Front Page Titles (by Subject) CHAPTER XVIII.: IV. OF TITLE BY FORFEITURE. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XVIII.: IV. OF TITLE BY FORFEITURE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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IV. OF TITLE BY FORFEITURE.
Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained.
Lands, tenements, and hereditaments may be forfeited in various degrees and by various means: 1. By crimes and misdemesnors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of condition. 6. By waste 7. By breach of copyhold customs. 8. By bankruptcy.
I. The foundation and justice of forfeitures for crimes and misdemesnors, and the several degrees of those forfeitures proportioned to the several offences, have been hinted at in the preceding book;(a) but it will be more properly considered, and more at large, in the fourth book of these commentaries. At present I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following six: 1. Treason. 2. Felony. 3. Misprision of treason. 4. Præmunire. **268]5. Drawing a weapon on a judge, or striking any one in the presence of the king’s principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists.1 But at what time they severally commence, how far they extend, and how long they endure, will with greater propriety be reserved as the object of our future inquiries.2
II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.
1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations,(b) and the religious houses themselves to be principally considered in forming the statutes of mortmain; in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics in cluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses: how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, hath obtained a decisive victory.
By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feodal restraints of alienation were worn away. Yet, in consequence of these it was always, and is still necessary,(c) for corporations to have a license in mortmain *[*269from the crown, to enable them to purchase lands; for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats, and other feodal profits, by the vesting of lands in tenants that can never be attainted or die. And such licenses of mortmain seem to have been necessary among the Saxons, above sixty years before the Norman conquest.(d) But, besides this general license from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his license also (upon the same feodal principles) for the alienation of the specific land. And if no such license was obtained, the king or other lord might respectively enter on the land, so aliened in mortmain, as a forfeiture. The necessity of this license from the crown was acknowledged by the constitutions of Clarendon,(e) in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations.(f) Yet, such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a license could not be obtained) their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate, first conveyed his lands to the religious house, and instantly took them back again to hold as tenant to the monastery; which kind of instantaneous seisin was probably held not to occasion any forfeiture: and then, by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newlyacquired signiory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feodal services, ordained for the defence of the kingdom, were every day visibly withdrawn; that the circulation of landed property from man to man began to *[*270stagnate; and that the lords were curtailed of the fruits of their signiories, their escheats, wardships, reliefs, and the like; and therefore, in order to prevent this, it was ordered by the second of King Henry III.’s great charter,(g) and afterwards by that printed in our common statute-book, that all such attempts should be void, and the land forfeited to the lord of the fee.(h)
But as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, Sir Edward Coke observes,(i) in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bonâ fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edw. I.; which provided, that no person, religious or other whatsoever, should buy or sell, or receive under pretence of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself, any lands or tenements in mortmain: upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and, in default of all of them, the king, might enter thereon as a forfeiture.
This seemed to be a sufficient security against all alienations in mortmain: but as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to bring an *[*271action to recover it against the tenant; who, by fraud and collusion, made no defence, and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right, which are since become the great assurance of the kingdom, under the name of common recoveries. But upon this the statute of Westminster the second, 13 Edw. I. c. 32, enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land, and if the religious house or corporation be found to have it, they shall still recover seisin; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lord’s default. And the like provision was made by the succeeding chapter,(k) in case the tenants set up crosses upon their lands (the badges of knights templars and hospitallers) in order to protect them from the feodal demands of their lords, by virtue of the privileges of those religious and military orders. So careful, indeed, was this provident prince to prevent any future evasions, that when the statute of quia emptores, 18 Edw. I., abolished all subinfeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord,(l) a proviso was inserted(m) that this should not extend to authorize any kind of alienation in mortmain. And when afterwards the method of obtaining the king’s license by writ of ad quod damnum was marked out, by the statute 27 Edw. I. st. 2, it was further provided by statute 34 Edw. I. st. 3 that no such license should be effectual, without the consent of the mesne or intermediate lords.
Yet still it was found difficult to set bounds to ecclesiastical ingenuity; for when they were driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and receiving **272]the actual profits, while the seisin of the land remained in the nominal feoffee; who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it is to these inventions that our practisers are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device; for the statute 15 Ric. II. c. 5 enacts, that the lands which had been so purchased to uses should be amortised by license from the crown, or else be sold to private persons; and that, for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of churchyards, such subtile imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those salutary laws. And, lastly, as during the times of popery, lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore, at the dawn of the reformation, the statute 23 Hen. VIII. c. 10 declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.
But, during all this time, it was in the power of the crown, by granting a license of mortmain, to remit the forfeiture, so far as related to its own rights; and to enable any spiritual or other corporation to purchase and hold any lands or tenements in perpetuity; which prerogative is declared and confirmed by the statute 18 Edw. III. st. 3, c. 3. But, as doubts were conceived at the time of the revolution how far such license was valid,(n) since the kings had no **273]power to dispense with the statutes of mortmain by a clause of nonobstante,(o) which was the usual course, though it seems to have been unnecessary:(p) and as, by the gradual declension of mesne signiories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass; it was therefore provided by the statute 7 & 8 W. III. c. 37, that the crown for the future at its own discretion may grant licenses to aliene or take in mortmain, of whomsoever the tenements may be holden.
After the dissolution of monasteries under Henry VIII., though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years by the statute 1 & 2 P. and M. c. 8, and during that time any lands or tenements were allowed to be granted to any spiritual corporation without any license whatsoever. And, long afterwards, for a much better purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II. c. 3, that appropriators may annex the great tithes to the vicarages; and that all benefices under 100l. per annum may be augmented by the purchase of lands, without license of mortmain in either case; and the like provision hath been since made, in favour of the governors of queen Anne’s bounty.(q) It hath also been held,(r) that the statute 23 Hen. VIII., before mentioned, did not extend to any thing but superstitious uses; and that therefore a man may give lands for the maintenance of a school, a hospital, or any other charitable uses. But as it was apprehended from recent experience, that persons on their death-beds might make large and improvident dispositions even for these good purposes, and defeat the political ends of the statutes of mortmain; it is therefore enacted by the statute 9 Geo. II. c. 36, that no lands or tenements, or money to be laid out thereon, shall *[*274be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after its execution, (except stocks in the public funds, which may be transferred within six months previous to the donor’s death,) and unless such gift be made to take effect immediately, and be without power of revocation: and that all other gifts shall be void.3 The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons than are equal in number to one moiety of the fellows or students, upon the respective foundations.4
2. Secondly, alienation to an alien is also a cause of forfeiture to the crown of the land so alienated; not only on account of his incapacity to hold them, which occasions him to be passed by in descents of land,(s) but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding book.(t)
3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and devest the remainder or reversion,(u) are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee;5 these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate to him in remainder or reversion.(v)6 For which there seem to be two reasons. First, because such alienation amounts to a renunciation of the feodal connection and dependence; it implies a refusal to perform the due renders and services to the lord of *[*275the fee, of which fealty is constantly one: and it tends in its consequence to defeat and devest the remainder or reversion expectant: as therefore that is put in jeopardy by such act of the particular tenant, it is but just that, upon discovery, the particular estate should be forfeited and taken from him, who has shown so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law, which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold or of chattel interests; but if tenant in tail alienes in fee, this is no immediate forfeiture to the remainderman, but a mere discontinuance (as it is called)(w) of the estate-tail, which the issue may afterwards avoid by due course of law:(x) for he in remainder or reversion hath only a very remote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law.(y) For the law will not hurt an innocent lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it, and defeat the interest which he himself has created.
Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; as where a tenant, who holds of any lord, neglects to render him the due services, and, upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord,(z) upon reasons most apparently feodal. And so likewise, if in any court of record the **276]particular tenant does any act which amounts to a virtual disclaimer; if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenant of a superior class;(a) if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like;(b) such behaviour amounts to a forfeiture of his particular estate.
III. Lapse is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary by neglect of the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For it being for the interest of religion, and the good of the public, that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken the patron; who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority)(c) of the council of Lateran,(d) which was in the reign of our Henry the Second, when the bishops first began to exercise universally the right of institution to churches.(e) And therefore, where there is no right of institution, there is no right of lapse: so that no donative can lapse to the ordinary,(f) unless it hath been augmented by the queen’s bounty.(g) But no right of lapse can accrue, when the original presentation is in the crown.(h)
The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar months,(i) (following in this case the computation of the church, and not the usual one of the common law,) and this **277]exclusive of the day of the avoidance.(k) But if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in;(l) for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also if the bishop doth not collate his own clerk immediately to the living, and the patron presents, though after the six months are elapsed, yet his presentation is good, and the bishop is bound to institute the patron’s clerk.(m) For as the law only gives the bishop this title by lapse, to punish the patron’s negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron has also the same advantage if he presents before the archbishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop.(n) For he had no permanent right and interest in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But if the presentation lapses to the king, prerogative here intervenes and makes a difference; and the patron shall never recover his right till the king has satisfied his turn by presentation: for nullum tempus occurrit regi.(o) And therefore it may seem as if the church might continue void forever, unless the king shall be pleased to present; and a patron thereby be absolutely defeated of his advowson. But to prevent this inconvenience, the law has lodged a power in the patron’s hands, of as it were compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron’s clerk, or, after induction, may remove him by quare impedit: but if he does not, and the patron’s clerk dies incumbent, or is canonically deprived, the king hath lost his right, which was only to the next or first presentation.(p)
*[*278In case the benefice becomes void by death, or cession through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can take no advantage by way of lapse.(q) Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the archbishop nor the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months, and hath exceeded his time: for the first step or beginning faileth, et quod non habet principium, non habet finem.(r) If the bishop refuse or neglect to examine and admit the patron’s clerk, without good reason assigned or notice given, he is styled a disturber by the law, and shall not have any title to present by lapse; for no man shall take advantage of his own wrong.(s) Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided.(t)
IV. By simony, the right of presentation to a living is forfeited, and vested pro hac vice in the crown. Simony is the corrupt presentation of any one to an ecclesiastical benefice for money, gift, or reward. It is so called from the resemblance it is said to bear to the sin of Simon Magus, though the purchasing of holy orders seems to approach nearer to his offence. It was by the canon law a very grievous crime: and is so much the more odious, because, as Sir Edward Coke observes,(u) it is ever accompanied with perjury; for the presentee is sworn to have committed no simony. However, it was not an offence punishable in a criminal way at the common law;(w) it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect *[*279the simoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, divers acts of parliament have been made to restrain it by means of civil forfeitures; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, because they devest the corrupt patron of the right of presentation, and vest a new right in the crown.
By the statute 31 Eliz. c. 6, it is for avoiding of simony enacted, that if any patron for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclesiastical benefice or dignity; such presentation shall be void, and the presentee be rendered incapable of ever enjoying the same benefice: and the crown shall present to it for that turn only.(x) But if the presentee dies, without being convicted of such simony in his lifetime, it is enacted by stat. 1. W. and M. c. 16, that the simoniacal contract shall not prejudice any other innocent patron, on pretence of lapse to the crown or otherwise. Also by the statute 12 Anne, stat. 2, c. 12, if any person for money or profit shall procure, in his own name or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, this is declared to be a simoniacal contract; and the party is subject to all the ecclesiastical penalties of simony, is disabled from holding the benefice, and the presentation devolves to the crown.
Upon these statutes many questions have arisen, with regard to what is, and what is not, simony. And, among others, these points seem to be clearly settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious simony:(y) this being expressly in the face of the statute. 2. That for a clerk to bargain for the next presentation, the incumbent being sick and about to die, was simony, even before the statute of queen Anne:(z) and now, by that statute, to purchase, either in his own name or another’s, the next presentation, and be thereupon presented **280]at any future time to the living, is direct and palpable simony. But, 3. It is held that for a father to purchase such a presentation, in order to provide for his son, is not simony: for the son is not concerned in the bargain, and the father is by nature bound to make a provision for him.(a) 4. That if a simoniacal contract be made with the patron, the clerk not being privy thereto, the presentation for that turn shall indeed devolve to the crown, as a punishment of the guilty patron; but the clerk, who is innocent, does not incur any disability or forfeiture.(b) 5. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal,(c) provided the patron or his relations be not benefited thereby;(d) for this is no corrupt consideration, moving to the patron. 6. That bonds of resignation, in case of non-residence or taking any other living, are not simoniacal;(e) there being no corrupt consideration herein, but such only as is for the good of the public. So also bonds to resign, when the patron’s son comes to canonical age, are legal; upon the reason being given, that the father is bound to provide for his son.(f) 7. Lastly, general bonds to resign at the patron’s request are held to be legal:(g) for they may possibly be given for one of the legal considerations before mentioned; and where there is a possibility that a transaction may be fair, the law will not suppose it iniquitous without proof.7 But, if the party can prove the contract to have been a corrupt one, such proof will be admitted, in order to show the bond simoniacal, and therefore void. Neither will the patron be suffered to make an ill use of such a general bond of resignation; as, by extorting a composition for tithes, procuring an annuity for his relation, or by demanding a resignation wantonly or without good cause, such as is approved by the law; as, for the benefit of his own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbent.(h)
*[*281V. The next kind of forfeitures are those by breach or non-performance of a condition annexed to the estate, either expressly by deed at its original creation, or impliedly by law from a principle of natural reason. Both which we considered at large in a former chapter.(i)
VI. 1 therefore now proceed to another species of forfeiture, viz by waste Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail.(k)8
Waste is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive,9 which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance is waste.(l) Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is waste.(m)10 If a house be destroyed by tempest, lightning, or the like, which is the act of Providence, it is no waste: but otherwise, if the house be burned by the carelessness or negligence of the lessee: though now, by the statute 6 Anne, c. 31, no action will lie against a tenant for an accident of this kind.11 Waste may also be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance.(n) Timber also is part of the inheritance.(o) Such are oak, ash, and elm in all places; and in some particular countries, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste.(p)12 But underwood the tenant may cut down at any seasonable time *[*282that he pleases;(q) and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions.(r) The conversion of land from one species to another is waste. To convert wood, meadow, or pasture into arable; to turn arable, meadow, or pasture into woodland; or to turn arable or woodland into meadow or pasture, are all of them waste.(s) For, as Sir Edward Coke observes,(t) it not only changes the course of husbandry, but the evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable, and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value.(u) To open the land to search for mines of metal, coal, &c. is waste; for that is a detriment to the inheritance:(v)13 but if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use;(w) for it is now become the mere annual profit of the land. These three are the general heads of waste, viz., in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value, of the inheritance, is considered by the law as waste.
