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expressed in another place, (z) nemo miles adimatur de possessione sui beneficii, nisi convicta culpa, quae sit laudanda (a) per judicium parium

suorum.

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 he may lawfully part with), or purchased with any other person upon secret trust for his own use; [286] and to cause them to be appraised to their full value, and to sell the same by deed indented and inrolled, 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, farther 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 inrolled, 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, remainder-men, 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 statues are declared void; but that no purchasor 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 bankruptcy 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.

z Ibid. t. 22.

29

a i. e. arbitranda, definienda. Du Fresne, IV. 79.

b1 Jar. T. c. 15.

(29) All these statutes have been repealed by 6 Geo. IV. c. 16., which contains several new regulations. See statute and cases, post 471. note 1. If the wife of a bankrupt has lands be

CHAP. 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 tranferred 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 presump

tive heir. (c) And therefore it was very usual in ancient feoffments to [288] express that 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 look

a See page 37.

c Co. Litt. 94. Wright, 168.

b Feud. l. 1. t. 27.

d Madox. Formul. Angl. No 316. $19. 427.

fore marriage, unless they are settled upon her for her separate use, the husband's interest in them shall be sold, so that the wife can have no farther enjoyment of them until she survives her husband.

By the 6 Geo. IV. c. 16. which repeals the former statutes relating to bankrupts, and re-enacts in an amended form most of the old provisions, with many new ones, (sect. 64, 65, 66.) that the commissioners shall by deed convey to the assignees all lands, tenements, and hereditaments, in which the bankrupt has any interest, except copy or customary hold, in England and elsewhere; and by sect. 66, 67. the commissioners have power by deed to sell copyhold, and the vendee before entry is to pay a fine to the lord. The 73d section enacts that if any bankrupt, being at the time insolvent, shall (except upon the marriage of any of his children, or for some valuable consideration) have conveyed, assigned, or transferred to any of his children, or any other person, any hereditaments, offices, fees, annuities, leases, goods or chattels, or have delivered or made over to any such person any bills, bonds, notes, &c. the commissioners shall have power to sell and dispose of the same; and every such sale shall be valid against the bankrupt, and such children and persons as aforesaid, and against all persons claiming under him. s. 73. And by the 81st section all conveyances by, and all contracts and other dealings and transactions by and with any bankrupt, bona fide made and entered into more than two calendar months before the date and issuing of the commission against him, and all executions and attachments against the lands and tenements, or goods and chattels of such bankrupt, bona fide executed or levied more than two calendar months before the issuing of such commission, shall be valid, notwithstanding any prior act of bankruptcy by him committed, provided the person or persons so dealing with the bankrupt, or at whose suit or on whose account such execution or attachment shall have issued had not, at the time of such conveyance, execution, &c. notice of any prior act of bankruptcy by him committed. Chitty & Archbold.

(1) See in general, Com. Alienation; Cru. Dig. index, Alienations; Vin. Ab. Alienations.

ed upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vasal: 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 vasal 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 purchasor, 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 shewn, 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) a doctrine which is countenanced by the feodal constitutions themselves: (i) but he was not allowed [289] 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. (k) 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 : (7) and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heir. (m) By the great charter of Henry III., (n) 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. (0) But these restrictions were in general removed, by the statute of quia emptores, (p) whereby all persons, excepting the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion. (q) 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. (r) 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 licence, 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

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 casallus, 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 miltat extra cognationem suam. L L. Hen, I. c. 70. i Feud. l. 2. t. 59.

k Si questum tantum habuerit is, qui partem terrae suae donare voluerit, tunc quidem hoc ei licet: sed non totum questum, quia non potest filium suum haeredem exhaeredare. Glanvil. . 7, c. 1.

1 Mirr. c. 1. § 3. This is also borrowed from the feodal law. Feud. 1. 2. t. 48.

m Mirr. ibid.

n 9 Hen. III. c. 82.

[blocks in formation]

o Dalrymple of feuds, 95.

r 2 Inst. 67.

charging lands with the debts of the owner, this was introduced so early as stat. Westm. 2. which (s) 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 23 Hen. [290] 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 tenure. 2 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 Ann. c. 16.; nor shall, 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.

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

tee.

s 13 Ed. I. c. 18.

(2) The general power of devising was given by 32 Hen. VIII. c. 1. See post 375. (3) An attornment at the common law was an agreement of the tenant to the grant of the seignory 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. 334. 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. s. 9, 10. and 11 Geo. II. c. 19. s. 11. By the former of those statutes it was enacted, "that all grants or conveyances of any manor or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual, without any attornment, of the tenants of any such manors, or of the land out of which such rent shall be issuing, or of the particular tenants upon whose particular estates any such reversions or remainders shall be expectant or depending, as if their attornment had been had and made; provided that no such tenant shall be prejudiced or damaged by payment of any rent to any such grantor or conusor, or by breach of any condition for non-payment of rent, before notice shall be given to him of such grant by the conusee or granBy the latter statute it was enacted, "that the attornments of tenants to strangers claiming title to the estate of their landlords, shall be absolutely null and void, to all intents and purposes whatsoever; and that the possession of their respective landlord or landlords, lessor or lessors, shall not be deemed or construed to be in anywise changed, altered, or affected by any such attornment or attornments: provided that nothing herein contained shall extend to vacate or affect any attornment made pursuant to, and in consequence of, some judgment at law or decree, or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagee after the mortgage is become forfeited." 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 v. 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 cestui que trust as purchaser 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 pur chaser 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, 7. though the tenant would still be at liberty to shew that he had attorned by mistake. 6 Taunt. 202. Chitty.

1

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. 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. (t) 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, 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. (u) 5

Persons attainted of treason, felony, and praemunire, are incapable of conveying, from the time of the offence committed, provided attainder follows; (v) for such conveyance by them may tend to defeat [291] the king of his forfeiture, or the lord 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 licence to hold in mortmain, they cannot retain such purchase; but it shall be forfeited to the lord of the fee.

Idiots and persons of nonsane 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. (a) 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 u Sheppard's touchstone, 238. 259. 322. 11 Mod. 152. 1 P. Wms. 574. Stra. 192. v Co. Litt. 42. w Ibid. 2. x Co. Litt. 247.

t Co. Litt. 214.

(4) 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. and 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.

(5) A possibility coupled with an interest is devisable. 1 H. B. 30. 3 T. R. 88. A covenant for a valuable consideration to settle or convey a possibility, when it arises, will be enforced in equity. Fonbl. Tr. of Eq. 202. The fine of a person having but a right of action or of entry, or having but a contingent interest, extinguishes that right or interest. 1 Prest. Conv. 6. 142 208.; but if levied to a person in possession, it will operate as a release of right or interest. Ibid. 261. As to whether an inter esse termini, which is a mere right, can be assigned or released, see Co. Litt. 46, b. 270, a. Chitty

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