C. 1. A deed between several parties is now called an indenture, whether indented or not, and the actual indenting seems immaterial. The 5 Eliz. c. 4 required the binding of apprentice to be by indenture, and under that act it was held necessary that the instrument should be actually indented. Rex v. Mellingham, 2 Bott. 70. pl. 400. 1 Šess. Cas. 417. on which account the 31 Geo. II. c. 11. was passed expressly to declare that the apprentice should not be precluded from gaining a settlement in consequence of the instrument not be ing indented. sons, (3) Com. Dig. Fait, D. A deed-poll is not, strictly speaking, an agreement between two perbut a declaration of some one particular person. Thus a feoffment from A. to B. by deedpoll is not an agreement between A. and B. but rather a declaration by A. addressed to all mankind, informing them that he thereby enfeoffs B. of certains lands therein mentioned. It was formerly called charta de una parte, and usually begins thus: Sciant presentis et futuri quad ego A, &c. &c. Know all men by these presents, that I. A. have granted and enfeofled, &c. &c. Lit. S. 370. Cruise Dig. title xxxi. s. 23. Thus there is a material distinction between a deed professedly made inter partes and a deed-poll, for one not named as a party to a deed inter partes cannot at law sue thereon, though it contains a stipulation for his benefit; but in the case of a deed-poll or indenture not inter partes, there may be a covenant with a stranger upon which he may sue. 3 Lev. 138. This distinction, however does not exist in cases of instruments not un der seal. 2 Dowl. & R. 277. 3 Dowl. & R. 273. It has recently been determined that a power of attorney for the transfer of government stock is a deed within the meaning of the 2 Geo. II. c. 25. 2 Bing. 413. Chitty (4) See in general, Com. Dig. Fait. |