Let us next see who are liable to be punished for committing waste. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; “si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur.”(x) But in our antient common law the rule was by no means so large; for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishablo in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the *[*283curtesy;(y) and not in tenant for life or years.(z) And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and, if he did not, it was his own default. But, in favour of the owners of the inheritance, the statutes of Marlbridge, 52 Hen. III. c. 23, and of Gloucester, 6 Edw. I. c. 5, provided that the writ of waste shall not only lie against tenants by the law of England, (or curtesy,) and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him for waste, committed. But tenant in tail after possibility of issue extinct is not impeachable for waste; because his estate was at its creation an estate of inheritance, and so not within the statutes.(a) Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account:(b) but it seems reasonable that it should lie for the reversioner, expectant on the determination of the debtor’s own estate, or of these estates derived from the debtor.(c)
The punishment for waste committed was, by common law and the statute of Marlbridge, only single damages;(d) except in the case of a guardian, who also forfeited his wardship(e) by the provisions of the great charter;(f) but the statute of Gloucester directs that the other four species of tenant shall lose and forfeit the place wherein the waste is committed, and also treble damages to him that hath the inheritance. The expression of the statute is, “he shall forfeit the thing which he hath wasted;” and it hath been determined that under these words the place is also included.(g) And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a *[*284house, the whole house shall be forfeited;(h) because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood, (or perhaps in one room of a house, if that can be conveniently separated from the rest,) that part only is the locus vastatus, or thing wasted and that only shall be forfeited to the reversioner.(i)14
VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste: whereupon the lord may seise them without any presentment by the homage;(k) but also to peculiar forfeitures annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vassals, the marks of feodal dominion continue much the strongest upon this mode of property. Most of the offences, which occasioned a resumption of the fief by the feodal law, and were denominated feloniæ, per quas vasallus amitteret feudum,(l) still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service;(m)si dominum deservire noluerit:(n) by disclaiming to hold of the lord, or swearing himself not his copyholder;(o)si dominum ejuravit, i.e. negavit se a domino feudum habere:(p) by neglect to be admitted tenant within a year and a day;(q)si per annum et diem cessaverit in petenda investitura:(r) by contumacy in not appearing in court after three proclamations;(s)si a domino ter citatus non comparuerit:(t) or by refusing, when sworn of the homage, to present the truth according to his oath;(u) **285]si pares veritatem noverint, et dicant nescire, cum sciant.(w) In these and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord’s court-baron:(x)per laudamentum parium suorum;(y) or, as it is more fully expressed in another place,(z)nemo miles adimatur de possessione sui beneficii, nisi convicta culpa, quæ sit laudanda(a)per judicium parium suorum.15
VIII. The eighth and last method whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined; a trader who secretes himself, or does certain other acts tending to defraud his creditors.
Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter; when we shall endeavour more fully to explain its nature as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements is transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.
By statute 13 Eliz. c. 7, the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as *[*286he may lawfully part with,) or purchased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and enrolled, or divide them proportionably among the creditors. This statute expressly included not only free, but customary and copyhold, lands; but did not extend to estates-tail, further than for the bankrupt’s life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I. c. 19 enacts, that the commissioners shall be empowered to sell or convey, by deed indented and enrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remaindermen, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged estates shall be at the disposal of the commissioners; for they shall have power to redeem the same as the bankrupt himself might have done, and after redemption to sell them. And also by this and a former act,(b) all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchaser bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptey committed.
By virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred by his commissioners to their assignees without his participation or consent.16
[(a) ] Book i. page 299.
[1 ] But the statutes of recusancy are now repealed by 31 Geo. III. c. 32, provided papists take the oath prescribed therein.—Chitty.
[2 ] “No attainder of treason against the United States shall work corruption of blood or forfeiture, except during the life of the person attainted.” Const. U. S. art. 3. And when Congress undertook to declare the punishment of treason, and to pass an act for the punishment of crimes against the United States, in which act treason, murder, man slaughter, piracy, larceny, and some other crimes, when committed within the jurisdiction of the United States, were comprehended, they subjoined a clause to the act, declaring that no conviction or judgment for any of the offences therein mentioned shall work corruption of blood or any forfeiture of estate. L. U. S. 1 Cong. 2 sess. c. 9, 24. 1 Story’s Laws U. S. 88.—Sharswood.
[(b) ] See book i. page 479.
[(c) ] F. N. B. 121.
[(d) ] Selden, Jan. Angl. l. 2, 45.
[(e) ]Ecclesiæ de feudo domini regis non possunt in perpetuum dari, absque assensu et consensione ipsius, c. 2, ad 1164.
[(f) ] See book i. page 284.
[(g) ]ad 1217, cap. 43, edit. Oxon.
[(h) ]Non licet alicui de cætero dare terram suam alicui domui religiosæ, ita quod illam resumat tenendam de eadem domo; nec liceat alicui domui religiosæ terram alicujus sic accipere, quod tradat illum ei a quo ipsam recepit tenendam: si quis autem de cætero terram suam domui religiosæ sic dederit, ut super hoc convincatur, donum suum penitus cassetur, ut terra illa domino suo illius feodi [Editor: illegible character]curratur. Mag. Cart. 9 Hen. III. c. 36.
[(i) ] 2 Inst. 75.
[(k) ]Cap. 33.
[(l) ] 2 Inst. 501.
[(m) ]Cap. 3.
[(n) ] 2 Hawk. P. C. 391.
[(o) ] Stat. 1 W. and M. st. 2, c. 2.
[(p) ] Co. Litt. 99.
[(q) ] Stat. 2 & 3 Anne, c. 11.
[(r) ] Rep. 24.
