The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface By the American Editor.
• A Memoir of Sir William Blackstone,
• Introduction. of the Study, Nature, and Extent of the Laws of England.
• Section I.: On the Study of the Law. †
• Section II.: Of the Nature of Laws In General.
• Section III.: Of the Laws of England.
• Section IV.: Of the Countries Subject to the Laws of England.
• Commentaries On the Laws of England.
• Book the First. of the Rights of Persons.
• Chapter I.: Of the Absolute Rights of Individuals.
• Chapter II.: Of the Parliament.
• Chapter III.: Of the King, and His Title.
• Chapter IV.: Of the King’s Royal Family.
• Chapter V.: Of the Councils Belonging to the King.
• Chapter VI.: Of the King’s Duties.
• Chapter VII.: Of the King’s Prerogative.
• Chapter VIII.: Of the King’s Revenue.
• Chapter IX.: Of Subordinate Magistrates.
• Chapter X.: Of the People, Whether Aliens, Denizens, Or Natives.
• Chapter XI.: Of the Clergy.
• Chapter XII.: Of the Civil State.
• Chapter XIII.: Of the Military and Maritime States.
• Chapter XIV.: Of Master and Servant.
• Chapter XV.: Of Husband and Wife.
• Chapter XVI.: Of Parent and Child.
• Chapter XVII.: Of Guardian and Ward.
• Chapter XVIII.: Of Corporations.
• Book the Second. of the Rights of Things.
• Chapter I.: Of Property, In General.
• Chapter II.: Of Real Property; And, First, of Corporeal Hereditaments
• Chapter III.: Of Incorporeal Hereditaments.
• Chapter IV.: Of the Feodal System.
• Chapter V.: Of the Ancient English Tenures
• Chapter VI.: Of the Modern English Tenures.
• Chapter VII.: Of Freehold Estates of Inheritance.
• Chapter VIII.: Of Freeholds, Not of Inheritance.
• Chapter IX.: Of Estates Less Than Freehold.
• Chapter X.: Of Estates Upon Condition.
• Chapter XI.: Estates In Possession, Remainder, and Reversion.
• Chapter XII.: Of Estates In Severalty, Joint-tenancy, Coparcenary, and Common.
• Chapter XIII.: Of the Title to Things Real, In General.
• Chapter XIV.: Of Title By Descent.
• Chapter XV.: Of Title By Purchase and I. By Escheat.
• Chapter XVI.: II. Of Title By Occupancy.
• Chapter XVII.: III. Of Title By Prescription.
• Chapter XVIII.: IV. Of Title By Forfeiture.
• Chapter XIX.: V. Of Title By Alienation.
• Chapter XX.: Of Alienation By Deed.
• Chapter XXI.: Of Alienation By Matter of Record.
• Chapter XXII.: Of Alienation By Special Custom.
• Chapter XXIII.: Of Alienation By Devise.
• Chapter XXIV.: Of Things Personal.
• Chapter XXV.: Of Property In Things Personal.
• Chapter XXVI.: Of Title to Things Personal By Occupancy.
• Chapter XXVII.: Of Title By Prerogative and Forfeiture.
• Chapter XXVIII.: Of Title By Custom.
• Chapter XXIX.: Of Title By Succession, Marriage, and Judgment.
• Chapter XXX.: Of Title By Gift, Grant, and Contract.
• Chapter XXXI.: Of Title By Bankruptcy.
• Chapter XXXII.: Of Title By Testament, and Administration.
• Appendix.
• No. I.: Vetus Carta Feoffamenti.
• No. II.: Modern Conveyance By Lease and Release.
• No. III.: An Obligation, Or Bond, With Condition For the Payment of Money.
• No. IV.: A Fine of Lands Sur Cognizance De Droit, Come Ceo, &c.
• No. V.: A Common Recovery of Lands With * Double Voucher.

CHAPTER XIX.

V. OF TITLE BY ALIENATION.

The most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense; under which may be comprised any method wherein estates are voluntarily resigned by one man and accepted by another; whether that be effected by sale, gift, marriage, settlement, devise, or other transmission of property by the mutual consent of the parties.

This means of taking estates by alienation is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law,(a) a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of alienation would have been easily frustrated and evaded.(b) And, as he could not aliene it in his lifetime, so neither could he by will defeat the succession by devising his feud to another family; nor even alter the course of it by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir.(c) And therefore it was very usual in antient feoffments to express that **288]the alienation was made by consent of the heirs of the feoffor: or sometimes for the heir-apparent himself to join with the feoffor in the grant.(d) And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vassal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seising of his cattle by the lord of a neighbouring clan.(e) This consent of the vassal was expressed by what was called attorning,(f) or professing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incomplete:(g) which was also an additional clog upon alienations.

