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3. Alienation by Particular Tenants. This is when the alienation is greater than the law allows, and divests the remainder or reversion. In such case there is a forfeiture to him, whose right is attacked thereby. As if a tenant for life alienes by feoffment or fine for the life of another, or in tail or in fee; these being estates, which may last longer than his own. This is not only beyond his power, but is also a forfeiture of his estate. Such alienation amounted to a renunciation of feudal dependence, and the particular tenant, by granting a larger estate than his own, has by his own act put an end to his original interest, and made way for the remainder man or reversioner.
By Tenant in Tail. If a tenant in tail alienes in fee, ther is no immediate forfeiture to the remainder man, but a mere discontinuance, which the issue may afterwards avoid by due course of law, for the party in remainder or reversion has a very remote and barely possible interest therein, until the issue in tail become extinct.
Rights of a Lessee. The law will not hurt an innocent lessee for the fault of his lessor, nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it and defeat the interest, which he himself has created.
Disclaimer by the Tenant, Equivalent both in its nature and consequences to an illegal alienation by the particular tenant, is the civil crime of disclaimer, as where he who holds of a lord neglects to render him due services, and upon action brought to recover them, disclaims to hold of his lord. This disclaimer in any court of record is a forfeiture of the lands to the lord, upon feudal reasons. So where such tenant in a court of record does any act, which amounts to a virtual disclaimer, as if he claims a greater estate than was originally granted him at the first infeudation, or if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, or by collusive pleading, such behavior amounts to a forfeiture of his particular estate.
III. Lapse. This is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary, by the neglect of the patron to present, also to the metropolitan by
1 By statute, this cause of forfeiture is now impossible, since the abolitiou of fines and recoveries.
neglect of the ordniary, and to the king, by neglect of the metropolitan. But no right of lapse can accrue, when the original presentation is in the crown. The term, in which the title to present by lapse accrues, is six months, according to the computation of the church. In case the benefice becomes void by death, or cession through plurality of benefices, the patron is bound to take notice of the vacancy at his own risk, for these are matters of notoriety; but in case of a vacancy by resignation or canonical deprivation, the law requires the bishop to give notice thereof to the patron, otherwise he can take no advantage, by way of lapse.
IV. Simony. This is the corrupt presentation of any one to an ecclesiastical benefice for money, gift or reward. It is so called, from the resemblance it bears to the sin of Simon Magus, though the purchasing of holy orders seems nearer his offence. By the canon law, it was a grievous crime, and becomes more odious, because it is ever accompanied with perjury, for the presentee is sworn to have committed no simony. By simony, the right of presentation to a living is forfeited, and vested pro hac vice in the crown.
Rules on this Subject. This was not an offense punished in a criminal way by the common law, the clerk being left to ecclesiastical censures. As these did not affect the simoniacal patron, statutes were passed to restrain the offence by civil forfeitures. (1) To purchase a presentation to a vacart living is open simony. (2) It is simony, for a clerk to bargain for the next presentation, the incumbent being apparently about to die. (3) For a father to purchase a presentation to provide for his son, is not simony, for the son is not concerned in the purchase, and the father by nature is bound to provide for him. (4) If such contract be made with the patron, the clerk not being privy thereto, while the presentation in such case shall devolve upon the crown, as a punishment to the patron, the clerk incurs no disability or forfeiture. (5) That bonds given to pay money to charitable uses, on receiving the presentation to a living, are not simonaical, provided the patron or his relations are not benefitted thereby. (6) That bonds of resignation, in case of nonresidence or taking another living, are not simonaical, there being no corrupt consideration, but such only as is for the good of the public. (7) General bonds to resign at the patron's request are held to be legal, unless proof be adduced that the contract was a corrupt one. The patron must not make ill-use of such bond, by demanding a resignation wantonly or without good cause.
1 A Hebrew magician, who sought to purchase from St. Paul the gift of the Holy Ghost.
V. Breach of Condition. Another kind of forfeiture is that of breach or non-performance of a condition annexed to the estate, either expressly by deed at its original creation, or implied by law, from a principle of natural reason.
VI. Waste. Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him, who has the remainder or reversion in feesimple or fee-tail.
Voluntary or permissive. Waste is either voluntary, which is a crime of commission, as by pulling down a house; or permissive, which is a matter of omission only, as by suffering it to fall, for want of necessary repairs. Whatever does a lasting damage to the freehold or inheritance is waste.
