The Online Library of Liberty

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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 10

CONVEYANCES

ANGLO-SAXON CHARTERS

The Anglo-Saxon form of conveyance was at first extremely elaborate and was imitated from continental models.1 Whether, like them, it acted as a conveyance, that is to say, transferred the complete title without the requirement of any further ceremonies, it is very difficult to say.2 Of the transfer of folkland it is even less possible to speak with confidence, since in the ordinary course of events it seems to have been effected without charter or written document. Such traces as we have seem to indicate a ceremonial transfer accompanied by great publicity, sometimes in the county court and more frequently in the hundred court. At the same time we find the appearance of festermen, whose function is particularly obscure.3 If we may venture a guess, it would be that they partly represent the borh or surety whose presence so frequently rendered an Anglo-Saxon contract a three-cornered affair.

Towards the end of the Anglo-Saxon period the elaborate charter is replaced by a simpler form which modern historians call a “writ-charter”. This is derived from the administrative writ and was originally merely a letter of instructions sent by the king to some official. This brief and convenient form was soon used for all sorts of purposes. From this single ancestor are derived the charter and letters patent which are the form of a good many grants of property and privileges, including the Great Charter; so, also, the letters close which were the great administrative instrument in the middle ages; likewise the original writs on which the forms of action were based; and so, too, the conventional forms of conveyance used by private persons.

POST-NORMAN CHARTERS

When we come to the Anglo-Norman age we find that already the law had made a great decision. It is clearly recognised that a deed does not operate as a conveyance, but is simply evidence. With the decline of the Anglo-Saxon charter, according to one view,1 we therefore reach the end of a brief period during which a document was capable of transferring rights, and a return to the more ancient native practice which insisted upon an actual delivery of chattels or livery of seisin of land. We have already remarked, however, that the existence of this momentary aberration has not yet been clearly established.2 In any case, the importance of the deed is much reduced, and in the Anglo-Norman age there can be no doubt that a great deal of land was transferred without deed. The essence of the transaction was a complete and public change of the occupancy of the land in question; even the symbolic transfers of the previous age are no longer effective (if, indeed, they ever were); instead, we find the purchaser entering upon the land and expelling from it the previous owner and his family, his servants, beasts and chattels, all of which is done in the most public way. The deed is at first a sort of memorandum in the form of a writ-charter recounting the transaction in the past tense. The document usually begins in the name of the vendor in such words as these, in the thirteenth and later centuries:

—and here the boundaries are set out with some particularity. Then comes the following clause:

At this point (called the habendum) the nature of the donee’s interest is stated, and if the gift is in fee-tail the limitations will be specified. In deeds executed after the Statute Quia Emptores the tenendum will have to be in the form “to hold to C. D., his heirs and assigns, of the chief lord of the fee by the services rightfully and customarily due”, and if the grantor reserves any rights (such as rent on a lease) a clause beginning reddendo will specify them. We then come to the very important clause of warranty in this form:

This warranty clause1 was a great protection to the purchaser, for if his title was subsequently attacked he could call upon his warrantor to come into court and defend it, and, if he lost, the warrantor was bound to recompense him with land of equal value in the same county; at the same time the warranty acted as a bar to any claim by the donor and those whom he bound. As we have already said, at the beginning of the thirteenth century the clause of warranty served to bar the claims of heirs who might otherwise try to recall their ancestor’s gift.2 The clause of warranty was followed by a clause announcing that the deed was sealed, in forms that varied considerably; it is not infrequent to find even something like this:

In the fourteenth century the charter frequently omits to mention the seal, although it remained the law that no deed was valid without a seal. Before the reign of Edward I it is unusual to find the deed dated, but from the fourteenth century onwards the sealing and witness clauses are replaced by a dating clause announcing the time and place. In the fifteenth century livery of seisin degenerates into a ceremony, and frequently the vendor and purchaser made attorneys to give and receive livery of seisin; a memorandum of the due performance of this was endorsed upon the deed. We do not commonly find signatures on deeds before the sixteenth century, and they did not become generally necessary until the Statute of Frauds. Sometimes as a greater security the deed was written in duplicate (particularly if it were a lease containing elaborate covenants) upon the same piece of parchment, and the two deeds were then separated by an indented cut passing through the word chyrographum. Such a deed was called an indenture or a “writing indented”, although it is only later that we find the appearance of the modern form beginning, “This indenture made at such a date witnesses that . . .” At first the form of an indenture was merely a precaution,4 but soon this precaution was felt to be so valuable that the indenture acquired a special position in law by creating an estoppel, and as being equally the deed of all the parties.

