The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo-american Legal History: Volume Iii History of Particular Topics, Continued
• Part V.: Commercial Law
• 47.: Thomas Edwar Scrutton, General Survey of the History of the Law Merchant 1
• 48.: Spencer Brodhurst, the Merchants of the Staple 1
• 49.: Francis Marion Burdick, Contributions of the Law Merchant to the Common Law 1
• 50.: Edward Jenks, the Early History of Negotiable Instruments 1
• 51.: William Cranch, Promissory Notes Before and After Lord Holt 1
• 52.: William Reynolds Vance, the Early History of Insurance Law 1
• 53.: Edward Wyndham Hulme, the Early History of the English Patent System 1
• 54.: Joseph Henry Beale, Jr., the History of the Carrier’s Liability 1
• 55.: Cecil Thomas Carr, Early Forms of Corporateness 1
• 56.: William Mitchell, Early Forms of Partnership 1
• 57.: Samuel Williston, the History of the Law of Business Corporations Before 1800 1
• 58.: Simeon Eben Baldwin, History of the Law of Private Corporations In the Colonies and States 1
• Part VI.: Contracts
• 59.: James Barr Ames, the History of Assumpsit 1
• 60.: James Barr Ames, the History of Parol Contracts Prior to Assumpsit 1
• 61.: John William Salmond, the History of Contract 1
• 62.: Crawford Dawes Hening, History of the Beneficiary’s Action In Assumpsit 1
• 63.: Oliver Weldell Holmes, Jr., the History of Agency 1
• Part VII: Torts
• 64.: James Barr Ames, the History of Trover 1
• 65.: Van Vechten Veeder, the History of the Law of Defamation 1
• 66.: John Henry Wigmore, Responsibility For Tortious Acts: Its History 1
• Part VIII: Property (in General)
• 67.: James Barr Ames, the Disseisin of Chattels 1
• 68.: Frederick William Maitland, the Mystery of Seisin 1
• 69.: Arthur George Sedwick and Frederick Scott Wait, the History of the Action of Ejectment In England and the United States 1
• 70.: Harold Dexter Hazeltine, the Gage of Land In MediÆval England 1
• 71.: Arthur Underhill, Changes In the English Law of Real Property During the Nineteenth Century 1
• Part IX.: Wills, Descent, Marriage
• 72.: Charles Gross, the MediÆval Law of Intestacy 1
• 73.: Oliver Weldell Holmes, Jr., Executors In Earlier English Law 1
• 74.: Robert Caillemer, the Executor In England and On the Continent 1
• 75.: Melville Madison Bigelow, the Rise of the English Will 1
• 76.: James Bryce, Marriage and Divorce Under Roman and English Law 1
• List of Authors Contributing

71.

CHANGES IN THE ENGLISH LAW OF REAL PROPERTY DURING THE NINETEENTH CENTURY1

By Arthur Underhill2

THE two lectures which have been allotted to me cannot compete in point of interest with any of those entrusted to my colleagues. The subject is of the earth, earthy. It has not the tragic and human element of criminal law, nor the political flavour of Constitutional or International law. Mr. Blake Odgers and Mr. Birrell have, doubtless, had to struggle with unpromising subjects, but I have neither their charm of style nor their wit to assist me.

Moreover, the law of Real Property is still in a transition state, and most of the changes that have been made (with the exception of Lord Cairns’s Settled Land Acts and Lord Halsbury’s Land Transfer Act) are of the somewhat tinkering and patchy character so dear to the British Parliament. However, although the subject is not amusing, I will endeavour, as Lord Bacon sententiously puts it, “rather to excite your judgment briefly than to inform it tediously.”

Now, although numerous changes have been made in the law affecting real estate during the past century, the most important may be broadly reduced to nine classes, viz., those relating to (1) settled land, (2) the capacity of persons under disability, (3) the effect of death on real estate, (4) the acquisition of title by long enjoyment, (5) copyholds and commons, (6) landlord and tenant, (7) the law of tithes, (8) the relation of legal and equitable rights, and, lastly, (9) changes in the forms by which property is made to pass from owner to owner—in other words, changes in the practice of Conveyancing.

I propose to commence with the most important of all, viz.,

(1)

Changes in the Law of Settled Land

Land can be settled either by deed or will. Moreover, it can be settled in divers ways. People of moderate fortune usually settle land in trust for sale on the death of the first life tenant, the proceeds being divided among his children; or, instead of providing for its sale, they divide the property itself among the children. No essential change has been made in that form of settlement. But there is another and much more important form of settlement of land which has for its object the exact converse of the first. Instead of providing for an equal division of the land (or the proceeds of its sale) among a class of children, it aims at keeping the property intact as long as possible in the settlor’s line of descendants, one male at a time having the exclusive possession of it during his life, and the eldest son of the settlor and the male heirs of his body being preferred to the younger sons and their male issue. Such a form of settlement is called strict settlement. It rests on two foundations—primogeniture and estates for life. If primogeniture and the creation of life estates were forbidden, strict settlements would inevitably fall to the ground. As things stand, it is not too much to say that nearly all the great estates, comprising perhaps the greater part of the land of England, are held in strict settlement.

I have heard it said that a great Conveyancer of a past generation once annoyed the judges of the Common Pleas by commencing an argument with the definition of an estate in fee simple. Possibly some of you may feel equally annoyed with me if I venture to give a popular sketch of a strict settlement. But if some sages of the law have honoured me with their presence to-night, I expect that there are also some legal babes and sucklings of whom it is necessary to think.

Speaking broadly, then, the general framework of a strict settlement of land is as follows: The settlor conveys it to the use of himself for life, and after his death to the use that his widow may receive a rent charge (or jointure, as it is called). Subject to these life interests he gives it to the use of trustees for a long term of years (500 or 1000) upon trust to raise by mortgage of that term a specified sum of money for the portions of his younger children, and subject thereto to the use of his first and other sons successively and the heirs male of their bodies, with an ultimate remainder, in default of issue, to the settlor himself in fee simple.

It will be seen that, on the face of it, such a settlement merely ties up the property during the settlor’s life; for, upon his death his eldest son as first tenant in tail could (formerly by process called a common recovery and now by a simple enrolled deed) convert his estate tail into a fee simple, and by paying the portions of his younger brothers and sisters, make himself the absolute owner of the property.

There is no certain method of avoiding this, because the law does not permit property to be settled by way of remainder on the unborn child of an unborn child,1 or by way of trust or executory limitation beyond a life or lives in being and twenty-one years afterwards.2

In practice, however, the property is rarely permitted to go out of settlement, for directly an eldest son comes of age he is induced, like some latter-day Esau, to sell his birthright for a financial mess of pottage.

The alternative is gently placed before him: do your duty to the family by surrendering your future estate tail, receiving instead a future life estate and a present handsome allowance, or remain during your father’s lifetime without funds. Practically, even if family pride did not impel him to consent willingly, he would have to submit, because during his father’s lifetime he can only convert his estate tail into a “base fee” which is scarcely negotiable for purposes of mortgage. He therefore yields; he and his father disentail the property, and then resettle it, restoring the father’s life estate, giving a life estate to the son on the father’s death, and an estate in tail male to his sons successively. When he marries and his eldest son comes of age, the same ingenious process is repeated.

The system of strict settlement, in short, depends upon providing by means of constant resettlements, that no person of full age shall be entitled to a greater estate than an estate for life. This is the keystone of the edifice, and consequently the law of strict settlement is, apart from powers contained in the settlement itself, identical with the law relating to life estates.

Now, with these explanatory remarks let us contrast the state of settled land at the beginning and end of the 19th century.

At the beginning, unless the will or settlement by which the property was settled contained express powers (which was frequently not the case), a tenant for life could neither sell, exchange, nor partition the settled property, however desirable it might be. If the estate consisted of a large tract of poor country, fruitful in dignity but scanty in rent, and especially if the portions of younger children charged on it were heavy, he too often found it a damnosa hæreditas; the rents, after payment of interest on the portions, leaving a mere pittance for the unfortunate life tenant to live on, and quite disabling him from making improvements, or even keeping the property in a decent state of repair. Nay, more, if he did spend money in improvements, the money was sunk in the estate to the detriment of his younger children. He could not pull down the mansion house, however old or inconvenient it might be, nor even, strictly, make any substantial alteration in it. Unless expressly made unimpeachable for waste, he could not open new mines.

But in addition to these disabilities, what pressed still more hardly upon him, and on the development of the estate generally, was his inability to make long leases. Consequently where valuable minerals lay beneath a settled property, or the growth of the neighbouring town made it ripe for building sites (the rents for which would greatly exceed the agricultural rent) nothing could lawfully be done. The tenant for life could not open mines himself, even if he had the necessary capital for working them; nor, even if unimpeachable for waste, could he grant leases of them to others for a term which would repay the lessees for the necessary expenditure in pits and plant; nor could he grant building leases or sell for building purposes at fee farm rents. In some settlements powers were expressly inserted, enabling the trustees to grant such leases and to sell, exchange, and partition. But frequently, especially in wills, such powers were omitted, and in such cases the only means of doing justice to the land, was to apply for a private Act of Parliament authorising the trustees or the life tenant to sell, exchange, partition, or lease. But such Acts were expensive luxuries, only open to the rich, and beyond the means of most country gentlemen of moderate means. Moreover, even the barring of the entail, in order to make a new or more effectual settlement, necessitated the grotesque and cumbrous proceeding known as a common recovery, a pretended action by a collusive plaintiff against the tenant in tail, for the recovery of the land. The latter pleaded (quite untruly) that he had bought the lands from a man of straw (usually the Crier of the Court) who had warranted the title, and asked that this person should be “vouched to warranty,” i. e. called on to defend the action. The Crier being called, admitted the warranty, and made default. Thereupon judgment was given that the lands should be given up to the plaintiff, and that the Crier should convey lands of equal value to the tenant in tail under his fictitious warranty, which he was of course incapable of doing. What would have happened if the Crier had subsequently come into a fortune is too painful to contemplate. In some cases a single voucher was deemed sufficient; in others a double voucher was required. In all cases the proceeding was a scandalous farce, in which judges, counsel, solicitors, and the parties, were all behind the scenes and enjoying the fun. It was described by the Attorney General in 1833 as “involving enormous and unnecessary expense, and necessitating the conduct of proceedings through no less than twenty offices, in each of which danger, delay, and expense had to be faced.”

