Gambar halaman
PDF
ePub

descend, may be aliened, is liable to debts, to executions, to forfeiture, to leases, and other encumbrances, and even to the husband's curtesy, as if it were an estate at law. It is held not liable however to escheat to the lord, because the trust was never intended for his benefit.

Fallen into Disuse. The only present service of this statute is to give efficacy to certain new and secret species of conveyance, which save the trouble of making livery of seisin, the only ancient conveyance of corporeal freeholds. But now this has given way to:

12. Covenant to Stand Seised of Uses. This is a species of conveyance, by which a man, seised of lands, covenants, in consideration of blood or marriage, that he will stand seised of the same to the use of his child, wife or kinsman, for life, in tail or in fee. Here the statute executes at once the estate, for the party to be benefitted by it, having thus acquired the use, is put at once into corporal possession.

13. Bargain and Sale of Lands. This is a kind of real contract, whereby the bargainor for pecuniary consideration contracts to convey the land, and becomes by such bargain a trustee for, or seised to the use of the bargainee; and then the statute of uses completes the purchase; the bargain vesting the use, and the statute the possession. To prevent clandestine conveyance of freeholds, a statute enacted, that such bargains and sales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within six months. Chattel interests or leases for years were deemed not sufficiently worthy of regard to be thus enrolled.

14. Lease and Release. This was first invented shortly after the statute of uses, and is now the most common of any, and not to be shaken. It is thus contrived: A lease, or rather bargain and sale upon pecuniary consideration for one year, is made by the tenant of the freehold to the lessee or bargainee. Now this, without enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the latter the use of the term for one year, and then the statute immediately vests the possession. He therefore, being in possession, is capable of receiving a release of the freehold and reversion, which must be made to a tenant in possession, and accordingly the next day a release is granted to him. This is held to supply the place of livery of seisin, and so a release, as also a conveyance by lease and release, is said to amount to a feoffment.

15. Deeds to Lead or Declare Uses. These lead or declare the uses of other more direct conveyances, as feoffments, fines and recoveries.

16. Deeds of Revocation of Uses. This power is reserved at the raising of the uses, to revoke such as were then declared, and to appoint others in their stead.

Deeds to Charge or Discharge Lands. We will now briefly refer to such deeds as are not used to convey, but to charge or discharge lands, as obligations or bonds, recognizances and defeazances upon them both.

(1) Obligation or Bond, This is a deed, whereby the obligor binds himself, his heirs, executors and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is a single one, but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else remain in force; such as the payment of rent, performance of covenants, or the repayment of a debt with interest, which principal sum is usually one-half of the penal sum specified in the bond. If the condition be not performed, the bond becomes forfeited, and charges the obligor, while living, or after his death his heir, if not sufficient personal assets left, provided the heir has real assets by descent. It is therefore not a direct, but a collateral charge on lands.

When Void. If the condition of the bond be impossible, at the time of making it, or against law, or uncertain or insensible, the condition alone is void, and the bond shall stand single and unconditional, for it is the folly of the obligor to enter into such obligation, from which he cannot be released. If it be to do a thing malum in se, the obligation itself is void, for the contract is unlawful. If the condition be possible at the time of making it, and afterwards becomes impossible by act of God, by the act of law or the act of the obligee himself, the penalty of the obligation is saved.

Forfeited Bond. On the forfeiture of the bond, or its becoming single, the whole penalty was formerly recoverable at law, but here the courts of equity interposed, and gave a man merely his principal, interest and expenses, in case the forfeiture accrued by non-payment of money borrowed, the damages sustained, upon non-performance of the covenants, or the like. By statute of Anne, in the case of a bond conditioned for the payment of money, the payment or the tender of the sum due, with interest and costs, even though the bond be forfeited, and suit commenced thereon, shall be a full satisfaction and discharge.

(2) Recognizance. This is an obligation of record, which a man enters into before some court of record or authorized magistrate, with condition to do some particular act, as to appear at the assizes, to keep the peace, to pay a debt, or the like. It is in most respects like another bond, the difference being, that the bond is the creation of a fresh debt, the recognizance an acknowledgment of a former debt upon record, the party making it being termed the cognizor. It is certified by an officer of court, is witnessed by the record of a court, and not by the party's seal, hence cannot with propriety be termed a deed, though the effects of it are greater than a common obligation, being allowed a priority in point of payment, and binding the lands of the cognizor from the time of enrolment on record.