[3 ] A bequest of money to be employed in building upon, or otherwise improving, land already in mortmain, is not considered a violation of the statute. Attorney-General vs. Parsons, 8 Ves. 191. Attorney-General vs. Munby, 1 Meriv. 345. Corbyn vs. French, 4 Ves. 428. And where a testator has pointed out such a mode of applying his bequest in favour of a charity as the policy of the law will not admit, still, if he has left it entirely optional to his executors or trustees to adopt that mode, or to select some other not liable to the same objections, the bequest may be legally carried into effect. Grimmet vs. Grimmet, Ambl. 212. S. C. 1 Dick. 251. Kirkbank vs. Hudson, 7 Price, 217. Curtis vs. Hutton, 14 Ves. 539. Attorney-General vs. Goddard, 1 Turn. & Russ. 350. But, where the testator has used the words of request or recommendation, (not expressly leaving the matter to the discretion of his executors,) those words of request are held to be mandatory, (Taylor vs. George, 2 Ves. & Bea. 378. Paul vs. Compton, 8 Ves. 380. Parsons vs. Baker, 18 Ves. 476;) and if they point to an appropriation of the legacy contrary to the policy of the law, the legacy must fail. Grieves vs. Case, 1 Ves. Jr. 550.
In the Attorney-General vs. Davies (9 Ves. 543) it was justly termed an absurd distinction to say that a testator shall not give land to a charity, yet that he may give money conditionally, in consideration of another’s giving land for a charity. And it is now perfectly well settled, notwithstanding some earlier decisions of lord Hardwicke to the contrary, that, if a testator give personal property “to erect and endow” a school or hospital, it must be considered, unless it be otherwise declared in his will, that it was the testator’s intention land should be acquired, as a necessary part of his purpose, (Chapman vs. Brown, 6 Ves. 408. Attorney-General vs. Davies, 9 Ves. 544;) but, where the testator has expressly directed that no part of the money bequeathed shall be employed in the purchase of land, it being his expectation that other persons will, at their expense, purchase lands and buildings for the purposes intended, there the statute has been held not to apply. Henshaw vs. Atkinson, 3 Mad. 313. So, where a testator’s directions can be sufficiently answered by hiring land or buildings for the purposes of a charity, the bequest may be sustained, (Attorney-General vs. Parsons, 8 Ves. 191. Johnson vs. Swan, 3 Mad. 467;) but it seems such hiring must not be on lease, or it would be an acquisition, by the testator’s directions, of such an interest in lands, tenements, or hereditaments as the third section of the statute prohibits. Blandford vs. Thackerell, 2 Ves. Jr. 241. And where a testator has directed that his real and personal estate shall be employed by the trustees named in his will in the purchase of land and the erection of a school-house thereon, and the subsequent endowment and support of the school so to be erected, the illegality of this gift cannot be cured by an offer, on the part of the trustees or others, to provide at their own expense the land required. Attorney-General vs. Nash, 2 Brown, 588, 595.
Charitable legacies secured by mortgages on lands, (Currie vs. Pye, 17 Ves. 464. Attorney-General vs. Meyrick, 2 Ves. Sen. 46,) or on turnpike-tolls, (Corbyn vs. French, 4 Ves. 380. Howse vs. Chapman, 4 Ves. 545,) or by an assignment of poor-rates or country-rates, (Finch vs. Squire, 10 Ves. 44. The King vs. Bates, 3 Price, 358,) are all void, as is a bequest of navigation-shares to charitable uses, (Buckeridge vs. Ingram, 2 Ves. Jr. 663;) for in each of these cases it has been held that the donation not only savours of the realty, but partakes of it; that a real interest arising out of the soil (though not the soil itself) is attempted to be given; and that this attempt, being in fraud of the statute, cannot be carried into effect.
A bequest to a charity being void so far as it touches any interest in land, it follows upon principle, and, after some fluctuation, (Attorney-General vs. Graves, Ambl. 158,) is now confirmed by repeated decisions, that where a testator has charged his real estate in aid of his personal with payment of all his legacies, there, if the personal estate be not sufficient for payment of the whole, charitable legacies must abate, and receive such average proportion only as the personal assets afford for the discharge of the whole pecuniary legacies. If a court of equity were to marshal the assets, and secure full payment of the charitable legacies, by throwing the other pecuniary legacies upon the testator’s real estate, it would be enabling that to be done circuitously which cannot be done directly. Attorney-General vs. Tyndall, 2 Eden, 210. Waller vs. Childs, Ambl. 526. Foster vs. Blagden, Ambl. 704. Ridges vs. Morrison, 1 Cox, 181.
As the object of the statute of mortmain was wholly political, as it grew out of local circumstances, and was meant to have merely a local operation, it is decided that its provisions do not extend to the alienation of land in the West India colonies (Attorney-General vs. Stewart, 2 Meriv. 161) or in Scotland. Mackintosh vs. Townsend, 16 Ves. 338. But a devise of real estate, situate in England, for charitable purposes, will not be the less void because such purposes are to be carried into execution out of England. Curtis vs. Hutton, 14 Ves. 541.
It has been said that if an heir-at-law will confirm his ancestor’s devise of land to a charity, no court will take it away, for the gift becomes the act and deed of the heir. Attorney-General vs. Graves, Ambl. 158; and see Pickering vs. Lord Stamford, 2 Ves. Jr. 584. However, as an immediate gift from the heir would be good only in case it was made a year before his death, upon the principle of the statute he ought to live a year after confirmation of the devise to give it validity.
When a bequest for charitable purposes which, if it stood alone, would be valid, is coupled with and dependent upon a devise void under the statute of mortmain, the devise being the principal, and failing, the accessory bequest must also fail. Attorney-General vs. Davies, 9 Ves. 543. Chapman vs. Brown, 6 Ves. 410. Attorney-General vs. Goulding, 2 Brown, 429. And where an undefined portion of a legacy is directed by the testator to be applied for purposes which the policy of the law does not admit, the bequest of the residue to a charity which the law sanctions cannot take effect; for, the illegal part of the gift being undefined, it is impossible to ascertain the amount of the residue. Attorney-General vs. Hinxman, 2 Jac. & Walk. 277. Vezey vs. Jamson, 1 Sim. & Stu. 71. Grieves vs. Case, 1 Ves. Jr. 553. If, indeed, the legal bequest and the illegal purpose are not so connected as to be inseparable, and the proportions are defined, or capable of being exactly calculated, in such cases the bequest may be supported. Attorney-General vs. Stepney, 10 Ves. 29. Waite vs. Webb, 6 Mad. 71.
Where a bequest of money to be laid out in land is void under the mortmain act, the money never becomes impressed with the character of land, and no resulting trust arises in favour of the testator’s heir-at-law. Attorney-General vs. Tonner, 2 Ves. Jr. 7. Chapman vs. Brown, 6 Ves. 411.
By the statute of 43 Geo. III. c. 107, the operation of the mortmain act is so far qualified as to allow any one to give, by deed enrolled or by will, any real or personal property for the augmentation of queen Anne’s bounty.