But by degrees this feodal severity is worn off; and experience hath shown that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained. The road was cleared in the first place by a law of king Henry the First, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power than over what had been transmitted to him in a course of descent from his ancestors:(h) **289]a doctrine which is countenanced by the feodal constitutions themselves:(i) but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate.(j) Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase-deed, he was not empowered to aliene:(k) and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heir.(l) By the great charter of Henry III.,(m) no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one-half or moiety of the land.(n) But these restrictions were in general removed by the statute of quia emptores,(o) whereby all persons, except the king’s tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion.(p) And even these tenants in capite were by the statute 1 Edw. III. c. 12, permitted to aliene, on paying a fine to the king.(q) By the temporary statutes 7 Hen. VII. c. 3, and 3 Hen. VIII. c. 4, all persons attending the king in his wars were allowed to aliene their lands without license, and were relieved from other feodal burdens. And, lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging lands with the debts of the owner, this was introduced so early as stat. Westm. 2, which(r) subjected a moiety of the tenant’s lands to executions, for debts recovered by law: as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatoribus, made the same year, and in a statute staple by statute 27 Edw. III. c. 9, and in other similar recognizances by statute *[*29023 Hen. VIII. c. 6. And now, the whole of them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed till the abolition of the military tenures. The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till at last they were made no longer necessary to complete the grant or conveyance, by statute 4 & 5 Anne, c. 16; nor sliall, by statute 11 Geo. II. c. 19, the attornment of any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice.1

In examining the nature of alienation, let us first inquire, briefly, who may aliene, and to whom; and then, more largely, how a man may aliene, or the several modes of conveyance.

I. Who may aliene, and to whom: or, in other words, who is capable of conveying and who of purchasing. And herein we must consider rather the incapacity, than capacity, of the several parties: for all persons in possession are prima facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities.2 But, if a man has only in him the right of either possession or property, he cannot convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down and the weak oppressed.(s)3 Yet reversions and vested remainders may be granted; because the possession of the particular tenant is the possession of him in reversion or remainder; but contingencies, and mere possibilities, though they may be released, or devised by will,4 or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest.(t)5

Persons attainted of treason, felony, and præmunire are incapable of conveying, from the time of the offence committed, provided attainder follows:(u) for such conveyance by them may tend to defeat the king of his forfeiture, or the *[*291lord of his escheat. But they may purchase for the benefit of the crown, or the lord of the fee, though they are disabled to hold; the lands so purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime.(w) So also corporations, religious or others, may purchase lands; yet, unless they have a license to hold in mortmain, they cannot retain such purchase, but it shall be forfeited to the lord of the fee.

Idiots and persons of non-sane memory, infants and persons under duress, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases are voidable, but not actually void. The king indeed, on behalf of an idiot, may avoid his grants or other acts.(x) But it hath been said that a non compos himself, though he be afterwards brought to a right mind, shall not be permitted to allege his own insanity in order to avoid such grant: for that no man shall be allowed to stultify himself, or plead his own disability. The progress of this notion is somewhat curious. In the time of Edward I., non compos was a sufficient plea to avoid a man’s own bond:(y) and there is a writ in the register(z) for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suæ, ut dicit, &c. But under Edward III. a scruple began to arise, whether a man should be permitted to blemish himself by pleading his own insanity:(a) and, afterwards, a defendant in assize having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus, as the manner then was) that he was out of his mind when he gave it, the court adjourned the assize; doubting whether, as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked how he came to remember the release, if out of his senses when he gave it.(b) Under Henry VI., this way of **292]reasoning (that a man shall not be allowed to disable himself by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument;(c) upon a question, whether the heir was barred of his right of entry by the feoffment of his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason,(d) the maxim that a man shall not stultify himself hath been handed down as settled law:(e) though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it.(f)6 And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant.(g) And so too, if he purchases under this disability, and does not afterwards, upon recovering his senses, agree to the purchase, his heir may either waive or accept the estate at his option.(h) In like manner an infant may waive such purchase or conveyance when he comes to full age; or, if he does not actually agree to it, his heirs may waive it after him.(i) Persons also, who purchase or convey under duress, may affirm or avoid such transaction whenever the duress is ceased.(j)7 For all these are under the protection of the law; which will not suffer them to be imposed upon through the imbecility of their present condition; so that their acts are only binding in case they be afterwards agreed to, when such imbecility ceases. Yet the guardians or committees of a lunatic, by the statute of 11 Geo. III. c. 20, are empowered to renew in his right, under the directions of the court of chancery, any lease for lives or years, and apply the profits of such renewal for the benefit of such lunatic, his heirs or executors.8