Houses and Timber. Therefore removing floors or other things fixed to the freehold of a house is waste. If a house be destroyed by tempest or the like, which is an act of Providence, it is not waste; but otherwise, if it be burned by the negligence of the lessee, though no action will lie against a tenant for an accident of this kind. It may be committed in ponds and warrens, by reducing the number of creatures therein. Timber also is part of the inheritance. Such as oak, ash and elm in all places, and in some countries, other trees used for building purposes. The tenant may cut down underwood at any seasonable time, and may take sufficient estovers for house-bote and cartbote, unless restrained by particular covenants.
Lands and Mines. The conversion of land from one species to another is waste. To convert wood, meadow or pasture into arable, or vice versa, is waste. This not only changes the course of husbandry, but the evidence of the estate, as when a close, described and conveyed as pasture, is found to be arable. The same rule is observed with regard to converting one species of edifice into another, even though it be improved in value. To open the lands and search for mines of metal, coal, etc., is waste, for that is a detriment to the inheritance, but if the pits or mines were opened before, it is no waste for the tenant to continue mining. The general subjects of waste are houses, timber and land.
Who are Liable for Waste. By the feudal law, all feuds were originally for life only. But by ancient common law, not only he who was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons: guardian in chivalry, tenant in dower, and tenant by the curtesy. These were created by the act of the law itself, but a tenant for life or for years came in by the demise and lease of the owner of the fee, who might have provided against the committing of waste by the lessee. But by statute, these latter tenants also are punishable for waste, both voluntary and permissive, unless their leases were made, without impeachment of waste. But a tenant in tail, after possibility of issue extinct, is not impeachable for waste, because his estate was at its creation, one of inheritance. Neither does an action of waste lie for the debtor against a tenant by statute, recognizance or elegit, because against them, the debtor may set off the damages in account, but properly it should lie for the reversioner, expectant on the determination of the debtor's own estate, or of estates derived from the debtor.
The Punishment for Waste. By common law, only single damages were allowed, except in the case of a guardian, who forfeited his wardship. The statute of Gloucester directs, that the other four species of tenants shall forfeit the place, wherein the waste is committed, and also treble damages to him, who has the inheritance. If waste be done here and there over a wood, the entire wood shall be recovered, or if in several rooms of a house, the whole house shall be forfeited. If waste be done in only one end of a wood, or one room in a house, which can readily be separated from the rest, that part is the only thing wasted, and that only shall be forfeited to the reversioner.1
VII. Copyhold Estates. A forfeiture results in copyhold estates, by breach of the customs of the manor. These estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation and waste, but also to peculiar forfeitures, annexed to this species of tenure, by breach of general customs of all copyholds, or peculiar local customs.
? By statute of William IV, the writ of waste has been abolished.
As these tenements were originally held by the lowest vassals, the marks of feudal dominion continue much the strongest upon this mode of property. Most of the offences, which occasioned a resumption of the fief by the feudal law, still continue causes of forfeiture in many of our modern copyholds.
VIII. Bankruptcy. Lands and tenements may become forfeited by the act of becoming a bankrupt, which person is defined to be a trader, who secretes himself, or does certain other acts, tending to defraud his creditors. A commission of bankruptcy is awarded against such person, and the commissioners shall have power to dispose of his lands and tenements, which he had in his own right at the date of bankruptcy, or which shall descend or come to him afterwards, before his discharge.
As to Estates-tail. This now also includes estates-tail in possession, remainder or reversion, unless the remainder or reversion shall be in the crown, and such sale shall be good against all such issues in tail, remainder men and reversioners, whom the bankrupt himself might have barred by a common recovery or other means.
Mortgages and Fraudulent Conveyances. All equities of redemption upon mortgaged estates shall be at the disposal of the commissioners, who shall have the same powers as the bankrupt had to redeem them. All fraudulent conveyances to defeat the intent of these, are declared void, but no purchaser bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be issued within five years after the commission of the act of bankruptcy. A bankrupt may thus lose all his real estate, which may at once be transferred by his commissioners to their assignees, without his consent.
CHAPTER XIX.-TITLE BY ALIENATION.
Defined. The most usual mode of acquiring title to real estate, is by alienation, conveyance, or purchase in its limited sense, whereby estates are voluntary resigned by one man and accepted by another, whether effected by sale, gift, marriage, settlement, devise or other transmission of property, by the mutual consent of the parties.