If a house be destroyed by tempest, lightning, or the like, which is the act of Providence, it is no waste: but otherwise, if the house be burnt by the carelessness or negligence of the lessee: though now by the statute 6 Ann. c. 31, no action will lie against a tenant for an accident of this kind. (14) Waste may also be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance. (n) Timber, also, is a part of the inheritance. (o) Such are oak, ash, and elm in all places; and in some particular countries by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste. (p) But underwood the tenant may cut down at any seasonable time *that he [ *282] pleases; (g) and may take sufficient estovers of common right for housebote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions. (r) The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture into woodland; or to turn arable or woodland into meadow or pasture, are all of them waste. (s) For, as Sir Edward Coke observes, (t) it not only changes the course of husbandry, but the evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable, and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value. (u) To open the land to search for mines of metal, coal, &c., is waste; for that is a detriment to the inheritance: (v) (15) but if the pits or mines were open before, (0) 4 Rep. 62. (8) Hob. 296. (n) Co. Litt. 53. (r) Co. Litt. 41. (p) Co. Litt. 53. (q) 2 Roll. Abr. 817. (u) 1 Lev. 309. (v) 5 Rep. 12. demised land for filling up his lessor's orchards, is not entitled to sell them, unless he is a nurseryman by trade. 4 Taunt. 316.] Upon the general subject of fixtures see Amos and Ferrard on Fixtures; Elwes v. Mawe, and the notes thereto, in 2 Smith's Leading Cases 99; Washb. Real Prop. c. 1; Williams on Pers. Prop. 13 notes to 3d American ed.; Willard on Real Estate, 83-90. (14) [With a proviso, however, that the act shall not defeat any agreement between landlord and tenant. See the statute. But if a lessee covenants to pay rent; and to repair with an express exception of casualties by fire; he may be obliged to pay rent during the whole term, though the premises are burnt down by accident and never rebuilt by the lessor. 1 T. R. 310. Nor can he be relieved by a court of equity; Anst. 687; unless perhaps the landlord has received the value of his premises by insuring. Amb. 621. And if he covenants to repair generally without any express exceptions, and the premises are burned down, he is bound to rebuild them. 6 T. R. 650. But though the tenant is not liable for the unroofing of his house by a tempest, he may be liable for waste if he suffer it to remain uncovered. Pollard v. Shaaffer, 1 Dall. 210. And he is liable for waste committed upon the premises by a trespasser, because it is his duty to protect them. Fay u. Brewer, 3 Pick. 203. The statute of Anne referred to in the text is adopted into the common law of this country; Wainscott v. Silvers, 13 Ind. 497; but the accidental destruction of a building leased with the land on which it stood, would not excuse the tenant from the payment of rent; though if the lease was of a part of a building only, and the building was destroyed, so that the subject matter of the lease no longer existed, the right to rents would be extinguished. Winton v. Cornish, 5 Ohio, 477; Graves v. Berdan, 29 Barb. 100. See post, book 3, p. 228, n. (15) [It is in order to prevent irremediable injury to the inheritance that the court of chancery will grant injunctions against waste, and allow affidavits to be read in support of such injunctions: the defendant might possibly be able to pay for the mischief done, if it could ultimately be proved that his act was tortious; but, if any thing is about to be abstracted which cannot be restored in specie, no man ought to be liable to have that taken away which cannot be replaced, merely because he may possibly recover (what others may deem) an equivalent in money. Berkeley v. Brymer, 9 Ves. 356. In general cases, for the purpose of dissolving an injunction granted ex parte, the established practice is to give credit to the answer when it comes in, if it denies all the circumstances upon which the equity of the plaintiff's application rests, and not to allow affidavits to be read in contradiction to such answer: Clapham v. White, 8 Ves. 36; but an exception to this rule is made in cases of alleged irremediable waste: Potter v. Chapman, Ambl. 99; and in cases analogous to waste: Peacock v. Peacock, 16 Ves. 51; Gibbs v. Cole, 3 P. Wms. 254; yet even in such cases, the plaintiff's affidavits must not go to the question of title, but be confined to the question of fact as to waste done or threatened. Morphett v. Jones, 19 Ves. 351. it is no waste for the tenant to continue digging them for his own use; (w) for it is now become the mere annual profit of the land. These three are the general heads of waste, viz.: in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value, of the inheritance is considered by the law as waste. Let us next see, who are liable to be punished for committing waste. And by the feudal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; "si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur." (x) But in our ancient common law the rule was by no means so large; for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the *curtesy; (y) and not in tenant for [*283] life or years. (z)' And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. (x) Wright. 44. (w) Hob. 295. (y) It was however a doubt whether waste was punishable at the common law in tenant by the curtesy. Regist. 