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Feudal Restraints of Alienation. This manner of taking estates is not of equal antiquity in England with that of taking them by descent. By the feudal law, a pure feud could not be transferred from one feudatory to another, without the consent of the lord, lest thereby a tenant might be substituted unfit or unable to perform feudal services. Nor could the feudatory subject the land to his debts, otherwise he could easily evade the feudal restraint of alienation. 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 alter its course by prescribing an unusual path of descent, or by imposing limitations; nor could he aliene, even with the agreement of the lord, without also obtaining the consent of his own apparent or presumptive heir. Nor could the lord aliene without consent of his vassal, which consent 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
Partial Alienation Allowed. By degrees, this feudal severity wore off, experience showing, that property best answers the purposes of civil life, especially in commercial countries, when its transfer is unrestrained. A statute of Henry I allowed a man to dispose of all lands, which he himself had purchased, for over these he was thought to have more power, than over what had been transmitted to him by descent. But he was not allowed to sell all his acquisitions, so as totally to disinherit his children. Afterwards, he was allowed to part with all of 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 the fourth of the inheritance of his ancestors, without the consent of his heir.
Restrictions Gradually Removed. 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 usually amounted to a 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 at liberty to aliene their lands at their discretion. Even the tenants in capite could do so, on paying a fine to the king. By different statutes, restrictions to alienation of lands were gradually removed, and the entire lands and not a moiety merely are chargeable with the debts of the owner, and may be absolutely sold for the benefit of trade by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer, but was removed with the abolition of the military tenures. The doctrine of attornments lasted even longer, though many attempts were made to evade them. I. WHO MAY ALIENE, AND TO WHOM.
As to Reversions and Remainders. In other words, who is capable of conveying, and who of purchasing? All persons in possession are prima facie capable, unless the law has laid them under disabilities. But if a man has only in him the right of either possession or property, he cannot convey it to another. 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 is said, be assigned to a stranger, unless coupled with some present interest.
Persons Attainted. Persons attainted of treason, felony and praemunire are incapable of conveying, from the date of the offense, provided attainder follows, for such conveyance 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 lord of the fee, though they are disabled to hold. If purchased after attainder, the lands are subject to forfeiture; if before, to escheat, as well as forfeiture, according to the nature of the crime.
Corporations. So also corporations 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 and Lunatics. Idiots, persons non compos, infants and persons under duress are not totally disabled to convey or purchase, but only sub modo. Their acts are voidable, but not void. The king, on behalf of an idiot may avoid his acts. A person non compos, afterwards becoming sane, shall not be permitted to allege his own insanity in order to avoid a grant, for
1 This position has been questioned.
no man is allowed to stullify himself. Clearly however, the heir, or other person interested, may after the death of an idiot or a person non compos mentis, avail himself of the incapacity of the decedent, and avoid the grant. And also if he purchases under such disability, and does not afterwards on reccvering his senses, agree to the purchase, his heir may either waive or accept the estate at his option.
Infants and Parties under Duress. In like manner an infant may waive such purchase or conveyance, when he arrives at full age, or if he does not actually sanction it, his heirs may waive it after him. Persons also, who purchase or convey under duress, may affirm or avoid such transaction, when the duress is withdrawn. All these are under the protection of the law. Yet the guardians of a lunatic may renew in his right, under the directions of the chancery court, any lease, and apply the profits for his benefit.
Married Women. The case of a feme covert is somewhat different. She may purchase an estate without her husband's consent, 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 assents, 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 during her widowhood, she does not express her consent. But her conveyance or other contract except by some matter of record, is absolutely void, and hence cannot be made good by any subsequent agreement.?
Aliens. The case of an alien born is also peculiar. He may purchase anything, but after purchase, he can hold nothing, except a lease for years of a house for convenience and merchandise, in case he be an alien friend; all other purchases, when found by an inquest of office being forfeited to the crown.3 II. HOW ONE MAY ALIENE OR CONVEY.
How to Continue the Possession. In consequence of the admission of rights in property, some means had to be devised, whereby a separate right should be originally acquired, which was that of occupancy or first possession. When once gained, it was necessary to continue this possession, or else property would again become common. Hence the municipal law established descents and alienations; the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by death; the latter to continue it in those persons, to whom the proprietor, by his voluntary act, should choose to relinquish it in his lifetime.
1 This doctrine no longer exists, and any man may defend on the ground, that he was non compos mentis at the date of a contract, to which he was a party.
2 This doctrine as to the disabilities of a married woman is subject to many qualifications.
3 Modified by statute of queen Victoria.
Evidence of a Transfer. It became necessary that this transfer should be properly evidenced, in order to prevent disputes, either about the fact, as whether there was a transfer, or concerning the parties to the transfer, or with regard to the subject matter of the transfer, or its mode and quality, as for what period, of time or in other words, for what estate and interest the conveyance was made. The legal evidences of these transfers are called the common assurances of the kingdom, whereby every man's estate is assured to him, and all controversies are prevented or ended.
Common Assurances. These common assurances are of four kinds:
1. By matter in pais or deed. This is an assurance transacted between two or more persons in pais, that is, in the country, on 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 take effect during the life of the party conveying or assuring.
4. By devise, contained in a man's last will and testament.
CHAPTER XX.-ALIENATION BY DEED.
First. General nature of a deed.
1. What a deed is. 2. Its requisites. 3. How avoided.
Second. Kinds of deeds and their incidents. I. WHAT A DEED IS.
Defined. A deed is a writing, sealed and delivered by the parties. It is sometimes called a charter, carta, from its materials, but usually is termed a deed, factum, because it is the most solemn act a man can perform in the disposal of property; hence a man shall always be estopped by his own deed, or not permitted to aver anything in contradiction to what he has so deliberately avowed.
An Indenture. If a deed be made by more than one party, there ought to be as many copies of it as parties, and each copy should be cut or indented, formerly serrated, instar dentium, but now in a waving line on the top or side to correspond with the other, which deed, so made, is called an indenture. Formerly when deeds were more concise than now, it was usual to write both parts on the same piece of parchment, with some words or letters written between them, through which the parchment was cut, either in a straight or indented line, leaving half the word on one part and half on the other. But now indenting has come into use, without cutting through any letters at all, and serves but little purpose except to give name to the deed. The copy which is executed by the grantor is called the original, and the rest are counterparts, though frequently the parties execute every part, which renders them all originals.
Deed-Poll. 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. II. REQUISITES OF A DEED.
First. Parties and Subject Matter. There must be persons able to contract and to be contracted with, for the
purposes intended by the deed; and also a thing or subject matter, to be contracted for, all of which must be expressed by sufficient names. In every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee and a thing demised.
Second. Consideration. The deed must be founded on good and sufficient consideration. Not upon usurious contract, nor upon fraud or collusion, either to deceive bona fide purchasers or just and lawful creditors, which bad considerations will vacate the deed, and subject the offending parties to forfeit