m:i: Yr'^fMU: Cornell University Law Library The Moak Collection PURCHASED FOR ! School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDQE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS KD 979.S6™" ""'""sWy Library * lllB&ffl.,S!.&.Jaw .0, real and pers 490 OJnnipU IGam ^rlynol IGibtari| Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021847490 A COMPEIDIUM OP THE LAW OP REAL Am PERSONAL PROPERTY, CONNECTED WITH CONVEYANCING. FOB THIS USE OP STUDENTS AND PRACTITIONERS. By JOSIAH W. SMITH, B.C.L., OF LINCOLN'S INN, ESQ., DARRISTEE-AT-LAW. EDITOR OF " MITFOED'S CHANOEEY PLEADINGS," AND " FEARNE'S CONTINSENT REMAINDERS," AND AUTHOR OF " A TREATISE ON EXECUTORY INTERESTS." PHILADELPHIA: T. & J. W. JOHNSON & CO., LAW BOOKSELLERS, No. 197 CHESTNUT STREET. 185 6. ROBB, PILE 4 m'ELROY, LA.TE KITB & 'WALTON. THE EISHT HONOKABLE THOMAS, BAKON TRUKO, LATE LORD HIGH CHANCELLOR OP GREAT BRITAIN, CAUSED THE GREATEST AND MOST BENEFICIAL AMENDMENTS TO BE EFFECTED IN THE PEOCEDUBE OF THE COMMON LAW COURTS ; GATE SUCH INCREASED EFFICIENCY TO THE COURT OP CHANCERY, BY THE MEASURE HE INTRODUCED FOR THE APPOINTMENT OF THE LORDS JUSTICES ; EXERCISED HIS JUDICIAL FUNCTIONS WITH TRULY CONSCIENTIOUS AND LABORIOUS CARE, WITH DIGNITY AND URBANITY, AND WITH SUCH ACCURATE DISCRIMINATION AND SOUND JUDGMENT, THAT NONE OF HIS DECISIONS HATE ETEE BEEN RETERSED, THIS ATTEMPT TO FACILITATE THE KNOWLEPGE OF THE LAW OF PROPERTY CONNECTED WITH OONTEYAXCING, IS, BY PERMISSION, MOST RESPECTFULLY INSCRIBED. PREFACE. The object of the following attempt, which was commenced many years ago, is, to supply a want which the writer has personally and very greatly felt ever since the time when he commenced the study of the law. It is intended as a text hook of a general, but not of a merely elemen- tary character, for the use of students, and as a help to practitioners upon the points most needful to be borne in mind in ordinary practice. The endeavour of the writer has been, to embody, under a concise and perspicuous arrangement, in accurate terms, and in the smallest possible compass consistently with clearness, such points in the law of real and personal property, connected with conveyancing, as are neces- sary or the most expedient to he generally hnown and constantly borne in mind, as distinguished from those points which may he safely and with comparative convenience left for investigation when the occasion arises. It is extremely difficult, indeed impossible, to draw the exact line in this respect; but such has been the principle of selection, although perhaps he may have *in8erted some matter that he might have ^^ .-. properly omitted, and omitted some that he ought to have inserted. L J Upon this principle, he has, on the one hand, excluded all antiquarian and theoretical, and indeed every other kind of disquisition, — a mass of obsolete law, — a variety of unsettled questions, — all detailed abstracts of cases, — and an immense number of points and cases which he did not consider as of general application, or necessary to be retained in the mind, if it were possible to remember them : while, on the other hand, he has been especially anxious to insert those points which affect draft- ing, as being the points of all others the least capable of being safely left for investigation pro re natd ; such, for instance, as cases of con- struction of common or not unfrequent occurrence. And hence many points have been inserted, not for the purpose of enabling the practi- tioner to form an opinion without further research, but chiefly for the purpose of putting him on his guard when engaged in preparing deeds and wills, so as to save him from mistakes into which he might other- wise fall, or from giving rise to doubts and questions. vi SMITH ON REAL AND PERSONAL PROPERTY, A general text-book is of course absolutely necessary for the student, before he can apply himself, with due profit, either to the perusal of works on particular subjects or to the practice of his profession. And if well executed by the writer, and well digested by the reader, such a book must also be of the utmost service to many, if not to -mo&i practi- tioners, aiding them, on the one hand, in judging as to what may be p^ ■• -1 *regarded as settled law, and thus saving them from much need- L -• less perplexity about clear points ; and by suggesting to them, on the other hand, those doubts, distinctions, rules, exceptions, and legal views, of which they cannot be ignorant without the most serious consequences j and serving, in the rapid occasions of daily practice, as a help to the attainment of accurate views, gained from the perusal and comparison of other authors, and from the modern statutes and cases. Instances are not wanting in which barristers and solicitors of long standing and in extensive practice have fallen into fatal mistakes, from the want of such assistance. They doubtless possessed the text-books on particular subjects, by a search of which they would have been saved from mistake ; but what they needed, in the pressure of practice, was, that adequate general knowledge which a sound general text-book alone can enable the student or practitioner to store up in his mind ; the points in books on particular subjects being infinitely too numerous to be remembered, and being often a dead letter to the j^ractitioner for want of general preparatory knowledge to lead him to examine them. The writer, however, may observe, for the sake of those who have but recently entered the profession, that no general text-book, even on a much less comprehensive subject than the present, can be implicitly P^ ...-. relied on by the practitioner. (a) The author *of such a general L J text-book is not in the position of one who has undertaken to treat of and exhaust a particular subject. The former can have only a general view of the numerous particular subjects embraced in his work, and is therefore much more liable to error and inadvertence than the latter. Nor is it safe to rely even upon a statute or a decided case, without consulting a text writer upon the particular subject. A statute often embraces much less or much more than it seems to do ; and the case may have been overruled, or may have been wrongly decided, or may be open to a distinction, which the perusal of a text-book might have suggested. The only absolutely safe course, therefore, to be adopted in practice, where a point appears to be open to any degree of doubt whatever, is, to consult some modern book upon the specific subject with which the practitioner is concerned, and to refer to the (a) " Know, my son, that I would not have thee beleeve, that all which I have said in these bookes is law, for I will not presume to take this upon me. But of those things that are not law, inquire and learne of my wise masters learned in the law." (Littleton, 394, b.) — " I thought it safe for me to follow the grave and prudent example of our worthy author, not to take upon me, or presume that the reader should thinke that all that I have said herein to be law ; yet this I may safely afiirme, that there is nothing herein- but may either open some windowes of the law, to let in more light to the student by .diligent search to see the secrets of the law, or to move him to doubt, and withal to inable him to inquire and learne of the sages, what the law, together with the true reason thereof, in these cases is." — Co. Litt. 395, a. PREFACE. vii authorities cited therein, and the subsequent statutes an^ cases, under the light derived from that generally accurate knowledge of the prin- ciples, rules, points, and analogies of law, with which his *mind ^ ^. -, has been stored by the study of sound text-books of a general ■- -' character. So far as regards the law anterior to the year 1831, the book is founded almost exclusively on certain standard works, which are in the hands of most, and should be in the hands of all members of the pro- fession. So far as regards the law subsequent to the year 1830, it is founded partly on those works, and partly on the Statutes and Eeports themselves ; the writer having searched all the authorised English Eeports since that period, down to, but not including, those published in the present year. With so wide a field before him, to have had recourse to the Reports and Statutes themselves prior to that period, would have been a labour too great to be reasonably expected of any man; and it would have been unnecessary, as the law anterior to that time is embraced in approved text-books. And even of these, the writer has found it necessary to confine his research to a few, lest, by attempting too much, he should never be able to complete what he had commenced, or should expand his work to an undue length. The subject being of a general character, the text-books on which the work is chiefly founded are these : Coke upon Littleton, with Har- grave's and Butler's Notes : Sheppard's Touchstone, by Preston ; the second volume of Blackstone's Commentaries ; Cruise's Digest; Story's Equity Jurisprudence; Spenoe's Equitable Jurisdiction; and Burton's Compendium. (6) *But many points have also been derived from, j- ^ -, and many references have been made to, the Concise and Prac- L J tical View of the Law of Vendors and 'Purchasers, by Lord St. Leonards, (to whom the profession and the public are so deeply indebted for his Lordship's most valuable works, as well as for the various important measures which he has introduced in Parliament;) the Treatise of Powers, by the same most learned author ; the Treatise on Mortgages (3rd edit.,) by that very learned and very eminent Conveyancer, Mr. Coote; Jarman and Bythewood's Conveyancing (3rd edit.,) by Mr. G-eorge Sweet ; Roper's Legacies (4th edit.,) by Mr. Henry Hopley White; Fearne's Contingent Remainders and Executory Devises, with the Treatise on Executory Interests in Real and Personal Property, annexed to the 10th edition of that work, by the writer of these pages ; and some other works which are referred to.(c) (6) The 3rd edition of Cruise was used ; but the references being to the titles, chapters, and sections, or paragraphs, in Cruise, they will apply to any edition. Some additional paragraphs occur in the 4th (the last) edition ; but the titles and chapters being the same, and there being marginal notes, the points will be found without any difficulty, even in that edition. And most persons possess the third or one of' the earlier editions. The references will also apply to any edition of Story or Burton; although of course it is desirable to possess the last edition of Burton, by Mr. Edward Priestly Cooper. Burton's Compendium contains a vast collection of points in a v,ery small compass, and is one of the soundest books ever written. (o) Where there are several references as to the same point, and the words are wholly or principally taken from one of the books referred to, that book is cited viii SMITH ON RI^AL AND PERSONAL PKOPERTT. When the writer has taken any point or borrowed any idea from any other work, he has been careful to acknowledge it ; and, except in some [-;^ .-, cases where he *had previously consulted the authorities himself, L J he has simply referred to such work, leaving the reader to have recourse, for the original authorities in support of any such point of law, to the particular text-book from which it has been taken ; it being the design of the writer not to render the possession of any of the books referred to less necessary than it was before, but to provide a new work to be used in addition to the existing treatises, for the purpose of sup- plying the want already adverted to. Indeed, besides the vast mass of obsolete and unsettled points, and of points that may be left for inves- tigation when the occasion arises, which are contained in those books, but which have been omitted in this Compendium, there are many points which it would be advantageous, though it be not absolutely ne- cessary, to bear in mind, and which the writer could have inserted in these pages from the above-mentioned text-books on particular heads of law, but he deemed it more proper to leave the reader to resort for such points to those works themselves. How to notice the modern statutes, was a question which the writer had great difficulty in deciding. To have given in full all the enact- ments relating to the subject, would of course have quite overloaded the work, and swelled it out to a very large size. Again, to have noticed all the enactments briefly, appeared to be only of use in apprising the reader that there are enactments of such a general purport and effect, l-^ .. , without giving him an accurate view of *those enactments. A L J third mode therefore has been adopted, namely, to treat the Sta- tute Law in the same way as the unwritten law, that is, to notice such only of the enactments as appeared necessary to be borne in mind, as distinguished from those which may be left for investigation pro re nata, and generally (as the only thoroughly satisfactory course) to give ver- batim the enactments so noticed, leaving the practitioner to refer to the other enactments as the occasion arises, which he may now readily do, by the help of Mr. Stamp's excellent Index to the Statute Law, a work comprised in one small volume, which has been of the greatest assist- ance to the writer, but of the merits of which he was unfortunately not aware until he had nearly commenced printing. In many instances where the words of a statute have been given verbatim, the writer has prefixed to them an abridged statement, which may serve as some help to the student. As the work has swelled out to a greater size than was contemplated, the decisions upon the modern statutes, being easily referred to when required, have been omitted. They are collected in the works of Lord St. Leonards and Mr. Shelford on the New Statutes, and in Chitty's Collection of Statutes, by Mr. Welsby and Mr. Beavan. Certain heads of the law of personal property (such as the law of patents, copyright, shipping, &c.,) each of which forms the subject of a • first. With this exception, the references are put down without any particular order. PREFACE. ix distinct Treatise, are also omitted, as they do not occur in ordinary practice. *A3 this is a Compendium of the Law of Property, con- ^^ ..._ neoted with conveyancings points of practice or usage which L J have not been the subjects of enactment or decision are omitted. And points of practice which have been the subject of enactment or decision are also omitted, where they may be safely left to be investigated for the occasion. They will be found in the works of Lord St. Leonards, in Jarman and Bythewood's Conveyancing by Mr. George Sweet, and in the writings of Mr. Preston, &c. The student is recommended to read through this Compendium twice at the least, and then mentally to engraft upon it, as it were, additional portions of the works referred to, in illustration and enlargement of the knowledge these pages are intended to furnish. It is divided into Four Parts : — Part I. Of the several Kinds of Things constituting the subjects of conveyancing. Part II. Of the several Kinds of Interests in Things constituting the subjects of conveyancing. Part III. Of the Title to things constituting the subjects of convey- ancing. Part IV. Of certain Persons and Miscellaneous Heads of Law con- nected with conveyancing. Some of the chapters or sections have a scanty appearance. But this has arisen partly from the principle of selection above adverted to, and partly from the endeavour to devise as accurate and *perspicuous y^ . -. an arrangement of the subject as possible, and one that might be L '^'^J convenient for the purpose of annotation by the reader, which has pro- duced a greater subdivision than that which might otherwise have been adopted. To select, abridge, arrange, combine, and digest, and, in very many instances, to define, correct, qualify, harmonise, deduce, and distinguish, has involved the perusal of many thousands of pages of text-books, the search of about 200 volumes of reports, and some years of perplexing thought and arduous labour. The works above enumerated, from which this volume is chiefly de- rived, consist of upwards of 30 volumes, besides the statutes and the reports since the year 1830. That a work embracing so extensive a subject, and comparatively in so small a compass, should not be liable to the charge of a number of omissions and inadvertencies, can hardly be reasonably expected. And therefore, although the manner in which his other labours in legal authorship have been received by several of the Judges and of the lead- ing Members of the Bar has encouraged the writer to make the present attempt to facilitate a knowledge of the Law of Property, so far as it X SMITH ON REAL AND PERSONAL PROPERTY. directly bears upon Conveyancing, and consequently upon practice in Equity also, and although the time which has been expended upon the undertaking has far exceeded that which a work upon any particular P ^ , subject would have required, *yet it is with the utmost diffidence L J that he ventures to submit the following pages to the Profession. If they are not what he, so far as the time at his command would per- mit, has endeavoured to make them, he trusts that they will prove of use by forming a micleus (imperfect and faulty though it may be) of that generally applicable and useful, and therefore really practical learn- ing, which it is needful for every one to appropriate to himself, and around which he may readily agglomerate such further "amiable and admirable secrets of the law"(cZ) as he may think it expedient and possi- ble to store up in his mind. [d] Co. Litt. n, a. 1, Old Squahe, Lincoln's Inn. November \st, 1855. CONTENTS. The pages referred to are those between brackets [ INTRODUCTION. Introductory Analysis, Introductory Outline, . XXXI . SSXT PART I. OF THE SEVERAL KINDS OF THINGS CONSTITUTING THE SUB- JECTS OF CONVEYANCING. TITLE I. OF THINGS REAL AND PERSONAL, TITLE IL OF THINGS CORPOREAL AND INCORPOREAL. Chap. I. — Things Corporeal and Incorporeal distinguished, II. — Op certain Kinds op Incorporeal Hereditaments, Sect. 1. — Of Annuities, 2.— Of Rents, 3. — Of Advowsons , 4.— Of Tithes, 6. — Of Commons, 6. — Of Franchises or Liberties, 7.— Of Ways, . 1 4 6 6 10 20 25 33 39 41 PART II. OF THE SEVERAL KINDS OP INTERESTS IN THINGS CONSTI- TUTING THE SUBJECTS OP CONVEyANCING.- TITLE L OF CONDITIONS AND LIMITATIONS ON WHICH INTERESTS DEPEND OR BY WHICH THEY MAY BE AFFECTED. Chap. I. — Of the several Kinds op Conditions, . . .43 II. — Of Limitations, in the Sense of Limits or Bounds, . . 4Y xii SMITH OR REAL AND PERSONAL PROPERTY. III. — Of the PERFORMAlirOE OF CONDITIONS, . . .50 IV. — Op taking Advantage of the Breach of Conditions, . 55 V. — Of Void Conditions, . . . . .58 VI. — Of Conditions generally, . . . .69 TITLE II. OP FREEHOLD, AS DISTINGUISHED PROM COPYHOLD INTERESTS, . 72 TITLE III. OP COPYHOLD INTERESTS. Chap. I. — Of Copyholds generally, . . . .74 II. — Of the Extinction of Manors, Manorial Rights, and Copy- holds, at the Common Law, . . .80 III. — Op the Commutation on Manorial Rights, and the Enfran- chisement OP Copyholds under the Statutes relating thereto, . . . . . .83 TITLE IV. OP INTERESTS OP FREEHOLD DURATION; AND, FIRST, OF FREEHOLDS OF INHERITANCE. Chap. L— Freehold Interests and Interests less than Freehold dis- tinguished, . . . . .93 Chap. II. — Of Freeholds of Inheritance, . . .97 Sect. 1. — Of an Estate in Fee Simple, . . . .97 2. — Of Limited Fees : and First, of Base or Qualified Fees, . 102 3. — Of Fees subject to a Condition Subsequent or Conditional Limitation, ..... 103 4. — Of Conditional Fees at tie Common Law, . . 104 5.— Of Pees Tail, . . . . .105 TITLE V. OF FREEHOLDS NOT OF INHERITANCE, . . 123 Chap. I. — Of Estates for Life, specifically so called, . . 126 II. — Of an Estate Tail after Possibility of Issue extinct, . 129 III. — Of an Estate by the Curtesy, . . .131 IV. — Of Dower, Fbeebench, and Jointure, . . .135 Sect. 1. — Of Dower, generally, .... 135 2. — Of the Modes of preventing, at Law and in Equity, the Title to Dower from arising, independently of the Dower Act : and herein, of Uses to prevent Dower and Legal Jointures, . 140 3. — Of the Modes in which Dower may be barred or lost, at Law and in Equity, after the Title to it has arisen, independently of the Dower Act, ..... 147 4. — Of the Modes of preventing or barring Dower, in Equity, in- dependently of the Dower Act, . . . 149 5. Of the preventing, barring, or affecting Dower, under the Dower Act, . . . . . .150 6.— Of Freebench, . . . . .152 TITLE VL OF ESTATES OR INTERESTS LESS THAN FREEHOLD. (I). — Of an Estate for Years, .... 155 (II)._Of an Estate at Will, . . . . .164 (III). — Of an Interest by Sufferance, .... 166 (IV). — Of Chattel Interests created for special Purposes, . . 166 ; N T E N T S. xiii TITLE VII. OF ESTATES OR INTERESTS IN SEVERALTY AND IN COMMUNITY. Chap. I. — Of an Estate in Joint Tenancy, and op a Tenancy by En- tireties, ...... 169 Seet. 1. — Of the General Law as to Joint Tenancy, . . 169 2. — Of the Destruction of Joint Tennancy, . . . 174 3. — Of a Tenancy by Entireties, . . . .177 Chap. II. — Op an Estate in Coparcenary, . . . 178 III. — Op an Estate in Common, .... 181 TITLE VIIL OF LEGAL AND EQUITABLE INTERESTS. Chap. I. — Op Legal Interests ; and herein op Uses, . . 186 IL — Op Equitable Interests or Trusts, . . . 196 Sect. 1. — Of Trusts, generally, . . . .196 2.— Of Express Private Trusts, . . . .197 3.— Of Implied Trusts, ■ . . . . .207 4.— Of Constructive Trusts, . . . .211 5.— Of Charitable Trusts, . . . .212 (1). — Charitable Trusts generally, . . .212 (2). — Dispositions in favour of Charities void under the Mort- main Act, ..... 216 (3). — Exceptions or Cases not within the Mortmain Act, . 220 Chap. III. — Op Interests both Legal and Equitable, . . 225 ' TITLE IX. OF INTERESTS CLOTHED WITH THE OWNERSHIP, AND INTERESTS COLLATERAL TO THE OWNERSHIP. Chap. I. — Op Vested and Executory Interests, . . . 227 Sect. 1. — Of Vested and Executory Interests generally, . . 22t 2. — Of Remainders and Quasi Remainders, . . . 231 3. — Of Reversions, . . . . .239 4. — Of Executory Interests other than Contingent Remainders or Quasi Remainders, ..... 241 Sect. 5. — Certain other Points connected with the subject of Vested and Executory Interests, .... 245 Chap. II. — Op Rights op Entry or Action, mere Possibilities, mere Adverse Possessions and Expectancies, . . 249 III.— Op PowERS,(d) . . . . .252 (1). — The Nature and different Kinds of Powers, . . 252 (2).— The Creation of Powers, . . .255 (3). — Powers to appoint to Children or Relations, . 257 (4). — Shares in default of Appointment, . . 259 (5). — Powers to Sell, Mortgage, Charge, or Exchange, . 259 (6). — Powers of Revocation, . . . • . 262 (Y). — The Extinction, Suspension, Qualification, and Merger of Powers, ..... 263 (8). — Powers generally, .... 266 IV. — Of Charges and Liens, .... 269 Sect. 1.— Of Charges, . . . . .269 2.— Of Liens, . . . . . .272 {d) As to Appointments and Leases under Powers, see Title XII. Oh. III. Sect. 6, 7, p. 582, 596. SMITH ON REAL AND PERSONAL PROPERTY. TITLE X. OF ABSOLUTE AND DEFEASIBLE INTERESTS ; AND PARTICULARLY OF INTERESTS BY WAY OF SECURITY. Chap. I. — Op Absolute and Defeasible Inteeesis, . . 2Y4 II. — Of Mortgages, . . . . • 2T5 Sect. 1. — Of Legal Mortgages of Real Property, . . .277 2. — Of Equitable Mortgages of Eeal Property, . .305 3. — Of Mortgages of Personal Property, . . . 306 Chap. III. — Of Statutes Merchaitt, Statutes Staple, Recognizances, Judgments, and elegit, .... 309 IV. — Of Charges on Benefices, . . . .317 PART III. OP THE TITLE TO THINGS CONSTITUTING THE SUBJECTS OF CONVEYANCING. TITLE L OF DESCENT, SUCCESSION, AND ADMINISTRATION. Chap. I. — Op Descent, Sect. 1. — Of Descent generally. 323 323 2. — Of the Rules of Descent of Estates in Fee Simple, by the Common Law, ..... 328 3. — Of the Rules of Descent of Estates in Fee Simple, as altered by the Statute, . . . . .336 4.— Of the Descent of Estates Tail, . . .344 5. — Of Descent by special Custom, . . . 345 Chap. II. — Of Succession, ..... 348 III. — Op Administration, .... 349 Sect. 1.— Of Debts, . . . . . .349 (1). — Debts generally, and their different Kinds, . . 349 (2|.— Crown Debts, . . . .351 (3). — Liability of Estates in Fee and Estates for Years to Payment of Debts, .... 352 (4). — Liability of Persons having particular Estates to dis- charge Debts or keep down the Interest thereof, . 357 (5). — Extinction of Incumbrances, . . . 359 2. — Of Assets, and the Administration thereof, . . 361 (IV — Legal and Equitable Assets, . . .361 (2). — The Order of Administration of different Properties, . 362 (3). — The Order of Satisfaction of different Claims, . 367 (4). — Marshalling of Assets, . . . .369 (5). — The Mode of Distribution of the Personal Estate of an Intestate among his or her Family or Relatives, by the General Law, . . . .373 (6). — The Mode of Distribution of the Personal Estate of an Intestate among his or her Family or Relatives, by the Customs of London and York, . . ■ 376 TITLE IL OF ESCHEAT, . 378 CONTENTS. XV TITLE III. OP OCOUPANOT, . . .380 TITLE IV. OF ALLUVION AND DERELICTION, . . ,383 TITLE V. OP PRESCRIPTION, . . 384 TITLE VL OP TITLE BY ADVERSE POSSESSION AND THE OPERATION OF THE STATUTES OF LIMITATION. Chap. I. — Op Advbrsb Possession and its Consequences under the Old Law, . . . . .390 II. — Of the Statute of Limitations, 3 & 4 Will. 4, c. 27, . 396 TITLE VIL OF FORPEITUEE, . . .415 TITLE VII L OF BANKRUPTCY UNDER THE NEW LAW, . . 424 TITLE IX. OF INSOLVENCY. (I).— Under the Stat. 1 & 2 Vict. o. 110, . . . .433 {II .—Under the Statutes 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, . 438 (III).— Under the Statute 7 & 8 Vict. c. 70, ... 443 (IV).— Under the Statute 12 & 13 Vict. c. 106, . . .443 TITLE X. OP ALIENATION ; AND FIRST OF ALIENATION GENERALLY. Chap. I. — General Observations on Alienation, . . . 445 XL — Of a Vendor's Title, .... 448 Sect. I.— Of the Requisite Length of Title, . . .448 2. — Of the kind of Title which is requisite, . . . 449 3.— Of Defects in the Title, . . . .452 Chap. III. — Of Conditions of Sale, .... 454 IV. — Some Miscellaneous Points in the Law of Vendors and Purchasers, ..... 460 TITLE XL OF ALIENATION BY MERE WRITTEN AGREEMENT. Chap. I. — Op Alienation at Law by mere Written Agreeebnt, . 469 II. — Of Alienation in Equity by mere Contract foe Sale, . 472 SMITH ON REAL AND PERSONAL PROPERTY. Ji; TITLE XII. OP ALIENATION BY DEED. Chap. I. — Of Deeds benekallt, and their Parts, . . ■ 475 Sect. I. — Of Deeds generally, ..... 475 2. — The several Parts of Deeds enumerated, . . . 477 3.— Of the Date, . . . . .478 4.— Of the Parties, . . . . .479 5.— Of the Recitals, . . . . .483 6.— Of the Operative Part, . . . .484 7. — Of the Parcels or Subject, .... 485 -The Parcels or Subject, generally, . . 485 -Particular Subjects of Property, and the Words by which they pass in a Deed, . . .489 (3).— Exceptions, . . . . .492 Sect. 8.— Of the Habendum, . . . . .493 9.— Of the Reservation, . . . . .497 10.— Of the Covenants [See infra Ch. V. s. I. p. 654,] . .499 (1). — Covenants, generally, .... 500 (2). — Express and implied Covenants, . . . 500 (3). — General and specific Covenants, . . . 502 (4). — Inherent and Collateral Covenants, . . 502 (5J. — Joint and Several Covenants, . . . 502 (6j. — Real and Personal Covenants, . . . 503 (7). — Construction of certain Covenants, . . . 507 (8). — Discharge or Satisfaction of Covenants, and Relief against them, .... 508 (11).— Of the Indorsed Receipt, . . . .510 Chap. II. — Or the Different Kinds of Deeds : and first, or the Dif- ferent Kinds of Common Law Conveyances, . . 512 Sect. 1.— Of a Feoffment, . . . . .514 2.— Of a Gift, . . . . . .520 3.— Of a Grant, . . . . .520 4. — Of a Bargain and Sale, . . . .522 5. — Of Leases and Underleases, .... 527 6. — Of an Exchange, ..... 541 7.— Of a Partition, . . . . .245 8. — Of a Release and of an Acquittance, . '. . 549 (1). — The Different Kinds of Releases and their Operation, 549 (21. — What may be released, . . . 555 (S) — Construction of Releases, . . . 557 (4). — Releases generally, .... 559 9. — Of a Confirmation, ..... 660 10.— Of a Surrender, . . . . .562 11. — Of an Assignment, ..... 566 12. — Of a Defeazance, ..... 571 13. — Of a Disclaimer, ..... 571 Chap. III. — Of the Different Kinds op Statutory Conveyances, . 573 Sect. 1. — Of a Covenant to stand seised, . . . 573 2. — Of a Lease and Release, .... 476 3.