VARIETIES OF DEEDS

This general framework could be used for a variety of transactions besides the gift or grant. Thus a release could be used where the donee was already in possession, and the owner released his rights; under such circumstances livery of seisin was unnecessary. The release was commonly used when a lessor released the fee to his lessee, or a disseisee conveyed his rights to the disseisor. The converse of a release is the surrender whereby a tenant for life or years surrenders his interest to the reversioner. The charter must be carefully distinguished from the feoffment; the former is a document, the latter a ceremony which alone gives validity to the transaction, for it includes the formal livery of seisin. Gradually a distinction is drawn between the feoffment of land where livery of seisin was obviously possible, and in fact, sufficient without a charter (until the Statute of Frauds), and the grant of reversions, advowsons, rents and other incorporeal things which (in later theory) only “lie in grant and not in livery”. As soon as it is established that livery cannot be made of such things, then a deed will be necessary to pass them.

A second type of deed used the machinery of the law courts. We have already mentioned that in Anglo-Saxon times transfers of lands were frequently made in court, and in the early Norman period we find numerous attempts to obtain some sort of official record of a transaction. In consideration of a fee a private deed might be enrolled upon the pipe rolls, while soon after it became a frequent practice to enrol private deeds on the back of the close roll. This practice had a curious history, for in the course of time the official documents upon the close rolls gradually became fewer while the private deeds enrolled upon the back became more numerous, with the result that the modern close rolls (they extend in unbroken series from 1204 to 1903) consist entirely of deeds enrolled and contain no official business whatever.

FINAL CONCORDS: RECOVERIES

Another attempt in the same direction took the form of litigation which was brought into court solely for the purpose of being compromised upon terms which the court approved and recorded.1 This became so frequent2 that a new procedure was set up on the fifteenth of July, 1195, and this was observed until 1833. The immediate cause seems to have been a complaint by Jews that their bonds were abstracted from the chests in which the royal officials ought to have kept them. To remedy this the tripartite indenture was devised, one part only being put in the chest, the others being held by the parties. That was in 1194; the system apparently worked so well that it was adopted for the preservation of final concords in the next year.

The compromise was called a fine or final concord, and the essential parts of it are the praecipe or original writ commencing the action, the licence to compromise, the note or memorandum of the terms,1 and the final document in which those terms were solemnly set forth.2 This document was in fact a tripartite indenture, three copies being written on the same sheet of parchment, one for each party and one at the bottom for preservation in the royal archives. This was called the foot of the fine. There is an almost unbroken series of these feet of fines in the Record Office constituting an extraordinary mine of information for local history and for the history of real property law. As times goes on, the procedure by fine becomes complicated and a number of different sorts of fines are invented, each with its peculiar properties. The effect of a fine was much more powerful than that of a deed. To begin with, its authenticity is usually beyond dispute. It is very rare indeed that parties succeeded in corrupting government clerks to tamper with a foot of the fine, and even then discovery was inevitable.3

In the middle ages it was commonly used to convey reversions and remainders, because there was a rapid process (by writs of per quae servicia and quid juris clamat) for compelling particular tenants to state what interest they claimed or to attorn, and as a means for a married woman to convey her land so absolutely as to bar actions of cui in vita and sur sui in vita; for this purpose she was brought into court and examined by the judges in order to be sure that she freely consented to the conveyance.4 Land could also be conveyed free of dower by fine if the wife joined with her husband in levying it. An additional advantage was that litigation to enforce the fine later on could be conducted expeditiously by a writ of scire facias instead of a costly and expensive real action.5 The fine is therefore the highest and the most solemn form of conveyance known in the middle ages. In its early days, after a short period of limitation a fine operated as a bar to all the world. The period was at first twelve months, and the only exceptions were in favour of minors, lunatics, prisoners and people beyond the seas. A fine, like other judicial proceedings, could be set aside by a writ of error and, in general, was not effective unless the conusee took seisin under it1 —herein resembling the charter, which was useless unless the grantee was given livery of seisin. The statutory changes which were made were chiefly important as affecting the efficacy of the fine as a disentailing device, and of this we shall speak later.2

Collusive recoveries were also used in a variety of forms during the middle ages, but in almost every case they seem to be tainted with fraud. It can hardly be said that a recovery becomes a common assurance and a strictly legitimate proceeding until the sixteenth century. In the middle ages it was used to convey land free of a term, to bar dower, by a husband to alienate his wife’s land and to defeat her heirs, and to alienate into mortmain. A stream of legislation checks first one and then another of these practices.

