CHAPTER THE NINETEENTHI. 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 pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for if he might, the feodal restraint of alienation would have been easily frustrated and evaded b. And, as he could not aliene it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent, or presumptive heir . (1) And therefore it was a See page 57. b Feud. l. 1. t. 27. c Co. Litt. 94. Wright, 167. (1) Lord Coke in the passage referred to, says “heir" generally; but Sir M. Wright confines it to the presumptive heir, qui proximus erat successione collaterali. very usual in antient 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 td. And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his 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 seizing of his cattle by the lord of a neighbouring clan. This consent of the vasal was expressed by what was called attorning, 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: 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 it's 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 Madox, Formul. Angl. No 316. 319. 427. e Gilb. Ten. 75. The same doctrine and the same denomination prevailed in Bretagne possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attour nances et avirances, ut loqui solent; cum collaterali, Probably the consent of the heir apparent was presumed and implied in the mere act of his father; while it was necessary to procure specifically that of a more remote inheritor. Both authors, too, are speaking only of land which came by descent to the alienor. See post, p. 288, 289. 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 an[289]cestors": a doctrine which is countenanced by the feodal constitutions themselves 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. 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': 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. ", 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. But these restrictions were in general removed, by the statute of quia emptores, 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. 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'. 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 charging lands with the debts of the owner, this was introduced so early as stat. Westm. 2. which subjected a moiety of the 8 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, (2) and in a statute staple by statute 27 Edw. III. c. 9. and in other similar recognizances by statute 23 Hen. [ 290 1 VIII. c.6. And now, the whole of them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed, till the abolition of the military tenures. The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; (3) 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 incapacity, than capacity, of the several parties: for all persons in possession are primá facie capable both of conveying and purchasing, unless the (2) The statute de mercatoribus goes a step farther than is here mentioned. By the statute made with a similar view at Acton Burnell in 11 E. I., the devisable burgages of the debtor were made saleable in discharge of a debt due by statute merchant. The statute made in 13 E. I. extends this, and enables the debtor, within three months after he is taken and put into prison, to sell absolutely the whole of his lands and tenements for the discharge of his debts. (3) The statute of uses, and the statute of wills, in all cases in which they applied, made attornments unnecessary; as by the former the possession was immediately executed to the use, and by the latter the legal estate was immediately vested in the devisee. 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. 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 t. PERSONS attainted of treason, felony, and praemunire, are incapable of conveying, from the time of the offence committed, provided attainder follows": for such conveyance by them [291] may tend to defeat 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". (4) 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 (4) After attainder the man is civiliter mortuus, all feudal relation between himself and his lord is at an end, and therefore there can be no escheat. Neither, strictly speaking, can there be forfeiture, which is a kind of punishment, and operates on the relation of king and subject. Indeed, by mere forfeiture in felony, the king's title would only be for a year and day. Lord Coke expresses himself therefore cautiously, calling it neither escheat, nor forfeiture; he says, " the king shall have it by his prerogative, and not the lord of the fee; for a man attainted hath no capacitie to purchase (being a man civiliter mortuus) but onely for the benefit of the king; no more than the alien-né hath." |