— Of a Statutory Release, . . . .578 Sect. 4. — Of a Statutory Grant, ..... 580 5. — Of a Deed to lead or declare Uses, and of a Deed of Revoca- tion of Uses, ..... 580 6. — Of a Deed of Appointment under a Power, . . 582 (1).— The Mode of Executing Powers, . .582 (2). — Relief against the Defective Execution of Powers, . 586 (3J. — Excessive Execution of Powers, . . 589 (4). — Fraudulent and Illusory Appointments, . . 590 CONTENTS. xvii (5). — The Question -whether an Instrument is intended to operate as an Appointment, . . 592 (6). — Appointments generally, . . . 594 7. — Of Leases under Powers, .... 596 (a). — Usual Restrictions, .... 597 (1). Instrument by which the Power is to be executed, . 598 (2J. Lauds to be let, . . . .598 (31. Commencement of the Lease, . . . 599 (4). Duration of the Lease, . . . 600 (5). The Reservation, . . . .600 (6). The Covenants, . . . .601 (6). — Relief against the defective Execution of Powers of Leasing, .... 601 8. — Of Assurances under the Act for the Abolition of Pines and Recoveries, ..... 605 (1). — Assurances by Persons liable after the 31st Decem- ber, 1833, to levy a Pine or suffer a Recovery, . 608 (2). — Disposition of Freehold Lands by Tenants in Tail, Issue in Tail, and Persons entitled to Base Pees, in general, . . . .609 (3). — Dispositions by Tenants in Tail and Owners of Base Pees in Copyholds, . . . 625 (4). — Disposition of Lands of which Bankrupts are Tenants in Tail, or in which they have Base Pees, . 628 (5).— Dispositions in the Case of Money subject to be in- vested in Land which is to be entailed, . 639 (6). — Dispositions by Married Women, . . 641 Sect. 9. — Of Concise Conveyances and Leases under the Stat. 8 & 9 Vict. e. 119, 124, . . . .644 Chap. IV. — Op the different Kinds op Deeds other than Convey- ances, . . . . . .646 Sect. 1. — Of Bonds, ..... 646 (IV — Bonds generally, .... 646 (2). — The Condition of a Bond, . . . 648 2. — Of Declarations of Trust, .... 650 Chap. V. — Op the different Kinds op Deeds, when considered with EEPEEENCE TO THE PnEPOSB TO BE EFFECTED BY THEM, . 653 Sect. 1. — Of Purchase Deeds, ..... 654 il). — Who covenant for the Title, . . . 654 21. — Covenants for Title in the case of Estates in Pee, . 655 31. — Covenants on Sale of Leaseholds, . . 657 4). — Against whose Acts a Vendor should covenant, . 658 5). — To what Kind of Acts Covenants will extend, . 660 2. — Of Marriage Settlements, . . . .661 3. — Of Deeds of Compromise and Arrangement, . . 663 4. — Of Creditors' Deeds, . . . .664 Chap. VI. — Of Void and Voidable Deeds and Contracts, . . 667 Sect. 1. — Of Deeds which are invalid by reason of the Absence of any Consideration, or the Inadequacy or Unlawfulness of the Consideration, . . . .667 (I). — Absence or Pailure of Consideration, . . 667 (2J. — Inadequacy of the Consideration, . .671 (3). — Unlawfulness of the Consideration, . . 673 Sect. 2. — Of Deeds and Contracts which are invalid on the ground of Constructive Praud practised by Persons standing in a Confidential Relation to the Parties sought to be bound by such Deeds or Contracts, . . . 674 3. — Of Deeds which are invalid on account of Actual of Construc- tive Praud on Third Persons, . . . 678 January, 1856. — 2 xviii SMITH ON REAL AND PEESONAL PEOPBRTT. 4. — Of Contracts, Agreements, or Covenants which are against Public Policy, . _ . . . .692 5. — Of Deeds void for Uncertainty, . . • '?06 6. — Of the Avoidance of a Deed by Disagreement, . . "706 Chap. VII. — Of divers Matters pertaining to Deeds in general, . 708 Sect., 1.— Of Stamping Deeds, . . . .708 2.— Of the Execution of Deeds, . . . .708 3. — Of the Registration of Deeds, .... 712 4.— Of the Enrolment of Deeds, . . . ,717 5. — Of the Possession and Transfer of Title Deeds, . . 718 6. — Of attested Copies and Covenants for Production of Docu- ments of Title, . . . .718 7.— Of Mistakes in Deeds, . . . .720 8.— Of Alterations in Deeds, . . . .721 9. — Of the Construction of Deeds, .... 723 (1). — General Rules of Construction of Deeds, . 723 (2). — The Construction of particular Expressions in Deeds, 729 10.— Of Estoppel, . . . . .731 11.— Of Cancelling Deeds, . . . .734 TITLE XIII. OF ALIENATION BY MATTER OF RECOED.(e) (I).— Of a Private Act, . . . . .736 (II).— Of Royal Grants, . . . . .737 (III).— Of Fines, . . . . . .738 (IV). — Of Common Recoveries, .... 745 TITLE XIV. OF ALIENATION OP COPYHOLDS BY VOLUNTARY GRANT AND ADMIT- TANCE, BY SURRENDER AND ADMITTANCE, BY BARGAIN AND SALE AND ADMITTANCE, OR BY RECOVERY, . . .750 TITLE XV. OP ALIENATION BY WILL. Chap. I. — Of Wills generally, and of Devises and Bequests JOINTLY CONSIDERED, .... 759 Sect. 1. — Of Wills generally, ..... 759 2. — Of the requisite Forms in Devises and Bequests, . .763 (1). — The Law as to the requisite Forms before the Stat. 1 Vict. c. 26, . . . . 763 (2). — The Alterations as to the requisite Forms made by the Stat. 1 Vict. c. 26, and the Provisions of the Stat. 15 Vict. c. 24, . . . 768 3. — What may be Devised or Bequeathed, . . . 772 4. — Of the General Rules of Construction of Wills, . . 775 5. — Of the Construction of particular Words and Expressions in Wills, . , . . . .781 6. — Of Devisees and Legatees, .... 785 (I). — Error or Defect in a Name or Description, . 785 uj. — Bequests to Parents and Children, . . 786 (3). — Devises and Bequests to Children, . . 788 (4|. — Devises and Bequests to Issue, . . . 790 (5). — Devises to Heirs or Descendants, . .791 (e) See infra, p. V38, a. (o). S: CONTENTS. xix (6). — Bequests to a Person and his Heirs, or to the Heirs of a Person, . . . . 793 (?). — Devises or Bequests to Cousins or Relations, or a Family, or Next of Kin, or Persons claiming'un- der the Statute of Distributions, or Executors, or Personal or Legal Representatives, . . 793 |. — Testamentary Gifts to other Objects, . . 798 -Exclusion of Persons who would take as Heirs or under the Statutes of Distribution, . . 799 Sect. 7. — Of Implied Devises and Bequests, . . . 799 8. — Of the Revocation of Devises and Bequests, . . 800 fl). — Revocation under the Old Law, . .800 (2). — The Law as to Revocation by the Stat. 1 Vict. c. 26, 808 9. — Of the Lapse of Devises and Bequests, . . . 809 10.— Of the Republication of Wills, . . . .813 Chap. IL — Of Devises separately considered, . . . 815 Sect. 1. — Of Devises generally, .... 815 2. — Of the Description of the Parcels or Subject, . . 816 3. — Of Devises of Copyholds, . . . .819 Chap. III. — Of Bequests separately considered, . . . 824 Sect. 1. — Of General, Specific, and Demonstrative Legacies, . 824 2. — Of the Description of the Things bequeathed, . . 827 3. — Of the Shares or Proportions in which two or more Legatees take, . . . . . .832 4. — Of the Priority and Abatement of Legacies, '. . 834 5. — Of Double Legacies and Residuary Legacies, . . 836 6. — Of the Payment of Legacies, .... 837 7. — Of the Interest or Income of Property bequeathed, . 838 8. — Of Bequests generally, . , . . . 839 PAET IV. OF CERTAIN PERSONS AND MISCELLANEOUS HEADS OP LAW CONNECTED WITH CONVEYANCING. TITLE I. OF CERTAIN PERSONS CONNECTED WITH CONVEYANCING. Chap. I. — Of Executors and Administrators, II. — Or Trustees, .... III. — Of Married Women, .... Sect. 1. — The Legal Disability of Married Women, 2. — The Powers which Husband and Wife have of Contracting with, and Giving and Granting to, each other, . 3. — The Interest of the Husband in the Wife's Property, 4. — Pin-money and Paraphernalia, 5 — The Wife's separate Estate, 6. — The Wife's Equity to a Settlement or Maintenance out of her own Property, .... 7. — Some Points respecting Deeds of Separation, 8. — Some Miscellaneous Points, Chap. IV. — Of Infants, .... Sect. 1. — Of the Acts which an Infant may or may not do, . 2. — Of Portions and Legacies to Infants, 3. — Of Maintenance, .... 841 852 877 877 882 884 887 904 906 908 908 913 914 XX SMITH ON REAL AND PBKSONAL PROPERTY. Chap. V. — Of Illegitimate CmLDREif, .... 919 VI. — Of Persons of Unsound Mind, . . . 921 VII.— Op Aliens, . . . . . .924 VIII.— Op Cobpobations, . . . . .929 TITLE 11. OF SOME MISCELLANEOUS HEADS OF LAW CONNECTED WITH CON- VEYANCING. Chap. I.— Op Waste, . . . . . .933 fl^.— Different Kinds of Waste, . . .933 (2). — Who may and who may not commit Waste, . 937 Chap. II. — Of Mergee, ..... 939 III. — Op Conversion, ..... 945 IV. — Op Election, . . . . . .953 V. — Of Satispaotion, ..... 959 APPENDIX. Stat. 18 Vict. c. 13 (Lunacy,) .... 963 Stat, 18 Vict. c. 15 [Protection of Purcliasers,) . . . 964 TABLE OF CASES.C/) The pages referred to are those between brackets, [ Abeedben t. Newland, 319. Adams t. Adams, 100, 101. T. Jones, 119. , Lachton v., 886. Addison t. Busk, 800. , Robinson v., 825. Adnam v. Cole, 221. Alchinv. Hopkins, 318. Aldborough (Earl of,) v. Trye, 672. Allen T. Allen, 122, 910. AUeston, Edwards v., 233. Andrew v. Andrew, 234. Andrews, Douglas v., 781. V. Hailes, 392. Annesley, Macleod v., 855. Anstey, Stronghill v., 260. Antrobus, Cremorne v., 831. Arbouin, Pritchard v., 219. Armstrong, TuUett v., 893, 894. Arnold t. Hardwick, 590. Ashburner, Collyer v., 838. Ashburton (Lord,) Cholmondeley v., 796. Ashmed, Stratton v., 855. Ashton T. Lord Langdale, 222. Askham v. Barker, 590. Aston, Brandon v., 65. Atkinson, re, 437, 570. , Pickup v., 945 Attorney- General v. Foord, 539. T. Hall, 219. v. Hodgson, 216. v. Jones, 2, 767. , March v., 221. V. Lord Weymouth, 220, 737. Audland, "Ward v., 569. Badham, Seifferth v., 795. Baggett V. Meux, 893, 894. Bagshaw v. Winter, 901, 902. Bailey v. Lloyd, 483. Baily v. Boult, 14. Baines v. Ottey, 797. Baker y. Gibson, 246. T. Greenhill, 507. , Litchfield v., 945. V. Sutton, 213. Ball r. Harris, 261. , Johnson v., 256. , Summers v., 905. Bamford, Brown v., 895. Banbury, Foster v., 766. Banks, Right v., 756. Barber's Will, re Trusts of, 246. Barham y. Earl of Clarendon, 946. Barker, Askham v., 590. V. Barker, 133. Barneby, Smith v., 797. Barrett, Davis v., 351, 360. Bartholomew v. Harris, 765. Battley, Ford t., 8. Bayley, Sanderson v., 793. Beach, Copper Mining Qpmpanyv., 537. Beaden v. King, 262. Beale v. Symonds, 304, 378. Becher, Hore v., 887. Beckett, Cleobury v., 802. Begbie v. Crook, 571. Bell, Blann v., 945. V. Carter, 275. Benbow, Storrs v., 789. Benjamin, Doe d. Philip v., 527. Bennett, Doe d. Guest v., 818. , Gilbert v., 917. Bensley v. Burdon, 733. Bernal y. Bernal, 792. Bessey v. Windham, 703. Bill T. Cureton, 669. Birch V. Dawson, 832. Bird Y. Luckie, 246. (/) These are almost all Cases from the Reports published since the year 1830. For the earlier Cases, the Reader is referred to the Text Books cited. See Pre- face, p. is. xxii SMITH ON REAL AND PERSONAL PEOPBETT. Birkenhead, Doe d. Clift v., 492. Blackburn, Hobsonv., 817. Blacket v. Lamb, 955. Blackmore, Lenden v., ISQ. Blackwell v. Pennant, 798. Blann v. Bell, 945. Blenkoru, Bucknell v., 587, 779. Blewitt T. Roberts, 7. Bloyes's Trust, re, 675. Booth V. Dean, 798. , Kirkman t., 848. , Martindale v., 307. T. Ticara, 797. Borrodale, Dormay v., 507. Boss T. Godsell, 662. Boston V. Boston, 62. Bottriel, Doe d. Tunstill v., 686. Botfield, Bradburne v., 503. Boult, Bailey t., 14. Bousfield, Doe d. Robinson v., 540. Bowden v. Laing, 917. Bowker T. Burdekin, 665. Boyer, Hickling y., 536, 658, 783. Boys V. Bradley, 792. Bradburne v. Botfield, 503. Bradley, Boys T., 792. , Wren v., 60, 61. Bradshaw v. Tasker, 214. Brandon v. Aston, 65. Brennon, Strange v., 676. Brereton, Drosier v., 855. Bridge y. Bridge, 670. Briggs v. Penny, 201, 202, 210. Bristow T. Bristow, 780. , Moneypenny v., 813. British Museum, Trustees of 'the, v. White, 220. Britten r. Wait, 319, 320. Brown v. Bamford, 895. V. Pocock, 893. Browne v. Paull, 916. , Tompson v., 767. Brownlow (Earl,) Egrent v., 44, 46, 58, 776, 777. Buchanan, Fleming v., 362. Buck, Stronghill v., 732. -, Vaughan v., 901. Bucknell t. Blenkorn, 587, 779. Bulk, Gough v., 840. BuUer, Carpenter v., 731, 732. Bullin T. Fletcher, 806. Bulmer, Clapton v., 246, 795. Burdekin, Bowker v., 665. Burdon, Bensley t., 733. Burley t. Evelyn, 950. Burnell, Gale v., 698, 704. Burroughs, Doe d. Earl of Egremont v., 901. Burton t. White, 99. Burtt, re, 853. Bushnell, Butler T., 246, 795. Busk, Addison v., 800. Bute (Marquis of,) t. Thompson, 509. Butler V. Bushnell, 246, 795. Butler V. Lowe, 788. , Smith T., 828. Butterfield v. Heath, 685, 686. Butter, Kirlew v., 319, 320. Byng V. Lord Strafford, 62. Calvert v. Sebbon, 796. Camroux, Molton v., 922. Cann, Ware v., 65, 68. Carpenter t. BuUer, 731, 732. Carter, Bell t., 275. T. Taggart, 902. Cartwright v. Cartwright, 61. Cash, Dean and Chapter of Ely v., 411. Catomore, Doe d. Tatum v., 722. Caton V. Ridout, 895. Caulfield v. Maguire, 584. Cave V. Roberts, 374. Chaffey, Doe d. Knight v., 791. Chaine, O'Hara v., 150. Chambers t. Chambers, 945. T. Taylor, 729. Charlesworth, Wilkinson v., 887. Charnley, Weir v., 590. Cholmondeley v. Lord Ashburton, 796. Christ's Hospital t. Granger, 248. Churchill v. Marks, 65. Clapton T. Bulmer, 246, 795. Clarendon (Earl of,) Barham v., 946. Clark, Mason t., 786. Clarke t. Jacques, 894. Clarkson, Holloway v., 840. Clayton t. Lord Nugent, 785. Cleghorne, Moore v., 100, 170. Clendiuen, Hitchcock v., 903. Cleobury t. Beckett, 802. Clough T. Lambert, 905. Cobb, Rishton v., 60. Cockell T. Taylor, 671, 694. Cole, Adnam v., 221. T. Fitzgerald, 832. — - V. Scott, 780. Colebrook t. Layton, 320. ColUnge, Cosser v., 539. Collins, Eadleston v., 299. CoUis, Doe d. Cooper t., 790. Colly er y. Ashburner, 838. Colquhoun, Wroughton y., 8. CongreYe v. Palmer, 786. Constable, Emanuel Y., 766. Cook Y. Field, 704. Cooke Y. Crawford, 853. , Sutherland y., 945. v. Turner, 44, 67. Cookson Y. Cookson, 946. Cooper Y. Denison, 374, 795. , Footner y., 99. , LoYeridge y., 568. , Playfair v., 8. Copper Miners' Company, Wood v., 500. Copper Mining Company y. Beach, 537. Cornfield y. Wyndham, 784. Cosser y. CoUinge, 539. CostobadieY. Costobadie, 917. TABLE OF CASES. XXIU Courtenay, Doe d. Earl of Egremont v., 538. Cox, Page v., 200. Cranefeldt, Freake v., 408. Crawfurd, Cooke v., 853. Crawford's Trusts, re. 111, 191, 798. Creed v. Perry, 886. Cremorne v. Antrobus, 831. Crew T. Dicken, 860. Croft, Day v., 181. Crofts, Walthew v., 319. Crook, Begbie v., 5T1. Cross, Doe d. Cross t., 161. V. Kennington, 210. Crozier v. Crozier, 584. Cunningham T. Murray, 833. Cureton, Bill v., 669. Currie v. Nind, 686. T. Pye, 220. Curtis V. Button, 220. Cutler, re, 899, 901. Dales, Snowdon v., 432. D'Almaine v. Moseley, 817. Dann, Ponton v., 255. Davall T. The New Riyer Company, 2. Davenport, Stow t., 15. Davies t. Thorn, 694. Davis Y. Barrett, 351, 360. V. Morgan, 826. Dawson, Birch v., 832. Day V. Croft, 781. , Duberley v., 885. Dean, Booth v., 798. Deane v. Wood, 816. Dearie v. Hall, 568. De Bonneval, De Themmines v., 67. Denison, Cooper v., 374, 795. Dennett v. Pass, 18. Despard, Lampier v., 831. De Themmines v. De Bonneval, 67. Dicken, Crew v., 860. Dickinson v. Mort, 589. Dixon, Ex parte, 60. V. Dixon, 894. , Mangles y., 570. Dobson, Sanderson, v., 817. Doe d. Ashbyr. Stevens, 71. d. Baddeley v. Massey, 392. d.Biddulph, Hole v., 814. ■ d. Broughton v. Gully, 318. ^d. Burton v. White, 99, 782, 816. -d. Cadwalader v. Price, 163. d. Cates v. Somerville, 318. -. d. Clift V. Birkenhead, 492. d. Cooper v. Collis, 790. d. Croft V. Pidbury, 392. . -d. Cross V. Cross, 767. d. Douglas V. Lock, 497. d. Egremont (Earl of,) v. Burroughs, 601. d. V. Courte- nay, 538. d. V. Langdon, 163. Doe d. Egremont (Earl of) v. Stephens, 599, 601, d. V. Williams, 599. d. Gardner v. Kennard, 71. — — d. Guest V. Bennett, 818. d. Hale v. Mousdale, 399. d. Hampton v. Shotter, 845. d. Jones v. Hughes, 261. d. Knight v. Chaffey, 791. d. Lloyd V. Jones, 392. d. March v. Marchant, 803. d. Meyrick v. Meyrick, 819. d. Nesmyth v. Kuowls, 783. d. Newman v. Rushan, 684. d. Norton v. Webster, 486. d. Parker v. Thomas, 330. d. Philip v. Benjamin, 527. d. Pottow T. Fricker, 99. d. Robinson v. Bousfield, 540. d. Roylance T. Lightford, 818. d. Sams v. Garlick, 100. d. Simpson v. Simpson, 105. d. Tatum v. Catomore, 722. ■ d. Timmis v. Steele, 495. d. Tunatill v. Bottriel, 686. d. Wilks V. Ramsden, 318. — - d. York V. Walker, 814. Dolphin, Graves v., 431. Donnop, Sheffield v., 263. Donovan v. Needham, 839. Dormay v. Borrodaile, 507. DotteriU, Gosden v., 779, 828. Douglas V. Andrews, 781. r- V. Russell, 698. Dowson, Stephenson v., 824, 828. Drake, Souter v., 450. Drosier v. Brereton, 855. Duberley v. Day, 885. Dugdale v. Dugdale, 833. Dunkley v. Dunkley, 901. Durbin, Holder v., 875. Durrant v. Friend, 920. Dyke v. Kendall, 149. Eadleston v. Collins, 299. Eardley v. Owen, 730. East V. Twyford, 100. ; Way v., 220. Eastwood, Philips v., 830. Edmonds, Prosser v., 694. Edwards v. AUeston, 233. V. Edwards, 790. Egerton v. Earl Brownlow, 44, 46, 5 776-7. Ellcock V. Mapp, 850. Ellis, Thornton v., 945. Elmsley v. Young, 795. Elvey V. Norwood, 281. Ely (Dean and Chapter) v. Cash, 411. Emanuel v. Constable, 766. Ennismere (Lord,) Phipps v., 692. Espinesse, Petre v., 668. Espley v. Lake, 674. xxiv SMITH ON KBAL AND PBKSONAL PROPBETT. Evans, Field v., 895. Evelyn, Burley v., 950. Paircloth v. Gurney, 319, 320. Fazakerley v. Ford, 784. Field, Cook v., 704. Piestel V. King's College, 693. Field V. Evans, 895. Field's Mortgage, re, 8 1 8. Fielder, Proudley v., 896. Fisher v. Hepburn, 831. Fitch T. Weber, T99, 950. Fitzgerald, Cole v., 832. Fleming t. Buchanan, 362. Fletcher, BuUin, v., 806. V. Fletcher, 669. Flight V. Salter, 318. Flint T. Warren, 950. Flower v. Hartopp, 456. Flyn, Nash v., 71 1. Foord, Attorney-General v., 539. Footuer v. Cooper, 99. Ford V. Battley, 8. , Fazakerley v., 784. V. Ruxton, 781. , Talbot v., 509. V. White, 306. Foreman, Thwaites v., 834, 835. Forrest v. Whiteway, 171. Foster v. Banbury, 766. V. Smith, 19. Fowler, Marshall v., 901. Fox, Roe d. Marston v., 804. Frampton v. Frampton, 905. Freake t. Cranefeldt, 408. Friend v. Durrant, 920. Gaby, Stump v., 676, 773. Gaffee, re, 894. Gale V. Burnell, 698, 704. V. Williamson, 682. Gardner v. Harding, 816. Garlick, Doe d. Sams v., 100. Garman, Gray v., 787. Garnett, M'Cormick v., 901. Garrard d. Tuck, ten, 163. Garrett, Wilkinson v., 246. Gaskell v. Holmes, 787. Gathercole, Hawkins v., 320. Geldard, Robinson v., 372, 824. Gent V. Harris, 901. Gibbons v. Hooper, 319, 320. Gibson, Baker v., 246. Gilbert v. Bennett, 917. , Milne v., 796. Giraud, Hilton v., 222. Glass V. Richardson, 76. Glengall (Earl of,) Lady E. Thynne v., 960. Glover, Martin v., 833. Gloucester (Corporation of), Trye v., 219. Godsell, Boss v., 662. Goodenough v. Tremamondo, 945. Gordon v. Whieldon, 833. Gosdeu v. Dotterill, 779, 828. Gossage, Parker v., 729. Gough V. Bulk, 840. Gonlburn, Nightingale v., 214. Gould, Homer v., 829. Gonldsbury, Huddlestone v., 830. Gower, Jenkins v., 246. Grace, Webb v., 58, 60. Granger, Christ's Hospital v., 248. Kendall v., 214. Grant v. Grant, 782. Granville (Earl,) Hilton v., 384. Graves v. Dolphin, 431. Gray v. Garman, 787. Green, Hardey v., 437. V. Harvey, 62. v. Marsden, 201. V. Price, 500. Greenhill, Baker v., 507. Greenwood v. Penny, 474. Grew, Roe v., 790. Grice v. Shaw, 943. Grifath V. Ricketts, 949, 950. Guillemard, Rickett v., 781. Gully, Doe d. Broughton v., 381. Gundry v. Pinniger, 795. Gurly V. Gurly, 907. Gurney, Faircloth v., 319, 320. Hackman, Rochford v., 64, 65. Hailes, Andrews v., 392. Haldenby v. Spofforth, 260. Hall, Attorney-General v., 219. Hall, Dearie v., 568. , Thornhill v., 779. Hanbury v. Spooner, 796. Hanrott, Wombwell v., 259. Harcourt, Jenkinson v., 365. Hardey v. Green, 437. Harding, Gardner v., 816. Hardwick, Arnold v., 590. Harris, re, 917. Harris, Ball v.,. 261. , Bartholomew v., 765. , Gent v., 901. , V. Mott, 892. Harrington r. Long, 694. Harrison v. Harrison, 219. . V. Randall, 590. Hartley v. Tribber, 777. Hartopp, Flower v., 456. Harvey, Green v., 62. V. Stracey, 589. Hawkins v. Gathercole, 320. Headford, Vaughan v., 786. Heap, Ockleston v., 853. Heath, Butterfield v., 685-6. v. Lewis, 59, 60. T. Weston, 784. Henderson v. Kennicot, 788. Henning, Whittle v., 886. Hepburn, Fisher v., 831. Hereford v. Ravenhill, 952. TABLE OF CASES. XXV Heron v. Stokes, 7. Hertford (Marquis of,) t. Lord Lowther, 827, 830. Hewett, Saltmarshe v., 318. , Skrine v., 318. Hewisoa T. Negus, 883. Hey, LiIeyT.,222. Hickling v. Boyer, 536, 658, 783. Hillman, Lewis v., 675. Hills, Palin v., 779. Hilton V. Giraud, 222. V. Granville (Earl,) 384. Hinchliffe v. "West-wood, 797. Hitchcock V. Clendinen, 903. Hobson T. Blackburn, 817. Hodgson, Attorney-General t., 216. Hoghton V. HoghtOD, 674. Holder v. Durbin, 875. Hole, Doe d. Biddulph v., 814. Holloway v. Clarkson, 840. Holmes, Gaskell y., 787. Homer v. Gould, 829. Hooper, Gibbons v., 319, 320. Hopkins, Alchin v., 318. , Tugman v., 896. Hopinson v. Lee, 503. Hore T. Becher, 887. Home, Page t., 907. Horton, Langton v., 699. , Medley v., 307. Hourmelin v. Sheldon, 925. How, Jones v., 510. Huddart, Patterson t., 817. Huddleston v. Gouldsbury, 830. , Miller v., 834, 835. Hughes, Doe d. Jones v., 261. , Voyle v., 670. Hume, Whicker y., 214, 221. Humphrey v. Humphrey, 829. Hunter t. Nockolds, 737. Hutt, Southby v., 457. Hutton, Curtis t., 220. Hyde, Plowdeu t., 806, 807. Incorporated Society t. Richards, 819. Innes t. Sayer, 586, 594. Ive V. King, 786. Jackson v. Thompson, 436. Jacques, Clark t., 894. James, Symons t., 456. Jarman, Silvester v., 818. Jenkins v. Gower, 246. Jenkinson v. Harcourt, 365. Jodrell V. Jodrell, 905. Johnson v. Ball, 256. V. Johnson, 799, 812, 945. V. Woods, 950, 951. Jones, Adams v., 779. , Attorney-General v., 2, 767. — v. How, 510. , Noel v., 918. V. Salter, 894. Josselyn, Sparrow v., 826. Jubber v. Jubber, 917. Kekewich v. Manning, 670. Kelson v. Kelson, 684. Kemp V. Sober, 508. , The Philanthropic Society v., 372. Kempson, Thornton v., 798. Kendall v. Granger, 214. V. Kendall. 830. Kennard, Doe d. Gardner v., 71. Kennedy, Molony v., 896. Kennicot, Henderson v., 788. Kennington, Cross v., 270. Kerr v. The Middlesex Hospital, 7. Kettlewell, Meek v., 568. Key V. Key, 723. Kilner v. Leach, 797. Kincaid's Trust, In re, 899, 901. King's Mortgage, re, 818. King, Beaden v., 262. , Ive v., 786. King's College, Feistal v., 693. Kirkman v. Booth, 848. Kirlew v. Butts, 319, 320. Knight V. Majoribanks, 678. Knowls, Doe d. Nesmyth v., 783. Lachton v. Adams, 886. Laing, Bowden v., 917. Lake, Espley v., 674. Lamb, Blacket v., 955. Lambert, Clongh v., 905. Lampier v. Despard, 831. Langdale (Lord,) Ashton v., 222. Langdon, Earl of Egremont v., 163. Langham's Trust, re, 798. Langton v. Horton, 699. Lasbury v. Newport, 795. Layton, Colebrook v., 320. Leach, Kilner v., 797. Leapingwell v. Page, 220. Lear v. Leggett, 65. Lee, Hopkinson v., 503. Leggett, Lear v., 65. Legh, Ex parte, 910. Leigh, v. Leigh, 811. T. Norbury, 790. Lenden v. Blackmore, 786. Lethbridge v. Thurlow, 15. Lewes v. Lewes, 918. Lewis, Heath v., 59, 60. V. Hillman, 675. V. Paxley, 108. Lichfield v. Baker, 945. Lightford, Doe d. Roylance v., 818. Liley v. Hey, 222. Lister, Tidd v., 371, 904. Little, Miller v., 825. Livie, Morris v., 570. Lloyd, Bailey v., 483. , Doe d. Jones v., 392. v. Lloyd, 45, 59, 60, 733, 812. Lock, Doe d. Douglas v., 497. xxvi SMITH ON EBAL AND PERSONAL PROPERTT. Lockyer, Pym v., 65. London Hospital (Governors of the,) Robinson v., 949, 950. Long, Harrington t., 694. Long T. Stone, 318. Longman, Tiffin v., 794. Longstaff V. Renuison, 219. Loveridge v. Cooper, 568. Low V. Peers, 60. Lowater, Robinson v., 462. Lowe, Butler v., 788. T. Thomas, 828. Lowther (Lord,) Marquis of Hertford v. , 827, 830. Luckie, Bird t., 246. Lunn T. Thornton, 698. Lyon T. Reed, 563. Mackenzie t. Mackenzie, 595, 663. Mackinley t. Sison, 765. Maoleod v. Auuesley, 855. Maddan, Tates v., 7. Magawley'g Trust, re, 682. Magnire, Caulfield v., 584. Majoribanks, Knight v., 678. Mallan v. May, 700, 723, 724, 730. Mangles v. Dixon, 570. ■ -, Withy v., 169, 795. Mann v. Thompson, 788. Manning, Kekewich v., 670. Mapp, EUcock v., 850. March v. Attorney-General, 221. T. Marchaut, Doe d., 803. Marchant, Doe d. March v., 803. , Parker v., 828. Margham, Martin t., 64. Marks, Churchill v., 65. Marsden, Green v., 201. Marshall t. Fowler, 901. Marston v. Pox, Roe d., 804. Martin v. Glover, 833. V. Margham, 64. , Townsend v., 825. Martindale v. Booth, 307. Mason v. Clarke, 786. Massey, Doe d. Baddely v., 392. Mather t. Scott, 219. Matthews v. Paul, 246. May, Mallan v., 700, 723, 724, 730. M'Cormick t. Garnett, 901. Medley v. Horton, 307. Meek v. Kettlewell, 568. Meux, Baggett v., 893, 894. Meyrick, Doe d. Meyrick v., 819. Michel, Picard v., 19. Middlesex Hospital, Kerr v., 7. Miller t. Huddleston, 834, 835. T. Little, 825. Mills, Paterson v., 330. Milne v. Gilbert, 796. , Walker v., 218, 222. Minter v. Wraith, 246, 797. Molony v. Kennedy, 896. Molton r. Camroux, 922. Moneypenny v. Bristow, 813. Montague v. Montague, 961. Moore v. Cleghorn, 100, 170. V. Ramsden, 319. , Scott T., 784. Moorhouse, Yarnold v., 64. Morgan, Davis v., 826. • V. Morgan, 945t , Ogle v., 798. Morley v. Rennoldson, 58, 60. Morris v. Livie, 570. V. Wright, 594. Mort, Dickinson v., 589. Mortimer v. Watts, 537. Moseley, D'Almaine v., 817. Mott, Harris v., 892. Mousdale, Doe d. Hale v., 399. Murray, Cunningham v., 833. Muskerry (Lord,) Sheely v., 268. Myers v. Perigal, 222. Napier v. Napier, 901. Nash V. Plyn, 711. Needham, Donovan v., 839. Negus, Hewison v., 883. Newland, Aberdeen v., 319. V. Watkin, 318. Newman v. Warner, 262. Newport, Lasbury v., 795. New River Company, Davall v., 2. Nielson v. Wordsworth, 860. Nightingale v. Goulburn, 214. Nind, Carrie v., 686. Nockolds, Hunter v., 737. Noel V. Jones, 918. Norbury, Leigh v., 790. Norman, Stroud v., 257. Norris, Robertson v., 884. Norwood, Blvy v., 281. Nugent (Lord,) Clayton v., 785. Ockleston v. Heap, 853. Ogle v. Morgan, 798. O'Hara v. Chaine, 150. Oldham, Wilson v., 886. Oliver, Smith v., 786. Ord V.White, 570. Ottey, Baines v., 797. Owen, Eardley v., 730. , Thorp v., 201, 792, 917. Page T. Cox, 200. V. Home, 907. V. Leapingwell, 220. Palin T. Hills, 779. Palmer, Congreve v., 786. , Smith v., 797. Pares, Peacock v., 661. Park, Sorsbie v., 503. Parker, Doe d. Thomas v., 330. V. Gossage, 729. V. Marchant, 828. , Propert v., 535. , Smith v., 670. TARLB OF CASES. Parkhurst, Smith d. Dormer v., 236. Parr v. Parr, V84. Pass, Dennett t., 18. Paterson v. Mills, 330. Paton T. Shepherd, 832. Patterson v. Huddart, 817. Paul, Mathews v., 246. Paull, Browne t., 916. Paxley, Lewis v., 108. Peacock t. Pares, 661. Pearce v. Vincent, 246, 795. Peers, Low v., 60. Pelly V. Walker, 273. Penley v. Penley, 788. Pennant, Blackwell v., 798. Penny, Briggs v., 201, 202, 210. , Greenwood v., 474. T. Turner, 259. Perigal, Myers v., 222. Perratt, Winter v., 100, 792. Perry, Creed v., 886. Persse v. Persse, 664, 693. Petch T. Tutin, 698. Petre v. Espinesse, 668. v. Petre, 836. Philanthropic Society v. Kemp, 372. Phillips V. Eastwood, 830. Phipps T. Lord Ennismere, 692. Picard v. Michel, 19. Pickering v. Pickering, 945. Pickup T. Atkinson, 945. _, Pilck, Shower v., 520. Pincombe v. Smith, 664. Piuniger, Grundy v., 795. Piper T. Piper, 595. Playfair v. Cooper, 8. Plenty t. West, 363. Plowden v. Hyde, 806, 807. Pocock, Brown v., 893. Ponton V. Dann, 255. Pope v. Whitcombe, 570, 790. Pott V. Todhunter, 682. Pottow, Doe d. Fricker v., 99. Price, Doe d. Cadwalader v., 163. — — , Green v., 500. Pritchard v. Arbouin, 219. , Shaw v., 318. Propert v. Parker, 535. Prosser v. Edmonds, 694. Proud, Wilkinson v., 384. Proudley v. Fielder, 896. Pye, Currie v., 220. Pym V. Lockyer, 65. Queen (The) v. The Inhabitants of Wooldale, 477, 481. T. The Tithe Commis- sioners, 32. Rackham v. Siddall, 818. Bamsden, Doe d. Wilks v., 318. ,■ Moore v., 319. Randall, Harrison t., 590. Ravenhill, Hereford v., 952. Ray, West v., 587. Reed, Lyon v., 563. Bendall, Dyke' v., 149. Rennick, Woodcock t., 258. Rennison, Longstaff T., 219. Rennoldson, Morley v., 58, 60. Reynolds, Vaisey v., 775. Richards, Incorporated Society v., 819. Richardson, Glass t., 76. V. Richardson, 833. Rickett Y. Guillemard, 781. Ricketts, Griffith v., 949, 950. Ridout, Catou v., 895. Right T. Banks, 756.