Thus matters stood in the year 1801 and thus they continued down to the year 1833. In those days when agriculture was the most profitable of industries, when machinery and railways and steam navigation had not yet produced any great demand for coal and iron, and when towns did not as now overflow their ancient boundaries with astonishing rapidity, the tying up of land in the way I have described gave rise to but few hardships. Indeed, we find the Real Property Commissioners in 1829 singing a pæan over the system as one approaching perfection. In their first report they say: “Settlements bestow upon the present possessor of an estate, the benefits of ownership and secure the property to his posterity. The existing rule respecting perpetuities has happily hit the medium between the strict entails which prevail in the northern part of the island, and by which the property is for ever abstracted from commerce, and the total prohibition of substitutions, and the excessive restrictions of the power of devising established in some countries on the Continent of Europe. In England families are preserved, and purchasers always find a supply of land in the market.” That, however, was too optimistic a view, and even the Commissioners themselves recommended the abolition of the absurd method of barring estates tail by Common Recovery, and the substitution of a simple enrolled deed of conveyance, a recommendation which was carried into effect in 1833 by the Act for the abolition of Fines and Recoveries.1

However, even that measure did not pass without opposition, one argument being, I believe, that it would render useless the “lean and wasteful learning” on the subject which was then stored away in the brains of Conveyancing Counsel, a learning which Shakespeare with fine audacity attributes to no less a person than the Prince of Denmark when he says, “This fellow might be in’s time a great buyer of land, with his statutes, his recognizances, his fines, hisdouble vouchers, his recoveries: is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt? will his vouchers vouch him no more of his purchasers, and double ones too, than the length and breadth of a pair of indentures?”1

Thus matters stood until the early years of the reign of that great and gracious Lady whose loss we are now lamenting. By the Drainage Acts,2 tenants for life and other limited owners, were empowered, with the leave of the Court of Chancery, to make permanent improvements in the way of drainage, and to charge the expenses with interest on the inheritance.

In 1864 still larger powers of improving land were given to tenants for life, by the Improvement of Land Act3 of that year, which enables tenants for life with the sanction of the Enclosure Commissioners (now the Board of Agriculture) to raise money by way of rent charge for divers specified improvements, including draining, improvement of watercourses, embanking, enclosing, fencing, reclamation of land, the making of roads, tramways, railways, and canals, the cleaning of land, the erection and improvements of cottages and buildings, planting, the construction of piers, and other matters too numerous to mention in detail. To these were added by the Limited Owners Residences Acts, 18704 and 1871,5 and the Limited Owners Reservoir and Water Supply Act, 1877, the erection or completion of, or an addition to a mansion house, and the construction of permanent waterworks.

These Acts were doubtless of great value, but they were of small importance compared with a statute passed in the year 1856 known as an Act to facilitate leases and sales of settled estates.6 That Act after being amended by a series of statutes was repealed and the whole subject reenacted in a modified form by the Settled Estates Act, 1877,7 usually known to us as “Marten’s Act” after its respected author, Sir Alfred Marten, the present Chairman of the Board of Studies of the Council of Legal Education.

The Settled Estates Acts enabled the Court of Chancery to sanction the sale, exchange, or partition of settled land and the granting of leases not exceeding in duration 21 years for an agricultural or occupation lease, 40 years for a mining lease or water-mill or water-way lease, 60 years for a repairing lease, or 99 years for a building lease, unless the Court should be satisfied that it was usual in the district and for the benefit of the property that longer leases should be granted.

They also authorised the tenant for life, without any leave of the Court, to grant leases not exceeding 21 years unless the settlement expressly negatived such power.

The Settled Estates Acts governed the subject between 1856 and 1882. Under them a tenant for life, apart from express power in the settlement, could only sell or lease the settled land for longer than 21 years under an order of the Court.

For some time before 1882, an agitation had sprung up for the total prohibition of life estates. The late Mr. Joseph Kay, Q. C., was perhaps the ablest advocate of the reformers, and wrote a very able and interesting book on the subject called Free Trade in Land. It was there urged that life estates complicate titles and make transfers difficult and costly; that they take the control of children (particularly an eldest son) out of his father’s hands, and prevent “the sale and breaking up of the great estates when change of circumstances, or poverty, or misfortune, or bad management, or immorality would otherwise bring land into the market.”

On the other hand, we of a conservative disposition (I say we, for I took an active part in the controversy) pointed out, that if settlements of personal property were allowed, but settlements of land were forbidden, it would be a terrible injustice to landowners. As the late Mr. Osborne Morgan put it, “It is scarcely too much to say, that to a good many people a proposal to abolish marriage settlements would be little less startling than a proposal to abolish marriage itself. Even grandfathers have their feelings, nor are fathers or husbands always to be trusted; and few country gentlemen would regard with complacency a measure of law reform which might in certain eventualities, consign their daughters or their daughters’ offspring to the workhouse or the streets. A law, therefore, which would permit no limitation of land except in fee simple, would render it very difficult for a landowner to make a suitable provision for his family after his death. Under such a law, a country gentleman could not give a life interest nor a jointure to his widow, he could not make a proper provision for the event of one or more of his children dying under age. He could certainly not protect his daughters or their issue against the rapacity or extravagance of an unprincipled or thriftless husband or father. It is easy to see that such a measure, simple as it sounds, would amount to a social revolution; its consequences would be absolutely incalculable.”

Under these circumstances some of us urged that instead of rashly abolishing life estates, an extension of powers of management and sale should be granted to life tenants; and this idea having commended itself to the late Earl Cairns and others, including that great real property lawyer, Mr. Wolstenholme, a Bill was drafted by the latter, and safely piloted through Parliament by the former, and is now known as the Settled Land Act, 1882.1 It is impossible, having regard to the time at my disposal to give more than the merest sketch of the provisions of this great Act, the greatest real property Act, I think, of the century.

The broad policy on which the Act of 1882 is founded, was, in the words of the late Lord Justice Chitty in Re Mundy and Roper (reported in 1899, 1 Ch. p. 288), as follows: “The object is to render land a marketable article, notwithstanding the settlement. Its main purpose is the welfare of the land itself, and of all interested therein, including the tenants, and not merely of the persons taking under the settlement. The Act of 1882 had a much wider scope than the Settled Estates Acts. The scheme adopted is to facilitate the striking off from the land of fetters imposed by settlement; and this is accomplished by conferring on tenants for life in possession, and others considered to stand in a like relation to the land, large powers of dealing with it by way of sale, exchange, lease, and otherwise, and by jealously guarding those powers from attempts to defeat them or to hamper their exercise. At the same time the rights of persons claiming under the settlement are carefully preserved in the case of a sale, by shifting the settlement from the land to the purchase money, which has to be paid into Court or into the hands of trustees” (at the option of the tenant for life).

The money so paid can be applied in a variety of ways for the extension of the property or the release of incumbrances; or can be invested upon certain specified securities, according to the direction of the tenant for life, or may be applied in the execution of permanent improvements, a long list of which is inserted in the Act. The Act also contains elaborate clauses providing for the working out of the general idea, and, speaking broadly, may be said to give a tenant for life or other limited owner, powers of management as large and varied as those of an absolute owner, but making provision for safeguarding capital money arising from the settled land, so that it cannot be either pocketed or wasted by the tenant for life.

The following salient points should be noted:

(1) The tenant for life in possession—the head of the family for the time being—the man most interested in the prosperity of the property, is the person in whom the statutory powers of selling, leasing, and improving are inalienably vested. The powers are not confided to independent trustees, who would naturally take a languid and platonic view of the situation. It is this provision which is the life-blood of the Act.

(2) The life tenant cannot part with his statutory powers, even although he parts with his life estate; but in that case, if he exercises the powers, they are without prejudice to the estate per autre vie of his assignee.

(3) Except in the case of the mansion house, or its demesne lands, or of heirlooms, the tenant for life is not fettered by the necessity of obtaining the consent either of the Court or of the trustees. True, he has to give notice to the trustees of his intention to exercise his statutory power; but that is merely to enable them to keep an eye upon him, so that, if he should attempt to use his powers fraudulently, they may apply to the Court to stop him.

(4) As to improvements, the Act provides (sec. 29) that every limited owner may, without impeachment of waste, execute any improvement specified in section 25, or inspect, repair, or maintain it, and for these purposes may do all acts proper for the execution, maintenance, repair, and use thereof, and work freestone, limestone, clay, sand, and other substances, and make tramways and other ways, and burn and make bricks, tiles, and other things, and cut down and use timber and other trees not planted or left standing for shelter or ornament.

(5) With regard to leases, the tenant for life is empowered to grant building leases for 99 years, mining leases for 60 years, and other leases for 21 years, subject to certain formalities, and at the best procurable rent. Moreover, where it is shown to the Court that it is the custom of the district to lease for building or mining purposes for a longer term or on other conditions than those specified, or even in perpetuity, and that it is difficult to get a tenant except on the local terms, the Court may authorise leases in conformity with such custom.

(6) In connection with sales or building leases, the tenant for life may cause any part of the land to be appropriated for streets, squares, gardens, and open spaces.

(7) In the case of mining leases, as the property necessarily depreciates as the minerals are abstracted, the Act provides that where a mining lease is made, whether of opened or unopened mines, there shall be set aside as capital money under the Act, three-quarters of the rent if the tenant is impeachable for waste, and one-quarter if he is not.

Lastly, any prohibition of the powers of the Act contained in any settlement is to be absolutely void.

Such is a rough sketch of this great Act, an Act which has been, in my opinion, a complete success.

There have been several Acts amending the Act of 1882, but they have only dealt with detail, and in nowise affect the broad principles on which the main Act was founded.

In addition to this great statute, the past century has seen a considerable number of minor changes in the law of settled land. For instance, take the case of contingent remainders, words of fear almost as unwelcome to the ear of the student as the note of the cuckoo is said by Shakespeare to be to that of the husband.