The case of a feme-covert is somewhat different. She may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids *[*293it by some act declaring his dissent.(k) And, though be does nothing to avoid it, or even if he actually consents, the feme-covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement.(l) But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable;(m) and therefore cannot be affirmed or made good by any subsequent agreement.9

The case of an alien born is also peculiar. For he may purchase any thing; but after purchase he can hold nothing10 except a lease for years of a house for convenience of merchandise, in case he be an alien friend;11 all other purchases (when found by an inquest of office) being immediately forfeited to the crown.(n)12

Papists, lastly, and persons professing the popish religion, and neglecting to take the oath prescribed by statute 18 Geo. III. c. 60, within the time limited for that purpose, are, by statute 11 & 12 W. III. c. 4, disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void.(o)13

II. We are next, but principally, to inquire how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired; *[*294which, we have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man’s dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would ensue which property was introduced to prevent. For this purpose therefore of continuing the possession, the municipal law has established descents and alienations; the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons to whom the proprietor, by his own voluntary act, should choose to relinquish it in his lifetime. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred; or with regard to the subject-matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man’s estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.

These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is, (according to the old common law,) upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the king’s public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in its order.

[(a) ] See page 37.

[(b) ]Feud. l. 1, t. 27.

[(c) ] Co. Litt. 94. Wright, 168.

[(d) ] Madox, Formul. Angl. N° 316, 319, 427.

[(e) ] Gilb. Ten. 75.

[(f) ] The same doctrine and the same denomination prevailed in Bretagne—possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attournances et avirances, ut loqui solent; cum vasallus, ejurato prioris domini obsequio et fide, novo se sacramento novo item domino acquirenti obstringebat, idque jussu auctoris. D’Argentre, Antiq. Consuet. Brit. apud Dufresne, i. 819, 820.

[(g) ] Litt. 551.

[(h) ]Emptiones vel acquisitiones suas det cui magis velit. Terram autem quam ei parentes dederunt, non mittat extra cognationem suam. LL. Hen. I. c. 70.

[(i) ]Feud. l. 2, t. 39.

[(j) ]Si questum tanlum habuerit is, qui partem terræ suæ donare voluerit, tunc quidem hoc ei licet: sed non totum questum, quia non potest filium suum hæredem exhæredare. Glanvil. l. 7, c. 1.

[(k) ] Mirr. c. 1, 3. This is also borrowed from the feodal law. Feud. l. 2, t. 48.

[(l) ] Mirr. ibid.

[(m) ] 9 Hen. III. c. 32.

[(n) ] Dalrymple of Feuds, 95.

[(o) ] 18 Edw. I. c. 1.

[(p) ] See pages 72, 91.

[(q) ] 2 Inst. 67.

[(r) ] 13 Edw. I. c. 18.

[1 ] An attornment at the common law was an agreement of the tenant to the grant of the seigniory or of a rent, or of the donee in tail, or tenant for life or years, to a grant of reversion or remainder made to another. Co. Litt. 309, a. And the attornment was necessary to the perfection of the grant. However, the necessity of attornments was in some measure avoided by the statute of uses, as by that statute the possession was immediately executed to the use, (1 Term R. 384, 386,) and by the statute of wills, by which the legal estate is immediately vested in the devisee. Yet attornment continued after this to be necessary in many cases, but both the necessity and efficacy of attornments have been almost totally taken away by the statute 4 & 5 Anne, c. 16, 9, 10, and 11 Geo II. c. 19, 11. The first statute having made attornment unnecessary, and the other having made it inoperative, it is now held not to be necessary either to aver it in a declaration in covenant, or plead it in an avowry or other pleading whatever. Doug. 283, Moss vs. Gallimore. See Mr. Serjt. Williams’s note, 1 Saund. 234, b., n. 4. Under the proviso in the first act, any notice to the tenant of his original landlord having parted with his interest is sufficient; and therefore the tenant’s knowledge of the title of cestuy que trust as purchasor has been held sufficient notice to entitle his trustees to maintain an action of assumpsit for use and occupation as grantees of the reversion against the tenant, who had improperly paid over his rent to a vendor after such knowledge. 16 East, 99. Although the first-mentioned act renders an attornment unnecessary, yet it is still useful for a purchasor to obtain it, because after an attornment he would not in any action against the tenant be compelled to adduce full evidence of his title, (Peake’s Law of Evid. 266, 267,) though the tenant would still be at liberty to show that he had attorned by mistake. 6 Taunt. 202.—Chitty.