- Rishton v. Cobb, 60. Roberts, Blewitt v., 7. , Cave v., 374. V. Williams, 684. Robertson v. Norris, 884. Robinson v. Addison, 825. T. Geldard, 372, 824. T. The Governors of the Lon- don Hospital, 949, 950. V. Lowater, 462. V. Robinson, 855. Rochford v. Hackmaa, 64, 65. Rocke V. Rocke, 837. Rodway, Sanders v., 906. Roe d. Marston v. Pox, 804. Roe V. Grew, 790. Ross (Earl of,) Wainman v., 730. Rowland, Ware v., 246, 779. Rudge T. Winnell, 662. Rushan, Doe d. Newman v., 684. Russell, Douglass v., 698. Ruxton, Ford v., 781. Saberton v. Skeels, 797. Salter, Flight v., 318. , Jones v., 894. Saltmarshe v. Hewett, 318. Sanders v. Rodway, 906. Sanderson v. Bayley, 793. v. Dobson, 817. Saunders v. Vautier, 837. Sayer, Innes v., 586, 594. Scarf V. Soulby, 682. Schroder v. Schroder, 955, 956. Scott, Cole v., 780. — , Mather v., 219. V. Moore, 784. T. Scott, 786. V. Spashett, 900, 901. , Vickers v., 948. Sebbon, Calvert v., 796. Seifferth v. Badham, 795. Sewell, Stickney v., 855. Shaw, Grice v., 943. V. Pritchard, 318. Sheeley v. Lord Muskerry, 268. Sheffield v. Donnop, 263. Sheldon, Hourmelin v., 925. Shelley's Case, 109. Shepherd, Paton v., 832. XXviii SMITH ON REAL AND PERSONAL PROPERTY. Shotter, Doe d. Hampton v., 845. Shower v. Pilck, 520. Shuttleworth, West v., 214, 215. Siddall, Rackham v., 818. Silvester v. Jarman, 818. Simpson, Doe d. Simpson v., 105. Sison, Mackinley v., 765. Skeels, Saberton v., V97. Skriue v. Hewett, 318. Smith T. Barneby, 191. V. Butler, 828. d. Dormer v. Parkhurst, 236. , Foster v., 19. V. Oliver, 786. T. Palmer, 797. V. Parker, 570. V. Pincombe, 664. V. Smith, 246, 795. , Waterman v., 585. , Whitbread v., 299. Snook V. Watts, 922. Snowdon v. Dales, 432. Sober v. Kempe, 508. Sodor and Man (Bishop,) Vincent v., 765. Somerville, Doe d. Gates v., 318. Sorsbie v. Park, 503. Soiilby, Scarf v., 682. Souter V. Drake, 450. Southby V. Hutt, 457. Summers v. Ball, 905. Supple, White v., 724. Sutherland v. Cooke, 945. Sutton, Baker v., 213. Sparling v. Parker, 222. Sparrow V. Josselyn, 826. Spashett, Scott v., 900, 901. Spofforth, Haldenby v., 260. Spooner, Hanburyv., 796. Stackpoole v. Stackpoole, 662, 733. Steele, Doe d. Timmis v., 495. Stephenson v. Dowson, 824, 828. ' Stephens, Doe d. Barl of Egremont v., 599, 601. Ashby v., 71. Steward, West v., 570, 666. Stickney v. Sewell, 855. Stillman v. Weedon, 583. Stokes, Heron v., 7. Stone, Long v., 317. Storrs V. Benbow, 789. Stow V. Davenport, 15. Strange v. Brennon, 676. Stracey, Harvey v., 589. Strafford (Lord,) Byng v., 62. Stratton v. Ashmed, 855. Stroud T. Norman, 257. Stronghill v. Anstey, 260. V. Buck, 732. Stump V. Gaby, 676, 773. Sturgeon v. Wingfield, 733. Symes, Watts v., 359. Symonds, Beale v., 304, 378. Symons v. James, 456. Taggart, Carter v., 902. Talbot V. Ford, 509. Tasker, Bradshaw v., 214. Taylor, Chambers v., 729. , Cockell v., 671, 694. V. Taylor, 949, 950. Thomas, Lowe v., 828. Thompson, Jackson v., 436. , Mann v., 788. , Marquis of Bute v., 509. v. Thompson, 222. Thorn, Davies v., 594. Thornhill v. Hall, 779. Thornton v. Ellis, 945. v. Kempson, 798. , Lunn v., 698. Thorp V. Owen, 201, 792, 917. Thurlow, Lethbridge v., 15. Thwaites v. Foreman, 834, 835. Thynne (Lady E.) v. Earl of Glengall, 960. Tidbury, Doe d. Croft v., 392. Tidd V. Lister, 371, 904. Tiffin V. Longman, 794. Tithe Commissioners, The Queen v., 32. Titley v. Wolstenholm, 854. Todhunter, Pott v., 682. Tomlinson v. Tomlinson, 222. Tompson v. Browne, 767. Townsend v. Martin, 825. Travers v. Travers, 898. Tremamondo, Goodenough v., 945. Trevor v. Trevor, 108, 777. Tribber, Hartley v., 777. Trye, Earl of Aldborough v., 672. V. The Corporation of Gloucester, 219. Tuck, ten., Gerrard dem., 163. Tugman v. Hopkins, 896. TuUett V. Armstrong, 893, 894. Turner, Cooke v., 44, 67. , Penny v., 259. Tutin, Petch v., 698. Twyford, East v., 100. Urquhart v. Urquhart, 246. Vaisey v. Reynolds, 775. Vanderstegen, Vaughan v., 897, 898. Vaughan v. Buck, 901. V. Headford, 786. T. Vanderstegen, 897, 898. Vautier, Saunders v., 837. Vicars, Booth v., 797. Vickers, Scott v., 948. Vincent v. Bishop of Sodor and Man 765. , Pearce v., 246, 795. Voyle v. Hughes, 670. Wainman, Earl of Rosse v., 730. Wait, Britten v., 319, 320. TABLE OP CASES. xxiz Waite T. Webb, 220. Walker, Doe d. York t., 814. V. Milne, 218, 222. , Pelly v., 2V3. T. Williams, 62. , Woodmeston v., 893. Wall T. Wall, 15. Waltbew t. Crofts, 319. Ward V. Audland, 569. Warde v. Warde, 726. Ware v. Canu, 65, 68. T. Rowland, 246, 119. Warner, Newman, v., 262. Warren, Flint v., 950. Warrington v. Warrington, 111. Waterman v. Smith, 585. Watkin, Newland v., 318. Watts, Snook v., 922. T. Symes, 359. , Mortimer v., 53T. Waugh T. Waugh, 181. Way V. Bast, i20. Webb T. Grace, 58, 60. , Waite v., 220. Weber, Fitch v., 799, 950. Webster, Doe d. Norton v., 486. Weedon, Stillman v., 683. Weir V. Charnley, 590. West, Plenty v., 363. T. Ray, 587. V. Shuttleworth, 214, 215. T. Steward, 570, 666. Weston, Heath v., 784. Westwood, Hiuchliffe v., 797. Weymouth (Lord,) Attorney-General v., 220, 737. Whicker t. Hume, 214, 221. Whieldon, Gordon v., 833. Whitbread v. Smith, 299. Whitcombe, Pope v., 570. White, Doe d. Barton v., 782. , Burton v., 99, 816. White, Ford v., 306. , Ord T., 570. V. Supple, 724. White, Trustees of British Museum v., 220. V. Wilson, 267. Whiteway, Forrest v., 171. Whittle T. Henning, 886. Wilkinson t. Charlesworth, 887. T. Garrett, 246. V. Proud, 384. Williams, Doe d. Earl of Egremont v., 599. , Roberts v., 684. , Walker v., 62. Williamson, Gale r., 682. Wilson ¥. Oldham, 886. , White T., 267. V. Wilson, 906. Windham, Bessey t., 703. Wingfield, Sturgeon v., 733. Winnell, Rudge t., 662. Winter, Bagshaw v., 901, 902. T. Perratt, 100, 792. Witheyv. Mangles, 169, 795. Wolstenholme, Titley t., 854. Wombwell v. Hanrott, 259. Wood V. Copper Miners' Company, 500. — , Dean v., 816. V. Wood, 299. Woodcock T. Rennech, 258. Woodmeston v. Walker, 893. Woods, Johnson t., 950, 951. Wooldale (Inhabitants of,) The Queen v., 477, 481. Wordsworth, Neilson v., 860. Wraith, Minter v., 246, 797. Wren t. Bradley, 60, 61. Wright, Morris v., 594. Wright's Trusts, re, 830. Wroughton v. Colquhoun, 8. Wylde, re, 833. Wyndham, Cornfield v., 784. Yarnold v. Moorhouse, 64. Yates V. Maddan, 7. Young, Elmsley v., 793. Yulden, re, 62. INTRODUCTOEY ANALYSIS. The SUBJECTS OF CONTETANCIKG. 1st. In the following pages it is proposed to consider — SEVERAL KINDS OE THM&S CONSTITUTING THE Things Eeal. Things Personal. f 1. Chattels Real. \ 2. Chattels Personal. Things Corporeal. Things Incorporeal, as I'l. Annuities. 2. Rents. 3. Advowsons. ( 4. Tithes. 5. Commons. 6. Franchises or Liberties. y. Ways, &c. II. The sevbkal kinds of inteeests in things constituting the subjects of CONVEYANCING [some of which depend on or are affected by (1) Conditions, (2) Limitations.] First, in Things Real. ,1. Freehold Interests (so termed in reference to tenure.) fl. Interests in hereditaments of common or ordinary Socage tenure. 2. Interests in hereditaments of Gavelkind tenure. 3. Interests in hereditaments of Burgage tenure. I 4. Interests in hereditaments of Grand Sergeanty tenure. I 5. Interests in hereditaments of Petit Sergeanty tenure. Interests in hereditaments of Frankalmoign tenure. ^2. Copyhold Interests. Ordinary Copyholds. Free Copyholds, or Customary Freeholds, including Antient Demesne. 1. Freehold Interests (so termed in reference to duration.) ^1. Freeholds of Inheritance. 1. Estates in Fee simple. . 2. Limited Fees. 11. Base or Qualified fees. 2. Fees subject to a condition subsequent or conditional limitation. 3. Conditional Fees at Common Law. 4. Fees Tail. -2. Freeholds not of Inheritance. I'l. Estates for Life, specifically so called. I 2. Estates tail, after possibility of issue extinct. I 3. Estates by the Curtesy. 1,4. Estates in Dower, Freebench, and Jointure. ""2. Interests less than Freehold. C 1. Estates for Years. 2. Estates .at Will, j 3. Interests by Sufferance. L4. Chattel Interests created for special purposes. Interests in Severalty. Interests in Community. II. In Joint Tenancy. 2. By Entireties. 3. In Coparcenary. 4. In Common. Merely Legal Interests : and herein of Uses. Merely Equitable Interests or Trusts. Both Legal and Equitable Interests. 3rd. {I: 4th. \ 2. I 3. XXXii SMITH ON REAL AND PERSONAL PROPERTY. 5th. Vested Interests or actual Estates, f 1. Present Vested Interests. \ 2. Future Vested Interests. f 1. Vested Remainders. \ 2. Reversions. Executory Interests, or Interests only, as distinguished from actual Estates, whether created by executory devise, or by executory limitation by way of use. f 1. Certain. \ 2. Contingent. 1. Contingent Remainders. 2. Springing Interests. 3. Alternative Interests. i. Interests augmented in a given event. 5. Interests diminished in a given event. 6. Interests under Conditional Limitations. Rights of Entry or Action. Mere Possibilities. Mere Adverse Possessions. Expectancies of heirs apparent or heirs presumptive. Powers. Charges. Liens. (a) (S) 6th. f 1. Absolute or Indefeasible Interests. I 2. Defeasible Interests : and herein of Mortgages of real property, I and estates or interests by Statute Merchant, Statute Staple, [ Recognisance, Judgment, and Elegit. Secondly, in Things Personal.[a) /I. Absolute or Unlimited Interests. \ 2. Limited Interests. 2nd. {I 1. Interests in Severalty. Interests in Community, f 1. In Joint Tenancy. \ 2. In Common. 3rd. 4th. ■ 1. Merely Legal Interests. 2. Merely Equitable Interests. 3. Both Legal and Equitable Interests. 1. Vested Interests. !1. Present Vested Interests. 2. Future Vested Interests, such as Vested quasi Remainders and Reversions, both of which are frequently termed Reversionary Interests. 2. Executory Interests, f 1. Certain. \ 2. Contingent. 1. Contingent quasi Remainders. 2. Springing Interests. 3. Alternative Interests. 4. Interests augmented in a given event. 5. Interests diminished in a given event. 6. Interests under Conditional Limitations. 3. Choses in action. 4. Expectancies of next of kin. 6. Powers. 6. Charges. 7. Liens. (a) Although a separate analysis is here given of Interests in Things Personal as connected with conveyancing, yet the Law of Personal Property is not sepa- rately discussed in the following work, but in connexion with the Law of Real Property. (a) (*) INTEODUCTORY ANALYSIS. XXXIU 5th. \ 2, A Absolute or Indefeasible Interests. Defeasible Interests : and herein of Mortgages of personal pro- perty. III. The title to thinos oonstitutino the subjects of oonveyancinq. 1. Marriage. 2. Descent, Succession, and Administration. 3. Escheat. 4. Occupancy. 5. Alluvion and Dereliction. 6. Prescription. 1. Adverse Possession and the Operation of the Statutes of Limita- tion. 8. Forfeiture. 9. Bankruptcy and Insolvency. , 10. Alienation. 1. By Mere Written Agreement. 2. By Deed. Those Deeds which are termed Conveyances are — 1. Common Law Conveyances. C 1. Feoifments. 2. Gifts. 3. Grants. 4. Bargains and Sales. 5. Leases and Underleases. 6. Exchanges. / T. Partitions. 8. Releases. 9. Confirmations. 10. Surrenders. 11. Assignments. 12. Defeasances. 13. Disclaimers. 2. Statutory Conveyances, which (without reckoning feoff- ments and bargains and sales, when made to uses) are — 1. Covenants to stand seised. 2. Deeds of lease and release. 3. Statutory releases. 4. Statutory grants. 5. Deeds to lead and declare uses. 6. Deeds of revocation of uses. 1. Deeds of appointment under powers. 8. Leases under powers. 9. Bargains and sales under the Fines and Reco- veries Abolition Act. 10. Concise Conveyances and Leases under the Stat. 8 & 9Tict. cc. 119, 124. Deeds other than Conveyances. Such are — ■ 1. Deeds of covenant or agreement. 2. Bonds. _ 3. Declarations of trust. Deeds when considered with reference to the purpose to be effected by them, are — 1. Purchase deeds. 2. Mortgage deeds. 3. Marriage Settlements. 4. Deeds of Indemnity. 5. Composition or creditors' deeds, &c. 3. By Matter of Record. (a) (1. Private Act. 2. Royal Grant. 3. Pine. 4. Recovery. 4. By Voluntary Grant and Admittance, or by Surrender and Admit- tance, or by Bargain and Sale and Admittance, or by Recovery, in the case of Copyholds. 5. By Will. V 2. (0). xxxiv SMITH ON REAL AND PERSONAL PROPERTY. IV. Certain persons and miscellaneous heads of law connected with oon- VETANCINO. 1. Certain Persons connected with Conveyancing — 1. Executors and Administrators. 2. Trustees. 3. Married Womea. _, 4. Infants. \ 5. Illegitimate Children. 6. Persons of unsound mind. 7. Aliens. ^8. Corporations. 2. Some Miscellaneous il. Waste. 2. Merger. 3. Conversion. 4. Election. 5. Satisfaction, Heads of Law connected with Conveyancing- INTEODUCTOEY OUTLINE. [*liv] In explanation of the foregoing Analysis, and by way of further in- troduction to the present Compendium, the following Outline(a) of the subject may be of use to the student : — I. With regard to the several kinds of THINGS constituting the Sub- jects of Convey anciiig, it will have been seen that they are either real or PERSONAL. Things real are those which are permanent and immova- ble ; such as land and buildings. Of things personal, some are termed CHATTELS REAL, which consist of estates for years, and some other inte- rests in things real that in early times were of short duration ; while other things personal are termed chattels perso;*al, because they do not concern real estate, but, for the most part, are connected with the person of the owner; such as money, furniture, cattle. (6) Things are further divided into things corporeal, which are objects of sense, and things incorporeal, which are objects of the mind alone. (c) Thus, land is a corporeal *hereditament, that is, a thing which is an object of sense, and capable of being inherited. (c?) But an ANNUITT or RENT, which is a right to a yearly payment, is an incor- poreal thing; although the money, which is the fruit of it, is of a cor- poreal nature. (e) Advowsons and Tithes, considered as rights, are incorporeal things ; although the rectory, to the possession of which the advowson confers the title, and the money which is payable in respect of the right to a tenth of the increase, are corporeal. (/) So, a right or privilege of taking or using some portion of that which another's lands, woods, waters, &c., produce, which is called common, is an incorporeal hereditament ;(5r) as also are franchises or liberties, which are royal privileges in the hands of a subject; and ways, or private rights of going over ground belonging to other persons. (A) 11. With regard to the several hinds of Interests in Things consti- tuting the Subjects of Conveyancing, sometimes estates or interests are (a) For more formal and precise definitions, the student is referred to tlie body of tlie Tvorli. (b) Pages 1, 2. (c) Pages 4, 5. {d) Page 3. (e) Pages 4, 6, 10. (/) Pages 20, 23. [g) Page 33. (A) Pages 39, 41. xxxvi SMITH ON-REAL AND PERSONAL PROPERTY. only to arise in a given event, and are therefore said to depend on a con- dition PRECEDENT : as where a man grants that if a particular event should happen, A. shall have an estate. And sometimes they are made determinable in a given event, before they have endured as long as they might have endured but for such event. When this determinable quality is entirely independent of the measure originally assigned to them, and when the effect of the condition is simply to defeat an estate or interest, r*i T without creating another estate or interest *in the room of the one L ^-1 so defeated, the condition is said to be a condition subsequent, properly so called : as where an estate is granted to A., subject to a con- dition, that if a particular event should happen, the estate shall cease, and the land revert to the grantor. But when the determinable quality forms one of the original limits or bounds of the estate or interest, it is not a condition, properly so called, but a limitation. And when the conditional language, while it involves the destruction of one estate or interest, provides for the creation of another estate or interest in its room, such conditional language is then of a mixed character, — partly destructive and partly creative, — subsequent in one respect and precedent in another, — and is termed a conditional limitation :(i) as where an estate is granted to A., but with a proviso, that if a particular event happen, such estate shall cease, and the land shall go to B. All landed property is supposed to be held of some lord or superior. Hence, all land and ground, as well as buildings, are called tenements, the possessors thereof tenants, and the manner of possession tenure.(^) 1. Things real are either of freehold or of copyhold tenure. Those of freehold tenure are such as are held under the ordinary deeds of assurance. And of freehold tenures, there are six species : common socage, gavelkind, burgage, grand serjeantt, petit ser- JEANTY, and frankalmoign. The generality of freeholds are of com- mon socage tenure, except in Kent, where gavelkind tenure prevails. (?) P ^, . -. *Things real of copyhold tenure are such as are held of the L -I lord of a manor by copy of the court rolls of such manor. A manor is a district which formerly belonged exclusively to a lord or owner, who resided there, and kept in his own hands so much land in that district as was necessary for the use of his household, called the de- mesnes of the manor, and distributed a part of the rest (except what was termed the waste and reserved for roads and commons) among certain free tenants, who held by deed under rents and free services, and whom the present free copyholders or customary freeholders represent ; and the remainder among villeins or serfs, who held the same at the will of the lord, and from whom have sprung the ordinary copyholders of manors, who now hold only nominally at the will of the lord, but according to the custom of the manor ; having, by a series of immemorial encroach- ments on the lord, established a customary right to those estates which before were held really and absolutely at the lord's will.(m.) Ordinary COPYHOLDS are expressed to be held at the will of the lord of the manor ; (i) Pages 41—49, 243. (Jc) Page 12. (l) Pages 12, 13. («j) Bee 2 Bl. Com. 90—96; 1 Cra. D. Prelim. Dissert, c. 3, g 3—7. INTEODUCTOKT OUTLINE. xxxvii but FREE COPYHOLDS Or CUSTOMARY FREEHOLDS, including l^ds in ANCIENT DEMESNE, which are held of manors formerly in the possession of the Crown, are not expressed to be so held. In the case of the former, however, as already intimated, the will of the lord is ascertained and defined by the custom of the manor ; and, in general, ordinary copy- holders ' may have estases of the same duration and certainty as free- holders. («.) 2. When the term freehold is applied to the hereditaments themselves, it denotes their tenure, and is opposed *to copyhold. But when p^, .... the term freehold is applied to an estate or interest in a L J HEREDITAMENT, that is, to the Connexion which subsists between an hereditament or thing capable of being inherited, and the owner of such hereditament, the term freehold then denotes the duration of such estate or interest, and is opposed to an estate or interest less than freehold. Thus, estates or interests in real property, whether of freehold or of copy- hold tenure, when considered with reference' to their duration, are either FREEHOLD Or LESS THAN FREEHOLD. And estates Or interests of free- hold duration are either freeholds of inheritance or freeholds not OF inheritance. An estate or interest which is not confined to a given number of years or at will only, whether it be an estate descendible to a person's heirs generally or to a particular class of heirs, or for the life of himself or another person, is a freehold as regards duration : whereas, if it is confined to a given number of years, however many they may be, or if it is at will only, it is but a chattel interest. But no such distinc- tion exists in the case of personalty ; for every interest in personalty is but a chattel interest. (o) Freeholds of inheritance are either estates in fee simple, briefly termed estates in fee, which are absolute estates of inheritance descendi- ble to the heirs general of the person to whom such estates are given, whether they be his children or other relatives ;(p) or limited fees, which are estates of inheritance of a restricted kind. Limited fees are of four kinds : base or qualified fees, which are descendible to the heirs general, but subject to a limitation, restriction, or qualification; fees subject to a condition sdbseqent *or conditional r*i ■•■-I LIMITATION ; FEES CONDITIONAL AT THE COMMON LAW, which L -• are estates descendible to the heirs of the bodies of the persons to whom such estates are given, in hereditaments not entailable ; and fees tail, which are estates descendible in like manner, in hereditaments entailable. Fees tail, or estates tail, are either estates tail general, that is, descendible to all the heirs of the body of a sole tenant in tail, or all the heirs of his body of a certain sex ; estates tail special, that is, descendible only to the heirs of the bodies of a particular married couple who are tenants in tail, or only to the heirs of the body of a sole tenant in tail by a particular person. And when estates tail, whether general or special, are only descendible to a particular sex, they are called estates tail MALE, or estates tail female, as the case may be.(j) (n) Pages 1i et seq. (o) Pages 93—96. Ip) Pages 9V et seq. (?) Pages 102—122. xxxviii SMITH ON EBAL AND PERSONAL PROPBBTY. Freeholds, not of inheritance, are of several kinds : estates for life specifically so called; estates tail after possibility of issue extinct; estates in dower, freebench, or jointure ; and estates by the curtesy. Some ESTATES FOR LIFE are not for the life or lives of the grantees or devisees, but for the life or lives of some other person or persons ; in which case they are termed estates pour autre vie, and such other person or persons cestui que vie or cestuis que vie.OA An ESTATE TAIL AFTER POSSIBILITY OF ISSUE EXTINCT arises where one of two tenants in special tail dies, or the person by whom alone a sole tenant in special tail can have issue inheritable under the entail dies, and in either case there happens to be a failure of issue so inheritable under the entail.(s) An ESTATE BY THE CURTESY OF ENGLAND is an estate for life, which a husband takes, on the death of his wife, in her lands or tenements, if P ^y 1 *he hashad issue by her capable of inheriting them.(t) DoWES is I- -I anestateforlife, to which a woman becomes entitled, on the decease of her husband, in one-third of his real property, which any issue she might have had might have inherited ;(m) unless such estate is prevented, barred, or lost. One mode in which it may be barred, is, by a legal JOINTURE, which is an estate for the life of the wife, or some greater estate, to commence after her husband's decease, in lieu of herdower.(x) Freebench in copyholds answers to dower in freeholds ; but in some manors it consists of the whole or of half, or some other proportion than a third, of the husband's lands and tenements, and sometimes it is not for life.(y) Interests less than freehold, which are termed chattel interests, are of four kinds : Estates or terms for years, of which nature are all estates for a given number of years, or from year to year, or for one year, or for any less period denoted by one of the ordinary divisions of time;(2;) estates at- "will, which endure so long as both parties choose ;(ra) INTERESTS by sufferance, which arise when a person retains possession longer than he has any title to retain it; (6) and chattel interests created for special purposes. (c) 3. Some estates or interests are in severalty; others in commu- nity. Of the latter there are four kinds : (1.) An estate in joint tenancy, which arises by act of the parties, and in which each of the P ,, , owners is seised or possessed per *mie et per tout, i. e., both by L -• his proportionate share and by the whole ; in consequence whereof there is a benefit of survivorship between themJd) (2.) An estate by entireties, which arises when real property is given to husband and wife, who do not take by moieties, but each has the entirety. (e) (8.) An estate in coparcenary, which accrues by descent to two or more coheiresses at common law, or two or more coheirs by custom, and their representatives, and in which the owners take per mie only, and not per tout.(/) An estate in common, in which the owners take by act of the (r) Pages 126—128. (s) Pages 129, 130. (i) Pages 131—134. («) Pages 135 et seq. (x) Pages 142 et seq. (j/) Pages 152 et seq. (z) Pages 155 et seq. (a) Pages 164 et seq. (6) Page 166. (c) Pages 166-'7. ((i) Pages 169 et seq. (e) Page 17 Y. (/) Page's lYS et seq. INTRODUCTORY OUTLINE. xxxix parties (and not by act of law, as by descent,) and in which they take per mie only, and not per tout.(g') 4. Again, interests may be merely legal, that is, possessory, as opposed to beneficial; or merely equitable that is, beneficial, as opposed to possessory ; or both legal and equitable, that is, both possessory and beneficial. (A) Legal interests may arise in various ways. One of these is, by a limitation of uses, or expressing the uses to or for which an estate is conveyed. Since the statute of Henry VIII., called the Statute of Uses, those uses upon which that statute operates are thereby converted into legal estates, as opposed to trusts, which are equitable estates. (t) 5. Some interests are clothed with the ownership of which the land or other subject of property is susceptible; while other interests are of a more imperfect character, being interests existing apart from and colla- teral to that ownership. (&) *Interests, in the widest sense of the p^, . -. term (in which it is used to denote that connexion which subsists L -I between a person and a subject of property,) when considered in this relation, maybe divided into nine different species: vested interests, executory interests, rights of entry or action, mere possibilities, mere adverse possessions, expectancies of heirs apparent or heirs presumptive, powers, charges, and liens.(Z) A vested interest or actual estate is the actual ownership, or a portion thereof; and is either present or future, (to) One kind of vested interest is called a vested remainder. When, after a gift of a portion of ownership, the remaining portion or the proximate part of the remaining portion of ownership is also disposed of by the same instrument, it is termed a remainder, (m) Another kind of vested interest is called a REVERSION. Thus, where one portion or several portions of the owner- ship is or are disposed of, but the more remote portion is not disposed of, this portion so undisposed of is termed a reversion. (o) So that in the case of a gift to A. for life, and then to B. in fee simple ; or to A. for life, and then to B. for life or in tail, and then to 0. in fee simple ; the estates given to B. and C. are remainders. And in the case of a gift to A. for life or in tail, by a tenant in fee simple, without any further disposition, all the ownership of which the land is susceptible, after the death of A. or his death and failure of heirs of his body, being undisposed of, continues in the grantor or testator, and constitutes a reversion in fee. An EXECUTORY INTEREST, which may be either certain or contingent, is a portion of ownership to be acquired at "a future time, or in j.„ .., a future event, whether certain or contingent, (p) There are L J several kinds of executory interests. Such are contingent remainders, springing interests, interests under augmentative limitations, interests (ff) Pages 181 et seq. (A) Page 185. («) Pages 186—212. (k) Pages 93, 94, 227-8. {l) Page 226. (m) Page 227. [n) Pages 231 et seq. (oj Pages 239—241. (p) Pages 227 et seq. xl SMITH 6N real and PERSONAL PROPERTY. under diminuent limitations, alternative interests, and interests under conditional limitations. A oontinqbnt remainder is a remaining por- tion or the proximate part of a remaining portion of ownership, the acquisition whereof is made to depend on a contingency : as in the case of a gift to the use of A. till C. returns from Rome, and after such return then to the use of C.(j) A springing interest is an interest to arise at a future time, or on a future event, whether certain or con- tingent, without reference to and without affecting any other interest at all, or, in the case of real estate, any other interest of the measure of freehold; as where a gift is made to the use of A. on the return of B. from Rome, without any preceding gift.(r) An alternative interest is an interest to arise by way of substitution, in case of a preceding interest never taking effeot,rs) as where a gift is made to A. for life ; and if he has a child or children, then to such child or children in fee ; but if he has no child, then to B. in fee. An interest increased in A GIVEN EVENT, or an interest under an augmentative limita- tion (as it may be called for want of any other specific term) is an interest to arise on a condition by way of increase of an existing interest. r<) An interest diminished in a given event, or an interest under a diminuent limitation (as it may be called for want of any other specific term) is an interest to arise on a condition, P^, ...., in lieu of a higher interest *given by the same instrument.