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was free from any liability on his ancestor's account except to the king (m). If, however, the ancestor had bound himself and his heirs by deed, they being expressly mentioned, and creating thereby what is in modern phrase called a debt by specialty, by which the heir was bound, the latter was compelled to see that the debt was paid out of the personalty, or, in default, to pay it to the extent of the lands descended, which were therefore called assets (n). This doctrine, however, could not extend to devisees, for devises were not then permitted; and afterwards, when a will of lands was allowable, the devisee not being included under the term heir, took the lands free even from his ancestor's specialty debts: unless indeed the testator had impressed a trust upon them for the payment of debts: in which case the court of Chancery enforced the execution of the trust in favour of all the creditors

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equally.

Next the act 3 & 4 W. & M. c. 14 (0), declared that a devise to defeat the debt of the testator by specialty in which the heirs were expressly bound should be considered fraudulent and void as against such creditor, unless the devise was for payment of debts generally (p). But now, by a very recent act (q), when any person dies seised of or entitled to any interest in any lands or hereditaments, whether corporeal or incorporeal, which he shall not have charged by his will with, or devised subject to, the payment of debts, the same are made assets, to be administered in courts of equity for the payment of all his debts. But the act preserves the preference which before existed in favour of those creditors by specialty in whose favour the heirs are bound. It will be noticed that the act excepts from its operation those estates which have been devised for payment of debts. These, therefore, are still administered under the court as within its ordinary jurisdiction over trusts, and with the same equality of distribution as obtained before (r).

Bankruptcy.

Such is the present remedy given to a creditor against his debtor's lands. But, in addition to the case of a judgment obtained by an individual on his own behalf, another remedy for creditors is provided by law, by which lands and all the debtor's property are made available for the payment of his debts. This is when he becomes a bankrupt. The laws relating to bankruptcy have received many alterations in recent times, and are in process of still further modification. We shall therefore be brief in noticing them. Inasmuch as the whole property, both real and personal, is [* 463 ] applied in bankruptcy to the discharge of debts, we shall hereafter have occasion to recur to them. In bankruptcy, it will be observed, individual

(m) See Britton 1. A difference of opinion has existed, whether in the Saxon and early fudal times an heir was bound to pay his ancestor's debt to an extent equal to the value of his inheritance, if the goods and chattels, which without doubt always constituted the primary fund for that purpose, were insufficient. 1 Reeves, Hist. Eng. Law, 113, citing Glanville, lib. vii. c. 8; Bract. lib. 61 a; Bacon, Ab. tit. Heir and Ancestor. The authorities seem to show that the heir was so bound.

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(p) The act did not extend to covenants generally. Wilson v. Knubley, 7 East, 128. (q) 3 & 4 Will. 4, c. 104, enlarging the operation of 47 Geo. 3, c. 74, and 11 Geo. 4 & 1 Will. 4, c. 47, which applied only to traders.

(r) 2 Jarm. Wills. 552. All unsecured contract creditors of every person who shall die on or after the 1st January, 1870, will be placed on an equality by 32 & 33 Vict. c. 46 (an act passed since the text was written). No preference will be given to any by reason that their debts are secured by bonds, deeds, (n) From assez. or other instruments under seal (even if the (0) Made perpetual by 6 & 7 Will. 3, c. 14. heirs be expressly bound), or are otherwise constituted specialty debts.

creditors obtain no direct control over the property.

It is administered

according to the provisions of the statute for the equal benefit of all creditors (s), all the property of the debtor vesting, upon his appointment, in the trustee of the estate, whose duty it is to sell it and distribute the proceeds.

*CHAPTER XX.

TITLE BY ALIENATION.

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THE most usual and universal method of acquiring a title to real estates is that of alienation; 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 Of title by aliena- that, by the feudal law, a pure and genuine feud could not be tion in general. 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 feudal 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 feudal restraint of alienation would have been easily frustrated and evaded (a). 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 [* 465 ] heir (b). And therefore it was very usual in ancient feoffments to 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 (c). And, on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his seignory 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 seizing of his cattle, by the lord of a neighbouring clan (d). This consent of the vassal

(8) The earliest bankrupt law appears to be 13 Eliz. c. 7, followed by 21 Jac. 1, c. 19, and by numerous other statutes. A short statement of the present law, which is under legislative review whilst these sheets are

going through the press, will be found in a subsequent chapter.

(a) Feud. 1. 1, t. 27.

(b) Co. Litt. 94; Wright, 168.

(c) Madox, Formul. Angl. No. 316, 319, 427. (d) Gilb. Ten. 75.

was expressed by what was called attorning (e), 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 (f); which was also an additional clog upon alienations.

Gradual progress of the power of alienation.

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But by degrees this feudal severity has worn off (g); and experience has 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 I., 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 feudal 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 (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 (1): 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 (o). But these restrictions were in general removed by the statute of quia emptores (p), 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 (g). And even these tenants in capite were by the statute 1 Edw. 3., c. 12, permitted to aliene, on paying a fine to the king (r). By the temporary statutes 7 Hen. *7, c. 3, and 3 Hen. 8, c. 4, all persons [* 467] attending the king in his wars were allowed to aliene their lands without licence, and were relieved from other feudal burdens. And lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. 2, c. 24. As to the power of charging lands with the debts of the owner, this was introduced so early as statute Westm. 2 (s). which subjected a moiety of the tenant's lands to executions, for debts

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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. 3, c. 9, and in other similar recognizances by statute 23 Hen. 8, 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 his creditors in the manner appearing in the last chapter. The restrain of devising lands by will, except in some places by particular custom, lasted longer; 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 it; till at last, they were, by statute 4 & 5 Ann. c. 16, made no longer necessary to complete the grant or conveyance; and by statute 11 Geo. 2, c. 19, the attornment of any tenant is declared not to 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. An attornment, then, is now unnecessary; nevertheless, it is not altogether useless, for after an attornment, in an action by the landlord against the tenant, it is unnecessary to adduce evidence of the plaintiff's title; unless, indeed, the tenant shows that he had

Necessity for attornments abolished.

attorned by mistake (†).