All the forms which we have so far considered were typically mediaeval in the sense that they were not operative in themselves, but depended upon an actual change of seisin. A charter was accompanied by livery of seisin effected by the parties themselves or their attorneys; fines and recoveries were both incomplete until seisin had been given to the conusee or the recoveror by the sheriff under a writ from the court.

BARGAIN AND SALE

In the fifteenth century Chancery held that a vendor of land who had received the purchase price, but who remained in seisin of the land, was seised thenceforward to the use of the purchaser. Already, it would seem, sixteenth-century purchasers had such confidence in this rule that they were content with this equitable title, especially since it was a secret one. The Statue of Uses, however, executed this implied use and made it a legal estate, and the Statute of Enrolments was immediately passed to prevent legal estates being conveyed with the same secrecy. The act only applied to bargains and sales for an estate of freehold or inheritance, but upon them it imposed the condition that the bargain must be “in writing indented,1 sealed, and enrolled” within six months. The statute contains words which seem to imply that no use shall arise on the bargain if it is not enrolled. The object apparently was to prevent Chancery finding equitable estates arising from bargains which did not comply with the act. If so, the act was successful; but the words had also the effect of obscuring the nature of a bargain and sale, for some people were led to believe that the act had somehow abolished the implied use altogether, and so were tempted to limit further uses on a bargain and sale. As we have seen,2 confusion lasted for a long time, until finally the profession came to the conclusion that a bargain and sale was a dangerous instrument if it was used to effect settlements.3

LEASE AND RELEASE

The Statute of Enrolments did not affect bargains for a term, and so these were left to the combined operation of the Chancery rule and the Statute of Uses; the bargainor is therefore seised to the use of the termor, and the termor acquires the legal term under the statute, without having to enter. Hence it was possible to convey secretly by using two deeds—a bargain and sale for a term, followed by a release of the fee to the termor. Neither had to be enrolled, and neither needed actual entry for its completion. This ingenious device is ascribed to Sir Francis Moore, and was sanctioned4 by the courts in 1621. By the end of the century, in spite of some doubts, it was in general use, for besides its secrecy it had the additional advantage over the bargain and sale enrolled, that uses could be limited in the deed of release.

WILLS

Since the Statute of Wills these documents must be considered as conveyances, and until a century ago they were treated on strictly conveyancing lines. For example, a will would only pass such lands as the testator was seised of both at the time of making the will and at the time of his death, which perpetuates the situation existing before the Statute of Uses when land was devised by conveying it to feoffees to the uses of the feoffor’s will. The rule is therefore older than the statute of 1540, although certainly consistent with it; Coke delighted to attribute the rule to the words of the act which authorise a testator to devise such land as he “has”.5 Henry VIII’s statutes made no requirements as to the form of a will save that it be in writing, and it was not until the Statute of Frauds that this and a good many other matters were required to be expressed in writing, signed, and in the case of wills witnessed. The Statute of Frauds also required written documents for the creation of trusts of land, and for the assignment of all sorts of trusts, and therefore contributed a great deal towards the treatment of these equitable interests as though they were property. A mass of very unsatisfactory law, mainly the work of the seventeenth and eighteenth centuries, was swept away by the Wills Act, 1837.1

DISENTAILING DEVICES: WARRANTIES

We have already seen2 that when a tenant in fee simple alienated, binding himself and his heirs to warrant the alienee and his heirs, the warranty operated as a bar which peremptorily excluded the donor and his heirs from any claim to the land in question. This principle probably played a part in establishing the alienability of fees simple, free from family restraints.