(M) L -I And an interest under a conditional limitation is one which is to take effect in defeasance of a prior interest : as in the case of a gift to the use of A. for life ; but if B. returns from Rome, then immediately to the use of B. for life.(a;) Rights op entry or action ; mere possibilities, for recovery of an estate, as distinguished from executory interests ; mere adverse possessions of persons who have wrongfully acquired possession ; expectancies, or hopes of succession of heirs presumptive or heirs apparent ; powers, or rights reserved to or conferred upon a person, of doing some legal act ; charges, or sums of money payable out of an estate ; and Liens, or a hold upon estates for the satisfaction of claims attaching thereto ; are also interests, in the widest sense of the term already mentioned, which are collateral to the seisin, property, or owner- ship. 6. Lastly, interests in things real are either absolute or inde- PEASIBLE interests, or interests which are defeasible, as being mere securities, or being liable to devestment by an action, or to a premature determination. (y) Of defeasible interests by way of security, some are termed Mortgages, which are securities created by means of a transfer by a debtor to his creditor of the legal or equitable ownership, subject to be defeated by the discharge of the debt.(z) There are also other de- feasible interests by way of security, by statute merchant, statute (q) Pages 234—239. (r) Pages 241—2. («) Page 242. (() Page 243. (m) Page 243 (x) Pages 243-4. (y) Page 274. (z) Pages 275 et seq. INTRODUCTORY OUTLINE. xli STAPLE, and RECOGNisANOE, which are bonds acknowledged before certain legal functionaries, for securing payment of debts, and upon *which, in case of default of payment, there arises a right to pi • -■ have and hold the lands of the debtors, for thie recovery of the L J debts.(a) And other securities are created by judgments, which now have the effect of a charge in equity ; and by elegit, which is a writ under which the lands of a debtor are delivered to the creditor for the recovery of the debt.(6) Interests in things personal are either absolute or unlimited, or only limited, according as they embrace the entire ownership, or only a part of it. They may also be either in severalty or in community. But in the case of personalty, there are only two sorts of interests in com- munity — namely, interests in joint tenancy, and interests in common. Interests in things personal, like those in things real, may be merely legal, or merely equitable, or both legal and equitable. Again, when considered in relation to the being clothed with the actual ownership or being collateral thereto, interests in things personal may be divided (as shown in the foregoing Analysis) into vested and executory interests ; choses in action, which are things to which a person has only a bare right, enforceable by action or suit ; expectancies, or hopes of succession of next of kin ; and powers, charges, and liens. And interests in personalty, are also divisible into absolute or indefeasible and defeasible interests. III. With regard to the Title to Things constituting the Subjects of Conveyancing, this signifies the means by *which a person has a p^, -. right to them. (c) The modes of acquiring property are : 1. Mar- L J RIAGE. 2. Descent, or hereditary succession to real property;(c?) suo- CSESION, or the devolution or transmission of real or personal property, on the death of, and from, persons in a corporate character, to their suc- cessors ;(e) and ADMINISTRATION, or the distribution of personal pro- perty on the death of the owner.(/) 3. Escheat, or the reverting of land to the original grantor or lord of the fee, where a legal tenant of the fee dies without heirs, and without having disposed of it, or is at- tainted for treason or murder. (5^) 4. Occupancy, or the taking posses- sion of an estate which has no owner.(A) 5. Alluvion, or the washing up of sand or earth ; and dereliction, or the receding of water, so as to leave land dry.(i) 6. Prescription, or usage. (A) 7. Adverse possEssiON,(A and the operation of certain statutes, called Statutes of Limitation, (ot) which, by setting a limit to the time within which a person shall be allowed to enforce his right to property against another person, serve to confer a title on the latter, in case of the former failing to institute proceedings to enforce his right within the prescribed time. 8. Forfeiture, or the loss of property as a punishment for some illegal (a) Pages 309, 310. (6) Pages 310, 316. (c) Page 320. (d) Pages 322—347. («) Pages 348. (/) Pages 349—377. (g) Page 378. (h) Pages 380—382. (i) Page 383. (k) Pages 384—389. (I) Pages 390—395. (m) Pages 396—414. xlii SMITH ON EEAL AND PERSONAL PEOPBRTT. act or negligence. (n) 9. Bankruptcy or Insolvenct.(o) 10. Alienation. (p) One mode of alienation is by mere written agreement 5(2) another is P^, ... by deed, that is, by a writing sealed and delivered ;(r) *a third L J mode is by matter of record ; a fourth, in the case of copyholds, is by voluntary grant, surrender, or bargain and sale, followed by ad- mittance, or by recovery; and a fifth mode is by will.(s) Those DEEDS which are termed conveyances may be arranged into two great classes : Conveyances at common law, that is, conveyances which derive their effect from the unwritten law ; and Statutory con- veyances, which derive their efficacy from the operation of an Act of parliament. Of the former there are about thirteen kinds :(?) (1.) Feoffments, which consist of deeds perfected by livery of seisin, that is, delivery of possession. (m) (2.) Gifts, which are feoffments whereby an estate tail is created. (a:) (3.) Grants, which are conveyances of in- corporeal hereditaments. (y) (4.) Bargains and Sales, which are con- tracts for money or money's worth. (2) (5.) Leases, which are convey- ances for some less interest than the lessor has in the premises, whether for life, for years, or at will ; and underleases, which are leases made by a person who has himself only a leasehold interest.(a) (6.) Ex- CHANQES.(6) (7.) Partitions. (c) (8.) Releases, whereby rights are extinguished, or estates or interests are conveyed to persons who have already some estate or interest in possession. (cZ) (9.) Confirmations, whereby conditional or voidable estates are made absolute or unavoidable, or whereby particular estates are increased. (e) (10.) Surrenders, i- , ...whereby estates *for life or years are yielded up to him who has L J a higher or equal estate in reversion or remainder.(/) (H-) Assignments, which are total alienations of chattels, real or personal, not by way of surrender. (5") (12.) Defeazances, which are of the nature of conditions subsequent, except that they are contained in a' dis- tinct deed. (A) (13.) Disclaimers, which are deeds of renunciation of grant, devise, or bequest. (i) Not reckoning deeds which existed at common law, and when made to uses operate under the Statute of Uses, there are about ten kinds of Statutory Conveyances : (1.) Covenants to stand seised, whereby a person covenants that he will stand seised, that is, possessed to the use of his wife or some relative. (^) (2.) Deeds of Lease and Release which consist, first, of a lease, or rather a bargain and sale for a year, conferring on the bargainee the use of the- land for that time, which the Statute of Uses converts into a legal estate ; and, secondly, of a common law release of the reversion to the bargainee — a contrivance resorted to in order to effect the transfer of real property in a more secret manner (n) Pages 415—423. (o) Pages 424—444. (p) Pages 445-447. (q) Pages 469-474. (r) Page3 4'75— 5U,667— 735. (5) See n. (o) to p. 738. (t) Page 512. (m) Pages 514—519. (x) Page 520. (y) Pages 520—522. (z) Pages 522—526. (a) Pages 527—546. (6) Pages 541—645. (c) Pages 545—549. Id) Pages 549—560. (e) Pages 560—562. (/) Pages 562—566. (ff) Pages 566—670. (A) Page 571. [i) Page 571. (*) Pages 573—576. INTKODUCTOET OUTLINE. xliii than by feoffment, which required the notoriety of livery, or than by bargain and sale, to which enrolement was requisite. (Z) (3.) Statutory Eeleases, which are substituted by the stat. 4 Vict. c. 21, for leases and releases.(ni) (4.) Statutory GtRANts, which are simply grants to which the statute 8 & 9 Vict. c. 106, s. 2, has given the effect of passing things corporeal, as well as incorporeal, by enacting that the former shall be deemed to lie in grant as well as *in livery; whereas, before that p^, ..., statute, none but incorporeal things were said to lie in grant, L J that is, could be made the subject of a grant, because, from their very nature, they were incapable of actual delivery of the possession ; while corporeal tenements and hereditaments were said to lie in livery alone, because they were capable of actual delivery of possession ; and it was the policy of the common law that they should only pass by such de- livery, or by some other means calculated to give the public some notice or means of knowing that a transfer of ownership had taken place.(m) (5.) Deeds to lead or Declare the Uses of fines and recoveries — assurances which we shall presently notice. (o) (6.) Deeds of Revo- cation OE Uses. (7.) Deeds oe Appointment, whereby a person, to whom a power of appointing or creating an estate is reserved or given, exercises that power. (jp) (8.) Leases under Powers. (3) (9.) Bar- gains AND Sales under the Act for the abolition of fines and recove- ries. (r) (10.) Concise Conveyances and Leases under the statute 8 & 9 Vict. c. 119, and 0. 124.(s) There are some deeds other than conveyances, such as deeds op covenant or agreement, and declarations of trust, and bonds, which are deeds whereby a person obliges himself alone, or himself or his representatives, to do some act.(rt Some of the conveyances and other deeds above enumerated, receive other names, derived from the purpose to be effected by them. So that some are called purchase deeds,(?t) others mortgage deeds, others marriage settlements,(a;) *others deeds of arrangement, (y) others [*lxix] deeds of indemnity, others composition or creditors deeds, &c.(z) There were four modes of alienation by matter op record : (1.) By a Private Act of Parliament.(o) (2.) By a Royal Grant by charter or letters patent.(6) (3.) By a Fine, which was an amicable composition or agreement to terminate a suit (usually a fictitious suit,) whereby real estate was acknowledged by one of the parties, who was called the cognizor, to be, and thereby became, the property of another of the parties, who was called the cognizee.(c) (4.) By a Common Re- covery, which was an action (usually fictitious) not compromised, but carried through every step of proceeding, by means whereof real estate was recovered by one party, who was called the recoveror, against the tenant of the freehold, who was called the recoveree.((^) (1) Pages 576—578. (m) Pages 578—579. (n) Pages 580, 585. (0) Pages 580-581. (p) Pages 582—596. (2) Pages 596—605. (r) Pages 605—644. (s) Pagea 644-5. (t) Pages 646—652. (u) Pages 654 et seq. (x) Page 661. (y) Page 663. (4 Page 664. (a) Pages 736-7. (6) Pages 737-8. (c) Pages 738—745. {dj Pages 745—749 . xliv SMITH ON REAL AND PERSONAL PROPERTY. Every person to become owner of copyholds, must be admitted tenant of the manor, and every such admittance must be entered on the court rolls of the manor. Sometimes such admittance is grounded on a volun- tary grant by the lord, where the land was in his own hands, and he might have retained it if he had thought proper, but he chooses to make a grant of it. At other times such admittance is grounded on a sur- render to the lord, or a bargain and sale by a copyholder, according to the nature of the interest of the party alienating. (e) r*l T ^^" ■'■^ concluding this rapid sketch of our subject, *we may L -I briefly observe, that there are certain Persons connected with con- veyancing, of whom it is convenient to treat separately, though succinctly. Such are those who are clothed with official characters, as executors, ad- ministrators,(/) and trustees,(y) or with a certain civil character, as cor- porations, some of whom consist of single individuals, called corpora- tions sole ; while others consist of a number of persons, called corpora- tions aggregate. (A) Such also are those who are under peculiar disabili- ties ; as MARRIED WOMEN ;(i) INFANTS, that is, all persons under the age of 21 years ;(^) illegitimate children ;(Z) persons of unsound MiND;(m) and aliens. (m) Again, there are certain Miscellaneous Heads of Law connected with conveyancing, which it is also convenient to make the subject of distinct chapters ; such as waste, or that which tends to the permanent deprecia- tion of an inheritance ;(o) merger, or the absorption of the less estate in the greater ;(p) conversion, or the disposing of property of one kind, and the acquisition of property of a different kind, out of the property so disposed of 5(2) election, or the choosing between two rights ;(r] and satisfaction, or the making of a donation in extinguishment of some claim of the donee upon the donor, (s) (e) Pages 74— V9, 750—758. (/) Pages 841—851. (g) Pages 852—876. (A) Pages 929—932. [i) Pages 877—907. (k) Pages 908—918. {I) Pages 919, 920. (m) Pages 921—923. (re) Pages 924—929. (0) Pages 933—938. {p) Pages 939, 944. (}) Pages 945— 952. (r) Pages 953— 957. («) Pages 958— 962. PART I. OF THE SEVERAL KINDS OP THINGS CONSTITUTING THE SUBJECTS OF CONVEYANCING. TITLE I. OP THINGS REAL AND PERSONAL. The surface of the earth, and all things above it, upon it, or below it, whether animal, vegetable, or mineral, and whether natural or artificial, and benefits derivable from or connected with the same, may form the subject of ownership or property. And ownership or property, in its strict sense, is that exclusive right, which, at law or in equity, or both at law and in equity, the jurisprudence of a country creates in favour of some particular person or persons in regard to a given thing ; although the word property is frequently used to designate, not the right to these things, but the things themselves, when regarded with reference to such right. Things which are the subject of property are either real or personal. Things real are those which are permanent and immoveable. Things real consists of lands and other tenements. *The word land _ ^q n includes the surface and substance of the earth, under all circum- <- J stances, though covered with water or buildings, and everything which is permanently fixed to the ground or incident to it, whether above it, upon it, or under it ; such as mines, fossils, woods, waters, and houses. The maxim of the law is, cujus est solum, ejus est usque ad coelum. The word tenements, though popularly applied to buildings only, yet in its legal signification includes everything of a permanent and immoveable nature which may be holden, whether it be of a substantial and sensible, or of an unsubstantial and ideal kind. (a) A share in the New River is real property.(&) And extraordinary (a) See 2 Bl. Com. 16—19 ; 1 Cruise T. 1, ? 12 ; Co. Litt. 6, a.; 4 Cruise T. 32, c. 20, ? 51 ; Burton, ?^ 1, 2, 3. (A) 1 Cruise T. 1, g 3 ; Davall v. The New River Company, 3 De G. & S. 394. 46 SMITH ON REAL AND PERSONAL PROPERTY. profits incident to and dependent upon a title and user of land are part of it ; and hence, the profits arising from the tolls of a lighthouse are real estate, and, as such, not subject either to probate or legacy dut.y.(c) Things personal are divided into chatttels real and chattels personal. Chattels real are so called, because they concern the reality, and comprise such interests in things real as were in former days either of short duration or of in considerable value, and were therefore classed with things personal as things of comparatively little importance : such as terms for years, which were in early times only created for purposes of agriculture, trade, or resi- dence, and were very short ; the next presentation to a church ; and estates by statute merchant, statute staple, and elegit. Chattels personal are so called, because for the most part they are connected with the person, and do not concern realty. They comprise such things as are moveable ; as money, furniture, oattle.(cZ) r*^n *Things real are usually and conveniently designated by the L J comprehensive word hereditaments. That word includes all things real ; but it also comprises some things personal : for it includes every- thing that may descend to the heir, comprising not only lands and other tenements, but also some personal property which may be inherited ; such as an heirloom or a condition, the benefit of which may descend to a man from his ancestor ; or an annuity in fee, as distinguished from a rent charge. (e) And a thing, whether real or personal, may be an hereditament, though held for a chattel interest, or an interest of free- hold not of inheritance, when that interest is carved out of an estate of inheritance. So that leasehold parcels are hereditaments; and an annuity for years, if carved out of an annuity in fee, is also an heredi- tament.(/) Sometimes that which is real estate at law, is treated as personal estate in equity. Thus, real estate bought and held for the purposes of the partnership, as a part of the stock in trade, will be considered in equity, although not at law, as personal estate to all intents and pur- poses, whatever may be the form of the conveyance ; so as to be subject to all the equitable rights and liabilities of the partners and their creditors; and so as to pass to the personal representatives and distri- butees, on the death of a partner, except, perhaps, where there is a clear and determinate expression of the deceased partner that it shall go to heir at-at-law beneficially. (^) Other instances will be mentioned hereafter, in treating of conversion. And under that head it will also be seen, that, on the other hand, an interest in personal estate at law is sometimes treated as real estate in equity. (c) Att.-Gen. v. Jones, 1 Mac. & G. 574, 590. (d) See Co. Litt. 118, b. ; 2 Bl. Com. 386-7. (e), Co. Litt. 6, a.; 2 Bl. Com. 17; 1 Cruise T. 1, g 1 ; 4 Cruise T. 32, c. 20, ? 62 ; 1 Pres. Shep. T. 91. (/) 1 Pres. Shep. T. 91 ; 2 Jarm. & Byth. by Sweet, 235. (ff) Story's Eq. Jur. ^ 674. But see 2 Spence's Eq. Jur. 208—211. THINGS CORPOREAL AND INCORPOREAL, ETC. 47 TITLE II. *CHAPTEE I. [*4j THINGS CORPOREAL AND INCORPOREAL DISTINGUISHED. Things are further divided into things corporeal, and things incor- poreal. Corporeal things are things which are the objects of sense, consisting of such things as may be seen and handled ; such as houses and land. Incorporeal things are things which are objects of the mind alone, consisting of rights to certain benefits derivable from or connected with corporeal things, whether real or personal. (a) To obtain a correct notion of an incorporeal thing, we must be careful not to confound together the profits produced and the hereditament or thing which produces them — the benefits arising, and the right from which they arise. An annuity, for instance, is an incorporeal thing; for although the money, which is the fruit or product of the annuity, is of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, and has only a mental existence. (S) The term incorporeal hereditaments is sometimes applied to remainders and reversions; but it would seem more accurate to treat of them rather as interests in things, than as things or subjects of property themselves. (c) *We may here notice the division of things real into things j-^, , lying in livery and things lying in grant, in cases not within the L J stats. 7 & 8 Vict. c. 76, s. 2, and 8 & 9 Vict. c. 106, s. 2. Things lying in livery are such things real as are capable of actual delivery, and comprise corporeal hereditaments in possession, and also certain legal aggregates, of which corporeal hereditaments form the principal part; such as a manor consisting of land and seigniories. Things lying in grant comprise remainders and reversions, and all incorporeal heredita- ments. The reversion expectant upon a lease for years lies both in livery and in grant, but the consent of the termor is necessary to the feoffment. (cZ) A rectory consists of glebe as well as tithes, and is a cor- poreal hereditament, and, as such, lies in livery. Tithes alone, in the sense of a right to receive a tenth, are an incorporeal hereditament; but when tithes are parcel of a rectory, the rectory, as the principal, draws to itself the accessory. But although a rectory is a corporeal heredita- ment, the advowson of a rectory is an incorporeal hereditament, and lies in grant.(e) (a) See 2 Bl. Com. 17, 20; 1 Cruise T. 1, ? 2, 7 ; Barton, J 4. (J) 2 Bl. Com. 20 ; 3 Cruise T. 21, c. 1, § 1. (c) 1 Steph. Com. 623. (d) Co. Litt. 49, a; Burton, J? 40, 42. (e) 1 Pres. Shep. T. 94, 213, 228, n. (1) ; Co. Litt. 332, a, 334, b. 48 SMITH ON HEAL AND PERSONAL PROPERTY. [*6 ] ^CHAPTER II. or CERTAIN KINDS OF INCOEPORBAL HEREDITAMENTS. Section I. Of Annuities. An annuity, in the widest sense of the term, is a yearly sum not pay- able as interest, and chargeable both upon real and personal estate, or either upon real or personal estate of the grantor or person who created the annuity, or upon his person only. (a) But an annuity specifically so called, as distinguished from a rent-charge, is a yearly sum not payable as interest, and chargeable only upon the person or personal estate of the grantor or testator by whom it is created j as, if a grant is made of the sum of 20Z. a year, without expressing out of what it shall issue, no land at all shall be charged with it, but it is a mere personal annuity. (6) And a rent-charge, as distinguished from an annuity, is a yearly sum not payable as interest, and chargeable only on the real estate of the grantor or testator. If the person or the personal estate, as well as the real estate, is made liable, as both most commonly are, then the annual payment is frequently, if not generally, called an annuity. But the grantee must elect between his remedies, (c) In the absence of any indication to the contrary, annuities commence from the death of the testator, and the first payment becomes due at the end of a year from that event.((?) l- ^w -, *A personal annuity, that is, an annuity not charged on lands, L J but only secured by grant, bond, or covenant, or bequeathed by will, may be limited to a persoji and his heirs in fee simple, or as a fee conditional, or to a person and his heirs pur autre vie,(e) or to a person for a term of years. If a man grants an annuity without saying " for himself and his heirs," it will determine by the death of the grantor, even though made to the grantee and his heirs.(/) In the ordinary acceptation of the term, an annuity imports an annual sum for the life of the donee. (^) Hence, if an annuity is given inde- finitely, it is an annuity for life only.(^) But, if an annuity is directed to be provided out of the proceeds to arise from the sale of property, or out of the corpus of property generally, so that in efiect the testator de- dicates a portion of the corpus of his property to produce the annuity, and that annuity is given to a person generally, he will take the pro- (a) See 2 Bl. Com. 40, 41 ; 2 Jarm. & Byth. by Sweet, 1, 2, 3, 5. \h) 2 Bl. Com. 40 ; 2 Jarm. & Byth. by Sweet, 1 ; Co. Litt. 144, b. (c) 2 Jarm. & Byth. by Sweet, 2, 3 ; Co. Litt. 219 ; Co. Litt. 144, b. \d) 2 Rop. Leg. by White, 1245 ; 11 Jarm. & Byth. by Sweet, 470. (e) 2 Jarm. & Byth. by Sweet, 13. (/) Co. Litt. 144, b ; 2 Jarm. & Byth. by Sweet, 6. {g) See remarks of Lord Cottenham, C, in Blewitt v. Roberts, Cr. & Ph. 280. (A) Yates v. Maddan, 2 Mac. & G. 543, and cases there cited ; Kerr v. The Mid- dlesex Hospital, 2 D. M. & G. 583. OF ANNUITIES. 49 perty so appropriated to purchase the annuity, and therefore the annuity in perpetuity if purchased. (i) A personal annuity in fee is a personal inheritance which the Law suffers to descend to the heir, but it has nothing to do with the realty, and it passes under a general bequest of personal estate. (/c) When an annuity is directed by will to be purchased, the annuitant takes an immediate vested interest in the value of it, so that he may elect to take the value of the annuity instead of the annual payment, and so that his *personal representatives will be entitled to it, although r :(,q -i he happen to die the day after the testator's decease. (?) L J Where an annuity is directed to be raised out of the income of trust funds, it will in general be a charge on the corpus, in case the current income proves insufficient to answer it.Tm) If an annuity is charged upon a fund which fails during the life of the annuitant, the annuity will also fail, although expressly given for life. (re) And whenever an annuity is granted for the performance of any duty or service, and the grantee refuses or neglects to perform it, the annuity becomes extinct. (o) And so if an annuity is granted for a piece of land, and the land is evicted by an elder title, the annuity ceases, (p) Where a testator's effects are insufficient to satisfy an annuity and the pecuniary legacies bequeathed by his will, the annuity is to be valued, and the annuitant is entitled at once to the amount of the valuation, subject to an abatement in proportion to the abatement of the pecuniary legacies j and, if the annuitant has died, his representatives are never- theless entitled to the whole of such abated amount. (j) The rules of construction of legacies generally apply to gifts of annui- ties. (r) By the statute 53 Geo. 3, c. 141, s. 2, it is enacted, " That, within thirty days after the execution of every deed, bond, instrument, or other assurance, whereby any annuity or rent charge shall, from and after the passing of this Act, be granted for one or more life or lives, or for any term of years or greater estate determinable on one or more life or lives, a memorial of the date of every such deed, bond, instrument, *or r «q -i other assurance, of the names of all the parties and of all the L J witnesses thereto, and of the person or persons for whose life or lives such annuity or rent charge shall be granted, and of the person or per- sons by whom the same is to be beneficially received, the pecuniary con- sideration or considerations for granting the same, and the annual sum or sums to be paid, shall be enrolled in the High Court of Chancery." (t) Heron v. Stokes, 2 Dr. & War. 89 ; 12 CI. & F. 161 ; Kerr v. The Middlesex Hospital, 2 D. M. & G. 583, 584, 587. (k) 2 Jarm. & Byth. by Sweet, 5, 13. (l) 1 Rop. Leg. 640; 11 Jarm. & Byth. by Sweet, 468 j Ford T. Battley, 17 Beav. 303. (m) Playfairv. Cooper, 17 Beav. 187. (n) 2 Rop. Leg. by White, 1482. (o) 2 Jarm. & Byth. by Sweet, 61 ; Co. Litt. 204, a. (p) Co. Litt. 204, a. (g) Wroughton v. Colquhoun, 1 De G. & S. 357. (r) 2 Rop. Leg. by White, 1484. January, 1856. — 4 50 SMITH ON REAL AND PERSONAL PBOPBETT. This Act was amended and explained by the statute 3 Geo. 4, c. 92, as to the description of the witnesses in the memorial, and as to non-enrol- ment of collateral deeds ; and by the statute 7 Geo. 4, c. 75, as to the names of the witnesses in the memorial. By sec. 10 of the statute 53 Geo. 8, c. 141, it is enacted, " That this Act shall not extend to Scot- land or Ireland, nor to any annuity or rent charge given by will or by marriage settlement, or for the advancement of a child, nor to any annuity or rent-charge secured upon freehold, or copyhold, or customary lands in Great Britain or Ireland, or in any of his Majesty's possessions beyond the seas, of equal or greater annual value than the said annuity, over and above any other annuity, and the interest of any principal sum charged or secured thereon, of which the grantee had notice at the time of the grant, whereof the grantor is seised in fee simple or fee tail in possession, or the fee simple whereof in possession the grantor is enabled to charge at the time of the grant, or secured by the actual transfer of stock in any of the public funds, the dividends whereof are of equal or greater annual value than the said annuity; nor to any voluntary annu- ity or rent charge granted without regard to pecuniary consideration or money's worth; nor to any annuity or rent charge granted by any body corporate, or under any authority or trust created by Act of Parliament." And, by the statute 17 & 18 Vict. c. 90, the whole of the above statutes' are repealed as to future transactions. [*10] *Section II. Of Rents. Rent is a certain profit issuing yearly out of lands and tenements corporeal. (<) And there are at common law three kinds of rents : rent service, rent charge, and rent seek. Rent service is a rent by which a tenant holds, and which has some corporeal service, as fealty at the least, incident to it ; and for this the lord might distrain of common right, without reserving any special power of distress, provided he had in himself the reversion or future estate of the lands or tenements, subject to or expectant upon the lease or particular estate of the lessee or grantee. (m) A rent charge is a rent granted or given, by a person seised of land, to be issuing out of such land, and secured by a clause of distress, and generally, except in the case of copyholds, by a power of entry, either by way of use or at the common law, to take the rents and profits if the rent charge should be in arrear.