72. Bro. Abr. tit. waste, 88 2 Inst. 301. (z) 2 Inst. 299. Norway v. Rowe, id. 153; Countess of Strathmore v. Bowes, 1 Cox, 264. And as to matters which the plaintiff was acquainted with when he filed his bill, he ought at that time to have stated them upon affidavit, in order to give the defendant an opportunity of explaining or denying them by his answer: Lawson v. Morgan, 1 Price, 306; though, of course acts of waste done subsequently to the filing of the bill would be entitled to a distinct consideration: Smythe . Smythe, 1 Swanst. 253; and where allegations in an injunction bill have been neither admitted nor denied in the answer, there can be no surprise on the defendant; and it should seem that affidavits in support of those allegations may be read, though they were not filed till after the answer was put in. Morgan v. Goode, 3 Meriv. 11; Jefferies v. Smith, 1 Jac. and Walk. 300; Barrett v. Tickell, Jacob's Rep. 155; Taggart v. Hewlett, 1 Meriv. 499. Neither vague apprehension of an intention to commit waste, nor information given of such intention by a third person, who merely states his belief, but not the grounds of his belief, will sustain an application for an injunction. The affidavits should go (not necessarily, indeed, to positive acts, but, at least) to explicit threats. A court of equity never grants an injunction on the notion that it will do no harm to the defendant, if he does not intend to commit the act in question; an injunction will not issue' unless some positive reasons are shown to call for it. Hannay v. M'Entire, 11 Ves. 54: Coffin v. Coffin, Jacob's Rep. 72. It was formerly held, that an injunction ought not to go against a person who was a mere stranger, and who consequently might, by summary legal process, be turned out of possession of premises which he was injuring. Such a person, it was said, was a trespasser; but, there not being any privity of estate, waste, strictly speaking, could not be alleged against him. Mortimer v. Cottrell, 2 Cox, 205. But this technical rule is overturned; it is now established by numerous precedents, that wherever a defendant is taking the substance of a plaintiff's inheritance or commiting or threating irremediable mischief, equity ought to grant an injunction; although the acts are such as, in correct technical denomination, ought rather to be termed trespasses than waste. Mitchell v. Dors, 6 Ves. 147; Hanson v. Gardiner, 7 id. 309; Twort v. Twort, 16 id. 130; Earl Cowper v. Baker, 17 id. 128; Thomas v. Oakley, 18 id. 186. Any collusion, by which the legal remedies against waste may be evaded, will give to courts of equity a jurisdiction over such cases, often beyond, and even contrary to, the rules of law; Garth v. Cotton, 3 Atk. 755; thus, trustees to preserve contingent remainders will be prohibited from joining with the tenant for life in the destruction of that estate, for the purpose of bringing forward a remainder, and thereby enabling him to gain a property in timber, so as to defeat contingent remainder-men; and wherever there is an executory devise over, after an estate for life subject to impeachment of waste, equity will not permit timber to be cut. Stansfield v. Habergham, 10 Ves. 278; Oxenden v. Lord Compton, 2 Ves. Jun. 71. So, though the property of timber severed during the estate of a strict tenant for life vests in the first owner of the inheritance; yet, where a party having the reversion in fee is, by settlement, made tenant for life, if he, in fraud of that settlement, cuts timber, equity will take care that the property shall be restored to, and carried throughout all the usage of, the settlement. Powlett v. Duchess of Bolton, 3 Ves. 377; Williams v. Duke of Bolton, I Cox, 73.J As to injunctions to restrain waste, see Eden on Injunctions, 179, et seq; Kerr on Injunctions, 235 et seq; Story Eq. Jur. §§ 912-920; Adams Eq. (5th Am. ed.) 208 note; Williard Eq. 369. And as to waste generally and the remedies therefor, see 1 Washb. Real Prop. 107, et seq; post, book III, c. 14. But in favour of the owners of the inheritance, the statutes of Marlbridge, 52 Hen. III, c. 23, and of Gloucester, 6 Edw. I, c. 5, provided that the writ of waste (15) shall not only lie against tenants by the law of England (or curtesy), and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him for waste, committed. But tenant in tail after possibility of issue extinct is not impeachable for waste; because his estate was at its creation an estate of inheriitance, and so not within the statutes. (a) Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account: (b) but it seems reasonable that it should lie for the reversioner, expectant on the determination of the debtor's own estate, or of these estates derived from the debtor. (c) The punishment for waste committed was, by common law and the statute of Marĺbridge, only single damages; (d) except in the case of a guardian, who also forfeited his wardship (e) by the provisions of the great charter; (f) but the statute of Gloucester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages to him that hath the inheritance. The expression of the statute is, "he shall forfeit the thing which he hath wasted;" and it hath been determined that under these words the place is also included. (g) And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a *house, the whole house shall be forfeited; (h) because it is impracticable for the reversioner to enjoy only the identical [*284] places wasted, when lying interspersed with the other. But if waste be done. only in one end of a wood (or perhaps in one room of a house, if that can be conveniently separated from the rest), that part only is the locus vastatus, or the thing wasted, and that only shall be forfeited to the reversioner. (7) VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste: whereupon the lord may seise them without any presentment by the homage; (k) but also to peculiar forfeitures annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vassals, the marks of feudal dominion continue much the strongest upon this mode of