It now remains to consider the effect of warranties created by those who were not tenants in fee simple. The problem first became acute when doweresses and tenants by the curtesy resorted to tortions feoffments coupled with warranties. When there was issue of the marriage it would normally happen that the issue would be heir to both parents; hence as heir to his father’s warranty he would be barred from claiming lands to which he was entitled as his mother’s heir, and as heir to his mother’s warranty (created while she was doweress) he would be barred from claiming lands which were his paternal inheritance.3 Such practices struck at the root of the common law scheme of family relationships, and in 1278 the legislature intervened. The Statute of Gloucester, c. 3, enacted that an heir, who has inherited nothing from his father, shall not be barred from demanding lands inherited from his mother, although the father had alienated them with warranty. If he has inherited from his father, but not enough (assetz) to fulfil the warranty completely, then he is barred to the extent that “assets” had descended to him. The statute only deals with warranties created by tenants by curtesy.4

What of warranties by a tenant in tail? A simple feoffment (without warranty) by a tenant in tail will give a fee simple to the alienee, but will not bar actions by the heir in tail, remaindermen or reversioners; DeDonis itself provides that even a fine by the donee in tail will not bar his issue or the reversioner. Experiments were therefore made with the deed with warranty and some very curious results followed, for the Statute De Donis made no provision for this case. The simplest case was when a father, being a tenant in tail, alienated with warranty and the warranty descended together with the entail to his heir. This warranty, it would seem, barred the heir from his recovery, and so in this way an entail might be effectively barred as against the heirs in tail: of course it did not affect remainders or reversions. This did not last very long, for the Statute of Gloucester, c. 3 (which, as we have seen, expressly applied only to warranties created by tenants by curtesy) was extended by judicial interpretation to warranties created by tenants in tail, in a case of 1306.1 The result was that if the issue in tail had inherited from his ancestor “assets by descent”2 he was barred to the extent of those assets, otherwise not. Consequently from 1306 onwards it is a growing opinion that a deed with warranty might not be a bar if there were no assets by descent.

By the time of Littleton, an attempt had been made to generalise these rules and to classify warranties. Some were described as lineal warranties because the burden of the warranty and the title both descended by the same line; but this was not always the case, for a warranty might be collateral, and it was held that collateral warranties were always a bar.3 Normally, a warranty was created by one who was seised of the land, and was about to enfeoff an alienee. Soon, however, it was admitted that anyone could bind himself and his heirs to warranty, whether he had any interest in the land or not.4 This afforded opportunities for a good deal of ingenuity. It was not always easy to use collateral warranties, for it needed the co-operation of other members of the family and also depended upon relatives dying in the proper order, conditions which were not always available. When they were, a collateral warranty was a very effective bar to the issue in tail:

Sometimes even remainders could be barred. Thus suppose that the eldest of several sons is a tenant in tail, with successive remainders to his brothers in tail. If the eldest discontinue with warranty and die without issue, then the second son will be heir to the warranty; the remainder, however, is his by purchase and not by inheritance from his elder brother. The warranty is therefore collateral to him, and he is barred.1 Protests were made in Parliament against the collateral warranty rule2 during the reign of Edward III, but it was not until the reign of Queen Anne that the bar by collateral warranty was abolished; curiously enough the statute did not abolish the bar by lineal warranty with assets descended.3 The effect of both of these warranties upon remainders and reversions was very much dependent upon circumstances and in order to bar these estates more effective devices had to be invented.4

DISENTAILING BY FINE

Among these was the fine. By De Donis a fine was no bar to the issue in tail.5 Fines of fees simple, however, were a bar to all the world after a year and a day. In 1361 this old principle was completely reversed by statute,6 and for over a century fines ceased to be a bar to any claimants except the parties themselves. This, however, introduced so much uncertainty and permitted the assertion of so many remote and dormant titles that Richard III by a statute which was re-enacted by Henry VII7 (who usually got the credit for Richard III’s reforms) enacted that a fine should be a bar after certain proclamations and the lapse of five years, while remaindermen and reversioners were to be barred by a fine with proclamations unless they claimed within five years of the time when their estates accrued. Once again the fine becomes “a piece of firm ground in the midst of shifting quicksands”.8 A case, and later a statute,9 made it clear that a fine with proclamations was a complete bar to the issue in tail since they are deemed to be privy to it. A fine, consequently, after the statute will bar the issue, but not remainders or reversions save in the unlikely case where they let their rights go by default.