In the year 1801, if real estate was settled upon A for life, and after his death to such of his children as should attain 21, then, if A’s life estate came to an end before any of his children attained 21 years of age, the gift to the children failed. The rule was that a contingent remainder must become vested at or before the determination of the preceding estate of freehold, otherwise it was void. It was immaterial how the preceding estate of freehold came to an end, whether by forfeiture, surrender, merger, or by the death of the life tenant. To prevent this, it was usual to go through the form of appointing trustees to preserve contingent remainders (a pure technicality—as pure a technicality as fines and recoveries). On the other hand, where a contingent interest in land was limited by way of executory devise, it did not fail by reason of the preceding estate coming to an end before the contingency became a certainty. This absurd distinction, depending entirely on logical deductions from feudal notions, has gradually been abolished. In 1845, by the 8th section of the Real Property Act of that year,1 it was enacted that henceforth no contingent remainder should fail by reason of the determination of the preceding estate by forfeiture, surrender, or merger. The author of this Act, however, curiously enough, still left a contingent remainder liable to be defeated by the death of the preceding life tenant before the contingency had become a certainty, and the law so continued until 1877. In that year, in consequence of the very hard case of Cunliffe v. Brancker1 (where a whole family of children were deprived of property, because an unskilful draftsman had not given trustees of a will a sufficient legal estate to preserve the contingent remainder), an Act was passed, called the Contingent Remainders Act.2 By this Act the liability of contingent remainders to destruction by the natural expiration of the preceding estate has been practically abolished with regard to remainders arising under instruments executed since the 2nd August, 1877. No one, I think, can doubt the wisdom and justice of this.

Another point on which the law of settled land has been changed in the direction of freedom is with regard to accumulations. In the beginning of the year 1800 the rule against perpetuities (afterwards authoritatively declared in Cadell v. Palmer3 ) was doubtless in force, but it nevertheless permitted the income of real or personal estate to be accumulated during the whole of the period of lives in being and 21 years afterwards. A certain eccentric Mr. Thelluson, taking advantage of this, successfully directed that the income of all his real estate should be accumulated during the life of the survivor of his descendants living at his death, for the benefit of his remote descendants. This created such an impression that an Act was passed in July 1800, commonly called the Thelluson Act,4 thereby conferring an immortality on the testator which he did not merit. By this Act, accumulations are prohibited for longer than four alternative periods, viz., the life of the settlor, or 21 years from his death, or during the minority of any person living at his death, or during the minority of any person who, if of full age, would be entitled to the income. These restrictions have been tightened by the Accumulations Act, 1892, which prohibits accumulations for the purpose of purchasing land for a longer period than the minority of the person who, if of full age, would be entitled to receive the income directed to be accumulated.

So much with regard to the changes in the law of settled land. Much still remains to be done to place our law of settled property on a rational basis. For instance, learned members of the legislature might well turn their attention to the law relating to repairs of settled land, which is in a most confused and absurd state. The law, according to a decision of the late Mr. Justice (afterwards Lord Justice) Kay, in re Cartwright,1 is that a legal life tenant is not liable to keep in repair freehold lands or houses. The same rule also apparently applies to an equitable life tenant.2 Nor has the Court any jurisdiction, where the estates are legal estates, to order money to be raised on the security of the corpus for making repairs,3 although there appears to be such jurisdiction where the property is vested in trustees. Surely this is a very irrational and thoroughly impolitic state of the law. Either the life tenant ought to be made to keep property in repair, or the Court ought to have jurisdiction in every case to sanction a charge for the purpose on the inheritance. Something ought to be done to clear away an impasse which is a disgrace to our law.

I know of an estate where the present life tenant, an old man, is allowing all the farm-houses, cottages, and buildings to go into absolute ruin, roofs have fallen in, fences and gates are broken, and the whole estate given over to decay, yet the remainderman has no remedy.

(2)

Changes in the law relating to the real estate of persons under disability

I now come to another branch of our subject, viz. changes in relation to disability, including the power of dealing with property on behalf of persons under disability.

In the year 1801 a married woman entitled to land for a legal estate in fee simple could not sell, mortgage, or deal with it in any way, either with or without the joinder of her husband, except by going to the outrageous expense of suffering a fine—a collusive action, which, like a common recovery, necessitated the carriage of the business through a multitude of Government offices, in each of which, I need scarcely say, fees were extracted. She could not make a will of her fee simple lands. She could not even release her contingent right to dower on a sale by her husband of his own lands, without suffering a fine. It was at that date also considered to be very doubtful whether she could deal with the fee simple where it was settled to her separate use, the prevailing view being that the separate use was confined to her life interest and could not affect her heir.

By the Fines and Recoveries Abolition Act, 1833,1 however, her position was to some extent improved, and she was enabled to dispose of her fee simple lands by a deed with the approbation of her husband, and acknowledged by her to be her free act before Commissioners. That, of course, only cheapened matters.

In 1865 it was decided, in the case of Taylor v. Meads,2 that a married woman could without these formalities dispose by deed or will of fee simple lands settled to her separate use; but it was not until 1870 that any fresh legislation came to the relief of married women. In that year the first Married Women’s Property Act3 was passed; but, so far as real estate is concerned, it only made statutory separate property of the rents and profits of real estates descending to a married woman as heiress. In 1882, however, Parliament passed a thoroughly revolutionary Married Women’s Property Act,4 which, like many statutes of importance, did not attract one quarter the interest evoked by a burials bill or a verminous persons bill or other measure interfering but little with the people’s everyday life. The general effect of this bill has been (so far as women married after the Act came into force are concerned) to put them in the same position as men, and even to put women married before the Act into the same position so far as regards property their title to which first accrued after the Act. Thus married women, from a position of complete proprietory subjection at the commencement of the century, have attained complete proprietory equality with men at the end of it. Nay, their position is even better than that of men; for if they are, by will or settlement, expressly restrained from alienation, they can snap their fingers at their creditors; and while their husbands are denied all participation in their worldly possessions, they (the husbands) still remain liable to third parties for their spouses’ torts. But the privileges of the fair sex do not stop here, for while they can use restraint against alienation as a shield against their unfortunate creditors, the 39th section of the Conveyancing and Law of Property Act, 1881, enables a sympathetic judge to relieve them of it if it should prove irksome and contrary to their true interests. As has been happily written by a legal poet, Mr. Cyprian Williams:

• “Surely e’en the host angelic can afford no happier station
• Than the wife who has an income with restraint on alienation.”1

So far married women. Let us now turn to infants, legal infants, i. e. persons under the age of twenty-one years.

In 1801 it was impossible to sell an infant’s real estate (with a qualified exception in the case of gavel-kind lands) however desirable a sale might be. Even the Court had no inherent jurisdiction to order a sale, nor to authorise a settlement by an infant of his or her property on marriage. Nor was it possible to grant leases binding on the infant. It was impossible to spend money on the estate or to develop it in any way. If strict settlement was sometimes disastrous to a locality, still more so was a long minority. How different is the case now. By 1 William IV. c. 65 the guardian was empowered by the direction of the Court of Chancery to make ordinary mining or building leases of the infant’s land for any term. By the Infants’ Settlement Act, 1855,2 a male infant of 20 and a female of 17 were enabled to make a binding settlement on marriage with the sanction of the Court. The Partition Acts, 1868 and 1876,3 enabled the Court in a partition action where an infant is interested to order a sale and to vest the property in the purchaser.

The Settled Estates Act, 1877,1 empowered the Court to order a sale, where an infant was interested in settled land. This did not affect infants entitled in fee simple in possession, but by the 41st section of the Conveyancing and Law of Property Act, 1881,2 it was extended to fee simple estates.

By the 42nd section of the last-mentioned Act provision is made for the exercise by trustees appointed on behalf of an infant of very wide powers of management, including the carrying out of repairs, the working of mines, and so on.

Finally, by the 59th and 60th section of the Settled Land Act, 1882, the Court is empowered to appoint persons to exercise on behalf of an infant (whether tenant for life, in tail, or in fee) all the powers of sale, partition, exchange, and leasing given by that Act to tenants for life.

The old lawyers generally classified infants, lunatics, and married women together in a rising scale of intelligence. It remains to consider the positions of lunatics.

The Statute de Prœrogativa Regis,3 provided that the King should have the custody of the lands of idiots, subject to his supplying the idiot with necessaries, and returning his lands to his heir at death. It took, however, a fine distinction between idiots and lunatics, providing that with regard to the latter, the King should see that their households were competently maintained out of the rents and profits, any surplus being kept for their use on recovery, or, if they died, distributed for the good of their souls by the advice of the ordinary.

The lunatic, therefore, was in a better position than the idiot, inasmuch as the King appropriated the income of the one, but merely held it as trustee for the other. Moreover, the soul of the lunatic was provided for, while the idiot passed away “unhousel’d, disappointed, unanel’d.” This distinction has for centuries been abolished, but it was not until 1853 that powers of sale, leasing, and so on were conferred on the Lord Chancellor in respect of the estates of persons non compos mentis. The subject is now governed by the Lunacy Act, 1890,1 which confers on the Masters in Lunacy powers to sell, mortgage, improve, and lease the lunatic’s real estate.

(3)

Changes in the law relating to the effect of death on real estate

Let us now turn to the changes in the law relating to the effect of the death of an owner in fee simple. And first as to changes in the law of devolution.

In 1801, if a man died solely seised of real estate in fee simple, his widow was entitled to one-third of it during her life, and of this he could not deprive her either by will or deed, not even by a sale or mortgage of the land. The only method of doing it was by levying a fine with all its delay and cost. This “rusty curb of old Father Antic, the law,” was destroyed by the Dower Act, 1833,2 and now a widow can only claim dower on lands belonging to her husband at his death, and only then with regard to lands which he has not disposed of by his will.

In 1890, however, Parliament gave to certain widows, viz., the widows of persons who die intestate and without issue, a further first charge for £500 payable rateably out of the real and personal estate of the deceased. This Act, called “The Intestates Estates Act, 1890,”3 was the result of several shocking cases where a man having made no will, all his real estate and half his personalty had passed to remote cousins, leaving the widow penniless, or nearly so.