[2 ] But it is a rule of law that no person can vest an estate in another against his will; and consequently, if a grantee, lessee, or devisee refuses the estate intended to be vested in him, the grant, lease, or devise will be void. Thompson vs. Leech, 2 Vent. 198. An estate granted or devised to a person for his own benefit is seldom disclaimed; but it often happens that persons who are made grantees or devisees in trust for others decline to act, in which case they may disclaim by deed. See Nicolson vs. Wordsworth, 2 Swanst. 372. Townson vs. Tickell, 3 B. & A. 31. Smith vs. Smith, 6 B. & C. 112. Begbie vs. Crook, 2 Bing. N. C. 70.—Coleridge.

The doctrine maintained by the masterly argument of justice Ventris in Thompson vs. Leach, (2 Vent. 201,) and eventually established by the decision of that case in the house of lords, is, that a common-law conveyance put into the hands of an agent for transmission to the grantee takes effect the instant it is parted with, and vests the title, though the grantee be ignorant of the transaction; and that the rejection of such a grant has the effect of revesting the title in the grantor, it would seem, by a species of remitter. It has been held, therefore, that whenever the conveyance in such a case is in trust, and the grantee refuses to accept, equity, which always protects, where it can without disturbing a legal right, the interests of a cestuy que trust from the acts of the trustee, will support the trust as sufficiently created, and appoint a trustee in the place of him who has refused to accept. Read vs. Robinson, 6 Watts & Serg. 329. Where the grantee does accept, his title relates back to the execution of the deed, and in every case, whether the transfer is to the grantee beneficially or in trust, his acceptance will be presumed until the contrary appear. Wilt vs. Franklin, 1 Binn. 502.—Sharswood.

[(s) ] (Co. Litt. 214.

[3 ] It is a very ancient rule of law that rights not reduced into possession should not be assignable to a stranger, on the ground that such alienation tended to increase maintenance and litigation, and afforded means to powerful men to purchase rights of action and oppress others. Co. Litt. 214, 265, a., n. 1, 232, b., n. 1. Our ancestors were so anxious to prevent alienation of choses or rights in action, that we find it enacted by the 32 Hen. VIII. c. 9 (which, it is said, was in affirmance of the common law, Plowd. 88) that no person should buy or sell, or by any means obtain any right or title to, any manors, lands, tenements, or hereditaments, unless the person contracting to sell, or his ancestor, or they by whom he or they claim the same, had been in possession of the same, or of the reversion or remainder thereof, for the space of one year before the contract; and this statute was adjudged to extend to the assignment of a copyhold estate (4 Co. 26, a.) and of a chattel interest, or a lease for years of land whereof the grantor was not in possession. Plowd. 88. At what time this doctrine, which it is said had relation originally only to landed estates, (2 Woodd. 388,) was first adjudged to be equally applicable to the assignment of a mere personal chattel not in possession, it is not easy to decide: it seems, however, to have been so settled at a very early period of our history, as the works of our oldest text-writers, and the reports, contain numberless observations and cases on the subject. Lord Coke says (Co. Litt. 214, a.; see also 2 Bos. & Pul. 541) that it is one of the maxims of the common law that no right of action can be transferred, “because, under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down and the weak oppressed, which the common law forbiddeth.”—Chitty.

But now, by statute 8 & 9 Vict. c. 106, contingent, executory, and future interests and possibilities, coupled with an interest in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, and rights of entry, whether vested or contingent, may be disposed of by deed; and, by statute 1 Vict. c. 26, estates contingent as to the person, and rights of action and entry, which before were not devisable, may now pass by will.—Kerr.

The ancient policy, which prohibited the sale of pretended titles, and held the conveyance to a third person of lands held adversely at the time to be an act of maintenance, was founded upon a state of society which does not exist in this country. A right of entry was not assignable at common law, because, said lord Coke, “under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down and the weak oppressed.” The repeated statutes which were passed in the reigns of Edward I. and Edward III. against champerty and maintenance arose from the embarrassments which attended the administration of justice in those turbulent times, from dangerous influence and oppression of men in power.