*In examining the nature of alienation, let us first inquire briefly, who may aliene, and to whom; and then, more at length, how a man may aliene, or the several modes of conveyance. (335)

I. Who may aliene, and to whom.

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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 are prima facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities (u). Persons attainted of treason, felony, and praemunire, are incapable of making a completely valid conveyance, from the time of the offence committed, provided attainder follows (v): for such conveyance by them may Incapacity of traitors, felons, tend to defeat the king of his forfeiture, or the lord of his escheat. The conveyance, however, is good for all purposes except as against the crown or lord. But they may purchase for the benefit of the crown, though they are disabled to hold. We have already pointed out the extent of the forfeiture in different cases. So also, corporations, religious or others, may purchase lands; yet, unless they have a licence to

&c.

Corporations.

(t) 6 Taunt. 202; Doe d. Thompson v. Thompson, 6 Ad. & E. 721.

(u) Until lately there were many exceptions to the general power of alienation. Thus mere rights of entry or of property without any estate, contingent interests, and the like, were not capable of being aliened, though they might be released. See Co. Litt.

214; Shep. Touch. 238, and similar restric-
tions on the power of devising by will existed.
But by the Wills Act, 7 Will. 4 & 1 Vict. c.
26, all these were made devisable; and by 8
& 9 Vict. c. 106, they were made alienable by
deed, estates tail being of course excepted.
(v) Co. Litt. 42.

(335) A title to lands can only be acquired and lost according to the laws of the State in which they are situated. Clark v. Graham, 6 Wheat. 577; White v. Howard, 46 N. Y. (1 Sick.) 144, 159; Hosford v. Nichols, 1 Paige, 220; Osborn v. Adams, 18 Pick. 245; Goddard v. Sawyer, 9 Allen, 78; Houston v. Nowland, 7 Gill. & J. 480; Wells v. Cowper, 2 Hamm. 124; Rabun v. Rabun, 15 La Ann. 471.

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hold in mortmain, they cannot retain such purchase; but it shall, with a few exceptions, be forfeited to the lord of the fee (x).

competency.

Idiots and persons of unsound mind, and those who, being born deaf and blind, are not distinguished from * idiots (y), infants, Idiots, &c. [* 469] 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. (336) This position has been established by degrees. The king, indeed, on behalf of an idiot, might always avoid Plea of non- his grants or other acts (z). But it was formerly said, that a non compos himself, though he be afterwards brought to a right mind, should 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 was somewhat curious. In the time of Edward I., non compos was a sufficient plea to avoid a man's own bond (a): and there is a writ in the register (b) 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 (c): and, afterwards, a defendant in assise 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 assise; 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 (d). Under Henry VI. this reasoning (that a man should not be allowed to disable himself, by pleading his own incapacity, because he could not know what he did under such a situation) was seriously adopted by the judges in argument (e); upon a question, whether the *heir was barred of his right of entry by the feoffment of his insane [* 470 ] ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason (f), the maxim that a man shall not stultify himself was treated as settled law (g). They have, however, been overruled, and it is now settled the other way, that a man himself (h), as well as his representatives (i), may establish his lunacy in order to impeach a deed which he has executed. (337) If a contract, however, entered into by

(x) Ibid. 2. For some exceptions, see ante, p. 448; and, in addition, the acts for Museums (8 & 9 Vict. c. 43) and Volunteer Corps, 26 & 27 Vict. c. 65.

(y) Co. Litt. 42 b.

(z) Ibid. 247.

(a) Britton, c. 28, fol. 66.

(b) Fol. 228. See also Memorand. Scacch. 22 Edw. 1 (prefixed to Maynard's Year-book, Edw. 2), fol. 23.

(c) 5 Edw. 3, 70.

(d) 35 Assis. pl. 10.
(e) 39 Hen. 6, 42.

(f) F. N. B. 202.

(g) Litt. s. 405; Stroud v. Marshall, Cro. Eliz. 398; Beverley's Case, 4 Rep. 123; Jenk. 40.

(h) Moulton v. Camroux, 2 Exch. 487, 501; 4 Exch. 17.

(i) Perkins, s. 107; Co. Litt. 2.

(336) The American cases are to the same effect. Wait v. Maxwell, 5 Pick. 217; Allis v. Billings, 6 Metc. 415'; Arnold v. Richmond Iron Works, 1 Gray, 434; Ingraham v. Baldwin, 9 N. Y. (5 Seld.) 45; Breckenridge v. Ormsby, 1 J. J. Marsh. 245; Dennett v. Dennett, 44 N. H. 538; Doe v. Prettyman, 1 Houst. 339; Henderson v. McGregor, 30 Wis. 78.

(337) The same rule prevails in this country. Rice v. Peet, 15 Johns. 503; Lang v. Whidden, 2 N. H. 435; Grant v. Thompson, 4 Conn. 203; Mitchell v. Kingman, 5 Pick. 431; Horner v. Marshall, 5 Munf. 466; Lazell v. Pinnick, 1 Tyler, 247.

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