(3) Defeazance. A defeazance on a bond or recognizance or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate. It differs from the common condition of a bond, in that the one is always inserted in the deed or bond itself; the other is made between the parties by a separate, and frequently a subsequent deed. When the condition is performed, the estate of the obligor is discharged therefrom.

Lack of Registry of Deeds. These are the principal: species of deeds, or matters in pais, by which estates may be conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent, though they are defective in lacking notoriety, so that purchasers or creditors cannot know, with any absolute certainty, what the estate and the title to it in reality are, upon which they are to lay out or lend money. In the ancient feudal mode of conveyance, by corporal seisin of lands, this notoriety was in some measure answered, but the advantages therefrom are now defeated by the introduction of death bed devises and secret conveyances, and no sufficient guard exists against fraudulent charges and encumbrances, since the disuse of the Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in a ledger in some adjacent monastery. In Scotland, every act and event, regarding the transmission of property, is regularly entered on record. And some of our provincial divisions, like York and Middlesex, have erected registers in their several districts.

CHAPTER XXI.-ALIENATION BY MATTER OF RECORD.

Matters of Record. Assurances by matter of record are such as do not entirely depend on the act or consent of the parties themselves, but the sanction of a court of record is invoked to substantiate, preserve and be a perpetual testimony of the transfer of property, or of its establishment, when already transferred. Of this nature are:

1. Private acts of parliament.
2. The king's grants.
3. Fines.
4. Common recoveries.

I. PRIVATE ACTS OF PARLIAMENT.

It

Modes of Assurance. These of late years have become a common mode of assurance. may sometimes happen, that an estate is greatly entangled by contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances, so that courts of equity cannot relieve the owner. Or by the strictness or omission of family settlements, the tenant of the estate may be abridged of some reasonable power, or it may be necessary, in settling an estate, to secure it against the claims of infants or other persons, suffering under legal disabilities, who are not bound by judgments or decrees.

Power of Parliament in the Matter. Parliament occasionally has unfettered estates, and assured them to purchasers against claims of infants or disabled persons, by settling an equivalent for the interest so barred. This practice was carried to a great length the year after the restoration, by setting aside many conveyances made by constraint, in order to screen estates from forfeiture. But now such acts are passed with great caution, and in the house of lords are referred to two judges to examine and report the facts alleged, and to settle all technical forms. Nothing also is done, without express consent of all parties in being and interest, capable of consent. A general saving is added to the bill of the right and interest of all persons whatsoever, except those whose consent is so given or purchased, and who are therein named, though it is held, that even if such saving be omitted, the act shall bind none but the parties.

It is a Private Statute. A law thus made, though it binds all parties to the bill, is yet looked upon, rather as a private conveyance, than a solemn legislative act. It is termed a private statute, and is not printed among the other laws of the session. It has been held void, if obtained by fraud, or if contrary to law and reason. It remains, however, enrolled among the public records of the nation, as testimony of the conveyance or assur

ance.

II. THE KING'S GRANTS.

Matters of Record. These are also matters of public record. No freehold can be given to the king, says St. Germyn, but derived from him, but by matter of record. To this end, a variety of offices are erected, through which the king's grants must pass and be enrolled, subject to close inspection by the officers, that nothing unlawful be granted.

Charter or Letter-patent. These grants, whether of lands, honors, liberties or franchises, are contained in charters or letters patent, that is open letters, so called because they are not sealed up, but exposed to view, with the great seal attached, and are usually addressed by the king to all his subjects. In this they differ from letters of the king to particular persons, which are not proper for inspection, and hence are sealed up and called writs close, literae clausae, and are recorded in the close rolls, while the others are in the patent rolls.

Manner of Granting. Grants or letters patent must first pass by bill prepared by the attorney and solicitor general, in consequence of a warrant from the crown, and be signed with the king's sign manual. The manner of granting by the king does not differ more from that by a subject, than the construction of his grants, when made.

Construction of Grants. 1. A grant made by the king, at the suit of the grantee, shall be taken most beneficially for the king, and against the party, whereas the grant of a subject is construed most strongly against the grantor.

« SebelumnyaLanjutkan »