THE COMMON RECOVERY

The problem of barring remainders and reversions was finally settled by means of the recovery. Of the earlier history of recoveries we have already spoken; in the fifteenth century a number of forms were tried with the evident object of barring entails,1 but it seems always assumed that the recovery could be “falsified” if fraud or collusion were proved.

In Littleton’s day their effect was restricted. Thus if a tenant in tail suffered a recovery (without voucher, and therefore not a “common” recovery), and the recoveror was duly put in seisin by the court, it would nevertheless be possible to destroy its effects, for if the erstwhile tenant in tail disseised the recoveror, died seised, and his issue inherited, then the issue is remitted to the entail.2 It was perfectly clear that a recovery by a tenant for life could have little effect; remaindermen and the reversioner after him could intervene, and even if they did not, they might treat his suffering a recovery as a forfeiture; at the most, failing any entry on their part, it seems that remainders and reversions were only thereby discontinued, and not barred.3

A statute of Henry VIII cleared up this situation by making the recovery absolutely void unless it was made with the consent of the remainderman or reversioner.4 It seems, however, that the statute was evaded by tenants for life alienating to a stranger who then suffered a recovery in which he vouched the tenant for life, “to the great prejudice” of those in remainder or reversion: hence an act of Elizabeth5 avoided all recoveries by a tenant for life, including those where the tenant for life came in as vouchee, unless the consent of the remainderman or reversioner appeared on the record. Clearly, then, the statute preserves the situation (long since established) of a recovery by a tenant for life who vouches the remainderman or the reversioner in fee.

A tenant for life in possession is therefore powerless unless the tenant in tail will join him. So we must now consider the powers of a tenant in tail in possession. If he suffered a collusive recovery (not a “common” recovery) the reversioner could intervene immediately,6 or could recover by action of formedon when his estate fell in. There was therefore little to be done by any mechanism whereby the tenant in tail actually lost the land. Eventually this difficulty was met by a very ingenious device whereby the tenant in tail could part with the land without suffering any technical loss. On being impleaded, he vouched to warranty a stranger, a man of straw, who then defaulted. The recoveror had judgment against the tenant in tail (and so got the land), but the tenant in tail had judgment against the “common vouchee” (who in later times was the crier of the court) for recompense in land to the value of that which had been lost. The success of this device depended on the rule that subsequent remaindermen and the reversioner have still their rights and remedies, but that they are available only against the land which the tenant in tail received as recompense—and as the common vouchee carefully refrained from landownership, there was never any possibility of recompense being actually enforced. The right to it subsisted, however, and so remaindermen and reversioners suffered loss but no injury. And, of course, the device could not have worked unless the courts were determined to close their ears to the obvious charge that the whole proceeding was a barefaced fraud. As we have seen, the courts had long tolerated the creation of collateral warranties by deed by persons who had no interest in the land, and it was but a step further to allow the voucher to warranty of persons who likewise had no real interest in the proceedings, and who had no means of fulfilling the heavy obligations which they undertook.

In its classical form, the common recovery was suffered, not by the tenant in tail, but by a “tenant to the precipe” to whom an estate had been made, either by bargain and sale or by fine, for the express purpose of suffering the recovery. The precipe or original writ issues against this person, who vouches the tenant in tail to warranty: the tenant in tail then vouches the common vouchee, who enters into the warranty and then defaults. The recoveror then has judgment against the tenant, the tenant has judgment to the value against the tenant in tail, and he against the common vouchee. The proceedings were always surrounded with a certain amount of mystery, and the precise reason for their effectiveness was not always clearly apprehended. The author of the Touchstone1 could think of nothing better than that communis error facit jus; one of his annotators convicts Hale of misunderstanding the nature of a recovery;2 another speculator thought that the entail would continue (by a fiction) for ever and ever in the recoveror, his heirs and assigns, and consequently remainders and reversions would never fall in;3 Willes, C.J., thought it best not to inquire.4

If the theory of the recovery is obscure, its history is even more so. Under the common law system, everything ought to have a history, and so a singularly obscure case came to be conventionally regarded as the historical foundation for common recoveries. This was Taltarum’s Case,5 1472. Within the succeeding century there can be no doubt that the common recovery rapidly became a regular part of the law, and of the law of entails—it thus became part of the nature of an entail that it could be barred.