(a;) This power of entry cannot extend to copyholds, because they are not within the Statute of Uses, and because the tenant cannot convey a copyhold estate except by sur- render, (y) A rent seek, or barren rent (reditus siccus), is nothing mor3 than a (t) 2 Bl. Com. 41. \u) 3 Cruise T. 28, c. 1, ? 4; Co. Litt. SY, b, 141, b, 142, a. [x) 2 Bl. Com. 42 ; 2 Jarm. & Byth. by Sweet, 2, 46-8. [y) 2 Jarm. & Byth. by Sweet, 49. OF KB NTS. 51 rent for the recovery of which no power of distress is given, either by the rules of the common law, or the agreement of the parties.(2) The remedy by distress is, however, extended by several statutes to the proprietors of what were formerly called rents seek, and is given to the executors or administrators *of the proprietors of such rents, j. j.- - , even after the termination of the leases upon which such rents •- -• are reserved. (a) Although every species of rent is comprised in the preceding division, yet there are some rents which are known by particular names. Thus, the certain established rents of the freeholders and ancient copyholders of manors are called rents of assise. Those of the freeholders are fre- quently called chief rents (reditus capitales), and both sorts are indiffer- ently denominated quit rents (quieti reditus), because thereby the tenant goes quit and free of all other services, (i) Rack rent is only a rent of the full value of the tenement, or near it.(c) And a fee farm rent is a perpetual rent reserved on a conveyance of land in fee simple. (c?) By statute 42 Geo. 3, c. 116, s. 154, where the land tax has not been redeemed in due time by the owner of the land, it may be purchased by any other person in whose hands it is converted into a fee farm rent, with all the remedies of rent reserved upon a lease. (e) Since the statute of Quia Emptores no rent service can have been re- served by a subject on a total alienation of his estate ; nor could it ever be so reserved as to be payable to any other person than the actual grantor of the estate in the land.(/) But rents charge and rents seek, as they may be created by grant from the owner of the land while he retains his property in it, so may they also be reserved on a total aliena- tion. (5') Kent charges were considered as contrary to the policy of the common law : for the tenant was thereby less able to perform the military services to which he was bound by his tenure, and the grantee of the rent charge was under *no feudal obligations of service; and therefore a rent ^ ^^^^ _. charge was said to be against common rigbt.(7i) L "J A rent charge may be created either by grant or by means of the Statute of Uses,(i) and so it may be conveyed to uses, which will be executed by the statute. The operation of the Statute of Uses is the same in the case of rents as in that of lands; for it only transfers the legal estate in the rent to the first cestui que use : so that a use of a rent upon a use is only a trust. (/c) But a rent cannot be newly created by bargain and sale, because there is no rent in esse in the bargainor to be executed in cestui que use.(?) No peculiar form of words is necessary for the creation of rents seek (z) 3 Cruise T. 28, c. 1, § 11. (a) 3 Cruise T. 28, c. 1, ? 66. (b) 2 Bl. Com. 28 ; 3 Cruise T. 28, c. 1, § 12. fc) 2 Bl. Com. 43. (d) 3 Cruise T. 28, c. 1, § 13. (e) Burton, § 1131. {/) Burton, g 1102. iff) Burton, ^ 1103. (A) 3 Cruise T. 28, c. 1, § 7 ; Co. Litt. 298, a, n. 2. (i) 3 Cruise T. 28, u. 1, § 8 ; Co. Litt. 271, b, n. 1, VII., 3. (k) Co. Litt. 271, b, n. 1, TIL, 3 ; 315, a, n. 1, 298, a, n. 2 j 3 Cruise T. 28, c. 2, § 24, 26 ; 2 Jarm. & Bytb. by Sweet, 8. {I) See 2 Jarm. & Bytb. by Sweet, 8. 52 SMITH ON REAL AND PERSONAL PROPERTY. or rents charge. Thus, if one man grant to another, that, if he be not paid 20s. every Christmas, he may distrain for it in certain lands of the grantor, this annual sum, unless it be more formally charged on other lands, is a rent charge issuing out of those specified. (m) So, if land be devised by will, "subject to," or "charged with," or "upon condition to pay" a rent or annuity, this (without any clause of distress) is suffi- cient to create a rent seek, which will come within the provisions of the Stat. 4 Geo. 2, o. 28, s. 5.{n) A rent cannot be reserved out of a rent.(o) Indeed a rent must in general issue out of lands or tenements of a corporeal nature, whereto the grantee may have recourse to distrain. (p) But by the statute 5 r «1Q n ^^°- ^> °- ^"^t certain ecclesiastical ^persons may reserve a rent L -I out of tithes or other incorporeal hereditaments. A rent may also be reserved by the Crown out of an incorporeal hereditament, by prerogative ;(2) and a rent maybe reserved upon a grant of an estate in re- mainder or reversion ; for, though the grantee cannot distrain during the continuance of the particular estate, yet there will be a remedy by dis- tress whenever the remainder or reversion comes into possession. (r) In the case of a rent service, the person entitled cannot acquire a seisin in deed before the rent becomes due ; for nothing but the actual receipt of it will have that effect. As to a rent charge, the only mode of acquiring a seisin in deed of it, when created by grant at common law, is, by the actual receipt of the whole or of some part of it ; but where a rent is created by means of a conveyance to uses, the grantee immediately acquires a seisin by the words of the statute. (s) The right to a rent service is real property, and descendible to the person entitled to the reversion of the lands out of which it issues. But from the moment that a payment of rent becomes due, it is then per- sonal property ; therefore, where the person entitled to a rent service outlives the day on which it becomes due, it will go to his executor or administrator ; but if the lessor dies on the day preceding the day of payment, the rent will go to the heir, as incident to the reversion. (<) A rent charge of inheritance is also real property, descendible to the heir. But from the moment that a payment of it becomes due, that payment is personal property, and will go to the executor or administrator. (m) r*in ■^ person may be tenant in fee simple of a rent service L J *created prior to the statute Quia Emptores.(a;) A rent charge may be limited in fee, or in tail, or for life of the grantor, or grantee, or any other person, or for any number of lives or years. (y) A person may be tenant by the curtesy of a rent service, where he is entitled to the reversion, as also of a rent charge ; and a seisin in law will be suffi- cient for that purpose; because, in many cases, it may be impossible to (m) Co. Litt. 14^, a ; Burton, g 1105. (n) Burton, ? 1110. (o) 3 Cruise T. 28, c. 1, § 17 ; 1 Pres. Shep. T. 81. (p) Co. Litt. 41, a, 142, a, 144, a ; 3 Cruise T. 28, c. 1, ? 16 ; 2 Jarm. & Byth. ■by Sweet, 3, 4; 1 Pres. Shep. T. 31. (q) 1 Pres. Shep. T. 81 ; 3 Cruise T. 28, c. 1, ? 18, 23 ; Co. Litt. 47, a. (r) 3 Cruise T. 28, o. 1, § 20 ; Co. Litt. 47, a, 142, a. (s) 3 Cruise T. 28, c. 1, § 15. («) 3 Cruise T. 28, c. 1, § 55. (m) 3 Cruise T. 28, u. 1, } 62. (x) 3 Cruise T. 28, c. 2, | 1. (y) 3 Cruise T. 28, .;. 2, §2 2, 3. OP RENTS. 53 attain any other seisin ;{z) and a rent service or a rent charge in fee or in tail is also subject to dower. (a) A rent charge de novo may be granted, so aa to commence at a future time, within the rule against perpetuities ; for this is not like the case of lands, where the livery must carry the freehold immediately. But a rent in esse or already created, cannot be granted to commence in future ; because to such a rent there may be a precedent title, and the person having such title would not be able to discern against whom to proceed for recovering it.(6\ A rent de novo may be limited so as to cease for a time only, and afterwards to revive. (c) If two tenants in common or others severally seised of land join in the grant of a rent of a certain amount, the grantee shall have two rents of that amount.(cZ) An annuity payable out of lands and secured by powers of distress and entry, is liable to legacy duty ;(e) but where a testator devises real estate, subject to the payment of a " clear yearly rent charge or annuity," the annuity is free of legacy duty;(/) and where lands are to the use (inter alia) that a person shall take, from and out of the same premises, a certain annuity or yearly rent charge, to be paid clear of all taxes and deductions, the annuity is to be paid *clear of legacy duty, and is a charge upon the land.(^) But an annuity or rent charge " clear of all taxes and deductions," or " clear of legacy duty and every other deduction whatsoever," is subject to property tax. (A.) A rent service, being something given by way of return to the lessor for the use of the land demised, if the tenant is by any means deprived of the land demised, his obligation to pay the rent ceases. (i) Kesump- tion or purchase of the tenancy by the lord also causes an extinguish- ment of the rent.(A) Where a person who has a rent service purchases part of the land out of which the rent issues, only a part of the rent service proportioned to the land purchased is discharged. And a person who has a rent service may release a part of it, which will only deter- mine the part released. (^ So where part of the reversion is granted away, tlie rent service shall be apportioned. The rent, or a proportion- able part thereof, passes immediately with the reversion, without any express mention of it in the grant.(m) A rent service may also be apportioned by a devise of it to several persons.(ra) And where only part of the land is evicted, the rent will be apportioned. (o) At common law, if a tenant for life died before the day on which the rent became due, where the lease determined by the death of the tenant (z) 3 Cruise T. 28, c. 2, J 10. (a) 3 Cruise T. 28, c. 2, §? 13, 14. (b) 3 Cruise T. 28, c. 2, || 21, 22 ; Fearne, 529. [*15] Jarm. & Byth. by Sweet, 491. (/) Baily v. Boult, 14 Beav. 595. (c) 3 Cruise T. 28, c. 2, | 23. (d) 1 Pres. Sliep. T. (e) 11 Jarm. & Byth. by Sweet, 491. • -■ - - - Iff) Stow T. Davenport, 5 B. & Ad. 359. (h) Wall T. Wall, 15 Sim. 513 ; Lethbridge T. Thurlow, 15 Bear. 334. (i) 3 Cruise T. 28, c. 3, § 1. (A) 3 Cruise T. 28, o. 3, § 3. (l) 3 Cruise T. 28, c. 3, J? 5, 6 ; 2 Jarm. & Byth. by Sweet, 60, 61. (m) 3 Cruise T. 28, i;. 3, § 29. (n) 3 Cruise T. 28, c. 3, J 30. (o; 3 Cruise T. 28, c. 3, J 31. 54 SMITH ON REAL AND PE.RSONAL PKOPBRTT. for life, his executors could not claim an apportionment of rent ; nor conld the remainderman or reversioner claim that part of it which accrued during the life of the tenant for life ; so that the tenant paid nothing.Tj?) To remedy this, it was enacted by the stat. 11 Geo. 2, c. 19, s. 15, " that, where any tenant for life shall happen to die before or ^„-. on the day on which any rent *was reserved or made payable ' upon any demise or lease of any lands, tenements, or heredita- ments, which determined on the death of such tenant for life, the exe- cutors or administrators of such tenant for life shall and may, in an action on the case, recover of and from such under tenant or under tenants of such lands, tenements or hereditaments, if such tenant for, life die on the day on which the same is made payable the whole, or if before such day then a proportion, of such rent according to the time such tenant for life lived, of the last year, or quarter of a year, or other time in which the said rent was growing due as aforesaid, making all just allowances or a proportionable part thereof respectively." And by the stat. 4 & 5 Will. 4, c. 22, s. 1, after reciting this enactment, it is enacted that "rents reserved and made payable on any demise or lease of lands, tenements, or hereditaments which had been and shall be made, and which leases or demises determined or shall determine on the death of the person making the same (although such person was not strictly tenant for life thereof,) or on the death of the life or lives for which such person was entitled to such hereditaments, shall, so far as respects the rents reserved by guch leases, and the recovery of a proportion thereof by the person granting the same, his or her executors or admi- nistrators (as the case may be,) be considered as within the provisions of the said recited Act." And by s. 2, " tha-t, from and after the pass- ing of this Act, all rents service reserved on any lease by a tenant in fee or for any life interest, or by any lease granted under any power, (and which leases shall have been granted after the passing of this Act,) and all rents charge and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description, in the United Kingdom of Great Britain and Ireland, made payable or coming due at fixed periods under any instrument that shall be executed P ,.._ -. after the passing of this Act, or being a *will or testamentary L -I instrument) that shall come into operation after the passing of this Act, shall be apportioned so and in such manner that on the death of any person interested in any such rents, annuities, pensions, dividends, moduses, compositions, or other payments as aforesaid, or in the estate, fund, office, or benefice from or in respect of which the same shall be issuing or derived, or on the determination by any other means whatso- ever of the interest of any such person, he or she, and his or her exe- cutors, administrators, or assigns, shall be entitled to a proportion of such rents, annuities, pensions, dividends, moduses, compositions, and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case may be,) including the day of the death of such person, or of the (p) 3 Cruise T. 28, c. 3, § 38. OP RENTS. 55 determination of his or her interest, all just allowances and deductions in respect of charges on such rents, annuities, pensions, dividends, moduses, compositions, and other payments being made." And by s. 86 of the Tithe Commutation Act, 6 & 7 Will. 4, c. 76, these provisions are extended to rent charges under that Act ; and by s. 50 of the Copy- hold Enfranchisement Act, 4 & 5 Vict. c. 35, the same provisons are extended to rent charges under that Act. And the Court of Chancery has extended this statute to the executors of a tenant in tail, who died without issue some days before the rent became due.(j) If the person entitled to a rent charge purchases any part of the land out of which it issues, the whole rent is extinct, because the rent is en- tire, and against common right, and issuing out of every part of the land.(j') A rent charge is also extinguished by a devise to the grantee of part of *the land out of which the rent charge issues.(s) But r n-i n -i if part of the land descends to the persons entitled to the rent L J charge, or if the rent charge descends to a person who has part of the land, an apportionment takes place. (<) If a person having a rent charge releases all his right in a part of the estate, the rent is extinct. But he may release part of the rent charge without affecting the rest.(M) And if the grantee of a rent charge conveys part of it to a stranger, an appor- tionment will take place.(x) If a rent is granted to a man and his heirs generally, and he dies with- out devising it, and without an heir, the rent does not escheat, but sinks into the land.(^) Where a rent charge determines by the act of G-od or of the law, be- fore the expiration of the period for which it was granted, the grantee may still be entitled to an annuity for that period ; as where a tenant for another's life grants a rent charge for twenty-one years, and the cestui que vie dies before the term expires ; or where the land out of which the rent charge is granted is evicted by an elder title. (z) By the Statute of Limitations, 3 & 4 Will. 4, c. 27, s. 42, " no arrears of rent or of interest in respect of any sum of money charged upon or pay- able out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress, action, or suit but within six years next after the same respect- ively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by *the person by whom the same was payable, r j^iq -i or his agent." And by s. 1, "rent" is to extend to "all heriots, L J and to all services and suits for which a distress may be made, and to all annuities and periodical sums of money charged upon or payable out (j) 3 Cruise T. 28, c. 3, Jg 38, 39, 41. (r) Co. Litt. 147, b; 3 Cruise T. 28, c. 3, g 13; Burton, g 1121 ; 2 Jarm. & Byth. by Sweet, 60. (s) Dennett v. Pass, 1 Bing. N. C. 388 ; 2 Jarm. & Byth. by Sweet, 60. (t) Co. Litt. 149, b ; Burton, ? 1121. (m) Co. Litt. 148, a ; 3 Cruise T. 28, c. 3, § 16 ; Burton, § 1123 ; 2 Jarm. & Byth. by Sweet, 60. (x) 3 Cruise T. 28, c. 3, ?f 20, 21. {y) 2 Jarm. & Byth. by Sweet, 72. (z) Co. Litt. 148, a. 56 SMITH ON REAL AND PERSONAL PROPERTY. of any land (except moduses or compositions) belonging to a spiritual or eleemosynary corporation sole." Where trustees are directed to pay an annuity to a person for life out of rents, it may often be doubtful, upon the whole will, whether the annuity is or is not a charge upon the corpus of the estate, so that if the current rents prove insufficient to pay the annuity, the representatives of the annuitant may or may not be entitled to have the deficiency made up out of the rents accruing subsequently to the annuitant's decease, or raised by a sale or mortgage of the estate. Care should therefore be taken to prevent such questions from arising.(a) Where a testator makes a devise, subject to and chargeable with the payment of annuities, arrears of such annuities will be ordered to be paid by a sale of the real estate, even though from the language of the will it may appear that the only mode of payment contemplated by the testa- tor was a payment out of the rents and profits. (6) [*20] *Seotion III. Of Advowsons. An advowson is a right of presentation to an ecclesiastical benefice from time to time, whenever a vacancy occurs, (c) The right of presentation and that of nomination to a church are dis- tinct things. Presentation is the offering a clerk to the bishop ; nomi- nation is the offering a clerk to the patron. These rights may exist in different persons at the same time. Thus a person seised of an advow- son may grant to A, and his heirs, that whenever the church becomes vacant he will present to the bishop such person as A. or his heirs shall nominate.(rf) Where the legal estate in an advowson is vested in trus- tees, they have the right of presentation in them, but the right of nomi- nation is in the cestui que trust. So, in the case of a mortgage of an advowson, the mortgagee has the right of presentation, but the mortga- gor has the right of nomination. (e) Advowsons are either appendant or in gross. An advowson append- ant is one that was annexed to the ownership of the demesnes of a manor by the lord of which the church was founded, and has been so annexed ever since the foundation of the church. And this will pass together with the manor by a grant of the manor only, without adding any other words. (/) And where an advowson has passed immemorially with the manor, without any express words to include it, or with only the words " with the appurtenances," it is to be taken as an advowson appendant.(^) An advowson in gross is one that is separated, or has once been separated, by legal conveyance from the ownership of the manor by the lord of which the church was founded. (A) (a) See Foster v. Smith, 1 Ph. 629. (i) See Picard t. Michel, 14 Beav. 103. (c) Co. Litt. 17, b, 119, b ; 3 Cruise T. 21, c. 1, ? 4 I 2 Bl. Com. 21. (d) 3 Cruise T. 21, o. 1, § 6. (e) 3 Cruise T. 21, c. 1, ? 1. (/) 2 Bl. Com. 22; 3 Cruise T. 21, c. 1, ? 9. (^) 3 Cruise T. 21, c, J 19. (A) 2 Bl. Com. 22 ; 3 Cruise T. 21, c. 1, 2 12. OF ADVOWSONS. 57 *An advowson appendant may become in gross by various ptoii means : Thus, 1. If the manor to which it is appendant is con- L J veyed away in fee simple, with an exception of the advowson. 2. If the advowson is conveyed away without the manor to which it is appen- dant. 3. If the proprietor of an advowson presents to it as an advowson in gross. Or, 4. Where a manor to which an advowson is appendant descends to coparceners, who make partition of the manor, with an express exception of an advowson, it ceases to be appendant, and becomes in gross, (i) An advowson may cease to be appendant for a time, and yet become again appendant. Thus, if an advowson is excepted in a lease for life of a manor, it becomes in gross during the continuance of the lease ; but upon the expiration of the lease it again becomes appendant. So, if an advowson appendant is granted to a person for life, it becomes in gross. If afterwards another person were enfeoffed of the manor to which it is appendant, with the appurtenances, in fee simple, the reversion of the advowson would pass, and at the expiration of the grant for life it would again become appendant. (^) So, if a manor to which an advowson is appendant descends to two coparceners, and upon a partition the advow- son is allotted to one and the manor to the other, the advowson becomes an advowson in gross ; but if the coparcener to whom the advowson was allotted dies without issue and without disposing of the advowson, it will descend to the other, and again become appendant.(?) An advowson may be appendant for one turn and in gross for another. Thus, if a person having an advowson appendant grants every second presentation to a stranger, it will be in gross for the turn of the grantee, and appendant for the turn of the grantor.fwi) Advowsons are also presentative, collative, and donative. * An p ^n„ -. advowson presentative is that in which the patron has a right to L J present a clerk to the bishop or ordinary, and to demand of him to insti- tute the clerk, if duly qualified, that is, to commit to the clerk the cure of souls, (re) Since the Statute of Frauds, (o) it is necessary that all pre- sentations be in writing. And a presentation in writing is a kind of letter, not a deed, from the patron to the bishop of the diocese in which the benefice is situated, requesting him to admit to the church the person presented. (p) And it may be revoked or varied at any time.^j) -^^ advowson collative .is that in which, the bishop being himself the patron, no presentation takes place, but the clerk obtains the benefice by one single act of collation whereby the bishop confers the benefice. An advowson donative is that which exists where the King, or any subject by his license, founds a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron, subject to his visitation only, not to that of the ordinary, and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induc- tion. (r) If the patron of an advowson donative once presents to the ordi- (t) 3 Cruise T. 21, u. 1, ?| 13, 14. (k) 3 Cruise T. 21, c. 1, § 15. (Z) 3 Cruise T. 21, c. 1, ^ 16. (m) 3 Cruise T. 21, u. 1, § 17. (n) 3 Cruise T. 21, c. 1, § 19, and c. 2, Jj 2, 5. (o) 29 Car. 2, c. 3, ? 4. (p) 3 Cruise T. 21, c. 2, ? 2. (q) 3 Cruise T. 21, c. 2, J 3. {r) 3 Cruise T. 21, c. 1, JJ 20, 21. 58 SMITH OR REAL AND PERSONAL PROPERTY. nary, and allows of the admission of his clerk thereon, he thereby renders his church always presentable, and it will never afterwards be donative. (s) Institution or collation must be followed by induction, that is, the in- vesting the clerk with full possession of all the profits belonging to the church. (A A person may be tenant in fee of an advowson, in which case he and his heirs have a perpetual right of presentation. It may also be entailed within the statute De Donis.(M) An advowson may also be limited to a person for life or years, in possession, remainder, or reversion. And it [-•foq T *may be held in joint tenancy, coparcenary, and common. (x) L -• An estate by the curtesy may also be had in an advowson. In- deed, a husband may be tenant by the curtesy of an advowson, even though the church be not void during the coverture. (y) And if a man seised of an advowson in fee marries, his wife acquires a title to the third presentation, fz) An advowson appendant may be aliened by any kind of conveyance that transfers the manor to which it is appendant. An advowson iu gross may also be aliened by deed, (a) Not only may an advowson be aliened in fee, or for life, or for years, but the next presentation or any number of presentations may also be granted away.(6) And the next presentation, when granted away, is considered as a chattel real, which, if not disposed of by the grantee in his lifetime, will vest in the executors. (c) The owner of an advowson cannot grant the glebe lands or the tithes as a distinct property. In these he has no interest.((i) Where a person has only a particular estate in a manor to which an advowson is appendant, he can of course only alien the advowson for so long as his estate shall continue. And where a tenant in tail of a manor to which an advowson was appendant granted the next avoidance of the advowson, and died, the issue entered on the manor, and the grant was held to be void. And where a tenant in tail and his son joined in a grant of the next avoidance of a church, and the tenant in tail died, it was held that the grant was void against the son and heir who joined in the grant, because he had nothing in the advowson at the time of the grant, neither in possession, nor in right, nor in actual possibility. (e) r*9d. 1 *-^° advowson in gross, whether the proprietor has a legal or L -I an equitable interest therein, is assets for payment of debts, and will be directed to be sold for that purpose. f/) Where a person is seised of an advowson, and the church becomes vacant in his lifetime, if he dies before he has presented, the right of presentation devolves to his executors or administrators, because it is (5) 3 Cruise T. 21, u. 2, § 8 ; 1 Burn's Ecclea. Law, 169, 9th edit. (H) 3 Cruise T. 21, u. 1, | 22. (u) 3 Cruise T. 21, c. 1, § 24. (2:) 3 Cruise T. 21,(;. 1, | 25. (?/) 3 Cruise T. 21, ,;. 1, § 26 ; Co. Litt. 29, a. (z) 3 Cruise T. 21, t. 1, g 30. (a) 3 Cruise T. 21, c. 1, J 31. (6) 3 Cruise T. 21, c. 1, ^ 32 ; 1 Prea. Shep. T. 96. (c) 3 Cruise T. 21, c. 2, § 21. (d) 1 Pres. Shep. T. 96. (e) 3 Cruise T. 21, c. 1, I? 36, 31, 38. (/) 3 Cruise T. 21, c. 1, J 40 ; Co. Litt. 3H, b. OP TITHES. 