The doctrine that a conveyance by a party out of possession and with an adverse possession against him is void, prevails equally in Connecticut, Massachusetts, Vermont, Maryland, Virginia, North Carolina, Tennessee, Kentucky, Mississippi, Alabama, Indiana, and probably in most of the other States. In some States—such as New Hampshire, Pennsylvania, Ohio, Illinois, Missouri, and Louisiana—the doctrine does not exist; and a conveyance by a disseisee would seem to be good, and pass to the third person all his right of possession and of property, whatever it might be. 4 Kent Com. 457.—Sharswood.

[4 ] It is now well established, as a general rule, that possibilities (not meaning thereby mere hopes of succession, Carleton vs. Leighton, 3 Meriv. 671. Jones vs. Roe, 3 T. R. 93, 96) are devisable; for a disposition of equitable interests in land, though not good at law, may be sustained in equity. Perry vs. Phelips, 1 Ves. Jr. 254. Scawen vs. Blunt, 7 Ves. 300. Moor vs. Hawkins, 2 Eden, 343. But the generality of the doctrine that every equitable interest is devisable requires at least one exception: the devisee of a copyhold must be considered as having an equitable interest therein; but it has been decided that he cannot devise the same before he has been admitted. Wainwright vs. Elwell, 1 Mad. 627. So, under a devise to two persons, or to the survivor of them, and the estate to be disposed of by the survivor by will, as he should think fit, it was held that the devisees took as tenants in common for life, with a contingent remainder in fee to the survivor, but that such contingent remainder was not devisable by a will made by one of the tenants in common in the lifetime of both. Doe vs. Tomkinson, 2 Mau. & Sel. 170.—Chitty.

[(t) ] Sheppard’s Touchstone, 238, 239, 322. 11 Mod. 152. 1 P. Wms. 574. Stra. 132.

[5 ] Mr. Ritso remarks that, independently of thus confounding contingencies and mere possibilities, as if they were in pari ratione,—which they certainly are not,—there is here a great mistake; first, in describing mere possibilities to be such as may be released or devised by will, &c.; and, secondly, in supposing devisable possibilities to be incapable of being assigned to a stranger. For, in the first place, there is this wide difference between contingencies (which import a present interest of which the future enjoyment is contingent) and mere possibilities, (which import no such present interest,) namely, that the former may be released in certain cases, and are generally descendible and devisable, but not so the latter. Suppose, for instance, lands are limited (by executory devise) to A. in fee, but if A. should die before the age of twenty-one, then to C. in fee: this is a kind of possibility or contingency which may be released or devised, or may pass to the heir or executor, because there is a present interest, although the enjoyment of it is future and contingent. But where there is no such present interest as the hope of succession which the heir has from his ancestor in general, this, being but a mere or naked possibility, cannot be released or devised, &c. Fearne, 366.

Secondly, contingencies or possibilities which may be released or devised, &c. are also assignable in equity, upon the same principle; for an assignment operates by way of agreement or contract, which the court considers as the engagement of the one to transfer and make good a right and interest to the other. As where A., possessed of a term of 1000 years, devised it to B. for 50 years, if she should so long live, and after her decease to C., and died; and afterwards C. assigned to D.; now, this was a good assignment, although the assignment of a possibility to a stranger. The same point was determined, in the case of Theobald vs. Duffay in the house of lords, March, 1729-30. Ritso, Introd. 48.—Sharswood.

[(u) ] Co. Litt. 42.

[(w) ] Ibid. 2.

[(x) ] Co. Litt. 247.

[(y) ] Britton, c. 28, fol. 66.

[(z) ] Fol. 228. See also Memorand. Scacch. 22 Edw. I. (prefixed to Maynard’s Year-book, Edw. II.) fol. 23.

[(a) ] 5 Edw. III. 70.

[(b) ] 35 Assis. pl. 10.

[(c) ] 39 Hen. VI. 42.

[(d) ] F. N. B. 202.

[(e) ] Litt. 405. Cro. Eliz. 398. 4 Rep. 123. Jenk. 40.

[(f) ] Com. 469. 3 Mod. 310, 311. 1 Eq. Ca. Abr. 279.