STATUTORY DEVICES

Out of the depths of the eighteenth century, whose tortuous learning on this subject is assembled in Cruise on Fines and Recoveries (1783-1786), comes the prophetic voice of Blackstone.1 Having first given a very lucid exposition of these devices, Blackstone proceeds to call for the abolition of “such awkward shifts, such subtle refinements, and such strange reasoning”. He examines several possible methods. The repeal of De Donis might cause trouble by reviving the conditional fee; it might be enacted that every tenant in tail of full age should be deemed to be tenant in fee simple absolute (but this might seem hard on reversioners); or better still, a tenant in tail might be empowered to bar the entail by a solemn deed enrolled, “which is . . . warranted by the usage of our American colonies”. To have suggested the abolition of fines and recoveries in 1766 was an achievement; to have cited American example for it in the years of the Stamp Act is surely notable, too; nor should Blackstone’s remarks on vested interests be overlooked. Fines and recoveries brought handsome revenues by way of fees to numbers of court officials, and there is no doubt that this circumstance made reform difficult. Blackstone was ready to suggest a higher necessity, at least in a protasis:

In fact, Blackstone lived in the early stages of an historical movement which he discerned and appreciated. He remarks that for a century and a half bankrupt tenants in tail had been empowered to bar their entails by deed enrolled, so that their commissioners in bankruptcy could sell them.2 Moreover, Elizabeth’s statute of charitable uses3 was construed as “supplying all defects of conveyances” so that a tenant in tail could devise, and even settle, entailed land to charitable uses, without fine or recovery.4 Already, then, some cases needed no fine and recovery, but merely a deed. Blackstone’s suggestion was carried out by the Fines and Recoveries Act, 1833, which enabled a tenant in tail who is of full age, with the consent of the tenant for life, to bar the entail by his deed enrolled.

In the common form of settlements, however, a considerable period might elapse before there was a tenant in tail of full age, and during this period the tenant for life could not deal with the land to any great extent. In the middle of the eighteenth century it became a common, though costly, practice to secure a private act of Parliament to disentail in such cases; the close of the century saw the great outburst of canal construction, to be followed soon by railway and dock undertakings, and in the acts authorising the compulsory purchase of land for these purposes, tenants for life of settled land were given powers to sell without having recourse to separate private estate acts. As such enterprises became more frequent, these powers were made permanently available by various acts, but were still confined to sales to certain types of public undertakings, until the Settled Land Act, 1882, placed them at the disposal of tenants for life generally, transferring the limitations of the settlement to the proceeds of the sale.

PART 4

CONTRACT

[1]For a brief collection of typical forms, see Holdsworth, iii. 666-673, iv. 568-572, vii. 547-559; the classical repertory is still Madox, Formulare Anglicanum (1702). The diplomatic (or formal) aspect is stressed in Hubert Hall, Studies in Official Historical Documents, and Formula Book (2 vols.); the best brief account is the introduction of F. M. Stenton, Gilbertine Charters (Lincoln Record Society) and his recent Latin Charters of the Anglo-Saxon Period (1955).

[2]Plucknett, Bookland and Folkland, Economic History Review, vi. 64-72.

[3]Vinogradoff, Transfer of Land, Harvard Law Review, xx. 532; Collected Papers, i. 149.

[1]Pollock and Maitland, ii. 87.

[2]See the impressive criticism by Galbraith, Foundation Charters, Cambridge Historical Journal, iv. 205.

[1]In early charters the warranty may be secured by a pledge of faith: Stenton, Gilbertine Charters (Lincoln Record Society), xxix.

[2]If the donee in fee was to hold of the donor by homage, then he was entitled to warranty as an incident of homage; tenants in tail are likewise entitled to warranty by the reversioner as an incident of tenure. Where there was substitution instead of subinfeudation and no express warranty, the Statute of Bigamists, 1276 (4 Edw. I), c. 6, imposed certain implied warranties. For a rich collection of material and a very valuable discussion, see S. J. Bailey, Warranties of Land in the Reign of Richard I, Cambridge Law Journal, ix. 192, and Warranties of Land in the Thirteenth Century, ibid., viii. 274, ix. 82.