59 considered as a chattel real. But if the incumbent of a church is also seised in fee of the advowson of the same church and dies, the right to present will devolve to his heir, and not to his executor; for the avoid- ance and descent to the heir happening at the same instant, the title of the heir shall be preferred. ((/) Where an advowson is held in joint tenancy, all the joint tenants must join in the presentation. And where an advowson is vested in trustees and their heirs, upon trust to present to the church whenever a vacancy happens, they are joint tenants, and therefore upon any avoid- ance they must all join in the presentation. (^) By the common law, where an advowson descends to coparceners, and they cannot agree to present jointly, the eldest sister shall have the first turn, the second the next, and so of the rest according to their seniority. And this privilege extends, not only to the heirs of each coparcener, but also to others who acquire a portion of the estate by conveyance or by act of law, as a tenant by the curtesy, who shall have the same privilege by presenting in turn as his wife would have had if alive. (i) Tenants in common of an advowson must all join in presenting to a church. (A;) By the stat. 7 Ann. c. 18, s. 2, it is enacted, " that, if coparceners, or joint tenants, or tenants in common be seised of an estate of inherit- ance in the advowson of any church or vicarage, or other ecclesiastical promotion, *and a partition is or shall be made between them to p ^n,. , present by turns, thereupon every one shall be taken and ad- L J judged to be seised of his or her separate part of the advowson to present, in his or her turn. (A Section IV. Of Tithes. Tithes are the tenth part of the increase yearly arising and accruing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants ; the first species being usually called predial, as of corn, grass, hops, and wood ; the second, mixed, as of wool, milk, pigs, &c. ; and the third, personal, as of manual occupa- tion. (m) Tithes are due as of common right to the parson of the parish, that is, either the actual incumbent, or the appropriator of the benefice, unless there is a special exemption, by a real composition, or by custom, or by prescription. (ra) The rector, whether clerical or lay, is prima facie entitled to all the tithes of the parish. All tithes of common right belong to the rector. So that no tithes belong de jure to the vicar, except on an endowment or by prescription. (o) But it sometimes [g) 3 Cruise T. 21, c. 2, § 20. (A) 3 Cruise T. 21, v;. 2, § 25. [i] 3 Cruise T. 21, c. 2, J 27. [k) 3 Cruise T. 21, c. 2, ^ 32. [l] 3 Cruise T. 21, c. 2, g 34. (m) 2 Bl. Coni. 24. {n) 2 Bl. Com. 28. As to these modes or grounds of exemption, see Id. 28 — 32. (o) 3 Cruise T. 22, J 55. 60 SMITH ON KEAL AND PERSONAL PEOPEKTT. happens that one person has a certain part of the tithes within the parish of another, which is called a portion of tithes, and the person entitled to it is called a portionist.(j9) And lords of manors may be entitled to the tithes by prescription. (g') r *2f; 1 *When the monasteries were dissolved by King Henry VIII., L J the appropriation of the several benefices which belonged to them would by the rules of the common law have ceased, and they would have become disappropriated, had not a clause been inserted in all the statutes by which the monasteries were given to the Crown, to vest such appropriated benefices in the King in as ample a manner as the monasteries held them.(/) Almost all these appropriated benefices have been granted by the Crown to lay persons, and are now held by their descendants, or .by those who have purchased them from such grantees or their descendants. These are called lay impropriators. {^) The grants made by the Crown of this kind of property are either of a rectory or parsonage, which comprises the parish church, with all its rights, glebes, tithes, and other profits whatsoever, or else of the tithes of a particular tract of land.(^) With respect to the estate which lay impropriators are capable of having in tithes, they may be tenants in fee simple, fee tail, for life, or for years. Husbands may be tenants by the curtesy, and widows may be endowed of them. These tithes may also be held in joint tenancy, coparcenary, or in common. (i) Estates in them are also accounted assets for payments of debts. And they are alienable by lay impropria- tors, in the same manner as other real estates in incorporeal heredita- ments, and are comprehended within the Statute of Uses under the word hereditaments. Indeed they have all other incidents belonging to temporal inheritances. But it should be observed that no good title can be made to tithes, without showing the letters-patent by which the tithes, or the rectory or parsonage to which they are annexed, were granted by the Crown to some lay person ; for this is the only mode of r ♦07T repelling any claim which may be *made to those tithes by an L J ecclesiastical person claiming jure ecclesise. And the letters- patent should be inspected, to see that no reversion remains in the Crown. (7i;) Under the stat 6 & 7 W. 4, c. 71, and the subsequent Acts,fZ) tithes, or customary payments in lieu thereof, are commuted for a rent charge regulated by the price of corn ;(m) or (except in the case of a lay impro- priator) for land to the extent of twenty acres. (n) By s. 71, the tithe rent charge is to be subject to the same incumbrances and incidents as tithes before the Act. But it is provided " that it shall be lawful for any person seised in possession, of an estate in fee simple or fee tail of any (p) 3 Cruise T. 22, g 59. (q] 3 Cruise T. 22, § 61. (/) 3 Cruise T. 22, | 62. (ff) 3 Cruise T. 22, | 63. (h) 3 Cruise T. 22, ? 64. (i) 3 Cruise T. 22, ? 6V. (k) 3 Cruise, T. 22, § 69. (I) See the following statutes on tlie same subject : — 7 W. 4 & 1 V. c. 69 ; 2 4 3 V. 62 ; 3 & 4 V. c. 15 ; 5 & 6 V. c. 54 : 9 & 10 V. c. Y3 ; 10 & 11 V. c. 104 : 14 & 15 V. u. 53 ; 16 &17 V. o. 124. (m) See, in particular, ss. 17, 36, 44. (») See S3. 29, 62, and stat. 2 & 3 V. c. 62, s. 19, and stat. 5 & 6 V. v;. 54, s. 6. OFTITHBS. 61 tithes or rent charge in lieu of tithes, by any deed or declaration under his hand and seal, to be made in such form as the Commissioners shall approve, and to be confirmed under their seal, to release, assign, or otherwise dispose of the same, so that the same may be absolutely merged and extinguished in the freehold and inheritance of the lands on which the same shall have been charged." And by the stat 1 & 2 Vict. c. 64, s. 1, this provision is extended thus : "it shall be lawful for any person or persons who shall, either alone or together, be seised of or have the power of acquiring or disposing of the fee simple in possession of any tithes, or rent charge in lieu of tithes, by any deed or declaration under his or their hand and seal or hands and seals, to be made in such form as the Tithe Commissioners for England and Wales shall approve, and to be confirmed under their seal, to convey, appoint, or otherwise dispose of the same, so that the same may be absolutely merged and extin- guished in the freehold and inheritance of the lands out of or on which the *same shall have been issuing or charged; and every such -^„„-. deed or declaration as aforesaid shall be valid and effectual for L J the purpose aforesaid, although the same may not be executed or made in the manner or with the formalities or requisites which if this act had not been passed would have been essential to the validity of any instru- ment by which such person or persons could have acquired or disposed of the fee simple in possession of such tithes, or rent charge in lieu of tithes." And by s. 2, " no deed or declaration authorised by this act for the merging of tithes shall be chargeable with any stamp duty." And by s. 3, " in all cases where tithes, or rent charge in lieu of tithes, and the lands out of which the same are payable, are both settled to the same uses, it shall be lawful for any person in possession of an estate for life in both such lands and tithes, or rent charge in lieu of tithes, by any deed or declaration under his hand and seal, to be made in such form as the said commissioners shall approve, and to be con- firmed under their seal, to release, assign, or otherwise dispose of such tithes or rent charge, so that the same may be absolutely merged and extinguished in the freehold and inheritance of the lands out of which such tithes shall have been issuing or on which such rent charge shall have been charged." And by s. 4, these provisions as to merger are extended to " all lands being copyhold of inheritance or copyhold for lives, or of any other tenure whatsoever." By the stat. 9 & 10 Vict. c. 73, these provisions are further extended. By s. 18, it is enacted, " that where by any agreement or award already made or hereafter to be made a rent charge shall have been agreed or awarded to be paid instead of the tithes of any parish, or instead of any of such tithes, and shall not have been apportioned, it shall be lawful for the person who under the provisions of the said recited acts would have been enabled, in case such agreement or award had not been made, to merge the tithes in *lieu of which such rent charge shall have ^ ^nn i been agreed or awarded to be paid, or such of the same tithes L ' as were payable out of part of the said lands, by any deed or declaration to be made in such form as the Commissioners shall approve, and to be confirmed under their hands and seal, to declare that the tithes which he 62 SMITH ON REAL AND PERSONAL PROPERTY. would have been so entitled to merge shall, so far as respects all the lands, or, if he shall think fit, so far as respects only any specified part of the lands out of which the same were payable, and the rent charge or portion of rent charge which shall have been awarded or ought to be apportioned in lieu thereof on such lands, or specified parts of such lands as the case may be, shall be merged, and such merger shall take efl^ect accordingly ; and in case such merger shall extend to all the lands which would have been chargeable with such rent charge no apportionment of such rent charge shall be made under the provisions of the said re- cited Acts; but in case such merger shall extend to part only of the lands which would have been chargeable with such rent charge, then such portion of the rent charge shall be apportioned among the other lands which would have been chargeable with such rent charge as such other lands would have been subject to in case such merger had not taken place." And by s. 19 " all powers relating to the merger and extinguishment of any tithes, or rent charge instead thereof, may be executed by a person entitled in equity to such tithes or rent charge in all respects and with the same consequence as he could have done if he had been legally entitled thereunto ; and every instru- ment already executed and purporting to be made in pursuance of the powers of the said Acts or any of them by any person so entitled in equity shall in every respect be as effectual and have the same conse- quence as if he had been legally entitled to the said tithes or rent charge at the time of the execution of such instrument, subject nevertheless in r *'Ani ^'^^U °^^^ *° ^^J charge, incumbrance, *or liability which lawfully L J or equitably existed on such tithes or rent charge to the extent of the value of such tithes or rent charge ; and any such charge, incum- brance, or liability shall have such priority, and the lands and the owners thereof for the time being shall be liable in the same manner in respect of such rent charge, incumbrance, or liability, or of any penalty or dama- ges for non-payment or non-performance thereof respectively, as by the said Act of the session of Parliament held in the second and third years of the reign of her present Majesty is provided in the case of such merger or extinguishment as therein mentioned ; and every instrument purport- ing to merge any tithes or rent charge, and made with the consent of the said Commissioner before the passing of this Act, shall be hereby ab- solutely confirmed and made valid both at law and in equity in all respects subject nevertheless to any charge, incumbrance, or liability in all re- spects as is lastly hereinbefore provided." And by s. 20, the stat. 1 & 2 Vict. c. 64, is to be construed with and as part of the 6 & 7 Will. 4, c. 71, as amended by the several amending Acts. By the stat. 2 & 3 Vict. c. 62, s. 1, it is enacted, "That, in every case where any tithes or rent charge shall have been or shall hereafter be released, assigned, or otherwise conveyed or disposed of under the provi- sions of the said Acts, or any of them, or of this Act, for merging or ex- tinguishing the same, the lands in which such merger or extinguishment shall take efiFeot shall be subject to any charge, incumbrance, or liability which lawfully existed on such tithes or rent charge previous to such merger, to the extent of the value of such tithes or rent charge ; and any OF TITHES. 63 such charge, ineumbranoe, or liability shall have priority over any charge or incumbrance existing on such lands at the time of such merger taking effect ; and such lands, and the owners thereof for the time being, shall be liable to the same remedies for the recovery of any *payment _ ^o-i -i and the performance of any duty in respect of such charge, in- L ■' cumbrance, or liability, or of any penalty or damages for non-payment or non-performance thereof respectively, as the said tithes or rent charge, or the owner thereof for the time being, were or was liable to previous to such merger." By s. 2 of the same statute, "every person entitled te exercise the powers for merger of tithes or rent charge in land under the said Acts or any of them, or of this Act, may, with the consent of the Tithe Com- missioners for the time being under their hands and seal of oflSce, and of the person to whom the lands in which such merger or extinguishment shall take effect shall belong, either by the deed or other instrument or declaration by which such merger shall be effected, or by any separate deed, instrument, or declaration, to be made in such form as the Com- missioners shall approve, specially apportion the whole or any part of any such charge, incumbrance, or liability affecting the said tithes or rent charge so merged or extinguished, or proposed to be merged or extin- guished in such lands, upon the same or any part thereof, or upon any other lands of such person held under the same title and for the same estate in the same parish, or upon the several closes or portions of such lands, or according to an acreable rate or rates upon lands of different quality, in such manner and proportion, and to the exclusion of such of them, as the person intending to merge the same, with such consent as aforesaid, may, by any such deed, instrument, or declaration direct : Provided always, that no land shall be so exclusively charged unless the value thereof shall in the opinion of the said Commissioners be at least three times the value of the amount of the charge, incumbrance, or lia- bility charged or intended to be charged thereon, over and above all other charges and incumbrances, if any, affecting the same." And by s. 4, " Where the whole of the great tithes, or the whole of the *small _ ^„_ _ tithes, or the respective rent charggs in lieu thereof, shall be law- L J fully subject to any such charge, incumbrance, or liability, and the per- son entitled to such tithes or rent charge respectively shall be desirous of apportioning such charge, incumbrance, or liability respectively ex- clusively upon any part of such tithes or jent charge, although such per- son has not the power, or does not intend to merge the same under the said Acts or this Act, such person may, with the like consent of the said Commissioners, and in such manner as they shall see fit and prescribe, and also with the consent of the bishop of the diocese, specially appor- tion such charge, incumbrance, or liability respectively upon any part or portion of the tithes or rent charge respectively subject thereto, not be- ing in the opinion of the said Commissioners less than three times the value of the said charge, incumbrance, or liability, or of such part thereof as shall be so apportioned thereon, or intended so to be." By s. 6 of the same statute, " the provisions of the said Acts and this Act for merger or extinguishment of tithes or rent charge instead of 64 SMITH ON REAL AND PERSONAL PROPERTY. tithes in the lands out of which such tithes shall have been issuing, or whereon such rent charge shall be fixed, do and shall extend to glebe or other land, in all cases where the same and the tithes or rent charge thereof shall belong to the same person in virtue of his benefice, or of any dignity, office, or appointment held by him." By the stat. 9 & 10 Vict. c. 73, ss. 1 — 11, power is given to redeem tithe rent charges in certain cases. Under the Tithe Commutation Act, 6 & 7 Will. 4, o. 71, the Com- missioners were only intended to decide disputes between the landowner and the tithe owner, leaving the decision of disputes as to title between rival claimants of the tithe, to be decided by the regular tribunals of the country, (o) [ *33 ] *Seotion V. Of Commons. Common is a right or privilege which is vested in a person or persons to take or use some portion of that which another's lands, waters, woods, &c., produce, [p) It is chiefly of four sorts : common of pasture, of pis- cary, of turbary, and of estovers, (g') I. — The most general and valuable kind of common is that of pasture, which is a right of feeding one's beasts in another's lands. This kind of common is of four kinds : appendant, appurtenant, because of vicinage, or in gross, fr) 1. Common appendant is a right annexed to the possession of land within a manor, by which the owner or occupier of such land is entitled to feed his beasts on the wastes and upon the lands of other persons with- in the same manor.(s) It can only be claimed by prescription, (<) not by grant or by way of custom. (m) It is regularly annexed to arable land only. Yet it may be claimed as appendant to a manor, farm, or carve of land, though it contain pasture, meadow, and wood ; for it will be pre- sumed to have been all originally arable. But a prescription to have common appendant to a house, meadow, or pasture, is void. It may, however, be appendant to a cottage ; for a cottage has at least a curtil- age annexed to it.^cc) It can only be claimed for such cattle as are neces- sary to tillage ; as horses and oxen to plough the land, and cows and r *R4. 1 s'lssp to manure it. *It may by usage be limited to any definite L -1 number of cattle. But where there is no such usage, it is re- strained to cattle levant and couchant upon the land to which the right of common is appendant ; and the number of cattle which are allowed to be levant and couchant shall be ascertained by the number of cattle (o) The Queen t. The Tithe Commissioners, 15 A. & E. 633. (p ) 3 Cruise T. 23, g 1. (g) 2 Bl. Com. 32. (r) Co. Litt. 122, a; 3 Cruise T. 23, ? 2 ; Burton, § 1133 ; 2 Bl. Com. 33. (s) 3 Cruise T. 23, | 3 ; Burton, § 1133 ; 2 Bl. Com. 33. \t) See Title on Prescription, infra. (u) 3 Cruise T. 23, J 4; Burton, J 1143 ; Co. Litt. 122, a. n. 2. (x) 3 Cruise T. 23, |j 5, 6. OP COMMONS. 65 which can be maintained on the land during the winter.(y) Such ani- mals being absolutely necessary for agriculture, this right of common for them was annexed by law as an inseparable incident to the grant of land within a manor, (z) 2. Common appurtenant does not arise from any connexion of tenure, but must be claimed by grant or prescription, and may be annexed to lands lying in difiFerent manors from those in which it is claimed, and to any kind of land. It may be not only for beasts usually commonable, such as horses, oxen, and sheep, but likewise for goats, swine, &c. And it may be either for a definite or an indefinite number. Where it is without number, it is restrained to cattle levant and couchant on the land to which it is annexed. (a) But common for cattle levant and couchant cannot be claimed by prescription as appurtenant to a house without any curtilage or land. (6) Common appendant or appurtenant for all beasts levant and couchant cannot be granted over ; but common appurtenant for a limited number of beasts may be granted over.(c) When common appurtenant for a limited number of cattle is granted over, it becomes common in gross. (c?) 3. Common because of vicinage is a mutual right in the inhabitants of adjoining townships or manors, of suffering *their cattle to ^ ^^-. stray into each other's fields without molestation, until either of L J them shall inclose and bar out the other, (e) This species of common is, in fact, only a permissive right intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits. It can only exist between two townships or manors adjoining one another, not where there is intermediate land. It is not common appendant, but it ought to be by prescription, like common appendant. (/) It does not authorise an inhabitant of one township or manor to put his cattle upon the wastes of the other township or manor j but he must put them upon the wastes of his own township or manor, from whence they may stray into the wastes of the other.(^) And it can only be used by cattle levant and couchant upon the lands to which such right of common is annexed. (A) 4. Common in gross is a right which must be claimed by deed or prescription, and has no relation to land, but is annexed to a man's person, (i) In many cases the right to common of pasture is confined to a par- ticular part of the year only, as from Michaelmas to Lady-day ; in which case it is called a stinted common. (A) (y) 3 Cruise T. 23, ^§ 8,9; Co. Litt. 122, a; Burton, JJ 1133, 1136; 2 Bl. Com. 33. (z) 2 Bl. Com. 33 ; Co. Litt. 122, a. (a) 3 Cruise T. 23, §J 10, 11 ; Burton, §| 1135, 1136, 1137 ; 2 Bl. Com. 33 ; Co. Litt. 122, a. and n. 4. (6) 3 Cruise T. 23, § 12. (c) 3 Cruise T. 23, |j 14, 20; Burton, § 113t. (d) 3 Cruise T. 23, | 20 ; Burton, g 1137. (e) 2 Bl. Com. 33 ; 3 Cruise T. 23, §§ 15, 67 ; Burton, § 1134 ; Co. Litt. 122, «.. If) 3 Cruise T. 23, §§ 15, 16; Burton, § 1134. {ff) 3 Cruise T. 23 | 17 ;^Co. Litt. 122, a. (h) 3 Cruise T. 23, ? 18. (i) 3 Cruise T. 23, ^ 19; 2 Bl. Com. 34; Co. Litt. 122, a. and n. 5. {k) 3 Cruise T. 23, § 21. January, 1856. — 5 66 SMITH ON REAL AND PERSONAL PROPERTY. II. Common of estovers is a right of taking necessary housebote, plough- bote and hedgebote in another person's woods or hedges, without waiting for any assignment thereof.(^) Housebote is a sufficient allowance of wood to repair or burn in the house, though wood for fuel is sometimes also called firebote; ploughbote and cartbote are wood to be employed in making and repairing all instruments of husbandry; and, hay bote or r »qo -1 hedgebote is wood *for repairing of hays, hedges, or fences.(«) L J Common of estovers may even be appendant and appurtenant to a messuage or dwelling-house by prescription or grant, to be exercised in lands not occupied by the tenant of the house. (u) Common of estovers is so entire that it cannot be apportioned or divided. (a;) III. Common of turbary is a right to dig turf on another's land, or on the lord's waste. This kind of common can only be appendant to a house, not to land, for the turf is to be burned in the house. Nor can it extend to a right to dig turf for sale. Where common of turbary is appendant to a house, it will pass by a grant of such house with the appurtenances. (y) IV. Common of piscary is a right to fish in the private waters of another person, or in a river running through another's land.(z) This species of Common cannot be apportioned. (a) V. There is also a common of foldage, or liberty of folding sheep on another's ground, and a common of digging for coals, minerals, stones, and the like. (6) Copyholders are not entitled by general custom to common on the wastes of the manor of which their estates are held; but copyholders in fee or for life may by particular custom have common on the demesnes of the manor.Tc) A right to common, being an incorporeal hereditament and collateral to the land, cannot be devested. For, though a person entitled to a right of common be not in the actual enjoyment of it, yet by non-user only for a time, he does not cease to have a vested estate or interest therein. (rf) The lord of the manor or other owner of the soil in which there is a _ -. right of common has the freehold and inheritance *in him, and L J may exercise every act of ownership not destructive of the commoner's rights, (e) By the common law, the lord of a manor or the person who is seised in fee of the waste land, could not appropriate to himself, by inclosure or otherwise, any part of the wastes in which there was a right of com- mon, because the common issued out of the whole and every part there- of.(/) But by the Statute of Merton and other subsequent statutes, and the construction put upon them, he may inclose as much of the waste as he pleases for tillage and wood ground, provided he leaves common (I) Id. ? 24; 2 Bl. Com. 35. (m) 2 Bl. Com. 35. (v) 3 Cruise T. 23, §§ 24, 25. [x] 3 Cruise T. 23, § 46. [j/] 3 Cruise T. 23, |§ 31, 34; 2 Bl. Com. 34. (s) 3 Cruise T. 23, § 35 ; 2 Bl. Com. 34. (a) 3 Cruise T. 23, § 46. h) Co. Litt. 6, a. n. 1 ; 2 Bl. Com. 34. (c) 3 Cruise T. 23, § 36. Id) 3 Cruise T. 23, § 41. (e) 3 Cruise T. 23, BS 2, 47. (/) 3 Cruise T. 23, gj 59, 13. OF COMMONS. 67 sufficient for such as are entitled thereto. This inclosure, when justifia- ble, is called " approving," an ancient expression signifying the same as '< improving."(^) Wastes have also been and still may be inclosed by agreement be- tween the lord and all the commoners, or by private Acts of Parliament, or under Acts relating to particular localities, or under the General In- closure Acts. (See 29 Geo. 2, c. 36, as to inclosure for the purpose of planting, amended by the statute 31 Geo. 2, c. 41 ; 41 Geo. 3, c. 109, consolidating in one Act certain provisions usually inserted in inclosure Acts ; 3 & 4 Will. 4, c. 87, for remedying defects in titles under awards then already made, notwithstanding want of due inrolment ; 6 & 7 Will. 4, c. 115, for facilitating inclosure; 3 & 4 Vict. c. 31, for extending the powers and provisions of former Acts ; 8 & 9 Vict. c. 118, intituled "An Act to facilitate the inclosure and improvement of commons and lands held in common, the exchange of lands, and the division of intermixed lands ; to provide remedies for defective or incomplete executions, and for the non-execution of the powers of general and local inclosure Acts ; and to provide for the revival of such powers in certain cases," which was amended by 9 & 10 *Viot. c. 70, and extended by 10 & 11 |- ^„„ . Vict. c. 119, and 11 & 12 Vict. c. 99 ; 12 & 13 Vict. c. 83, for L "^^ -I further facilitating inclosure and improvement of lands; and 15 & 16 Vict. c. 79, and 17 & 18 Viot. c. 97, for amending and further extending the former Acts.) A right to common may be extinguished, suspended, or apportioned in various ways. Thus, — 1. As a right to common is entire throughout the whole of the land subject to it, if the commoner releases part of the land from his right of common, it will operate as an extinguishment of the right in every other part.(^) 2. Common appendant and appurtenant become extinguished by unity of possession of the land to which the right of common was annexed with the land in which the common existed. To constitute such an unity of possession as will extinguish a right of common, the person must have an estate in the lands to which the common is annexed, and in those where the right of common exists, equal in duration and all other cir- cumstances of right.r-i.') Where a person having common appurtenant purchases part of the lands wherein the common is to be had, the whole right of common becomes extinct, because it is against common right. And where a person having common appurtenant takes a lease of part of the land in which he has such right of common, all his common shall be suspended during the continuance of the lease. (^) But if one of the tenants of a manor purchases any part of the land over which he has a right of common appendant, his right over the rest will continue, be- cause it is of common right.0 And on the alienation of any part of (g) 2 Bl. Com. 34; 3 Cruise T. 23, ?g 59—66, 73, 18. (A) 3 Cruise T. 23, § 82 ; Burton, § 1142. (i) 3 Cruise T. 23, §J 83, 86. (k) 3 Cruise T. 23, |J 43, 90 ; Burton, § 1142 ; Co. Litt. 122, ». (I) Burton, i 1140 ; 3 Cruise T. 23, ^ 42 ; Co. Litt. 122 a. 68 SMITH ON REAL AND PERSONAL PROPERTY. land which enjoys the benefit of common appendant or appurtenant, the r «^q T "g^* °^ *common is preserved and apportioned. (m) And if a L ' person having a right of common appurtenant to his land leases part of it, the lessee shall have common for beasts levatit and couchant on the land.(n) And a right of common which has been extinguished by unity of possession may be revived by a new grant.