[6 ] This doctrine does not seem to prevail in our ecclesiastical courts; for in Turner vs. Meyers, 1 Hagg. 414, lord Stowell annulled a marriage by reason of insanity of the husband, the husband himself being the promovent in the suit: and his lordship says expressly, “It is, I conceive, perfectly clear in law that a party may come forward to maintain his own past incapacity.” This case is entitled to the more consideration because the suit had been first instituted by Turner’s father, probably with a view to this very objection, and lord Stowell then dismissed it.

And the student will understand the rule even in our common-law courts to be restrained to the party’s specially pleading his own insanity on the record; because I imagine it to be quite clear that any one may show himself in evidence to have been in such a state at the time of an act done as that the act itself is void. As if A., a lunatic, seals a bond and is sued upon it, when he recovers his intellect he may plead that it is not his bond, and show his incapacity at the time of sealing it.—Coleridge.

The party himself may set up as a defence and in avoidance of his contract that he was non compos mentis when it was alleged to have been made. The principle advanced by Littleton and Coke that a man shall not be heard to stultify himself has been properly exploded, as being manifestly absurd and against natural justice. 4 Kent Com. 451.—Sharswood.

[(g) ] Perkins, 21.

[(h) ] Co. Litt. 2.

[(i) ] Ibid.

[(j) ] 2 Inst. 483. 5 Rep. 119.

[7 ] Where a deed has been prepared in pursuance of personal instructions of the conveying party, yet if it be proved that such party, though appearing to act voluntarily, was in fact not a free agent, but so subdued by harshness and cruelty that the deed spoke the mind, not of the party executing, but of another, such deed cannot in equity stand, though it may be difficult to make out a case of legal duress. Peel vs. —, 16 Ves. 159, citing Lady Strathmore vs. Bowes, 1 Ves. Jr. 22. When the execution of a deed is prevented or compelled by force or artifice, equity will give relief (Middleton vs. Middleton, 1 Jac. & Walk. 96) in favour of a volunteer, and even, in some cases, as against innocent parties, (Mastaer vs. Gillespie, 11 Ves. 639;) for it would be almost impossible ever to reach a case of fraud, if third persons were allowed to retain gratuitous benefits which they had derived from the fraud, imposition, or undue influence practised by others. Huguenin vs. Bazeley, 14 Ves. 289. Stillwell vs. Wilkins, Jacobs’s Rep. 282. Still, it would be pushing this principle too far to extend it to innocent purchasors, (Lloyd vs. Passingham, Coop. 155:) it is only when an estate has been obtained by a third person without payment, or with notice of fraud, that a court of equity will take it from him to restore it to the party who has been defrauded of it, (Mackreth vs. Symmons, 15 Ves. 340;) a bonâ fide purchasor, for valuable consideration and without notice, will not be deprived of the advantage which his legal title gives him. Jerrard vs. Saunders, 2 Ves. Jr. 457.—Chitty.

[8 ] And by virtue of the statute of 29 Geo. II. c. 31, the committee of a lunatic may surrender existing leases in order to obtain renewals thereof, to the same uses, and liable to the same trusts and conditions, as the former leases. By the statute of 43 Geo. III. c. 75, the sale or mortgage of the estates of lunatics is authorized for certain purposes; and it is enacted that committees may not only grant leases of tenements in which a non compos has an absolute estate, but, where the lunatic has a limited estate with a power of granting leases on fines, for lives or years, such power may be executed by his committee under the direction of the great seal. This power is extended to lands in ancient demesne by statute 59 Geo. III. c. 80, and the power of selling or mortgaging the estates of lunatics, given by the statute of 43 Geo. III. c. 75, is extended by the 9 Geo. IV. c. 78, and may be exercised for any such purposes as the lord chancellor shall direct.

Where estates are vested in trustees who are infants, idiots, lunatics, or trustees of unsound mind, or who cannot be compelled or refuse to act, the conveyance and transfer of such estates is provided for by the statute of 6 Geo. IV. c. 74, which consolidates and amends the previous enactments on the subject.—Chitty.

[(k) ] Co. Litt. 3.

[(l) ] Co. Litt. 3.

[(m) ] Perkins, 154. 1 Sid. 120.