With regard to heirship, at the beginning of the 19th century the matter was governed by a series of rules depending on custom and digested by Lord Hale. Ascendants in the direct line were never admitted. For instance, if a man died intestate, leaving a father and an uncle, the uncle took to the exclusion of the father, on the childish ground that the law presumed that a man got his estate from his ancestors, and that consequently his father must have enjoyed it already. Moreover, half blood was not recognised as giving any right of heirship, and descent was traced from the last person seised. By the Inheritance Act, 1833,1 the matter was codified, descent was thenceforward traced from the last purchaser instead of the last person seised, lineal ancestry were admitted as heirs (although the mother was placed very low down in the list) and the half blood were admitted on fair terms. Finally by the Land Transfer Act, 1897, freehold land now devolves in the first instance on the personal representative in the same manner as leasehold property; but, subject to debts funeral and testamentary expenses, he holds it in trust for the heir or devisee.

But in addition to succession, the effect of death on the liability of real estate to answer the debts of the deceased has been very considerably altered during the past century.

In 1801 the only property of a deceased person recognised as liable for simple contract debts, was the general personal estate. Unless he charged his debts on his real estate, the heir or devisee took it free from all debts except mortgage debts, crown debts, judgments and recognizances and debts arising under deeds in which the heir was expressly mentioned, and not even for such debts if the debtor devised the property to another.

Even in the case of mortgage debts, the heir or devisee, with gross unfairness, was entitled to be indemnified out of the general personal estate of the deceased.

This was a scandalous state of the law according to modern notions, and by various statutes, especially by 3 and 4 Will. IV. c. 104, and 32 and 33 Vict. c. 46, real estate has been made available for payment of debts of all kinds, and debts arising under deeds have not even priority over simple contract ones. Moreover, by the Acts known as Locke King’s Acts,2 where an heir or devisee takes real estate burdened with a mortgage debt or lien, he is to take it cumonere, and is to be no longer entitled to saddle the burden on the personal estate of the deceased—a very excellent extension of the maxim qui sensit commodum debet sentire et onus.

It sometimes happened, however, before these beneficial changes were introduced, that an honest testator charged his real estate with debts by his will, but omitted to give any directions as to how the charge was to be enforced. The executor could not enforce it, for the lands did not vest in him. Even if the real estate was given to trustees they could not sell or mortgage it to raise the charge, unless express directions were given to them to do so; and consequently a Chancery suit was in such cases inevitable. In 1859, however, Parliament passed the Law of Property Amendment Act of that year, which empowered a “devisee in trust” of real estate charged with debts, to raise the sum required by sale or mortgage; and if there were no devisees in trust, then a like power was given to the executors.1 However, this Act only applied where the will contained a charge of debts, and in other cases a Chancery suit was necessary in order to get real estate sold for payment of them. But now, by the Land Transfer Act, 1897, freehold land always devolves on the personal representative, and he is given full power to sell or mortgage it for payment of debts whether expressly charged or not.

While on this subject, I may mention that there was no death duty levied on real estate until 1854, when succession duty was imposed; and now by the Finance Act, 1894, estate duty is added.

(4)

Changes in the Law relating to Limitation and Prescription

So much for changes in the law relating to the acquisition of property by succession. Let us now turn to acquisition by what Continental jurists would call prescription. I say Continental jurists, because English lawyers usually restrict the term prescription to the acquisition, by long user, of easements and profits a prendre in alieno solo; whereas on the Continent, it includes, with better logic, the acquisition of corporeal property by long user under what we call the statutes of limitation.

What was the state of the law as to acquisition by long user at the commencement of the 19th century?

With regard to corporeal hereditaments, the question was practically governed by1 the Statute 32 Hy. VIII. c. 2, by which an undisturbed possession as of right for at least 60 years, was required to bar real actions and writs of right.

This state of the law lasted down to 1833, when the celebrated Statute of Limitations of that year was passed.2 The general result of that Act was as follows:

(1) The period was reduced from 60 to 20 years.

(2) Where a rightful owner sui juris is out of possession, without acknowledgment of his title signed by the party in possession, for 20 years, the Act not only takes away the legal remedies for recovery of possession, but also abolishes his right to the property; so that even if he should recover possession without the aid of the Courts, he would be a trespasser.

(3) The Act made exceptions in favour of persons under disability, and persons beyond the seas, who were to have ten years from the cessor of their disability or return to England in which to assert their rights.

(4) It also provided that the statutory period should not begin to run against persons entitled to future estates or interests until those estates or interests became actually enjoyable in possession.

That was the broad general result of the Act of 1833. In 1874 a new Limitation Act was passed,3 the effect of which was to substitute 12 for 20 years and 6 for the extra 10 allowed to persons under disability, and to take away altogether the exception in favour of persons beyond the seas. Truly a world which was vast in 1833 when ocean steam navigation and telegraphs were unknown, has become so contracted by those great inventions as to make absence beyond the seas little more of a true disability than absence in the Hebrides was in 1833. The rights of future owners are also abridged by the Act of 1874, so that now a reversioner is only allowed 12 years from the time when the previous owner was dispossessed, or six years from the time when he himself became entitled in possession, whichever period may be the longest. Moreover, if the right of one reversioner is once barred, the bar is now made to extend to all subsequent reversioners.

Now, let us turn to the similar but more complex questions in relation to easements and profits à prendre. By the ancient Common Law, an easement or profit, could not be gained by long user. Then, probably in the reign of the third Edward, the Courts, on the analogy of the first Limitation Act,1 laid it down that easements and profits might be gained by mere user traced back as far as 1189 (the first year of the reign of Richard I.). Then (as time progressed and it became impossible to trace back to that date) it was held that user during the memory of living witnesses was sufficient to raise a prima facie case, rebuttable by proof that the user first arose since 1189; by showing, for instance, that both the dominant and servient tenement were owned by the same person at sometime during that period. To meet this, the fiction of a modern lost grant was invented by the Courts, and juries were directed by judges to presume a lost grant where 20 years user was shown. But this fiction still left it open to the owner of the land to rebut the right claimed, by showing that it could not have arisen by grant at all. Thus matters stood at the commencement of the past century.

This fiction, which imposed on juries the finding of a lost grant in which they probably had not the least belief, so shocked Lord Tenterden, that he prepared and piloted through Parliament the Statute known as the Prescription Act, 1833.2 It must, I think, be called an ill-conceived Act, because it leaves it uncertain, even at the present day, whether it relates to all easements, or only to those specifically mentioned; and moreover, it makes time in some cases operate against the owners of future estates (as in the case of easements of light), and not in other cases. It specifies 20 years as the period in some cases, and 30 in others. It did not touch rights in gross, nor profits à prendre except common rights, and it is very doubtful whether it touched easements of support at all. In short, this Act and the statutes of limitation might well be reconsidered in the light of modern decisions, and a new code, dealing with both subjects on one basis, will, let us hope, be one of the great statutes of the new century. It is absurd that while 12 years’ possession should give a right to land, at least 20 should be required to give a right of way over land, that 30 should be required to give a right of common, and that even the testimony of living witnesses should only confer a prima facie right to a fishery or any other profit in alieno solo.

Since the Judicature Act, the theory of a lost grant has been considerably extended in cases of profits not falling within the Prescription Act. The old theory that a lost grant could be rebutted by showing that the right claimed was incapable of being granted at Common Law, has been modified to this extent, that if long enjoyment is shown, the Court will endeavour to presume a lost lawful origin, legal or equitable, even although the right claimed could not have been granted at Common Law. Thus in Goodman v. Corporation of Saltash,1 an equitable right in the inhabitants of Saltash as beneficiaries under a lost charitable trust to fish in the river Tamar was presumed from long user, although no Common Law grant of such a right could be made to a fluctuating body like the inhabitants. The great case of Dalton v. Angus,2 too, has decided, but on what principle is doubtful, that even if the Prescription Act and the theory of lost grant are inapplicable to rights of support, yet a right to support to buildings is acquired somehow by twenty years’ uninterrupted enjoyment. You see, therefore, that whereas in the year 1801 an easement or profit could only be gained by express grant, implied grant, or ancient prescription extending beyond the time of living memory (the implied grant or prescription being rebuttable), such rights may now also be gained as to some under the Prescription Act, and as to others under the new doctrine that a lawful (as distinguished from a legal) origin will be presumed from long user.

(5)

Copyholds and Commons

I must remind you that copyholds are lands forming part of a manor, which have, in theory at all events, been holden from the lord from a period anterior to the statute Quia Emptores (1290), and were for many centuries held by the serfs and villeins of that lord as tenants at will. Gradually the Royal Courts came to recognise a custom, in all manors, of fixity of tenure, subject to the performance of services, and the payment of fines, fees, and heriots. So that, although copyholds are still formally described in all documents relating to them as held at the will of the lord, yet, since the time of Littleton,1 Copyhold tenure has become little more than a very inconvenient form of ordinary tenure—an anachronism and a nuisance, and probably the greatest of all the obstacles to a simplification of the Land Laws. It has long ceased to be held by serfs and villeins, if for no other reason, because serfs and villeins themselves have for centuries ceased to exist. Indeed, it is not unusual nowadays to find that the copyholder is a person of far more social importance than the lord. I myself have known a case where the copyholder was a peer of the realm and the lord of the manor was the local ironmonger.

In the year 1800 copyhold tenure could, as now, be extinguished by merger, viz. (1) by the lord acquiring the tenant’s interest, or (2) by the tenant acquiring the lord’s. The latter is called “enfranchisement.” A tenant could only obtain enfranchisement by the voluntary act of the lord, and where the lord was himself (as was most frequent) a tenant for life of the lordship, he was incapable of enfranchising, except under some express power.

At the commencement of the late Queen’s reign an agitation had sprung up for the compulsory enfranchisement of copyholds, on the ground that the tenure had long since lost its raison d’être; and, by a series of Acts known as the Copyhold Acts (beginning in 1841 and now consolidated in the Copyhold Act, 1894),1 either lord or tenant can, at the present day, insist on the enfranchisement of copyhold lands, the lord’s compensation in case of dispute being settled by the Board of Agriculture. The lord’s right of escheat, and his right to minerals and sporting rights, and the tenant’s right of common, are, however, preserved.

And this brings me to the consideration of the changes in the law relating to Commons.