And, by statute 43 Geo. III. c. 108, persons are allowed to give, by deed or will, lands not exceeding five acres, or goods and chattels not exceeding 500l., for the purposes of promoting the building or repairing of churches, or of houses for the residence of ministers, and of providing churchyards or (with certain restrictions) glebes. If such gift exceed the prescribed limits, it is not therefore void: the lord-chancellor may reduce it.
The greater part of this note is extracted from 2 Hoveden on Frauds, 308, 312.—Chitty.
[4 ] By the 45 Geo. III. c. 101, this part of the statute is repealed; so that these colleges may now hold any number of advowsons. But it is said a license from the crown is still necessary when a college purchases an advowson. Many colleges are provided with licenses to purchase to a specified extent, and they have been held valid.
A corporation has, from its nature, a right to purchase lands though the charter contains no license to that purpose. And in this respect the statutes of mortmain have not altered the law, except in case of superstitious uses. But since those statutes, it is necessary, in order to enable a corporation to retain lands which it has purchased, to have a license for that purpose: otherwise, in England, the next lord of the fee may enter within a year after the alienation; and, if he do not, then the next immediate lord, from time to time, has half a year to enter; and for default of all the mesne lords, the king takes the land so aliened forever. But in Pennsylvania, where there are no mesne lords, the right would accrue immediately to the commonwealth. Leazure vs. Hillegas, 7 S. & R. 313. The statutes of mortmain have been extended to that State only so far as they prohibit dedications of property to superstitious uses and grants to corporations without a statutory license. Methodist Church vs. Remington, 1 Watts, 218. “We have not,” says Chancellor Kent, “in this country re-enacted the statutes of mortmain, or generally assumed them to be in force; and the only legal check to the acquisition of lands by corporations consists in those special restrictions contained in the acts by which they are incorporated, and which usually confine the capacity to purchase real estate to specified and necessary objects, and in the force to be given to the exception of corporations, out of the statute of wills, which declares that all persons other than bodies politic and corporate may be devisees of real estate.” 2 Kent’s Com. 282.—Sharswood.
[(s) ] See pages 249, 250.
[(t) ] Book i. page 372.
[(u) ] Co. Litt. 251.
[5 ] Or by recovery. 1 Co. 14, b. But not by lease and release, bargain and sale, &c.; as no estate passes by these conveyances but what may legally pass. The alienation in fee by deed, by tenant for life, &c. of any thing which lies in grant, as an advowson, common, &c., does not amount to a forfeiture, (Co. Litt. 251, b.;) but a fine in fee of such an estate will be a forfeiture, (ibid.;) but the fine of an equitable tenant for life will not work a forfeiture. 1 Prest. Conv. 202. See in general, as to this description of forfeiture, 1 Saund. 319, b. &c.—Archbold.
[(v) ] Litt. 415.
[6 ] But the abolition of fines and recoveries, and the recent enactment (8 & 9 Vict. c. 106, [Editor: illegible character] 4) that no feoffment shall have a tortious operation, have, it seems, made this cause of forfeiture impossible.—Kerr.
[(w) ] See book iii. ch. 10.
[(x) ] Litt. 595, 596, 597.
[(y) ] Co. Litt. 283.
[(z) ] Finch. 270, 271.
[(a) ] Co. Litt. 252.
[(b) ] Ibid. 253.
[(c) ] 2 Roll. Abr. 336, pl. 10.
[(d) ] Bract. l. 4, t. 2, c. 3.
[(e) ] See page 23.
[(f) ] Bro. Abr. tit. Qa. Imped. 3 Cro. Jac. 518.
[(g) ] Stat. 1 Geo. I. st. 2, c. 10.
[(h) ] Stat. 17 Edw. II. c. 8. 2 Inst. 273.
[(i) ] 6 Rep. 62. Regist. 42.
[(k) ] 2 Inst. 361.
[(l) ] Gibs. Cod. 769.
[(m) ] 2 Inst. 273.
[(n) ] 2 Roll. Abr. 308.
[(o) ] Dr. and St. Dial. 2, c. 36. Cro. Car. 355.
[(p) ] 7 Rep. 28. Cro. Eliz. 44.
[(q) ] 4 Rep. 75. 2 Inst. 632.
[(r) ] Co. Litt. 344, 345.
[(s) ] 2 Roll. Abr. 369.
[(t) ] Co. Litt. 344.
[(u) ] 3 Inst. 156.
[(w) ] Moor. 564.
[(x) ] For other penalties inflicted by this statute see book iv. ch. 4.
[(y) ] Cro. Eliz. 778. Moor. 914.
[(z) ] Hob. 165.
[(a) ] Cro. Eliz. 656. Moor. 916.
[(b) ] 3 Inst. 154. Cro. Jac. 385.
[(c) ] Noy, 142.
[(d) ] Stra. 534.
[(e) ] Cro. Car. 180.
[(f) ] Cro. Jac. 248, 274.
[(g) ] Cro. Car. 180. Stra. 227.
[7 ] In the great case of The Bishop of London vs. Ffytche, it was determined by the house of lords that a general bond of resignation is simoniacal and illegal. The circumstances of that case were briefly these. Mr. Ffytche, the patron, presented Mr. Eyre, his clerk, to the bishop of London for institution. The bishop refused to admit the presentation, because Mr. Eyre had given a general bond of resignation: upon this Mr. Ffytche brought a quare impedit against the bishop, to which the bishop pleaded that the presentation was simoniacal and void, by reason of the bond of resignation; and to this plea Mr. Ffytche demurred. From a series of judicial decisions, the court of Common Pleas thought themselves bound to determine in his favour, and that judgment was affirmed by the court of King’s Bench; but these judgments were afterwards reversed by the house of lords. The principal question was this,—viz., whether such a bond was a reward, gift, profit or benefit to the patron under the 31 Eliz. c. 6: if it were so, the stature had declared the presentation to be simoniacal and void. Such a bond is so manifestly intended by the parties to be a benefit to the patron, that it is surprising that it should ever have been argued and decided that it was not a benefit within the meaning of the statute. Yet many learned men are dissatisfied with this determination of the lords, and are of opinion that their judgment would be different if the question were brought before them a second time. But it is generally understood that the lords, from a regard to their dignity, and to preserve a consistency in their judgments, will never permit a question which they have once decided to be again debated in their house. See 1 Bro. 286. The case of The Bishop of London vs. Ffytche is reported at length in Cunningham’s Law of Simony, p. 52.—Chitty.
[(h) ] 1 Vern. 411. 1 Eq. Ca. Abr. 86, 87. Stra. 534.
[(i) ] See ch. x. page 152.
[(k) ] Co. Litt. 53.