property. Most of the offences, which occasioned a resumption of the fief by the feudal law, and were denominated feloniæ, per quas vassallus amitteret feudum, (1) still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service (m) si dominum deservire noluerit: (n) by disclaiming to hold of the lord, or swearing himself not his copyholder; (0) si dominnm ejuravit, i. e. negavit se a domino feudum habere: (p) by neglect to be admitted tenant within a year and a day; (q) si per annum et diem cessaverit in petenda investitura: (r) by contumacy in not appearing in court after three proclamations; (s) si a domino ter citatus non comparuerit: (t) or by refusing, when sworn of the homage, to present the truth according to his oath: (u) si pares veritatem noverint, et dicant se nescire, cum sciant. (w) In these and a variety of other cases, which it is impossible here to [*285] (a) Co. Litt. 27. 2 Roll. Abr. 826, 828. (e) Ibid. 300. (k) 2 Ventr. 38. (n) Feud. l. 1. t. 21. (g) Plowd. 372. (t) Feud. l. 2, t. 22. (f) 9 Hen. III. c. 4. (0) Co. Copyh. § 57. (r) Feud. 1. 2. t. 24. (u) Co. Copyh. § 57. (d) 2 Inst. 146. (i) 2 Inst. 304. Dyer, 211. (b) Co. Litt. 54. (16) The writ of waste is now abolished by stat. 3 and 4 Wm. IV, c. 27, § 36. enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord's court baron: (x) per laudamentum parium suorum; (y) or, as it is more fully expressed in another place, (z) nemo miles adimatur de possessione sui beneficii, nisi convicta culpa, quæ sit laudanda (a) per judicium parium suorum. (17) 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 [ *286] may lawfully part with), or purchased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and 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 estate-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 (17) [It is rather singular that in every instance in which Lord Coke on Copyholds is cited in this paragraph, his authority is directly contradictory of the text. In his fifty-seventh chapter he divides forfeitures into those which operate eo instante, and those which must be presented; and then enumerates those of the former class. Under this he ranges among many others, disclaimer, not appearing after three proclamations, and refusing when sworn, to present the truth. In his fifty-eighth chapter he enumerates the second class, and under it places treason, felony, and alienation. It is observable also, that the references to Dyer 211 and 8 Rep. 99, are not in point. With respect to the subject of the paragraph, if presentment is necessary in any case, it should seem in reason that the necessity would exist rather in case of treason and felony, where the conviction and attainder might take place far from the residence of the lord, than in case of disclaimer, &c., which must take place either in the lord's court, or in a suit to which he was a party. Of the first he might reasonably be supposed to remain ignorant until his homage by presentment informed him; of the latter he could hardly avoid taking instant notice. But, in fact, the better opinion seems to be, that in no case is presentment legally necessary. In every instance the forfeiture is referable back to a supposed determination of the will which the act, being inconsistent with the tenancy, demonstrates. If the lord is not aware of the act, it is the duty of the homagers to inform him; but the forfeiture exists in that case before the information given. As a matter of prudence, however, the lord will of course procure a presentment. See Scriven on Copyholds, 311, in which the opinions of Ch. Baron Gilbert and Watkins are stated.] have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged estates shall be at the disposal of the commissioners; for they shall have power to redeem the same as the bankrupt himself might have done, and after redemption to sell them. And also by this and a former act, (b) all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchaser bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of 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. (18.) CHAPTER XIX. 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 feudal 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 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. (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 ancient feoffments to express that *the alienation was made by consent of the heirs of the feoffor; or sometimes for the heir apparent himself [*288] to join with the feoffor in the grant. (d) And, on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not aliene or transfer (b) 1 Jac. I. c. 15. (b) Feud. l. 1, t. 27. (d) Maddox, Formul. Angl. No 316, 319, 427. (18) The English Bankrupt Acts were revised and consolidated by stat. 12 and 13 Vic. c. 106, under which the estate of the bankrupt becomes vested in the assignees appointed on behalf of creditors, in the manner directed by law, by virtue of such appointment alone, and without any deed or conveyance. These acts were again revised and consolidated by a new act, taking effect in 1870. The several states in the United States have insolvent laws, which are in the nature of bankrupt laws, and under which, when an assignee is appointed, the estate of the insolvent is transferred to such assignee, either by force of the appointment, or by a conveyance which the insolvent is required to execute. Congress, however, is empowered by the constitution of the United States to establish a uniform system of bankruptcy, and this power was exercised in 1867. The state laws are in consequence superseded, inasmuch as the system established by Congress cannot be "uniform" throughout the country so long as such state laws remain in force. Sturges v. Crowninshield, 4 Wheat. 132. The bankrupt's estate, under the act of 1867, is vested in the assignee by the appointment. |