[3]Even the royal acts of the infant Henry III were sealed with William Marshall’s seal “because we have no seal”.

[4]For the Anglo-Saxon and remoter origins, see Hazeltine, introduction to Whitelock, Anglo-Saxon Wills, xxiv n. 2.

[1]Not necessarily a royal court. Cf. the remarkable example of a fine (between 1162 and 1166) in the court of William, earl Ferrers, printed in Stenton, English Feudalism, 51, 262. It contains a remainder after an estate tail, among other notable provisions.

[2]See the lists (extending from 1175) in Maitland, Select Pleas of the Crown (Selden Society), xxvii; Round, Feudal England, 509; Round, The Earliest Fines, English Historical Review, xii. 293; Richardson, An Early Fine, Law Quarterly Review, xlviii. 415; Hazeltine, in Whitelock, Anglo-Saxon Wills, xxiii.

[1]Later, there developed in addition a fuller form of the note called the “concord”, which in practice was the first of the documents prepared; Tey’s Case (1592), 5 Rep. 38 at 39; Sheppard, Touchstone (ed. Atherley), 3 n. f.

[2]For an example of the later and more elaborate forms, see 2 Bl. Comm., App. iv. The whole procedure is called “levying” a fine. The supposed litigation is between the “querent” and the “deforciant”; when the terms of the fine are settled, the grantor is referred to as the “conusor”, and the grantee as the “conusee”.

[3]H. G. Richardson, The Forgery of Fines, English Historical Review, xxxv. 405-418. There was a scandal in 1404; Rot. Parl., iii. 543 (82); 5 Hen. IV, c. 14.

[4]For a suggested Jewish origin of this practice, see F. Ashe Lincoln in Starrs and Jewish Charters, ed. Loewe (Jewish Historical Society of England), II. lxxii.

[5]The old writ was de fine facto, which was in the form praecipe quod reddat; the use of scire facias was much helped as a result of Westminster II, c. 45.

[1]The fine sur conusance de droit come ceo q’il ad de son done contains an implication that the conusee is already seised; this may or may not have been true, but as it is matter of record it thus is practically equivalent to seisin, and the whole operation resembles a disseisee’s release to his disseisor. In other fines the sheriff delivers seisin. Since the statute de finibus levatis, 1299 (27 Edw. I), parties and their heirs were forbidden to deny the seisin, but strangers could continue to do so. For an early discussion of theory, see Sayles, King’s Bench, iii. 167. For the necessity of seisin even after a judgment, see Pollock and Maitland, ii. 101-102, and the cases collected in Holdsworth, iii. 241 n. 2. The procedure and technicalities of fines are elaborately explored in the introductions of G. J. Turner, Huntingdon Feet of Fines (Cambridge Antiquarian Society, octavo publications, vol. xxxvii) and C. A. F. Meekings, Surrey Feet of Fines (Surrey Record Society, nos. xlv, xlvi). For an important discussion of theory, see Y.BB. 21 & 22 Edward I (Rolls Series), 404.

[2]Below, p. 619.

[1]Hitherto even a parol bargain and sale would raise the use.

[2]Above, p. 600.

[3]Sheppard, Touchstone (ed. Atherley), 225 n.

[4]Lutwich v. Mitton, Cro. Jac. 604. Common law leases followed by releases occur as early as 1260: R. Stewart-Brown, Chester County Court Rolls, 5.

[5]Butler and Baker’s Case (1591), 3 Rep. 25 at 30 b.

[1]7 Will. IV & 1 Vict., c. 26.

[2]Above, p. 529.

[3]For the denial of these propositions by Bracton, ff. 349b-350, see the comments by Lady Stenton in Yorkshire Eyre Rolls (Selden Society, 56), xvi.

[4]It says nothing of the parallel situation of warranties by a doweress. There were petitions for a similar enactment to cover these also in 1315 (Rot. Parl., i. 336 no. 3, which arose out of a case in 1313, Y.BB. Edward II (Selden Society), xv. 118 ff.) and again a few years later (Sayles, King’s Bench, iii. p. cxvi g), but no remedy was given until the statute 11 Henry VII, c. 20 (1495). Another aspect of collateral warranty was raised in parliament in 1376, but again without result: Rot. Parl., ii. 334 no. 77. For the pre-statutory rules of assets by descent (which affected the excambium only, and not the duty to warrant), see J. S. Bailey, in Cambridge Law Journal, viii. 293.