Whatever the real origin of common lands may have been, it has been settled for centuries that they are the freehold waste lands of the lord of a manor, over which, by ancient custom, prescription, or grant, certain persons called Commoners, have a right in common with the lord himself and others, to a profit à prendre. This profit is of divers kind. Sometimes it is a right to depasture cattle, sometimes to fish, sometimes to cut turf, and so on. At the beginning of the past century the law recognised no one as having any rights in common lands except the lord and the commoners. If they were all of one mind they could enclose the common and divide it among themselves. Moreover, by the Statute of Merton,2 passed in 1265, the lord alone could, without anyone’s consent, enclose part of a common, so long as he left sufficient to satisfy the rights of the commoners. Toward the end of the 18th century an idea sprung up that the total enclosure of commons was desirable in the public interest, on the ground that, thereby, additional land would be brought under cultivation; but, as the unanimous agreement of lord and commoners was not often obtainable, owing to some of the latter being under disability, private Acts of Parliament were usually necessary, and these of course were costly. For this reason Parliament passed a general Enclosure Act in 18451 to “facilitate the enclosure and improvement of commons and lands held in common,” and for other purposes. But this Act and its nine amending Acts only cheapened and facilitated the total enclosure of a common, by providing a cheaper procedure.

By the year 1866 a reaction had set in. The growth of cities and the increase of population had rendered the commons valuable as recreation grounds, while Free Trade had reduced their importance for agricultural purposes. Accordingly in 1866 and 1869, the Metropolitan Commons Acts2 were passed to prevent the enclosure of commons in the neighbourhood of London, and to provide for their management and regulation. In 1876 another Commons Act was passed,3 which, among other things, authorised the Enclosure Commissioners (now merged in the Board of Agriculture) to entertain proposals for the regulation of commons. By Section 8 no enclosure of suburban commons was to be sanctioned, unless the sanitary authorities of towns within six miles were represented before the Commissioners, and special provision was made for the benefit of the inhabitants of such towns. All these Acts related exclusively to complete enclosure, and left untouched the lord’s right under the Statute of Merton to enclose so much of a common as was not required for the exercise by the commoners of their rights. In the year 1888 however that doctrine received a rude blow in the case of Robertson v. Hartopp.4 In that case the Court of Appeal held that the question whether there was a sufficiency of common left, must be determined, not according to the average number of animals which the commoners had for a long period been in the habit of turning out, but according to the aggregate number which they were theoretically entitled to turn out. Moreover the Court queried whether the modern system of sheep farming, according to which sheep do not, while turned out, get all their sustenance from the common, ought to be taken into consideration. As one of the Counsel engaged, wittily observed, the question of sufficiency of common now depends on the problematical hunger of a hypothetical sheep. This case has since been followed by the Commons Act, 1893,1 by which the lord’s right to make a partial enclosure under the Statute of Merton is no longer to be exercised without the consent of the Board of Agriculture, which is to have regard to the same considerations, and if necessary to make the same enquiries as are by the Commons Act, 1876, to be made on an application for the total enclosure of a common. Since this Act has been passed, having regard to the trend of public opinion, it is safe to say that very few enclosures either total or partial have been or will be lawfully made.

(6)

Changes in the Law relating to Tithes

Let us now turn to changes in the law relating to tithes. Tithes consisted of the right to a tenth part of the profits of land. At the beginning of the 19th century they were payable in kind, a most inconvenient practice. By the Tithe Commutation Act, 1836,2 however, a rent charge was substituted, varying with the price of corn.

Between 1880 and 1891 an agitation against payment of this rent charge sprung up among Nonconformist farmers, especially in Wales, and reached such serious proportions (tenants refusing to pay, and submitting rather to have their goods distrained), that Parliament passed the Tithe Act, 1891.3 By this Act tithe rent charge was in future made payable by the owner of land, and any contract between him and his tenant, under which the latter is to pay it, is made void. By this ingenious method the grievance of Nonconformist tenants was “scotched,” without the parsons being deprived of the fund originally provided for their maintenance.

(7)

Landlord and Tenant

The past century witnessed numerous changes in the law relating to landlord and tenant—so many that it is quite impossible to touch upon all of them. The most important relate to distress for nonpayment of rent, relief against eviction or forfeiture for breach of covenants or conditions, and compensation for improvements made by the tenant of agricultural land.

The chief change that has taken place in the law of distress is with reference to lodgers’ goods. Before the year 1871 the landlord of a person who let lodgings could enforce his rent, not merely by distraining the goods of his own tenant (the lodging-house keeper), but also the goods of that tenant’s lodgers. This was, with reason, considered to be very unfair to lodgers; and, consequently, it was enacted by the Lodgers’ Goods Protection Act, 1871,1 that in the event of a lodger’s goods being distrained by his landlord’s landlord, the lodger might, under certain conditions and with certain formalities, require the superior landlord to give them up, under penalty of being adjudged guilty of an illegal distress.

With regard to relief against forfeiture (or eviction as it is more popularly called), the right to evict for nonpayment of rent or breach of covenant is not given to landlords by law. It depends entirely upon contract. For centuries, Courts of Equity have relieved against a condition for eviction on nonpayment of rent, on the terms of the tenant paying the rent in arrear, with interest; and statutory force was given to this doctrine so long ago as the 18th century. But the jurisdiction of Courts of Equity to relieve against forfeiture for breach of covenant was much more restricted, and was practically confined to cases where the breach had occurred through fraud, accident, or mistake. The consequence was, that a man who had let property on a long building lease at a ground rent, could annex the whole of the lessee’s expenditure on the buildings, if the latter happened to commit some comparatively small breach of covenant—for instance, a covenant to keep the buildings in repair or insured. In such cases the penalty was out of all proportion to the fault.

In the year 1859, Courts of Equity were empowered by Lord St. Leonard’s Act,1 to grant relief against forfeiture for breach of a covenant to insure, and that provision was subsequently extended to Courts of Common Law.2

In 1876, and again in 1877 and 1880, Sir Alfred Marten (the chairman of our Board of Studies) carried Bills through the House of Commons for extending equitable relief to lessees who might incur forfeiture for breach of covenant, but for one reason or another these Bills did not become law.

The entire subject is, however, now governed by section 14 of the Conveyancing and Law of Property Act, 1881,3 which provides, that a right of forfeiture for breach of covenant or condition in a lease with certain specific exceptions,4 shall not be enforceable by action, or otherwise, unless, the lessor serves on the lessee a notice, specifying the breach, and requiring the lessee to remedy it, and the lessee makes default in doing so for a reasonable time.

The Court is given power to relieve, on equitable terms as to damages, the granting of an injunction to restrain further breaches, and so on.

Agricultural tenancies have received the particular attention of Parliament during the last quarter of the century—first by the Agricultural Holdings Act, 1875, and subsequently by the similar Act of 1883, which repealed the former. The provisions of this Act (since amended by the Agricultural Holding Act, 1900) are too complicated for me to give them in detail. All I can do is to state shortly the general scheme of the Act with regard to improvements. The general scheme is to make landlords liable to pay to their outgoing tenants compensation for unexhausted improvements. The Act goes into great detail as to the nature of these improvements, as to the mode in which the compensation is to be assessed, and the mode in which its payment is to be enforced. But the persons who framed the Act had to deal with the fact that landlords in England are nearly always only limited owners, that is to say, that the greater part of farm land is in settlement, and the landlord is generally only a tenant for life. It would, therefore, be unjust to make a landlord pay for improvements out of his own pocket without giving him any right to recover the amount paid from the settled estate in the event of his immediate death. The plan adopted in the Act is to make a tenant for life pay the compensation to the outgoing tenant, but to give him a right to obtain a charge upon the settled estate for the amount of the payments so made by him.

The Act of 1883 differs from the previous Act of 1875 in the important particular that the Act of 1883 cannot be negatived by contract, whereas the Act of 1875 might be, and in practice always was.

The law with regard to agricultural fixtures has, also, been modified by statute. The first Act is 14 and 15 Vic. c. 25, sec. 3; but the subject is now governed by section 34 of the Agricultural Holdings Act, 1883, which provides that all agricultural fixtures put up by a tenant after the commencement of the Act may be removed at, or within, a reasonable time after the expiration of the tenancy; but one month’s notice must be given to the landlord of the intention to remove, and the landlord has a right of pre-emption. Honour to whom honour is due. This reform of the law is again due to Sir Alfred Marten, who drafted and piloted through the Commons the clauses to the same effect in the Agricultural Holdings Act, 1875.

(8)

Fusion of Law and Equity

I now come to what at one time seemed to be the most important change of the 19th century in the realm of law, viz., the Judicature Act, 1873. At first it was thought by many that this Act would so completely fuse law and equity as to abolish the protective efficacy of the legal estate, and thereby do away with the necessity of legal conveyances.

It soon, however, became obvious that all the Act did was to fuse the Courts, and not the principles administered by them; that the old distinctions between the legal and equitable estate were still preserved; and that, in fact, persons who acquired the legal estate in property with all the formalities required by common law or statute, were still to be regarded as primâ facie the true owners, unless and until someone else could show that he had a better claim in equity. The purchaser who has been careful to embark in a legal estate, may still regard with a complacent mind a sea of contending equities which might otherwise engulf him. In fact, the main effect of the Judicature Act, so far as the fusion of law and equity is concerned, may be expressed in three lines from King Lear:

• “Thou robed man of justice, take thy place,
• And thou, his yoke fellow of Equity,
• Bench by his side.”

And perhaps it is as well that this was so. In 1875 Parliament purported to take away partially the protective efficacy of the legal estate in the case of mortgages, leaving rival innocent incumbrancers to rank according to the respective dates of their securities. The result was, however, so disastrous to the credit of persons wishing to borrow on mortgage, and particularly to builders and others accustomed to borrow by instalments, that a precipitate retreat had to be made, and the old rule was restored in the next session.1

(9)

The Practice of Conveyancing

So far I have been dealing with the changes in the general law of real estate. I now propose to draw your attention to changes relating to instruments by which the ownership of real estate is transferred from one person to another. Such transfers occur either mortis causa—in plain English, by wills—or inter vivos—i. e. by transfers made by living persons.