(o) 3. Common appendant or appurtenant for cattle levant and couchant may also be extinguished by severance. Thus, where a person, having common of this kind annexed to a messuage or tenement, conveys away the messuage or tenement excepting the common, this will cause an ex- tinguishment of the common. (p) 4. A right of common may be extinguished by enfranchisement of a copyhold to which a right of common is annexed. (g) Section VI. 0/ a Franchise or Liberty. A franchise or liberty is a royal privilege or branch of the king's prerogative subsisting in the hands of a subject. Being derived from the Crown, franchises must arise from the king's grant, or, in some cases, they may be held by prescription, which pre-supposes a grant. Some of the most important franchises are forests, chases, parks, and free warren. (r) A forest comprehends within it a chase and free warren. (s) Part of the land and wood comprised in a forest may belong to private per- *4m ^o'l^ j ^^^ ^^^y "^'^ °'^'y occupy *and enjoy it in such manner as -I is consistent with the rights of the proprietor of the franchise of the forest, and the preservation of the game.(<) A chase is a franchise or liberty of keeping certain animals within a known district, with an exclusive right of hunting them therein. It is in most respects similar to a forest ; the only difference between them being, that a chase has no laws peculiar to it, so that all offences in chases are punishable by the common law, not by the forest laws. Beasts of chase are buck, doe, fox, martin, and roe, in which the owner of the chase has a property, (m) A park is an inclosed chase extending over a person's own grounds, privileged for beasts of venery, and beasts of forest and chase, by the king's grant or prescription. («) A free warren is an exclusive right to have, hunt, and take certain wild beasts and fowls called game within the precincts of a manor or (m) Burton, § 1141 ; Co. Litt. 122, a. (n) 3 Cruise T. 23, § 45 ; Co. Litt. 122, a. (o) 3 Cruise T. 23, § 95. (p) 3 Cruise T. 23, § 91. (?) 3 Cruise T. 23, | 81. (r) 2 Bl. Com. 3^— 40 ; 3 Cruise T. 27. («1 3 Cruise T. 27, g 7 ; Co. Litt. 233, ». h) 3 Cruise T. 27, g 9. (u) 3 Cruise T. 27, § 10. [x) 3 Cruise T. 27, ? 15 ; Co. Litt. 233, a. OF WAYS. 69 Other known place. The beasts of warren are hares and rabbits ; the fowls of warren are pheasants and partridges. (y) There are various other kinds of franchises, such as several fisheries, and the right to hold a fair or market, to receive tolls, to have waifs, wrecks, estrays, and treasure trove, &c., as to which the reader is re- ferred to other works. («) ^Section VII. [ *41 J Of Ways. Rights of accommodation in another's lands, such as ways, as distin- guished from those incorporeal hereditaments which are directly profita- ble, are called easements.(a) A right of way is a private right possessed by a person or persons of going over another man's ground. (6) It may be a way to be used alone, or in compan]^, on foot or on horseback, with carriages or cattle. (c) The title to it may be by express grant, or by prescription, or by necessary implication. Thus, with respect to necessary implication, a person may claim a right of way over another's land from necessity ; so that, if a piece of land comprised in a conveyance is surrounded by land belong- ing to the grantor, a right of way over the grantor's land passes of necessity to the grantee, for otherwise he could not derive any benefit from his acquisition ; and the grantor shall assign the way where he can best spare it. It is the same though the close aliened be not totally inclosed by the land of the grantor, but partly by the land of a stranger ; for the grantee cannot go over the stranger's land. And so if a man has four closes lying together, and sells three of them, reserv- ing the middle close, and has no way thereto but through one of those which he sold, although he did not reserve any right of way, yet he shall have it as reserved to him by law.(rf) Where there is no such necessity, a permanent right of way cannot, it seems, be created other- wise than by deed. And it has been held, that a bargain and sale is not a proper instrument for this purpose, (e) Where a person has a right of way over another's close, ^ ^ .„ ., and he purchases the close, his right of way is extinguished by L J the unity of seisin and possession, if it be only an easement ; but if it is of necessity, it is not extinguished by unity of possession. (/) A right of way, being an incorporeal hereditament, similar in many respects to a right of common, cannot be devested. (^) (y) 3 Cruise T. 2'7, \l 19, 23. h.) See 3 Cruise T. 27 ; Co. Litt. 122, a, n. 7 ; 2 Bl. Com. 37, 39, 40, &c. (a) Burton, g 1165. (i) 2 Bl. Com. 36 ; 3 Cruise T. 24, I 1. (c) Burton, \ 1166. {d) 3 Cruise T. 24, §§ 10, 12; 2 Bl. Com. 36; Burton, § 1167. («) Burton, § 1167. (/) 3 Cruise T. 24, ? 23. (g) 3 Cruise T. 24, \ 21. As to some other kinds of incorporeal hereditaments, such as offices, dignities, rights to running water and light, and rights to pews, the reader is referred to 2 Bl. Com. 36, 37 ; 3 Cruise T. 25, 26, and other worlss 70 SMITH ON REAL AND PERSONAL PROPERTY. [*43] *PART II. OP THE SEVERAL KINDS OF INTERESTS CONSTITUTING THE SUBJECTS OF CONVEYANCING. TITLE I. OF CONDITIONS AND LIMITATIONS ON WHICH INTERESTS DEPEND, OR BY WHICH THEY MAY BE AFFECTED. CHAPTER I. OF THE SEVERAL KINDS OF CONDITIONS. A CONDITION is a clause expressed or implied, providing or construc- tively importing that an estate shall be created, enlarged, diminished, or defeated, or the beneficial interest therein shall be suspended, in a given event, (a) Conditions, therefore, are either express, that is, expressed in words, which are sometimes termed conditions in deed ; or implied, that is, only annexed by construction of law, which are sometimes termed conditions in law. (6) r«4.zn *Some conditions are termed subsequent. A condition subse- L J quent, properly so called, is a condition upon which an estate or interest is to be prematurely defeated or determined, and no other estate is to be created in its room. Regularly such a condition is annexed to an estate or interest created by a previous clause or instrument.(c) The words " on condition," " provided," " so that," or, in the case of a lease for years, words of similar import sufficiently denote a condition subse- quent, which will cause a cesser, without any words expressive of the intention of cesser in the event specified, ( ajimitation, as it certainly was, and not a condition subsequent; and that therefore the annuity ceased on marriage. But this cannot be con- sidered to have the weight of a decision as to the validity of such a limitation, because it was admitted at the bar, that, if it was a limitation, and not a condition subsequent, it would be valid. In Ex parte Dixon, (/c) there are remarks having some bearing on the subject. In Morley v. Rennoldson,(Z) Wigram, V. C, held, but extrajudicially, that a gift till marriage, with a limitation over, is good. In Webb v. Grace, (m) and in Kishton v. Cobb,(ra) there are remarks of Lord Cotten- ham, which would at first sight support the view of the lords justices in Heath v. Lewis ; but, in the former case, there was no intention to restrain marriage generally, and it was a case of covenant; and in the latter case, the lady was a widow, and was married a second time at the date of the will. In Lloyd v. Lloyd, (o) there are dicta which would seem to favour the decision in Heath v. Lewis. There are also important remarks in Low v. Peers. (p) There Lord Chief Justice Wilmot cites Swinburne, Part IV. § 12, par. 19, and Swinburne cites Digest 33, tit. 1, 1. 17, " Legatum ita est." This passage, however, though it mentions a direct limitation till marriage, does not prove that it was good by the civil law ; and an indirect limitation till marriage, Swinburne admits to be bad. Down to the case of Heath v. Lewis, there is no decision (as far as the author is aware) that a direct or indirect limitation till marriage is valid. And the decision in Wren v. Bradley(g') would seem to show that restrictions which would be bad as conditions would be equally bad as limitations. *It is equally possible to reject a special or j- ^„^ -, collateral limitation, as it is to reject a condition subsequent. L -I If rejected, the interest would last for the period assigned it by the express or implied general limitation, for life or otherwise, (r) And the writer, with great deference, submits that it ought to be rejected as contrary to the policy of the law, as much as a condition subsequent properly so called. In regard to those conditions precedent which are void on account of the generality of their restraint on marriage, no estate will vest in the event of non-compliance, in the case of real property; but in the case (?) Lloyd T. Lloyd, 2 Sim. N. S. 263. (/) 3 D. M. & G. 954. [k) 1 Sim. N. S. 43. {1} 2 Hare, 574-5. (m) 2 Phil. 102. (m) 5 My. & Cr. 152. . (o) 2 Sim. N. S. 263. (p) Wilmot's Opinions and Judgments, 374. (q) 2 De G. & S. 49. (r) See Smith's Executory Interests annexed to Fearne, J§ 28 — 36 ; supra, pp. 47, 48. 80 SMITH ON REAL AND PERSONAL PROPERTY. of a legacy of personal property, the legacy will be held good and abso- lute, as if no condition had been added. (s) If a testator attempts, whether by way of condition or limitation, to restrict a married woman from cohabiting with her husband, such con- dition or limitation is void, and a gift of personalty to which it is annexed will be good.(rt And where certain rights are conferred by an antenuptial settlement on the intended husband and wife, subject to a proviso for materially varying those rights in favour of the husband, in the event of a separation by reason of any disagreement or otherwise taking place, such a proviso is void.(M) Conditions in general restraint of trade are void, as tending to dis- courage industry, enterprise, and just competition. But a person may be restrained from carrying on trade in a particular place, or with parti- cular persons, or for a reasonable limited time. And a person may law- fully sell a secret in his trade or business, and restrict himself from using the secret, (a;) r*f!9n Conditions are illegal when they are repugnant, that is, L J *inconsistent with the estate or interest to which they are annexed ;(y) as where the condition restrains a legatee from spending or disposing of his legacy, when his interest in it is absolute 5(2;) or where a gift is made in terms which would confer an absolute interest, but a condition is annexed, that, if the legatee should not use or dispose of the property, it shall go over to another person. fa) In like manner, if a feoffment is made of land in fee, on condition that the feoifee shall not enjoy the land, or shall not take the profits of the land, or on condition that the heir of the feoffee shall not inherit the land, or on condition that the feoffee shall not do waste, or on condition that his wife shall not be endowed; in all these and the like cases, the condition is void, as repugnant to the estate. (6) And so, if lands are given or granted to two and their heirs, on condition that the survivor shall have the whole notwithstanding partition, or on condition that the survivor shall not have the whole, albeit there be no severance ; these conditions are repugnant to the nature and quality of the estate, and void.(c) Conditions in restraint of alienation are sometimes void, as being con- trary to the policy of the law, or repugnant, or on both these grounds. If a person seised in fee of land makes a lease of it for years or life, on condition that the lessee shall not alien the land leased or any part thereof during the term, or on condition that he shall not alien it or any part of it during the term without license of the lessor, these are good conditions, on account of the privity and the relation of lord and tenant. But if («) Story's Eq. Jur. J 289. (t) See Wren r. Bradley, 2 De G. & S. 49. (u) Cartwright v. Oartwright, 3 D. M. & G. 982, 989. (2:) Story's Bq. Jur. ^ 292. (y) 2 Cruise T. 13, c. 1, g 20 ; 1 Rop. Leg. by White, '785. (z) 1 Rop. Leg. by White, 785. (a) 1 Bop. Leg. by White, '?86 ; Smith's Executory Interests annexed to Pearne, g 667. See also Green r. Harvey, 1 Hare, 428 ; Byng v. Lord StrafiFord, 5 Bear. 558, 567 ; Walker v. Williams, 3 Mao. & G. 622 ; In re Yulden, 1 D. M. & G. 53 j Boston T. Boston, 16 Sim. 552. (b) 1 Pres. Shep. T, 131 ; Co. Litt. 206, a. (c) 1 Pres. Shep. T. 131. OF VOID CONDITION^. 81 a person, possessed *of a lease for years of a house, or of any ^ ^„n , chattel real or personal, gives or sells all his interest therein, L J and not merely makes an underlease upon condition that the donee or vendee, (generally, and not partially, and under due restraints,) shall not alien the same, this condition is void for repugnancy, and the gift or sale is absolute, (c?) And where alienation of a term for years is prohibited by a lessor, the original limitation must not be to the lessee and his assigns, for this would be a contradiction. (e) If a lease for years is made on condition that the lessee shall not assign or alien the term or the land during his life without the license of the lessor, and the lessee gives it by his will without license, this is a breach of the condition, and a forfeiture of the estate. But if a lease is made on condition that the lessee shall not alien without the license of the lessor, so as to be personal to him, and afterwards the lessor dies, and the lessee assigns ; or the lessee dies, and his executors or adminis- trators assign ; there is no breach of the condition in either of these cases. (/) And if the condition is, not to alien the land or any part thereof, and the lessee aliens part with the lessor's assent, he may after- wards alien the residue without his assent; for the whole condition is gone, because it cannot be divided. ( 1 (/) Smith's Executory Interests annexed to Fearne, B 701. (ffll 2 Cruise T. 13, >;. 1, g 15 ; 1 Pres. Shep. T. 120, 149. (M 2 Cruise T. 13, i;. 1, § 10 ; Co. Litt. 236, b, 237, a ; 1 Preg. Shep. T. 126. (c) 2 Cruise T. 13, c. 1, § 12 ; Co. Litt. 236, b, 237, a: 1 Pres. Shep. T. 126 {d) 2 Cruise T. 13, c. 2, ^ 15. ^ OF CONDITIONS GBNEEALLY. 85 satisfy the contingent import of the words, the testator is not held to refer to death generally, whenever it may happen ; but, when the will furnishes any- other period than the death of the testator, to which the death of the legatee can be referred, (as, for instance, a death in the life- time of a prior taker, where there is a prior gift,) the death, in the absence of indication of a contrary intent, will be construed to be a death in the lifetime of a prior taker ; but where no such other period is furnished, then a death in the lifetime of the testator. (e) And "even where the gift over is not merely dependent on the simple event of death, but is to take effect ' in case of death, leaving children,' or in case of the person ' dying unmarried and without issue,' the event will be construed to mean, not a death generally at some time or other, but a death in the testator's lifetime, or at some other particular time, if the fund or pro- perty itself, and not merely the interest or income, is given 'absolutely' to the person whose death is spoken of; or, if it is not to vest till a future period, and the dying may fairly be referred to a dying before that period ; or if, for any other reason, it does not appear that the tes- tator intended to refer to death generally."^/) Where, after the covenants in a lease, there was a passage beginning with the words " Provided, nevertheless," and providing, that, in case the lessor should at any time be desirous of having any part of the land delivered up to him, and of such desire should give three months notice, then, at the expiration of such notice, the lessee did thereby covenant to surrender up, and that the lessor should take possession of such part or parts of the land as should be mentioned in the notice, he, the lessor, paying a reasonable *compensation for moneys laid out in im- p ^„, , proving the condition of the land so given up, and thenceforth L J the rent should be reduced in proportion to the land given up ; it was held, that, under this proviso, the lessor might resume all the demised land, and that it operated as a condition as well as a covenant ; so that the lessor might take possession without waiting for the lessee to give up possession ; and that the lessor might do so without having first paid the compensation. (^) A condition, as distinguished from a conditional limitation, may abridge the subject of an estate, or it may determine the whole of the estate itself, but it cannot determine it for part of the time for which it was originally to endure, and leave it good for the residue, or deter- mine the estate as to one person, and leave it good as to another. (A) Neglect to repair, not being an act done or caused to be done, but a mere omission to do an act, is not within a proviso in a lease, giving power of re-entry, " if the lessee shall do, or cause to be done, any act, matter, or thing contrary to, or in breach of, any one or more of the covenants."(i) A condition may be extinguished by a release. (^) (e) Smith's Executory Interests annexed toFearne, J§ 656 — 661. (/) Id. ? 662. See also Id. §§ 664—666. (g) Doe d. Gardner t. Eennard, ISl A. & B., N. S., 244. (A) See 2 Cruise T. 13, c. 1, s. 13; 1 Pres. Shep. T. 121 ; Co. Litt. 202, b, n. 2. (i) Doe d. Ashby t. Stevens, 3 B. & Ad. 299. (A) 2 Cruise T. 13, c. 2, 1 59. 86 SMITH ON EEAL AND PERSONAL PROPEBTY. [*72] *TITLE II. ,. ^. OP FREEHOLD, AS DISTINGUISHED PROM COPYHOLD INTERESTS. All the landed property of the kingdom is supposed to be granted by, and holden of, some superior lord, in consideration of certain services to be rendered to him by the possessor of such property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. And all the land in the king- dom is supposed to be holden of the king, who is styled the lord para- mount, or above all. But it is frequently held, or supposed to be held, immediately of the king's tenants, and only mediately, through them, of the king; for the king's tenants frequently granted out portions of their lands to other persons, and thereby became also lords with respect to those other persons, as they themselves were still tenants with respect to the king, and thus, partaking of a middle nature, were called mesne or middle lords, (a) Things real are either of freehold or of copyhold tenure. Things real of freehold tenure are those hereditaments which are capable of being conveyed and assured by, and are held under, the ordinary deeds of conveyance and assurance.(i) Hereditaments of freehold tenure, which are usually called freeholds, are, 1. Of common or ordinary socage tenure, which is the tenure whereby the generality of freeholds are held. 2. Of gavelkind tenure, P ^_q -1 which prevails in *the county of Kent, and also exists in some L -1 other parts of the kingdom. 3. Of burgage tenure, by which houses, or lands which were formerly the site of houses, in some ancient boroughs, are held. 4. Of grand serjeanty tenure, whereby lands are holden of the crown in consideration of rendering to the sovereign some personal service. 5. Of petit serjeanty tenure, whereby lands are holden of the crown in consideration of rendering to the sovereign some small implement of war. 6. Of frankalmoign tecure, a spiritual tenure by which the religious houses were held, and by which the parochial clergy, together with many ecclesiastical corporations, now hold their lands.(c) The characteristic of all these tenures, except the last, is the rendering of services which are both honorable and certain, and on this account they are all included in the general term of socage tenure, which signifies a tenure by services of an honorable and definite kind, and sometimes, though improperly, in the term free and common socage tenure, as opposed to other tenures in which the services were either menial or uncertain. (rfj The tenure of an allotment under an Inclosure Act, in the absence of any provision to the contrary in the act, is always common socage tenure, whatever may be the tenure of the commoner's estate. (e) (a) 2 Bl. Com. 59. (h) 2 Bl. Com. 100, 101. (c) 2 BL Com. 6: 1 Cruise T. Prelim. Diss. u. 3. U) 2 BL Com. 79, 81. (e) 1 Jarm. & Byth. by Sweet, 75 ; Barton, I 1258, n. OF COPYHOLDS GENERALLY. 87 One of the most usual kinds of services is a rentj and wherever lands in fee simple are held by a rent, there is due to the lord, on the death of a tenant, one year's rent, which is called a relief, and is one of the incidents of socage tenure. (/) *TITLE III. [*74] OP COPYHOLD INTERESTS. CHAPTER I. OF COPTHOLDS GENERALLY. Things real of copyhold tenure, or copyholds, are hereditaments which are parcel of the demesnes of a manor, and are incapable of being legally conveyed by, or held under, the ordinary deeds of conveyance, but are only capable of becoming vested at law in any person by an admittance of such person as tenant by the lord of the manor, grounded on a surrender made to the lord for that purpose by the former owner, followed by a grant by the lord, or on a voluntary grant by the lord, or, in some cases of free copyholds, on a deed of bargain and sale by the former owner, and are held by copy of court roll, that is, by a copy of the entry made on the court rolls of the manor of such surrender, deed, grant, and admittance. (a) Hereditaments of copyhold tenure are of two kinds: 1. Ordinary copyholds, which formerly were held, and are still expressed to be held, at the will of the lord of the manor, according to the custom of the manor, by copy of court roll. 2. Free copyholds or customary freeholds, which are not held or expressed to be held at the will of the lord of the manor, but only according to the custom of the manor, *by copy r- ^.-p. -, of court roll. To this last species belongs what is termed ancient >- ' demesne, which consists of lands held of manors that were formerly in the possession of the crown. (6) Copyhold estates were originally nothing better than mere estates at will. But, although still expressed to be held at the will of the lord, yet as the kindness and indulgence of successive lords permitted these estates to be enjoyed by the tenants according to particular customs es- tablished in their respective districts, the will of the lord ceased to be arbitrary, and became fixed and ascertained by the particular custom which had prevailed. (c) So that, in general, copyholders may have es- tates of the same duration and certainty as freeholders. (/) 2 BL Com. 86, 87. (a) 2 Bl. Com. 100, 101, 370 ; 1 Cruise T. 10, c. 1, gj 3, 5, 29, and T. 37, c. 1, ? 4; Burton, §§ 1261,1283, 1341, 1348. (J) See 2 Bl. Com. ch. 6 ; 1 Cruise D. Prelim. Diss. c. 3, §§ 34, 60, and T. 10, c. 1, 2§ 2, 3 ; Burton, § 1283. (c) 2 BL Com. 147. 88 SMITH ON REAL AND PERSONAL PKOPEETT. There are two sorts of copyhold customs : 1. General customs, extend- ing to all manors in which there are copyholders, and warranted by the common law ; of which the Courts of law take notice without being spe- cially pleaded. 2. Particular customs, prevailing in some manors only, which must be specially pleaded. These are construed strictly, and where they are contrary to reason, morality, or justice, or not capable of being reduced to a certainty, the Courts will not pay any attention to them.(cZ) A regular series of entries in the court rolls is sufficient evidence of the customs of a manor ; and an ancient writing handed down with the court rolls from steward to steward, purporting to be a customary of a manor, is evidence of a custom, (e) The freehold of the whole manor is always in the lord only.(/) So that, even in the case of customary freeholds, whatever privileges may r "Tfi 1 ^® annexed to them, the true freehold *interest in the land is al- L -I ways vested in the lord ; and though in some instances a deed of bargain and sale is employed, instead of a surrender, for transferring the customary estate, yet as the assurance is imperfect without an admit- tance in the lord's court, they are properly said to be of copyhold tenure ;(^) and, subject to the estates in them which the custom confers, all lands to which copyhold customs relate, are held by the lord under the common law as part of the demesnes of his manor. (A) Where a testator devises copyholds, to such uses as A. and B., or the survivor of them, his executors or administrators, shall appoint, and, sub- ject thereto, to the use of A. and B., their heirs and assigns, upon cer- tain trusts, and he directs his trustees to sell the copyholds, the trustees can make a good title to a purchaser without being admitted : for a tes- tator, disposing of a copyhold by his will, does no more than designate the person whom the lord shall admit, and whether he fixes on a person by name, or, by means of a power of appointment, authorises another to name him, who accordingly does name him by exercising such power, the result is the same. And it is immaterial whether there is any gift to the trustees for sale in default of or until appointment, or not. In the latter ease^ the bargain and sale, which operates as an exercise of the power, defeats the title of the heir j in the former case, it defeats the title of the devisees, (i) All lands and tenements within a manor, and whatever concerns lands or tenements, provided it is a permanent thing lying in tenure, or append- ant to something that lies in tenure, maybe granted by copy.(fc) Thus, the herbage, or vesture, or underwood growing upon a part of the manor, |- ,„„ ^ may be granted by copy ;(?) as also an advowson, common, *or L J fair, which are appendant, (m) And even a manor itself may be (d) 1 Cruise T. 10, c. 1, ? 43. (e) 1 Cruise T. 10, c. 1, § 45. (/) 2 Bl. Com. 148. (g) BurtOQ, §? 1261, 1283. (A) Burton, g 1259. (i) Glass T. Eioliardsou, 2 D. M. & G. 662. (k) 1 Cruise T. 10, c. 1, |? 36, 41 ; Co. Litt. 58, b. [l) 1 Cruise T. c. 11, |§ 36-7 ; Co. Litt. 58, b ; Burton, g 1259. (m) 1 Cruise T. 10, o. 21, § 41 ; Co. Litt. 58, b. OP COPYHOLDS GBNBUALLT. 89 granted by copy, and the customary lord may hold courts and grant copies. (ra) It may here be observed, that strips of waste land on the side of an ancient highway, or of a river, are, together with the soil to the centre of the road or bed of the river, presumed to belong to the owner of the adjoining inclosed land. But the presumption may be rebutted by evi- dence of acts of ownership on the part of the lord of the manor ; and if it is probable that the lands were inclosed from the waste subsequently to the formation of the road, or if the strips of land communicate with open commons or larger portions of land, the presumption is in favour of their belonging to such waste or commons or larger portions of land. And the presumption of their belonging to the owner of the adjoining inclosures does not arise in respect of roads set out under modern Inclo- sure Acts.(o) A particular custom is necessary to make original grants of portions of the waste, to be held for the first time by a copyhold tenure. (p) Nor will a custom be allowed by which all parts of the waste might be granted, without limit or restriction, as that would tend to deprive the copyholders of a right of common, which they have by the general custom. (g') Copyholds may be granted for life or lives ; and, in many manors, the custom is to grant copyholds for one, two, or three lives. In some of those manors, the custom gives the copyholder a right to a renewal of the grant on the falling of the lives, from which they are called tenant- right estates, (r) A custom of granting to two or three persons for term of their lives and the life of the survivor, will authorise *a grant p ^„r, -, to one for the lives of himself and two other persons not named L J to take any interest, (s) And where copyholds are granted for lives, the person who pays the fine takes the beneficial interest, and the others named in the grant are only trustees for him.(<) The lord may become absolutely entitled to a customary tenement of inheritance, by forfeiture, by escheat, by the expiration of a customary estate not of inheritance, or by a surrender made to his own use. And in these cases the lord may either retain the tenement in his own hands, or he may make a new grant thereof, (tt) If the lord retains the tene- ment in his own hands, it will pass by or become subject to any settle- ment, mortgage, conveyance, or devise of the manor as parcel thereof, though made before the time when the lord became entitled to it. (a;) All those who have any estate in a manor, though it be only for years or even at will, or defeasible by a condition, may regrant a copyhold which escheats or comes to them in any other way. And such grant will bind the lord who has the inheritance of the manor ; for each of those (n) 1 Cruise T. 10, c. 21, | 38 ; Co. Litt. 58, b. (o) 1 Jarm. & Byth. by Sweet, '79 ; Burton, | 1046 ; Sugd. Concise View, 273-4. (p) Burton, § 1348 ; 1 Cruise T. 10, c. 1, §| 29, 30. (q) Burton, | 1349. (V) 1 Cruise T. 10, c. 2, § 23. (s) See 1 Cruise T. 10, c. 2, | 38. (i) 1 Cruise T. 10, c. 2, | 23. (u) 2 Bl. Com. 370 ; Burton, § 1341 ; 1 Cruise T. 10, c. 6, § 20, and c. 2, 3 29. (x) 1 Cruise T. 10, c. 6, §§ 5-7 ; 6 Cruise T, 38, c. 3, ^J 40, 41. 