[8 ] A tenant for life has no property in timber or underwood till his estate comes into possession, and therefore cannot have an account in equity, or maintain an action of trover at law, for what has been cut wrongfully by a preceding tenant, notwithstanding his own estate, being without impeachment of waste, would have entitled him to cut such timber or underwood and put the produce into his own pocket: the owner of the first estate of inheritance, at the time when the timber was cut, is the party entitled to redress in such case. Pigot vs. Bullock, 1 Ves. Jr. 484. Whitfield vs. Bewit, 2 P. Wms. 241. However, a tenant for life in remainder, though he cannot establish any property in timber actually severed during a prior estate, may bring a bill to restrain waste; and he may sustain such a suit although he has not the immediate remainder, and notwithstanding his estate, whenever it comes into possession, will be subject to impeachment for waste; for, though he will have no right to the timber, he will have an interest in the mast and shade of the trees. So, trustees to preserve contingent remainders may maintain a suit for a similar injunction, even though the contingent remaindermen have not come into esse. Perrot vs. Perrot, 3 Atk. 95. Stansfield vs. Habergham, 10 Ves. 281. Garth vs. Cotton, 3 Atk. 754. It is true that in cases of legal waste, if there be no person capable of maintaining an action before the party who committed the waste dies, the wrong is then without a remedy at common law; but, where the question is brought within the cognizance of equity, those courts say unauthorized waste shall not be committed with impunity; and the produce of the tortious act shall be laid up for the benefit of the contingent remainderman. Marquis of Lansdowne vs. Marchioness Dowager of Lansdowne, 1 Mad. 140. Bishop of Winchester vs. Knight, 1 P. Wms. 407. Anonym. 1 Ves. Jr. 93.—Chitty.
[9 ] Where an estate is given for life, without impeachment of waste other than wilful waste, this will excuse permissive waste. Lansdowne vs. Lansdowne, 1 Jac. & Walk. 523. If the tenant for life, under such a limitation, cut timber, Sir Wm. Grant. M. R., seems to have felt it questionable whether the tenant could appropriate to himself the principal money produced by the sale of such timber, though he held it clear he was entitled to the interest thereof for his life, (Wickham vs. Wickham, 19 Ves. 423. S. C. Cooper, 290;) but, from the case of Williams vs. Williams, (12 East, 220,) it should appear that the tenant for life would have the entire property in timber so cut down.—Chitty.
[(l) ] Hetl. 35.
[(m) ] 4 Rep. 64.
[10 ] Between the heir and executor there has not been any relaxation of the ancient law with regard to fixtures; for there is no reason why the one should be more favoured than the other, or the courts would be disposed to assist the heir and to prevent the inheritance from being dismembered and disfigured. If the inheritance cannot be enjoyed without the things in dispute, the owner could never mean to give them to the executor, as in the case of salt-pans fixed with mortar to a brick floor, and without which the salt-works produce no profit, but if removed are of very little value to the executor, as old materials only. 1 Hen. Bl. 259, n., a. But the courts are more favourable to an executor of a tenant for life against a person in remainder; and therefore they have held that his executor shall have the benefit of a fire-engine erected by a tenant for life, because the colliery might be worked without it, though not so conveniently. 3 Atk. 13. With regard to a tenant for years, it is fully established he may take down useful and necessary erections for the benefit of his trade or manufacture and which enable him to carry it on with more advantage. Bac. Abr. Executor, H. 3. 3 Esp. 11. 2 East, 88. It has been so held in the case of cider-mills. A tenant for years may also carry away ornamental marble chimney-pieces, wainscot fixed only by screws, and such like. But erections for the purposes of farming and agriculture do not come under the exception with respect to trade, and cannot be taken down again. See Elwes vs. Maw, 3 East, 52. And where the tenant has covenanted to leave all buildings, &c., he cannot remove even erections for trade. 1 Taunt. 19. Where a tenant for years has a right to remove erections and fixtures during his lease, and omits doing it, he is a trespasser afterwards for going upon the land, but not a trespasser de bonis asportatis. 2 East, 88. A farmer who raises young fruit-trees on the demised land for filling up his lessor’s orchards is not entitled to sell them, unless he is a nurseryman by trade. 4 Taunt. 316.—Chitty.
In the time of lord Coke the general rule was, that whatever was once annexed to the freehold became part thereof, and could not afterwards be separated but by him who was entitled to the inheritance: to have taken it away would have been waste in any other person. Indeed, the law is thus laid down in all the old, and recognised to have been so in the more modern, cases. This rule, however, has been relaxed, especially in cases between landlord and tenant, and is made more favourable to the latter. When a man, for instance, rents a house, a mill, or a shop, and, for his own convenience, puts stoves in the house, or a packing-press, or elevators in the mill, or a crane and pulley, or other like thing, in the shop, the tenant may remove any of the articles thus put up for his own convenience or advantage. White vs. Arndt, 1 Whart. 91. Raymond vs. White, 7 Cowen, 319. However, even as between landlord and tenant, fixtures erected by the latter, and which he is entitled to remove, must be removed during the term: after the expiration of the term the tenant can neither remove them nor recover their value from the landlord. Shepard vs. Spaulding, 4 Metcalf, 416. The leading English case on this subject is Elwes vs. Maw, 3 East, 52. Lord Ellenborough’s opinion has always been referred to with approbation, as settling the principles of the law in regard to fixtures. He says, “Questions respecting the right to what are ordinarily called fixtures principally arise between three classes of persons. 1st. Between different descriptions of representatives of the same owner of the inheritance, viz., between his heir and executor. In this first case, i.e. as between heir and executor, the rule obtains with the most rigour in favour of the inheritance, and against the right to disannex therefrom, and to consider as personal chattel, any thing which has been affixed thereto. 2dly. Between the executors of tenant for life or in tail and the remaindcrman or reversioner,—in which case the right to fixtures is considered more favourably for executors than in the preceding case between heir and executor. The third case, and that in which the greatest latitude and indulgence has always been allowed in favour of the claim to having any particular article considered as personal chattels as against the claim in respect to freehold or inheritance, is the case between landlord and tenant.”
The privilege of removing fixtures does not hold in general between the owner of the soil and third persons having a vested interest. The owner may, of course, at any time disannex fixtures from the freehold, and by that act make them personalty, but not as against creditors who had acquired a lien upon it as realty. Gray vs. Holdship, 17 S. & R. 413. Morgan vs. Arthurs, 3 Watts, 140. So between vendor and vendee a steam-engine with its fixtures, used to drive a bark-mill, and pounders to break hides in a tannery, pass by a sale of the freehold. Oves vs. Ogilsby, 7 Watts, 106. Despatch Line vs. Bellamy Manufacturing Co., 12 N. Hamp. 205. Indeed, there are some things used with, and necessary to the enjoyment of, the freehold, which form a part of it, though not annexed to it, such as keys; and on the same principle it has been held in many cases that machinery which is a constituent part of a manufactory, for the purpose of which the building has been adapted, without which it would cease to be such manufactory, is part of the freehold though it be not actually fastened to it. Whether fast or loose, all the machinery of a manufactory which is necessary to constitute it, and without which it would not be a manufactory at all, must be regarded as realty and a part of the freehold. Voorhis vs. Freeman, 2 W. & S. 116. Pyle vs. Pennock, 2 W. & S. 390. Butler vs. Page, 7 Metcalf, 40. Rice vs. Adams, 4 Harrington, 332. The old and stricter rule, which looks to annexation as the criterion in such cases, has been adhered to in many other cases. Cresson vs. Stout, 17 Johns. 116. Vanderpoel vs. Allen, 10 Barbour, S. C. 157. Taffe vs. Warwick, 3 Blackf. 111. Bush vs. Baxter, 3 Missouri, 207.—Sharswood.