In the early part of the 19th century, a will of real estate had, under the provisions of the Statute of Frauds1 to be witnessed by three credible witnesses. If one of them was considered to be “incredible” (for instance if he were a convict, or even if he took beneficially under the will,) the entire will was void. Moreover, every general devise of land spoke from the date of the will, and not from the death of the testator; so that no freehold land acquired after the date of the will passed by it, unless the will was confirmed by a subsequent codicil. A devise of real estate without words of limitation, only prima facie passed a life estate to the devisee—a shocking injustice in the frequent case of an unlearned testator making his own will.

Copyholds, too, could not be devised at all, except by special custom, unless they were surrendered to the lord to uses to be declared by the will, or unless they were vested in trustees; so that, unless the formality of a surrender, or the creation of a previous trust had been effected, the will was useless so far as Copyholds were concerned. This absurdity was removed in 1815, by the Act 55 Geo. III. c. 192, which rendered devises of copyholds, though not surrendered to the use of the testator’s will, as valid as if they had been so surrendered. It conferred no new testamentary power, but merely supplied a simpler form of procedure.

However, the great reform of the century in relation to the law of wills, was made in 1837 by the Wills Act.2 By this Act a will is to be signed in the presence of two witnesses, instead of three, and the credibility of the witnesses is not to affect the validity of the will; but where a witness, or his or her husband or wife, is beneficially interested under the will, the will is good, but the gift to the witness is void. Wills are to speak, with regard to the real and personal estate comprised in them, from the death of the testator, and not, as formerly, from the date of the will. A gift to a child or other issue of the testator, who dies before him, leaving issue, no longer lapses as formerly, but takes effect as if the donee had died immediately after the testator.

The Wills Act also put the subject of revocation of wills on a better footing, providing that, among other acts, marriage should be an effectual (although perhaps an expensive) revocation. The act also made a general devise of lands, to include not only lands belonging to the testator, but also lands over which he has a general power of appointment.

But perhaps the most important change introduced by the Wills Act was the provision that, where real estate is devised to a person without words of limitation, it is to be construed as passing the fee simple, or other the whole estate of the testator, unless a contrary intention shall appear, thereby completely reversing the former rule.

There were other changes introduced by the Wills Act, too numerous or too technical to mention here, but those which I have specified were the most important.

Let us now turn to transfers of real estate by act inter vivos. At the commencement of the 19th century, conveyances of land on sale were usually carried out by the method known as a lease and release. In some cases, however, the time-honoured feofment with livery of seisin continued to be used. As I said in the last lecture, married women could only convey by means of the costly process called a fine, and tenants in tail by the still more costly process of a Common Recovery, for both of which simple deeds were substituted in 1833.

You will remember that the lease and release was an ingenious method of making conveyances without livery of seisin, depending for its efficacy on the Statute of Uses. A vendor first made a bargain and sale of the property to the purchaser for a year in consideration of 5s. Under the Statute of Uses this immediately vested the legal possession in the purchaser. Being thus in legal possession, the reversion which still remained in the vendor, was capable of being released by another deed, in which the true consideration for the transaction appeared. This method required two instruments, and was cumbersome and expensive; and it is astonishing that it took several centuries before its absurdity struck Parliament. It was not until 1841 that any attempt was made to put the matter on a more rational footing. In that year an Act was passed, by which it was provided, that a release, if expressed to be made in pursuance of that Act, should be as effectual as a lease and release. This was absurdly illogical, as a release was essentially an instrument releasing an outstanding right, in favour of one who already had a possessory interest. In 1845 the matter was put on a more satisfactory basis by the Real Property Act1 of that year, by which it was enacted that all corporeal hereditaments should thenceforth “be deemed to lie in grant, as well as in livery.” In other words, the old Common Law theory that actual delivery of possession, or the newer theory that a notional delivery by the aid of the Statute of Uses was necessary to a transfer of freehold land, was swept into the limbo of pedantic rubbish, and a simple deed of grant was made sufficient. This deed of grant is still the common form of conveyance.

Nevertheless, a deed of grant in 1901 is a very differently worded instrument to what it was in 1845. True, the framework is the same. The parties, recitals, and operative part still survive; but they are shorn of that extraordinary splendour of verbiage which distinguished documents, the draftsmen of which were paid at the rate of so much per 72 words.

This latter-day brevity is owing to the Conveyancing and Law of Property Act, 1881,2 not unassisted perhaps by the Solicitors’ Remuneration Act of the same year,3 by which the remuneration of solicitors takes the form of a commission on the purchase money instead of fees varying with the length of the documents. By the first of these Acts all the old and lengthy covenants for title entered into by a vendor were swept away, and implied statutory covenants were substituted. Such covenants now depend upon the capacity in which the vendor is expressed to convey the property. If he purports to convey as beneficial owner, one set of covenants are implied; if as trustee or mortgagee or personal representative, another set.

Moreover, instead of the lengthy covenant to produce deeds and keep them safe, a simple acknowledgment of the right to production, and an undertaking for safe custody, implies elaborate statutory duties in that behalf. In fact, to paraphrase the advertisement of a modern camera, if the practitioner has sufficient intelligence to put in the right catch-words the Act of Parliament does the rest.

I now approach the last branch of the subject, viz., the new system of land transfer, which was practically initiated in 1897. I say practically, because, theoretically it was first started in 1862. But it only became practical in 1897, because it was for the first time made compulsory in certain districts by the Land Transfer Act of that year.1

At present it is in an experimental stage, but although highly unpopular with the profession, I confess that it seems to me to be likely in course of time to supplant the present system. Its object is to cheapen and shorten the investigation which a purchaser or mortgagee of land has now to make by destroying the necessity for a continual repetition of investigations of title on sales or mortgages however closely they may follow each other.

Under the present system a purchaser under an open contract is entitled to have handed to him an abstract of every document affecting the title executed within the past 40 years. This abstract has to be compared with the original documents, the effect of each instrument has or ought to be considered by a lawyer, and deaths, pedigrees, and intestacies proved.

Now if this were done once for all, the expense on each subsequent sale or mortgage would be a trifle; but under the existing system, this expensive investigation has to be repeated ab initio every time that a sale or a mortgage is made.

It is this repeated investigation that registration of title is intended to avoid. The registrar keeps the histories of all titles on his books up to date, so that an intending purchaser or mortgagee has only to ask what the state of the title is, and the registrar is able to tell him at once who is the owner and what incumbrances or restrictions, if any, affect the property.

I am informed that in the U. S. (at all events in New York) the same thing has been effected in a different way by means of insurance companies. There, by payment of a small premium, a landowner can get his title investigated and guaranteed by an assignable policy, and this policy is accepted by purchasers and mortgagees in lieu of any investigation of his title. Some of us may think that this simple expedient might have been tried here; but whether owing to want of enterprise on the part of insurance companies, or what, I know not, I believe it has never been publicly suggested.

The first attempt at registration of title in England was made in 1862 when the late Lord Westbury succeeded in passing an Act to facilitate the proof of title and conveyance of real estate.

This Act was not compulsory. Its fatal defect was that it only provided for the registration of indefeasible titles after strict examination. The result was that Lord Westbury’s Act was practically a dead letter.

The next attempt was made by the late Lord Cairns in the Land Transfer Act, 1875, the broad principle of which was (1) that landowners could register with a mere possessory title, i. e. should not be bound to have their title investigated at all, and (2) that some person (not necessarily the fee simple owner) should be registered as proprietor, trusting to cautions and inhibitions lodged with the registrar, to prevent such registered proprietor (who is in reality a trustee for all persons interested) making away with, or incumbering the property, where he could not legitimately do so. This Act was not compulsory, and, mainly for that reason, was as complete a failure as Lord Westbury’s Act of 1862, and remained practically a dead letter until the present Chancellor promoted and safely piloted through Parliament the Land Transfer Act of 1897. This Act is in form merely supplemental to the Act of 1875, but it is in substance far more important, because, by containing provisions for gradually making the registration of titles compulsory throughout England1 on the occasion of sale, it has supplied the spark of life to the inert mass of the 1875 Act. Very wisely its author did not attempt to frame elaborate details, but reserved powers to refer such details to a Committee of experts who have issued an elaborate code of rules.

Let us examine the details of the new scheme so far as time will permit.

Freehold land (for the Acts do not relate to copyholds, and there are separate provisions as to leaseholds) may be registered with either

• (a) An absolute title,
• (b) A qualified title, or
• (c) A possessory title.

But it may be safely predicted that although section 17 of the Act of 1875 permits and encourages the registrar to give a certificate of absolute title to one who has merely a good holding title, and expressly reserves all questions of boundaries, but few proprietors will elect to register with anything but a possessory title. They did not do so before 1897, and there seems to be no new reason why they should go to the expense and risk under the Act of that year.

What, then, is the effect of registering land with a possessory title? The immediate effect is microscopic. In such cases, all that the registrar can say is—“On such and such a date, A registered this title as a possessory title. Whatever estate, if any, A then had, is now vested in B as his registered successor. But whether A was fee simple owner when he placed the title on the register, I cannot say, nor can I guarantee that the title is free from flaws before that date. You must therefore investigate the title of A up to the date when he first registered it, or else take the risk.” In other words, registration with a possessory title, does not in any way affect or prejudice the enforcement of any estate, right, or interest adverse to the estate of the first registered proprietor. The registrar, on the other hand, will be able to give a guarantee that whatever estate, if any, the first registered proprietor was entitled to, is now vested in the vendor as his successor. And of course, when property has been on the register for 40 or 50 years, so that all probabilities of the first registered proprietor having been a mere life tenant may be disregarded, then, practically, such a registered title will have become as good as an absolute one, and certainly as good as an ordinary marketable one.

The net result is, that until a possessory title has been registered for 40 years at least, it will not be safe to assume that it is a good one, or that a purchaser or mortgagee who fails to investigate the title prior to the first registration will get any relief or compensation if he should be turned out. And this danger is accentuated by the fact (regrettable, I think) that, by rule 18, a person who registers with a possessory title, is not bound to state whether the property is encumbered.

There are three registers to be kept, viz.:

• (1) A Property Register,
• (2) A Proprietorship Register, and
• (3) A Charges Register.

The property register contains a description of the property and refers to a plan, the filing of which is compulsory. The property register also describes all easements and restrictive covenants existing for the benefit of the registered property.