[1]Y.B. 33-35 Edward I (Rolls Series), 388 (by this time the rule was so well established that the court frustrated the father’s attempt to evade it by conveying assets to his heir in such wise that they did not “descend”: cf. Bracton’s Note Book, no. 1683 (1225)). In 1292 (Y.B. 20 & 21 Edward I (Rolls Series), 302) the bar was pleaded unsuccessfully—if one can trust the very obscure report. The principle of assets by descent was admitted in Y.BB. Edward II (Selden Society), x. 36 (1311), and ibid. xii. 133 (1312).

[2]The old books use the French expression assetz par descent—which seems to be the origin of the modern English “assets”.

[3]These words were ill-chosen, and do not in themselves assist in the classification of warranties. The clearest exposition of this very tangled subject is Charles Butler’s note to Co. Lit. 373 b, n. 2 (1823).

[4]For very early attempts, see Richardson, Law Quarterly Review, xlviii. 422 (1181), and Bracton’s Note Book, no. 77 (1219); the point is clearly decided in 1316 in Y.BB. Edward II (Selden Society), xx. 99 ff.; Littleton, s. 712.

[5]Littleton, s. 713.

[1]Littleton, s. 716. But see Y.BB. Edward II (Selden Society), xx. 280 (1318), where issue is taken on the descent of assets; Littleton’s rule was not yet in existence.

[2]Rot. Parl., ii. 334 no. 77 (1376). London had already taken the matter into its own hands by abolishing the rule in 1365 (Liber Albus, 496; Letter Book G, f. 154) in terms closely resembling the act of 1706.

[3]4 & 5 Anne, c. 3, s. 21 (1706).

[4]For a reversion barred by a collateral warranty, see Rot. Parl., ii. 195, no. 81 (1347).

[5]It was suggested (but not seriously maintained) that since De Donis exempts the issue from the effects of a fine, but says nothing of remainders, that therefore a fine would bar remainders: Y.BB. Edward II (Selden Society), xxii. 18 (1318).

[6]34 Edw. III, c. 16.

[7]1 Rich. III, c. 7 (1484); 4 Hen. VII, c. 24 (1490).

[8]Pollock and Maitland, ii. 102.

[9]Anon. (1527), Dyer, 2 b; 28 Hen. VIII, c. 36 (1536).

[1]Much historical matter on recoveries is collected in Pelham’s Case (1590), 1 Rep. 14.

[2]Littleton, s. 689.

[3]Co. Lit., 362 a.

[4]32 Hen. VIII, c. 31 (1540).

[5]14 Eliz., c. 8 (1572).

[6]Westminster II, c. 3 (1285), and De Defensione Juris, 20 Edw. I, c. 1 (1292); the right was later lost, Registrum Brevium, f. 235; 2 Inst. 345.

[1]Sheppard, Touchstone, 40. The first edition was in 1641; there is a general opinion that so good a book could not have been written by Sheppard, and a late tradition ascribes it to Dodderidge, J., K.B., 1612-1628; Holdsworth, v. 391-392.

[2]Touchstone (ed. Atherley), 38 n. b; Hudson v. Benson (1671), 2 Lev. 28.

[3]Pigott, Common Recoveries (1739), 13 ff.

[4]Adding, “Mr Pigott has confounded himself and everybody else who reads his book”; Martin d. Tregonwell v. Strachan (1744), 1 Wils. 73.

[5]Y.B. 12 Edward IV, 19 (translated in Digby, Real Property, 255-258). For comments see Elphinstone, Alienation of Estates Tail, Law Quarterly Review, vi. 280; Maitland, Taltarum’s Case, ibid., ix. 1; G. J. Turner, Taltarum’s Case, ibid., xii. 301; Challis, Real Property (ed. Sweet), 309; Holdsworth, iii. 119, 137.

[1]2 Bl. Comm., 358-361.

[2]21 James I, c. 19, s. 12 (1624).

[3]43 Eliz., c. 4 (1601).

[4]2 Bl. Comm., 376.