[11 ] With a proviso, however, that the act shall not defeat any agreement between landlord and tenant. See the statute. But if a lessee covenants to pay rent, and to repair with an express exception of casualties by fire, he may be obliged to pay rent during the whole term, though the premises are burnt down by accident and never rebuilt by the lessor. 1 T. R. 310. Nor can he be relieved by a court of equity, (Anst. 687,) unless perhaps the landlord has received the value of his premises by insuring. Amb. 621. And if he covenants to repair generally, without any express exceptions, and the premises are burnt down, he is bound to rebuild them. 6 T. R. 650.—Chitty.
[(n) ] Co. Litt. 53.
[(o) ] 4 Rep. 62.
[(p) ] Co. Litt. 53.
[12 ] A lessee for life or years, without special covenant, is responsible to his lessor for all injuries amounting to waste done to the premises during his term, by whomsoever those injuries may have been done, with the exception of the acts of God, public enemies, and the acts of the lessor himself. White vs. Wagner, 4 Har. & Johns. 373. Fay vs. Brewer, 3 Pick. 203. It is not waste for a tenant for life to cut down timber-trees for the purpose of making necessary repairs on the estate, and to sell them and purchase boards with the proceeds for such repairs, provided this be proved to be the most economical mode of making the repairs. Loomis vs. Wilbur, 5 Mason, 13. So where land is annexed to a furnace, cutting wood sufficient to supply the furnace is not waste. Den vs. Kinney, 2 South, 552.
What would in England be waste is not always so in the United States. A lessee of wild, uncultivated land has a right to fell part of the timber, so as to fit the land for cultivation; but he cannot destroy all the timber and thereby essentially and permanently diminish the value of the inheritance. Good sense and sound policy, as well as the rules of good husbandry, require that the lessee should preserve so much of the timber as is indispensably necessary to keep the fences and other erections upon the farm in proper repair. In England, that species of wood which is denominated timber shall not be cut down, because felling it is considered as an injury done to the inheritance, and therefore waste. Here, from the different state of many parts of our country, timber may and must be cut down to a certain extent, but not so as to cause an irreparable injury to the reversioner. Jackson vs. Brownson, 7 Johns. 227. Owen vs. Hyde, 6 Yerg. 334. Chase vs. Hazelton, 7 N. Hamp. 171. Kidd vs. Dennison, 6 Barb. Sup. Ct. 9. Davis vs. Gilliam, 5 Ired. Eq. 308. McCullough vs. Irvine, 1 Harris, 438.—Sharswood.
[(q) ] 2 Roll. Abr. 817.
[(r) ] Co. Litt. 41.
[(s) ] Hob. 296.
[(t) ] 1 Inst. 53.
[(u) ] 1 Lev. 309.
[(v) ] 5 Rep. 12.
[13 ] It is in order to prevent irremediable injury to the inheritance that the court of chancery will grant injunctions against waste and allow affidavits to be read in support of such injunctions. The defendant might possibly be able to pay for the mischief done if it could ultimately be proved that his act was tortious; but if any thing is about to be abstracted which cannot be restored in specie, no man ought to be liable to have that taken away which cannot be replaced merely because he may possibly recover (what others may deem) an equivalent in money. Berkeley vs. Brymer, 9 Ves. 356. But, although lord Nottingham (in Tonson vs. Walker, 3 Swanst. 679) intimated that a probability of right might authorize an application for an injunction against waste, this was only an oviter dictum. It is a general rule that, in order to sustain a motion in restraint of waste, the party making the application must set forth and verify an express and positive title in himself, (or in those whose interests he has to support:) a hypothetical or disputed title will not do. Davis vs. Leo, 6 Ves. 787. Whitelegg vs. Blacklegg, 1 Brown, 57. A plaintiff who, after failing in ejectment, comes to equity to restrain waste, stating that the defendant claims by adverse title, it has been stated, states himself out of court. Pillsworth vs. Hopton, 6 Ves. 51. This dictum may perhaps admit occasional qualification, (see Norway vs. Rowe, 19 Ves. 154. Kinder vs. Jones, 17 Ves. 110. Hodgson vs. Dean, 2 Sim. & Stu. 224;) but, clearly, where the title is disputed as between a devisee and the heir-at-law, neither an injunction to stay waste nor a receiver will be granted on the application of either party. Jones vs. Jones, 3 Meriv. 174. Smith vs. Collyer, 8 Ves. 90. It is not, however, to be understood that a plaintiff who, though he has no legal title, has concluded a contract authorizing him to call upon the court to clothe his possession with the legal title, cannot sustain a motion in restraint of waste, provided the defendant’s answer admits such contract. Norway vs. Rowe, 19 Ves. 155.
In general cases, for the purpose of dissolving an injunction granted ex parte, the established practice is to give credit to the answer when it comes in if it denies all the circumstances upon which the equity of the plaintiff’s application rests, and not to allow affidavits to be read in contradiction to such answer. Clapham vs. White, 8 Ves. 36. But an exception to this rule is made in cases of alleged irremediable waste, (Potter vs. Chapman, Ambl. 99,) and in cases analogous to waste, (Peacock vs. Peacock, 16 Ves. 51. Gibbs vs. Cole, 3 P. Wms. 254;) yet, even in such cases, the plaintiff’s affidavits must not go to the question of title, but be confined to the question of fact as to waste done or threatened. Morphett vs. Jones, 19 Ves. 351. Norway vs. Rowe, 19 Ves. 153. Countess of Strathmore vs. Bowes, 1 Cox, 264. And as to matters which the plaintiff was acquainted with when he filed his bill, he ought at that time to have stated them upon affidavit, in order to give the defendant an opportunity of explaining or denying them by his answer, (Lawson vs. Morgan, 1 Price, 306;) though, of course, acts of waste done subsequently to the filing of the bill would be entitled to a distinct consideration. Smythe vs. Smythe, 1 Swanst. 253. And where allegations in an injunction bill have been neither admitted nor denied in the answer, there can be no surprise on the defendant; and it should seem that affidavits in support of those allegations may be read, though they were not filed till after the answer was put in. Morgan vs. Goode, 3 Meriv. 11. Jefferies vs. Smith, 1 Jac. & Walk. 300. Barrett vs. Tickell, Jacob’s Rep. 155. Taggart vs. Hewlett, 1 Meriv. 499.