The proprietorship register states whether the title is absolute, qualified, or possessory, specifies the registered proprietor, and contains a note of any cautions, inhibitions, and restrictions affecting his right of disposition.

The charges register shows not only mortgages and other incumbrances, if any, but also servitudes and restrictive covenants, with which the registered land is burdened. (Rules 3, 6, and 7.)

There is no investigation whatever of title on an application to register with a possessory title. Indeed it would swamp the scheme if there were. It has been estimated (and Lord Cairns satisfied himself in 1875, that the estimate was not far wide of the mark) that upwards of 1000 conveyances or mortgages are executed on every working day of the year. If on the registration of these transactions an official investigation had to be made, it is obvious that some thousands of skilled registrars would be needed.

Having regard to the custom of strictly settling estates in this country, and also to the frequency of mortgages, it is clear that in any system of registration of title, these facts must be taken into consideration. Consequently we find that the Act provides not merely that a fee simple owner may be registered as “proprietor,” but also:

• (1) Trustees for sale,
• (2) Mortgages whose power of sale has arisen, and
• (3) Tenants for life.

But in whichever of these capacities a man is registered he becomes (qua the outside public) capable of selling and conveying or charging the fee simple. He is not registered as Trustee Proprietor, as Mortgagee Proprietor, or as tenant for life Proprietor, but simply and solely as proprietor.

You may ask, in that case, what safeguard is there for the beneficiaries, the mortgagor, or the remainderman, as the case may be. What is to prevent this fictitious statutory proprietor from selling the land, and pocketing the proceeds? The answer is, that where these limited owners are the first registered proprietors, then (as I have already mentioned), their proprietorship is by the Acts, made expressly subject to all estates rights and incumbrances existing at the date of that registration. Their position, qua purchasers, is no better and no worse than if he had never registered.

Where, however, a trustee, tenant for life, or mortgagee, is not the first registered proprietor, and the settlement or mortgage was not in existence at the date of the first registration, then, prima facie, the registered proprietor (although only in fact a limited owner) can sell, or convey, or charge the property, and confer a good title on his purchaser or mortgagee. I say prima facie, because the Acts and rules provide means by which the remainder-man (in the case of registered tenant for life proprietors), the beneficiaries (in the case of trustees) and the mortgagor (in the case of mortgagees) may protect themselves against the abuse by a registered proprietor of his statutory powers, viz.: by the registration of cautions, inhibitions, or restrictions.

A caution merely entitles the person giving it to notice of any intended transfer or charge. It is the equivalent of a stop order on a fund in Court. It would appear to be the appropriate safeguard of cestuis que trusts and equitable mortgagees.

An inhibition, while it remains in force, is a complete bar to any registered transfer or charge. It can only be placed on the register with the consent of the registered proprietor or the order of the registrar or the Court.

A restriction is a notification placed on the register with the assent of the registered proprietor, restraining registered transfers or charges without certain consents, or unless purchase money is paid to certain persons. It is apprehended that restrictions and inhibitions will be the appropriate safeguard where trustees for sale, or tenants for life, are the registered proprietors. Take for example the case of a tenant for life; form 6 appended to the rules gives the formal restriction and inhibition in the following words:

“Restriction.—Until further order, no transfer of the land is to be made except on sale or exchange, and the purchase moneys on sale are to be paid to A. B. and C. D., or into Court. No sale of the mansion house and land shown and edged red on the plan attached hereto is to be made without the consent of the said A. B. and C. D., or of the Court, and no charge is to be created without the consent of A. B. and C. D.

Inhibition.—On the death of E. F. (the reg. pro.) no entry is to be made until further order.”

In this form you see that the power of sale and exchange given to tenants for life by the Settled Land Acts is preserved, subject to the conditions annexed by these Acts to the exercise of the power, viz., that the purchase money is to be paid into Court or to two trustees. But, as these Acts give no powers to mortgage except for very restricted purposes, the restriction prevents the tenant for life charging the property, as he would (as registered proprietor) be otherwise capable of doing. Then, again, as the Settled Land Acts prohibit the sale of the principal mansion house without the consent of trustees or Court, the registered restriction provides for that. And, lastly, the inhibition prevents any attempt by the personal representatives of the tenant for life getting themselves placed on the register.

Subject to the safeguards afforded by cautions, inhibitions, and restrictions, however, and to estates, incumbrances, and interests, existing at the date of the first registration of a possessory title, a registered proprietor has full power to confer on a purchaser or chargee, a good title free from the claims of persons whose interests have arisen since the date of the first registration; even (according to section 83 of the 1875 Act as amended by the Act of 1897), although such purchaser or mortgagee has notice of such interests. That provision at first sight seems monstrous, but its bark is worse than its bite, because, as I shall presently show you, any person who is injured, and who has not by carelessness contributed to his injury, will get compensation from the State.

Curiously enough, although a registered proprietor can thus deal with the land itself, so as to defeat the rights of persons who have not entered cautions or restrictions or obtained inhibitions, the Acts do not enable him to create easements or profits with a similarly clear title; so that he who purchases a right of way over land, would, it would seem, have to investigate the title of his vendor to create the right—surely a strange anomaly. Still stranger is the fact (at least it seems to me to be the fact) that although the Acts give a registered proprietor (against whom there are no cautions, inhibitions, or restrictions) full power to alienate the fee simple, they give him (at all events not in express terms) no corresponding power to create unimpeachable leases. A lessee, therefore, who is taking a long term with the view of spending money on property (e. g. under a building or mining lease) will apparently still have to investigate the title of the registered proprietor to grant the lease.

A similar remark applies to all persons whose rights are not in possession. The registered proprietor must always be the man entitled to possession. The Act makes no provision for registering titles in reversion or remainder, or the equitable rights of beneficiaries. If, therefore, a reversioner, or remainder-man, or beneficiary, wishes to sell or mortgage his interest in registered land, the register will be useless to him, and his title will still have to be investigated in the old way.

I now turn to a different branch of the subject. What is to happen where, owing to fraud or mistake, the register does not represent the true state of the title, so that someone has blundered and someone is injured? The answer is, that the injured party will receive compensation from the State. It was one of the many weaknesses of the Act of 1875 that by making the register infallible in favour of purchasers or mortgagees who acted on the faith of it, it threatened the security of landowners whose estates were acquired after the first registration (even of those in possession) without giving them any compensation. A bona fide purchaser for value who got on the register, was apparently secure, even although he claimed under a forged transfer; and the unfortunate true owner, even when in possession, was liable to be ousted without a penny of compensation. This was one of the many reasons why lawyers dissuaded clients from registering their titles under the Act of 1875. The Act of 1897 has recognised the injustice of this, and absolutely safeguards the true owner who is in possession. Any fraudulent or erroneous entry in the register to which he is no party is not to affect him. On the other hand, any other person who is injured by it, will be compensated in money by the State, and the register will be rectified.

Possession is still therefore a strong fortress of the law, but it is not so strong as it has heretofore been; because the register, and not possession, is prima facie evidence of title. So that where the register has been fraudulently or erroneously tampered with, the onus of proof will be shifted to the man in possession.

However, even a true owner who is ousted, will not get compensation where “he has caused or substantially contributed to the loss by his act, neglect, or default”; and the omission to register a sufficient caution or inhibition or other restriction, to protect a mortgage by deposit or other equitable interest, is to be “deemed to be a neglect”1 —a plain hint to beneficiaries to look sharply after their trustees.

In order to make the register, and the register only, the true test of title, sec. 12 of the Act of 1897 contains a very strong and debatable enactment in these words:

“A title to registered land adverse to or in derogation of the title of the registered proprietor shall not be acquired by any length of possession, and the registered proprietor may at any time make an entry or bring an action to recover possession of the land accordingly.” In other words, the Statutes of Limitation are not to apply to registered land. It is true that the section goes on to provide that where a person not on the register, has been in possession for a period sufficient to give him a title under the Statute of Limitations, he may apply to the Court to rectify the register in his favour. But the necessity of commencing active litigation is very different to the acquisition of a title by passive possession; and moreover, the Court is only to rectify the register subject to any rights acquired for valuable consideration on the faith of the register. Here, then, is another assault on the fortress of possession. Registration and not possession will be the nine points of the law in future. Mr. Cherry, in his excellent book on the Acts, points out that the draftsman seems to have confused registration of title and possession. “All that a register can properly do is to show the state of the paper title, and a purchaser or a mortgagee ought to satisfy himself by enquiries on the spot as to whether he will get possession under that paper title. The point is not merely academic. Take the case where A purchases land from B, but owing to some mistake or carelessness of his solicitor plot X is not described in the registered map. A goes into possession, and retains possession of plot X, say, for twenty years, and perhaps builds on it. Plot X all this time remains on the register in B’s name, and on his (B’s) death his executors sell and convey to C, who gets himself registered. Here it seems plain that A, the real owner, will lose plot X, and get no compensation, although if C had taken the simple precaution of asking on the premises, he would have learnt of the mistake.”

So far as to registration. Now a few words as to transfer of registered land. A transfer, then, is to be made under rule 77 by an instrument in a prescribed form.

Here is the form:

• “Land Transfer Acts, 1875 and 1897.
• District . . . .
• Parish . . . . .
• No. of title . . . . .

25th March, 1900. In consideration of £ NA, I, A B, of, etc., hereby transfer to C D, of, etc., the land comprised in the title above referred to.

Signed, sealed, and delivered, etc.”

The transfer being made, the registrar keeps it, and hands to the transferee a scrap of paper called a “land certificate,” which henceforth is his sole evidence of title. The bulky and imposing sheepskin so familiar to us all, on which, in the pompous metaphor of legal writers, a landowner is entitled to sit, will gradually give place to this single attenuated document; so that, apparently, in the fulness of time, the English landowner will become a kind of territorial cherub.

With regard to transmission of registered land on the death of a registered proprietor, the appointment of a real representative by the Act of 1897 has greatly facilitated matters, because it has created a person with whom the registrar can deal.

Where, however, the land is settled, the question is not so simple, and this, I fancy, is where the officials will find the shoe pinches. For instance, where the deceased is only tenant for life, the property does not vest on his death on his real representative, and the registrar has to look to someone else to deal with. Where possible, the trustees of the settlement (if any) are to undertake this duty.