[9 ] The rule laid down in the text must be understood with some obvious qualifications. The possession by a married woman of property settled to her separate use may, as a necessary incident, carry with it the right of disposition over such property. Rich vs. Cockell, 9 Ves. 375. Fettiplace vs. Gorges, 1 Ves. Jr. 49. Tappenden vs. Walsh, 1 Phillim. 352. Grigby vs. Cox, 1 Ves. Sen. 518. Bell vs. Hyde, Prec. in Cha. 330. A court of equity has no power to set aside, but is bound to give effect to, a disposition made by a feme covert of property settled to her separate use, though such disposition be made in favour of her husband, or even of her own trustee; notwithstanding it may be plain that the whole object of the settlement in the wife’s favour may be counteracted by this exercise of her power. Pybus vs. Smith, 1 Ves. Jr. 194. Parkes vs. White, 11 Ves. 221, 222. Jackson vs. Hobhouse, 2 Meriv. 487. Nantes vs. Corrock, 9 Ves. 189. Sperling vs. Rochfort, 8 Ves. 175. Sturgis vs. Corp, 13 Ves. 190. Glyn vs. Baxter, 1 Younge & Jerv. 332. Acton vs. White, 1 Sim. & Stu. 432. And the assent of trustees to whom property is given for the separate use of a married woman is not necessary to enable her to bind that property as she thinks fit, unless such assent is required by the instrument under which she is beneficially entitled to that property. Essex vs. Atkins, 14 Ves. 547. Brown vs. Like, 14 Ves. 302. Pybus vs. Smith, 1 Ves. Jr. 194.

So, as Mr. Sugden, in the 3d chapter of his Treatise on Powers, adduces numerous authorities to prove, it has long been settled that a married woman may exercise a power over land, or, in other words, direct a conveyance of that land, whether the power be appendant, in gross, or simply collateral, and as well whether the estate be copyhold or freehold. Doe vs. Staple, 2 T. R. 695. Tomlinson vs. Dighton, 1 P. Wms. 149. Hearle vs. Greenbank, 3 Atk. 711. Peacock vs. Monk, 2 Ves. Sen. 191. Wright vs. Englefield, Ambl. 473. Driver vs. Thompson, 4 Taunt. 297. And it would operate palpable injustice if where a married woman held property in trust as executrix, or en autre droit, she could not convey and dispose of the same as the duties of her trust required. Scammel vs. Wilkinson, 2 East, 557. Perkins, ch. i. 7.

No doubt the separate estate of a feme covert cannot be reached as if she were a feme sole, without some charge on her part, either express or to be implied. It seems, however, to be settled, notwithstanding the dislike of the principle which has been often expressed, (Jones vs. Harris, 9 Ves. 497. Nantes vs. Corrock, 9 Ves. 189. Heatley vs. Thomas, 15 Ves. 604,) that when a wife joins with her husband in a security, this is an implied execution of her power to charge her separate property, (Greatley vs. Noble, 3 Mad. 94. Stuart vs. Lord Kirkwall, 3 Mad. 389. Hulme vs. Tennant, 1 Brown, 20. Sperling vs. Rochford, 8 Ves. 175;) and by joining in a sale with her husband by fine, a married woman may clearly come under obligations affecting her separate trust-estate. Parkes vs. White, 11 Ves. 221, 224. A court of equity will certainly not interfere without great reluctance, for the purpose of giving effect to the improvident engagement of a married woman, for the accommodation of her husband; but where it appears in evidence that she was a free agent, and understood what she did, when she engaged her separate property, a court of equity, it has been held, is bound to give effect to her contract, (Essex vs. Atkins, 14 Ves. 547;) or rather, perhaps, it may be more correctly put to say, that although a feme covert cannot by the equitable possession of separate property acquire a power of personal contract, yet she has a power of disposition as incident to property, and her actual disposition will bind her. Aguilar vs. Aguilar, 5 Mad. 418. The distinction between the mere contract or general engagement of a married woman and an appropriation of her separate estate has been frequently recognised. Power vs. Bailey, 1 Ball. & Beat. 52. She can enter into no contract affecting her person: the remedy must be against her property. Sockett vs. Wray, 4 Brown, 485. Francis vs. Widville, 1 Mad. 263.

Where her husband is banished for life, (Countess of Portland vs. Prodgers, 2 Vern. 104,) or, as it seems, is transported beyond the seas, (Newsome vs. Bowyer, 3 P. Wms. 38. Lean vs. Schutz, 2 W. Bla. 1198,) or is an alien enemy, (Deerly vs. Duchess of Mazarine, 1 Salk. 116; and see Co. Litt. 132, b., 133, a.,) in all these cases it has been held that it is necessary the wife should be considered as a feme sole.—Chitty.