Neither vague apprehension of an intention to commit waste, nor information given of such intention by a third person, who merely states his belief, but not the grounds of his belief, will sustain an application for an injunction. The affidavits should go (not necessarily, indeed, to positive acts, but at least) to explicit threats. A court of equity never grants an injunction on the notion that it will do no harm to the defendant if he does not intend to commit the act in question. An injunction will not issue unless some positive reasons are shown to call for it. Hanny vs. M’Entire, 11 Ves. 54. Coffin vs. Coffin, Jacob’s Rep. 72.
It was formerly held that an injunction ought not to go against a person who was a mere stranger, and who consequently might, by summary legal process, be turned out of possession of premises which he was injuring. Such a person, it was said, was a trespasser; but, there not being any privity of estate, waste, strictly speaking, could not be alleged against him. Mortimer vs. Cottrell, 2 Cox, 205. But this technical rule is overturned. It is now established, by numerous precedents, that, wherever a defendant is taking the substance of a plaintiff’s inheritance, or committing or threatening irremediable mischief, equity ought to grant an injunction, although the acts are such as, in correct technical denomination, ought rather to be termed trespasses than waste. Mitchell vs. Dors, 6 Ves. 147. Hanson vs. Gardiner, 7 Ves. 309. Twort vs. Twort, 16 Ves. 130. Earl Cowper vs. Baker, 17 Ves. 128. Thomas vs. Oakley, 18 Ves. 186.
Any collusion by which the legal remedies against waste may be evaded will give to courts of equity a jurisdiction over such cases often beyond, and even contrary to, the rules of law. Garth vs. Cotton, 3 Atk. 755. Thus, trustees to preserve contingent remainders will be prohibited from joining with the tenant for life in the destruction of that estate, for the purpose of bringing forward a remainder, and thereby enabling him to gain a property in timber, so as to defeat contingent remaindermen; and wherever there is an executory devise over after an estate for life subject to impeachment of waste, equity will not permit timber to be cut. Stansfield vs. Habergham, 10 Ves. 278. Oxenden vs. Lord Compton, 2 Ves. Jr. 71. So, though the property of timber severed during the estate of a strict tenant for life vests in the first owner of the inheritance, yet, where a party having the reversion in fee is, by settlement, made tenant for life, if he, in fraud of that settlement, cuts timber, equity will take care that the property shall be restored to, and carried throughout all the uses of, the settlement. Powlett vs. Duchess of Bolton, 3 Ves. 377. Williams vs. Duke of Bolton, 1 Cox, 73.—Chitty.
[(w) ] Hob. 295.
[(x) ] Wright, 44.
[(y) ] It was, however, a doubt whether waste was punishable at the common law in tenant by the curtesy. Regist. 72. Bro. Abr. tit. waste, 88. 2 Inst. 301.
[(z) ] 2 Inst. 299.
[(a) ] Co. Litt. 27. 2 Roll. Abr. 820, 828.
[(b) ] Co. Litt. 54.
[(c) ] F. N. B. 58.
[(d) ] 2 Inst. 146.
[(e) ] Ibid. 300.
[(f) ] 9 Hen. III. c. 4.
[(g) ] 2 Inst. 303.
[(h) ] Co. Litt. 54.
[(i) ] 2 Inst. 304.
[14 ] But this remedy at common law has long fallen into disuse, the ends of justice being found to be better answered by a court of equity, which grants an injunction to restrain waste, and an account of the profits made; and very recently, by the 3 & 4 Wm. IV. c. 27, 36, the writ of waste has been abolished. An injunction to restrain waste will be granted at the suit not only of a remainderman in fee-simple or fee tail, but also of a remainderman for life, or of trustees to preserve contingent remainders. Perrott vs. Perrott, 3 Atk. 95. Stansfield vs. Habergham, 10 Ves. 281. This is perhaps the only reason why it is in some cases desirable to have trustees since stat. 8 & 9 Vict. c. 106, 8, cited ante, p. 172, n.—Stewart.
[(k) ] 2 Ventr. 38. Cro. Eliz. 439.
[(l) ]Feud. l. 2, t. 26, in calc.
[(m) ] 3 Leon. 108. Dyer, 211.
[(n) ]Feud. l. 1, t. 21.
[(o) ] Co. Copyh. 57.
[(p) ]Feud. l. 2, t. 34, and t. 26, 3.
[(q) ] Plowd. 372.
[(r) ]Feud. l. 2, t. 24.
[(s) ] 8 Rep. 99. Co. Copyh. 57.
[(t) ]Feud. l. 2, t. 22.
[(u) ] Co. Copyh. 57.
[(w) ]Feud. l. 2, t. 28.
[(x) ] Co. Copyh. 58.
[(y) ]Feud. l. 2, t. 21.
[(z) ] Ibid. t. 22.
[(a) ]i.e. arbitranda, definienda. Du Fresne, iv.
[15 ] It is rather singular that in every instance in which lord Coke on copyholds is cited in this paragraph his authority is directly contradictory of the text. In his fifty-seventh chapter he divides forfeitures into those which operate eo instante and those which must be presented, and then enumerates those of the former class. Under this he ranges, among many others, disclaimer, not appearing after three proclamations, and refusing when sworn to present the truth. In his fifty-eighth chapter he enumerates the second class, and under it places treason, felony, and alienation. It is observable also that the references to Dyer, 211, and 8 Rep. 99, are not in point.—Coleridge.
[(b) ] 1 Jac. I. c. 15.
[16 ] By the Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106, when any person has been adjudged a bankrupt, all lands, tenements, and hereditaments (except copy or customary hold) in any of her majesty’s dominions to which he is entitled, and any disposable interest he may have in any such property, or which may descend or come to him before he obtains his certificate of discharge, become vested in the assignees appointed on behalf of the creditors, in the manner directed by law, by virtue of such appointment alone, and without any deed or conveyance. As for his copy or customary hold lands, power is given to the commissioners in bankruptcy to sell them; and the commissioner is enabled by the Fines and Recoveries Act to bar any estate-tail which the bankrupt may have in any lands, as far as the bankrupt himself might have done the same.
A ninth method of forfeiture—that by insolvency—is of the same nature as that by bankruptcy. By insolvency is here meant generally the inability of a person to satisfy the demands of his creditors. Assignees are appointed either by the Court for the Relief of Insolvent Debtors in London, or by a judge of the country court, to be the depositaries of the estate and effects of the insolvent, and his whole real estate, immediately on such appointment, becomes vested in them without any conveyance in trust for the benefit of the creditors.—Kerr.