There are, however, many cases where either there are no trustees of a settlement or they are supine. In such cases any person interested may apply for the registration of a new proprietor. In that case (and here the difficulty arises) the registrar must enquire into the terms of the settlement, settle draft restrictions and inhibitions, give notice to the trustees (if any), to the succeeding tenant for life, and such other persons as he may think fit, and, if no valid objection is made, enter the successor as proprietor.

So much for the registration of freehold titles.

The Acts and rules also make provision for the registration of leasehold titles much on the same lines. All I need say on this subject is, that in areas where registration is compulsory all new leases, (and also transfers on sale of all existing leases) having at least 40 years to run, must be registered.

We now come to the very important subject of mortgages of registered land, and, curiously enough, the Acts and rules make no provisions whatever for legal mortgages in the ordinary sense. If a regular legal mortgage is required the only way of creating it is to imitate the present mode of making a mortgage of stocks or shares, viz., to substitute the mortgagee as the registered proprietor, and then to regulate the equitable rights of the parties by a collateral deed, which is not entered or noticed on the register at all.

What the Act of 1875 does do, however, is to create a new kind of statutory mortgage, called a registered charge. This charge is really an equitable charge. It does not pass the legal estate to the chargee, but merely gives him a lien with certain implied covenants for payment of principal and interest, and statutory powers of sale, foreclosure, etc. (Secs. 22-28).

Now, if the land be registered with an absolute or qualified title, these registered charges may be well enough, because they are to rank inter se in order of registration. But where land is registered (as most land will be) with a possessory title, then, as all registered dealings are to be subject to unregistered dealings entered into prior to the date of the first registration, a registered charge will be nothing more or less than an equitable mortgage, which, as we all know, is subject to all prior equitable mortgages and claims, whether known or unknown. That is not a very enticing prospect, and, therefore, I imagine that for many years to come registered charges will be neglected in favour of true legal mortgages, in which the mortgagee will insist upon being placed on the register as proprietor of the land, so as to get the protection of the legal estate, the mortgage itself being regulated by a collateral deed. But in addition to regular mortgages, we all know that there is, under the present system, an important class of equitable mortgages, known as mortgages by deposit of deeds. To the commercial community this is, perhaps, the most important, because it is the way in which a commercial man can instantly, without any delay whatever, raise money from his bankers. He deposits his pile of sheepskins, and the money is at once carried to his credit. How is this to be effected under the new system? The answer is, by deposit of his land certificate (sec. 8 sub-sec. 4 Act of 1897). In one way this new form of mortgage will be a better security than the old one. Under the present system a mortgagee under a deposit of deeds takes subject to all prior equities, whether he has notice of them or not. Under sec. 8 sub-sec. 4 of the Act of 1897 a mortgagee, by deposit of a land certificate, would seem to oust all equities prior to the date of the certificate which are not entered on it, and this would seem to enable a fraudulent trustee whose cestuis que trusts have not entered cautions, to give a valid charge on the trust estate. On the other hand, a mortgagee by deposit of the land certificate, does not gain priority over charges entered since the date of the certificate, and is bound to make enquiries as to subsequent charges, from the registrar, which he can do, however, by telegram. He must also—and this is of the utmost importance—give a notice to the registrar by registered letter or otherwise of his mortgage. Curiously enough, the common case of a mortgage by deposit with a bank, to secure an overdraft, is not specifically dealt with; and it may be plausibly argued that in such cases the banker would have on each occasion of cashing a cheque, to search the register for subsequent incumbrances. I think, however, that this cannot be so, as the effect would be to make such charges absolutely useless, and to dislocate commerce in the most disastrous manner. The true view seems to me to be, that a mortgagee by deposit to secure a current account, having notified his charge to the registrar, may safely continue to make advances until he receives actual notice to stop from a subsequent incumbrancer.

Such is a brief review of the new conveyancing, which, like the new woman, is still somewhat of an experiment. Some nervous practitioners fancy that it is the Banshee whose appearance portends the death of that quiet and respectable figure, the conveyancing counsel. I myself have no such fears. So long as the English land laws retain their present complexity experts will be required to advise upon them; and so long as wills, settlements, and leases, not to mention partnership deeds and contracts, have to be drawn, the wise saying of King Solomon will hold good that “without counsel purposes are disappointed.”

PART IX.

WILLS, DESCENT, MARRIAGE

• 72. The Mediæval Law of Intestacy.Charles Gross
• 73. Executors in Earlier English Law.Oliver Wendell Holmes, Jr.
• 74. The Executor in England and on the Continent.Robert Caillemer
• 75. The Rise of the English Will.Melville Madison Bigelow
• 76. Marriage and Divorce under Roman and English Law.James Bryce

[Other References on the Subjects of this Part are as Follows:

The Testamentary Executor in England and Elsewhere, by R. J. R. Goffin (Yorke Prize Essay, 1899), London, 1891.

Outline of the Development of Probate Law and Probate Jurisdiction in New Hampshire, 1623-1775 (New Hampshire State Papers, 1907, vol. XXXI, Wills and Probates).

Two Essays on Primogeniture, by C. S. Kenny and P. M. Lawrence, London, 1878.

The Origin of Cy Pres, by Joseph Willard (Harvard Law Review, VIII, 69), 1894.

Changes in the Law of Wills and Descent in the United States, by L. M. Daggett (c. VIII, in Two Centuries’ Growth of American Law, Yale Bi-Centenary Studies), 1901.]

[1 ]This Essay was first published in A Century of Law Reform, 1901 (London: MacMillan & Co.), cc. IX, X, pp. 280-340.

[2 ]Barrister of Lincoln’s Inn. M. A. Dublin University, LL. D. 1881; sometime Reader of the Law of Property in the Inns of Court; one of the six Conveyancing Council to the High Court of Justice, 1905.

Other Publications: A Summary of the Law of Torts, 1873, 8th ed. 1905; A Treatise on the Law of Private Trusts, 1878, 6th ed. 1904; Principles of the Law of Partnership, 1899, 2d ed. 1906; Principles of the Interpretation of Wills and Settlements, 1900, 2d ed. 1906 (with Mr. Strahan); General Editor of the Encyclopedia of Forms and Precedents, 16 vols., 1902-1905.

[1 ]Whitby v. Mitchell, 44 Ch. D. 85.

[2 ]Cadell v. Palmer: Tudor’s L. C. Conveyancing, 578.

[1 ]3 and 4 Will. IV. c. 74.

[1 ]Hamlet. Act V. sc. 1.

[2 ]3 and 4 Vict. c. 55 and 8 and 9 Vict. c. 56.

[3 ]27 and 28 Vict. c. 114.

[4 ]33 and 34 Vict. c. 56.

[5 ]34 and 35 Vict. c. 84.

[6 ]19 and 20 Vict. c. 120.

[7 ]40 and 41 Vict. c. 18.

[1 ]45 and 46 Vict. c. 38.

[1 ]8 and 9 Vict. c. 106.

[1 ]3 Ch. D. 393.

[2 ]40 and 41 Vict. c. 33.

[3 ]Tudor’s Leading Cases in Conveyancing, 578.

[4 ]39 and 40 Geo. III. c. 98.

[1 ]41 Ch. D. 532.

[2 ]Re Courtier, 34 Ch. D. 136.

[3 ]Re de Teissier, (1893) 1 Ch. 153.

[1 ]3 and 4 Will. IV. c. 74.

[2 ]34 L. J. Ch. 203.

[3 ]33 and 34 Vict. c. 93.

[4 ]45 and 46 Vict. c. 75.

[1]Lyrics of Lincoln’s Inn.

[2 ]18 and 19 Vict. c. 43.

[3 ]31 and 32 Vict. c. 40 and 39 and 40 Vict. c. 17.

[1 ]40 and 41 Vict. c. 18.

[2 ]44 and 45 Vict. c. 41.

[3 ]17 Ed. II. cc. 9 and 10.

[1 ]53 Vict. c. 5.

[2 ]3 and 4 Will. IV. c. 105.

[3 ]53 and 54 Vict. c. 29.

[1 ]3 and 4 Will. IV. c. 106.

[2 ]17 and 18 Vict. c. 113, 30 and 31 Vict. c. 69, and 40 and 41 Vict. c. 34.

[1 ]22 and 23 Vict. c. 35.

[1 ]No doubt the Limitation Act, 1623, limited the right to bring an action of ejectment to 20 years, but it did not prevent real actions or writs of right being brought within 60.

[2 ]3 and 4 Will. IV. c. 27.

[3 ]37 and 38 Vict. c. 57.

[1 ]3 Ed. I. c. 39.

[2 ]3 and 4 Will. IV. c. 71.

[1 ]7 App. Cas. 633.

[2 ]6 App. Cas. 740.

[1 ]Temp. Ed. IV.

[1 ]57 and 58 Vict. c. 46.

[2 ]20 Hen. III. c. 4.

[1 ]8 and 9 Vict. c. 118.

[2 ]29 and 30 Vict. c. 122, and 32 and 33 Vict. c. 107.

[3 ]39 and 40 Vict. c. 56.

[4 ]43 Ch. D. 484.

[1 ]56 and 57 Vict. c. 57.

[2 ]6 and 7 Will. IV. c. 71, amended by a long series of Acts.

[3 ]54 Vict. c. 8.

[1 ]34 and 35 Vict. c. 79.

[1 ]22 and 23 Vict. c. 35, secs. 4-9.

[2 ]23 and 24 Vict. c. 126, sec. 2.

[3 ]44 and 45 Vict. c. 41.

[4 ]Covenants against assigning or underletting, and covenants in mining leases and conditions for forfeiture on bankruptcy of the tenant. But as to the last see Conveyancing Act, 1892, sec. 3.

[1 ]See 37 and 38 Vict. c. 78, sec. 7, and 38 and 39 Vict. c. 87.

[1 ]29 Car. II. c. 3.

[2 ]1 Vict. c. 26.

[1 ]8 and 9 Vict. c. 106.

[2 ]44 and 45 Vict. c. 41.

[3 ]44 and 45 Vict. c. 44.

[1 ]60 and 61 Vict. c. 65.

[1 ]At present it is confined to the County of London.

[1 ]Act of 1897, sec. 7 sub-sec. 3.