A married woman might formerly have conveyed an interest in lands by fine or recovery. Under the statute 3 & 4 Wm. IV. c. 75, she is enabled to dispose of lands by deed, and to release or extinguish any interest therein, as effectually as if she were a feme sole. But no such disposition can be made without the concurrence of her husband; and the deed, when made, must be acknowledged by her before a judge of the superior or county courts, or before a commissioner appointed for the purpose of taking such acknowledgments, by whom she is examined apart from her husband as to her voluntary consent to the deed. The court of chancery has also long recognised the power of a feme covert to deal at her own pleasure with property vested in trustees for her separate use, provided the settlement itself does not restrain her from alienation; and equity also recognises her contracts relating to such property.—Kerr.

It has been held, however, wherever the wife has a separate estate secured to her by a deed of trust she can exercise no power over the estate except what is clearly given to her by the deed. The Methodist Episcopal Church vs. Jaques, 3 Johns. Ch. Rep. 108. Lancaster vs. Dolan, 1 Rawle, 231.—Sharswood.

[10 ] “If,” says lord Coke, (Co. Litt. 2, a. b., Com. Dig. Aliens, C. 2, see the reasons, Bac. Abr. Aliens, C.,) “an alien purchase houses, lands, tenements, or hereditaments, to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee-simple, but not to hold; for upon office found—that is, upon the inquest of a proper jury—the king shall have it by his prerogative of whomsoever the land is holden; and so it is if the alien doth purchase land and die, the law doth cast the freehold and inheritance upon the king.” And if an alien purchase to him and the heirs of his body, he is tenant in tail; and if he suffer a recovery, and afterwards an office is found, the recovery is good to bar the remainder, (9 Co. 141. 2 Roll. 321. 4 Leon. 84. Com. Dig. Aliens, C. 2;) but the estate purchased by an alien does not vest in the king till office found, until which the alien is seised and may sustain actions for injuries to the property. 5 Co. 52, b. 1 Leonard, 47. 4 Leon. 82. Com. Dig. Aliens, C. 4. But though an alien may take real property by purchase, yet he cannot take by descent, by dower, or by the curtesy of England, which are the acts of the law; for the act of law, says Sir Edward Coke, (7 Co. 25, a. Com. Dig. Aliens, C. 1. Bac. Abr. Aliens, c. 2 Bla. Com. 249,) giveth the alien nothing. Therefore, by the common law, (Co. Litt. 8, a.,) an alien could not inherit to his father, though the father were a natural-born subject; and the statutes have made no alteration in this respect in favour of persons who do not obtain denization or naturalization. So that an alien is at this day excluded not only from holding what he has taken by purchase, after office found, but from even taking by descent at all; and the reason of this distinction between the act of the alien himself, by which he may take but cannot hold, and the act of the law, by which he cannot even take, is marked by lord Hale, in his judgment in the case of Collingwood vs. Pace, 1 Ventr. 417, where he says, though an alien may take by purchase by his own contract that which he cannot retain against the king, yet the law will not enable him by act of his own to transfer by hereditary descent, or to take by an act in law; for the law, quæ nihil frustra, (which does nothing in vain,) will not give an inheritance or freehold by act in law, for he cannot keep it.

The general rule of the law therefore appears to be, that an alien by purchase, which is his own act, may take real property, but cannot hold it; by descent, dower, or curtesy, or any other conceivable act of the law, he cannot even take any lands, tenements, or hereditaments whatsoever, much less hold them. The reason of the law’s general exclusion of aliens we have seen, ante, 1 book, 371, 372.—Chitty.

[11 ] In former times no alien was permitted even to occupy a house for his habitation; and the alteration in that law was merely in favour of commerce and merchants. See 1 Rapin, Hist. Eng. 361, n. 9. Bac. Abr. Aliens, C.—Chitty.

[(n) ] Co. Litt. 2.

[12 ] But not before the inquest, (5 Co. 52, b.;) and if the purchase be made with the king’s license, there can be no forefeiture. 14 Hen. IV. 20. Harg. Co. Litt. 2, b., n. 2.—Chitty.

But alien friends are now, by stat. 7 & 8 Vict. c. 66, enabled to take and hold lands, for residence or business, for twenty-one years; and a person born out of the kingdom whose mother is a natural-born subject, is enabled to take any estate by devise, purchase, inheritance, or succession.—Kerr.

[(o) ] 1 P. Wms. 354.

[13 ] But these disabilities have now been entirely swept away. 10 Geo. IV. c. 7. 2 & 3 Wm. IV. c. 115.—Kerr.