90 SMITH ON REAL AND PERSONAL PROPERTY. persons is dominus pro tempore, and within tlie custom. (?/) And for this reason, even an infant, a person of unsound mind, an outlaw, or an excommunicate, is capable of making voluntary grants of copyholds. («) And so a steward of a manor may make voluntary grants, for he repre- sents the lord to all intents.(a) And if a lord of a manor devises that his executor shall grant copyholds according to the custom of the manor for payment of his debts, the executor, though he has no estate in the manor, may make grants accordingly. (6) But, with these exceptions, r *7Q 1 persons not having a *lawful estate in a manor, cannot make L J copyhold grants. Thus it is settled, that tenants at sufferance, disseisors, abators, or intruders cannot bind the lawful owners of a manor by their grants of copyholds.(c) When the lord grants a new estate by copy, since it is an estate against common right, and warranted only by the custom, that must be strictly pursued to bind the heir.[d) A custom, however, enabling the lord to grant greater estates will also enable him to grant lessor ones, but not vice versa, (e) Copyhold grants derive their effect from the custom of the manor, and not from the estate of the lord ; and hence the tenant is subject to no charges or incumbrances of the lord.(/) No statute relating to lands or tenements in which those of a customary tenure are not expressly mentioned, shall be applied to customary estates, if such application would be derogatory to the customary rights of the lord or tenant. (^) [*80] *CHAPTEE II. OJT THE EXTINCTION OF MANORS, MANORIAL RIGHTS, AND COPYHOLDS AT THE COMMON LAW. 1. If a copyholder surrenders his estate to the lord to the use of the lord, or without declaring any use,(ci) or releases all his estate and inte- rest to the lord, it will operate as an extinguishment of his copyhold. (6) 2. Any conveyance of the land by the lord to the copyholder for an estate of freehold, or even for a term of years, will extinguish the copy- hold. For the estate of the copyholder, being only at will, becomes merged by the accession of any greater estate, (c) 3. Upon the same principle, if the lord demises land held by copy to (2/) 1 Cruise T. 10, c. 2, § 3 ; Burton, § 1347. (z) 1 Cruise T. 10, c. 2, | 10; Burton, ^ 1347. (a) 1 Cruise T. 10, c. 2, § 14. (b) 1 Cruise T. 10, c. 2, § 9. (c) 1 Cruise T. 10, c. 2, § 12. (d) 1 Cruise T. 10, c. 2, ^ 30 ; Burton, ? 1436. (e) 1 Cruise T. 10, c. 2, § 32 ; Burton, § 1436 ; 2 Bl. Com. 370. (/) 1 Cruise T 10, c. 2, | 39 ; 2 Bl. Com. 370. (^f) Burton, § 1286 ; 1 Cruise T. 10, c. 3, § 54. (a) 1 Cruise T. 10, c. 6, §J 2, 4. (6) 1 Cruise T. 10, c. 6, J 8. (c) 1 Cruise T. 10, u. 6, 1 10 ; Burton, § 1351. EXTINCTION OF MANORS, ETC. 91 a stranger for years, and the stranger assigns over his term to the copy- holder, the copyhold is thereby extinguished, (o!) 4. The next mode of extinguishing a copyhold is by enfranchisement, by which the tenure is changed from base to free. This may be done by the lord's releasing to the copyholder his seignorial rights and ser- vices,(e) or by his making a conveyance to the tenant in fee simple. (/) The lord of a manor, who enfranchises a copyhold, must either be seised in fee simple, or have a power to convey the fee simple of the lands to the copyholder. {'^) But although a copyholder may have a par- ticular estate only in his copyhold, yet he may take an enfranchisement, which *will be deemed absolute. But a Court of equity will j-jj^g,. -. direct a conveyance from the heirs at law of the particular tenant L J to the persons in remainder, on their paying a proportionate part of the consideration given for the enfranchisement. (A) 5. Where lands formerly granted by copy, instead of being regranted by copy, are conveyed by an ordinary assurance for life or years by the lord, where he is seised of the manor in fee simple, this will destroy the custom of granting them by oopy,(i) unless they are included in the con- veyance of the manor of which they are parcel.(7i;) But if a person who is only tenant in tail or for life of a manor, conveys by an ordinary assurance lands formerly granted b^ copy, though as to himself the custom of granting by copy is thereby destroyed, yet, as to the issue in tail or the reversioner, the custom is not destroyed. So it is in the case of a husband seised in right of his wife.(?) 6. If lands formerly granted by copy are extended upon a statute or recognizance acknowledged by the lord, or are assigned to the lord's wife for dower, the lands can never afterwards be granted by copy.fm) It is necessary to the existence of a copyhold that the hereditaments should have been demised or demisable by copy from time immemorial.(m) But if there has been no such interruption in the custom of demising by copy, as above noticed, the capacity of being granted according to the custom may remain dormant for any length of time.(o) If all the freeholds get into the hands of one freeholder, the manor is suspended for the time ; and if the demesnes are severed from the ser- vices, or if the services become extinct, *the manor, as a strict p ^q,-, -, legal manor, is extinguished, and it becomes a manor in reputa- L J tion only. The extinction of the manor, however, does not affect the powers or rights of the lord and customary tenants. (p) (d) 1 Cruise T. 10, i;. 6, ? 11. (e) 1 Cruise T. 10, c. 6, § 13 ; 9 Jarm. & Byth. by Sweet, 5Y3. (/) Burton, § 1351 ; 9 Jarm. & Bytli. by Sweet. 573. (y) 1 Cruise T. 10, c. 6, g 18. (A) 1 Cruise T. 10, c. 6, § 19 ; 9 Jarm. & Bytli. by Sweet, 573. (i) 1 Cruise T. 10, u. 1, g? 31, 35 ; Burton, § 1344. (k) 1 Cruise T. 10, c. 1, g| 33, 34. I) I Cruise T. 10, c. 1, § 35 ; Burton, § 1344. m) 1 Cruise T. 10, c. 1, § 32. n) 1 Cruise T. 10, c. 1, | 24, and c. 6, § 21. (o) Burton, ? 1345. p) 9 Jarm. & Byth. by Sweet, 191 (c) ; 1 Cruise T. 10, c. 1. § 11. 92 SMITH ON KBAL AND PERSONAL PROPERTY. [*83 J *CH AFTER III. OF THE COMMUTATION OF MANORIAL RIGHTS, AND THE ENFRANCHISE- MENT OF COPYHOLDS UNDER THE STATUTES RELATING THERETO. By the stat. 4 & 5 Vict. c. 35 (see in particular s. 13, 14, 15, 23, 36, 52, 54,) the rights of the lord may be voluntarily commuted for a rent charge and a small fine, or for a fine alone. By sects. 56, 57, voluntary enfranchisements may be made in manner therein mentioned. By sect. 64, " All lands which shall be enfranchised under this Act shall be deemed to be held under the same title as that under which the same were held at the time of such enfranchisement, and shall noft be subject to any estates, rights, titles, interests, incumbrances, claims, or demands affecting the manor of which the same were holden." By sect. 68, the costs of tenants may in certain cases be charged on the lands ; and by sect. 69, the costs of the lord may in certain cases be charged on the manors. By sects. 70 — 72, the enfranchisement consideration shall be a charge on the lands of the nature of a mortgage in fee ; and it shall have prio- rity over all other incumbrances except the tithe rent charge, either in favor of the lord or of any person who shall advance the money as a mortgagee. By sect. 79, " From and after the final confirmation of the apportion- ment, in the case of any commutation under this Act, or upon the exe- cution of the deed whereby any voluntary commutation may have been effected, the several lands included in such commutation shall be held r *8d. T ^y ""Py °^ court roll, and shall be conveyed by surrender and L J *admittance, in all cases in which the same shall have been pre- viously so held and conveyed respectively, and in all other cases shall be held and conveyed in such manner as the same are now by custom held and conveyed, and shall continue parcel of the same manors as such lands should have been held of if such commutation had not taken place, but the same lands shall thenceforth cease to be subject to the customs of borough English or gavelkind, or to any other customary mode of descent, or to any custom relating to dower or freebench or tenancy by the curtesy of England ; and all the laws relating to descents, or to estates of dower, or estates by the curtesy of England, which shall for the time being affect and be applicable to lands held in free and com- mon socage, and shall thenceforth affect and be applicable to the lands included in every such commutation : provided always, that nothing herein contained as to curtesy or dower or freebench shall extend or be applicable to the case of any husband or widow who shall have been or shall be married before the final confirmation of the commutation ap- portionment, or the execution of such deed as aforesaid, or to alter or lessen, or in any way affect, any right which the husband or widow of any person who shall be tenant of a manor at the time of the confirma- tion of the said apportionment would or might have had if such commu- COMMUTATION OF MANORIAL RIGHTS, ETC. 93 tation had not been made." But by sect. 80, the custom of gavelkind is saved in the county of Kent. By sect. 81, " In the case of any enfranchisement under this Act, from and after the final confirmation of the apportionment, or the execu- tion of the conveyance, (as the case may be), the several lands therein respectively comprised and enfranchised shall become and be in all re- spects of freehold tenure, but subject to the payment of the enfranchise- ment consideration in favor of the lords and steward or other officer as aforesaid; and all mortgages affecting the same shall be deemed and be- come mortgages of the *freehold of the same lands for a oorres- ^ ^nr -. ponding estate, if such enfranchisement consideration shall be L J paid off, and if not so paid off, mortgages of the equity of redemption thereof, subject to such mortgage interest as aforesaid for securing such consideration : provided always, that nothing herein contained shall ope- rate to deprive any tenant of any commonable right to which he may be entitled in respect of such lands, but such right shall continue attached thereto notwithstanding the same shall become freehold : provided also, that no such enfranchisement or conversion into freehold shall affect, ex- cept as aforesaid, any mortgage, or defeat the beneficial limitations of any will or settlement theretofore executed, or alter the descent or dis- tribution of any estate or interest in land on the decease of any tenant or person entitled thereto in possession or remainder at the time of such enfranchisement or conversion." By sect. 82, " No commutation under this Act shall operate to affect any rights of lords of manors to escheats, fairs, markets, appointments, franchises, royalties, rights, liberties, and privileges of chase and free warren, hunting, hawking, fowling, and of chasing and killing game and beasts of chase and free warren, and all ancient piscaries, fisheries, and rights of fishing, or any rights in any mines and minerals or quarries within or under the said lands and hereditaments, or any other manorial rights whatever, unless expressly commuted under this Act." This act is explained and amended by the stat. 6 & 7 Vict. c. 23 ; by sects. 1 — 3 of which an enfranchisement under the stat. 4 & 5 Vict, c. 35, may be made in consideration of an annual rent out of the lands enfranchised ; and any commutation or enfranchisement made under the same statute may be made in consideration of a conveyance of lands within the same manor, subject to the same uses and trusts as the lands commuted or enfranchised, or of any *right to mines or minerals _ ^„„ ^ under such lands, or of any right to waste in such lands. And L J by sect. 6, such rents shall have priority over all incumbrances except a tithe rent charge. The stat 4 & 5 Vict. c. 35 is further amended and explained by the stat. 7 & 8 Vict. c. 55 ; by sect. 5 of which the lands, or mines, or mine- rals conveyed as a consideration of a commutation or enfranchisement need not be parcel of or under lands within the same manor as the lands which are the subject of the commutation or enfranchisement. By the stat. 15 & 16 Vict. c. 51, s. 1, the lord or the tenant after the next admittance, on or after the lat of July, 1853, may " compel enfran- 94 SMITH ON REAL AND PBESONAL PROPERTY. chisement in manner hereinafter mentioned of the lands to which there shall have been such admittance as aforesaid; provided that no such tenant shall be entitled to require such enfranchisement until after pay- ment or tender of the fine or fines, and of the fees consequent on such admittance : provided also, that if from any cause such enfranchisement shall not take place until some event shall have happened which may re- quire a second or any subsequent admittance, such second or subsequent admittance shall be made, with all the rights incident thereto, as if this act had not passed ; and it shall be competent for the lord or tenant to require and compel enfranchisement upon or after such second or subse- quent admittance in the manner hereby provided for enfranchisement upon the next admittance." By s6ct. 7, " Where such enfranchisement, shall have been efi'ected at the instance of the tenant, the compensation shall be a gross sum of money to be paid at the time of the completion of the enfranchisement, or in cases where the compensation exceeds 201., the same, if the said commissioners shall so direct, and if all persons (if any) who shall have r *07 -1 any mortgage, charge, or incumbrance affecting the *lands enfran- L -I chised, and which shall have been in existence at the time of the passing of this Act, shall consent thereto, may remain as a first charge, under the provisions of this Act, on the lands enfranchised, until the expiration of such time, from the day of such completion as the said commissioners shall appoint, but not exceeding in any case ten years ; and interest at the rate H. per centum per annum shall be payable there- on, or on such part thereof as shall from time to time remain unpaid, from the time of such completion as aforesaid, half-yearly, until full pay- ment thereof; and where such enfranchisement shall have been effected at the instance of the lord, the compensation shall be an annual rent charge to be issuing out of the lands enfranchised : provided always, that the parties to any enfranchisement under this Act may in any case, with the sanction of the commissioners, agree that the compensation shall be either a gross sum of money to be paid or charged as aforesaid, or a yearly rent charge, or a conveyance of land to be settled to the same uses as the manor of which the enfranchised lands are holden is settled, as provided in the said recited acts with respect to enfranchisements effected by virtue thereof; and, in every case, the valuers shall frame an award, showing the amount, nature, and particulars of the compensation which shall bo in full satisfaction of all manorial rights whatsoever, save as hereinafter mentioned." And by sect. 9, this award is to be confirm- ed by the copyhold commissioners, and registered at their oflBce, and a copy entered on the court rolls. By sect. 10, "Any charge under this act shall be a first charge on such lands, and shall have priority over all mortgages, charges, and incumbrances whatsoever affecting such lands, (except tithe commutation rent charges ; and any charges of rent charges which may have been or l- jjj,„ -, shall be charged upon the same lands for the drainage thereof by L J *virtue of any of the statutes in that behalf,) notwithstanding the actual priority in point of date or anterior title of such mortgages, charges, and incumbrances : provided always, that, notwithstanding any COMMUTATION OF MANOKIAL RIGHTS, ETC. 95 such charge, any moneys already invested, or any moneys previously secured or charged thereon, may be continued on the security of the same, notwithstanding the imposition of the said charge under this act : provided also, that no such charge shall have priority over any mortgage, charge, or incumbrance, which at the time of the passing of this act may aiFeet the lands enfranchised, without the consent of the persons entitled to such mortgage, charge, or incumbrance." By sect. 11, " Any enfranchisement of lands under this act, or the said recited acts, shall be by deed according to the form in the first schedule to this act annexed, or as near thereto as the circumstances of the case will admit, or by deed in any other form which the parties, with the consent of the commissioners, may think fit, and which deed the lord shall be bound to execute within twenty-eight days after the same shall be approved by the commissioners, on the same being tendered to him for that purpose ; and all enfranchisements so made shall take effect from the time of the execution of such deed by the lord, but not before, and shall be efi"ectual to vest the land thereby conveyed in the tenant or other person to whom the lands shall be conveyed, free from any estates, rights, titles to dower and free bench, interests, incumbrances, claims, or demands affecting the manor of which the same lands are holden : provided always, that in the meantime and until such enfran- chisement shall so take effect, all the rights, remedies, powers, privileges, and conditions of and afi'eeting the lord and tenant respectively in regard to such lands, with all the incidents of tenure, shall remain and con- tinue unafi^ected." *By sect. 12, " Every charge under this act shall be made by ^ ^^q -. a certificate under the hands and seal of the commissioners, to L J be called a certificate of charge; and such certificate shall specify the whole amount of principal money to be charged on the lands, enfran- chised under the powers of this act, subject to which the land is enfran- chised, and may specify any place, to be agreed upon between the parties, as the place of payment of the principal money and interest charged by such certificate ; and, if the parties so agree, or the said commissioners shall so direct as aforesaid, such certificate may provide that such prin- cipal money, or any part or parts thereof, shall continue upon the security of such certificate for any term or terms of years, period or periods, in sucli certificate mentioned, not exceeding ten years, and the lands charged thereby may be described by reference to the enfranchise- ment thereof under the said acts, or otherwise, as the commissioners may think fit ; and such certificate may be in the form set forth in the schedule to this act, or in such other form as the parties, with the eon- sent of the commissioners, may think proper, and shall be entered on the court rolls of the manor." And by sect. 13, " such certificate, and the charge thereby made, shall be transferable by indorsement of such certificate, and such indorsement may be in the form set forth in the schedule to this act, or to the like effect." By sects. 25, 26, where an enfranchisement would be injurious to the mansion, park, gardens, or pleasure grounds of the lord, he may, in 96 SMITH ON EBAL AND PEESONAL PROPBETY. manner therein specified, avoid the enfranchisement by an offer of pur- chasing the land proposed to be enfranchised. , By sect. 27, after reciting, that " in many manors heriots are by custom due and payable to the lord by tenants of freehold or customary freehold lands holden of such manors," it is. enacted, "That, at any time after any such heriot shall be due or payable with respect to any r *Qn n ^'^"'^ ^freehold lands on or after the 1st day of July, 1853, it I- J shall be lawful for the lord or the tenant to require and compel the extinguishment of all such claim to heriots, and the enfranchisement of the land subject thereto, in the same way as if such lands were copy- hold, and the same proceedings shall thereupon be had as are herein mentioned with reference to the enfranchisement of copyhold lands, or as near thereto as the nature of the case will admit." By sect. 31, the expenses, with interest, of an enfranchisement com- pelled by the lord, may, in certain cases, be charged on the manor or lands settled or held therewith. And by sect. 32, the expenses, with interest, of an enfranchisement compelled by the tenant may. In certain cases, be charged on the lands enfranchished. By sect. 34, " From and after the final confirmation of any schedule of apportionment under the said recited acts, and from and after the final enfranchisement of any lands under this act or the said recited acts, the several lands included in any such enfranchisement shall thenceforth cease to be subject to the customs of borough English or gavelkind, or to any other customary mode of descent, or to any custom relating to dower or freebench or tenancy by the curtesy of England, or to any other custom whatever ; and all the laws relating to descents or to estates of dower or estates by the curtesy of England, which "shall for the time being affect and be applicable to lands held in free and common socage, shall thenceforth affect and be applicable to the lands included in every such enfranchisement : provided always, that nothing herein contained as to curtesy or dower or freebench shall extend or be applicable to the case of any person who shall have been married before such enfranchisement shall have been completed ; provided always, that nothing in this Act shall affect the custom of gavelkind as the same now exists and prevails in the county of Kent." r- ^Q.-. -| *By sect. 36, "In all cases in which the person for the time L J being entitled to the receipt of any rent charge under the said recited Acts or this Act shall be entitled thereto for a limited estate or interest only, or shall be a corporation not authorized to make an abso- lute sale of such rent charge otherwise than under the provisions of this Act, it shall be lawful for such person, with the consent of the said commissioners, testified under their hands and seal, or, in the case of coverture, infancy, idiotcy, lunacy, or other incapacity, with the consent of the husband, guardian, committee, or trustee of such person so under disability, to sell and transfer such rent charge, the payment for which shall be made in manner hereinafter mentioned." By sects. 37, 38, a rent charge may be redeemed as therein men- tioned. By sect. 48, " No enfranchisement under this Act shall extend to or FREEHOLD INTERESTS, ETC. 97 affect the estate or rights of any lord or tenant in or to any mines, minerals, limestone, lime, clay, stone, gravel, pits, or quarries within or under the lands enfranchised, or within or under any other lands, or any rights of entry, rights of way and search, or other easements of any lord or tenant in, upon, through, over, or under any lands, or any powers which, in respect of property in the soil, might but for such en- franchisement have been exercised, for the purpose of enabling the said lord or tenant, their or his agents, workmen, or assigns, more effectually to search for, win and work any mines, minerals, pits, or quarries, or to remove and carry away any minerals, limestone, lime, stones, clay, gravel, or other^substanees had or gotten therefrom, or the rights, fran- chises, royalties, or privileges of any lord in respect of any fairs, mar- kets, rights of chase or warren, piscaries, or other rights of hunting, shooting, fishing, fowling, or otherwise taking game, fish, or fowl, unless with the express consent in writing of such lord or tenant ; and nothing in this Act shall be held or construed to extend to any copyhold ^ j^„„ -. *lands held for a life or lives, or for years, where the tenant L J thereof hath not a right of renewal." By sect. 53, " This Act shall be taken and construed as part of the first-recited Act, and the Acts amending and explaining the same ; and all the enactments therein contained as to enfranchisements effected under the provisions thereof shall be deemed and taken to apply to en- franchisements under this Act, and to the rights of all parties thereto, as if such enactments were here again repeated, except so far as is here- inbefore otherwise provided for; and all enfranchisements which may have taken place under such Acts or any of them, and all matters and^ things incident thereto, shall be of the same force, validity, and efi'eot as if the provisions of this Act had been contained in the said first-recited Act." By the stat. 16 & 17 Vict. c. 57, some further enactments are made as to the enfranchisement of copyholds, which it is not within the scope of this work to particularise. (a) *TITLE IV. [*93] OP INTERESTS OF FREEHOLD DURATION ; AND, FIRST, OF FREEHOLDS OF INHERITANCE. CHAPTER I. FREEHOLD INTERESTS AND INTERESTS LESS THAN EEEEHOLD DISTIN- GUISHED. An estate or interest of freehold duration, is an estate or interest in (a) The Copyhold Acts are very lengthy. But the above appeared to be the only provisions necessary to be borne in mind, as distinguished from a multitude of others, which may be looked to pro re nata. As to most of the above provi- sions, the only satisfactory way seemed to be to give them verbatim. January, 1856. — 7 98 SMITH OR REAL AND PERSONAL PROPERTY. lands or tenements which may endure forever, or is limited to endure for a life or lives, or for some uncertain period which may last for the life of the grantee or some other person at least, without being confined to a given number of years, (a) An interest confined to a given number of years, however many they may be (as 10,000 years), is an interest less than a freehold, a term for years, a chattel intesest, a chattel real. In order rightly to understand this subject, it is necessary to observe, that the ownership, of which lands and tenements are susceptible, whe- ther it be merely legal, merely equitable, or both legal and equitable, is of as unlimited duration as the lands and tenements themselves. And this ownership, and the duration thereof, are respectively capable of being divided into an indefinite number of successive parts and periods of duration ; as where one person is to have lands or tenements for his r *qd n ^^^^' ^°'^' ^^^^^ ^^^ decease, *another person and the heirs of his L J body are to have such lands or tenements; and, after his de- cease and failure of heirs of his body, a third person is to have the same for his life, or for ever. When so divided, each of these successive parts constitutes an interest of freehold duration, or an estate of free- hold.(6) But, besides the three kinds of ownership to which we have alluded, namely, merely legal, merely equitable, and both legal and equitable, there is another kind of interest which is commensurate with the dura- tion of lands and tenements, namely, the rightful possession. This may be either conjoined with any of the three kinds of ownership, or it may exist apart from them, so as to constitute a distinct interest. When it has this separate existence, it is deemed personal property, a mere chat- tel interest, although, as savouring of the land which is real property or realty, it is denominated a chattel real, as distinguished from a chattel personal. The rightful possession of things real, when thus forming a distinct interest, and the ownership of chattels personal, and the duration of such possession or ownership, may, like the ownership of things real and the duration thereof, be respectively divided into an indefinite num- ber of successive parts or periods of duration. But here a wide and essential distinction exists as to the successive parts or the successive periods of duration. The ownership of things real can only be divided into parts of the measure of freehold, that is, estates for life, and estates of inheritance. The rightful possession of things real, when existing apart from the ownership of things real, can only be granted or devised for terms of years. While the ownership of chattels personal may be granted or bequeathed for any periods, for life, or for years, or other- wise, subject to the operation of the rule against perpetuities, of which we shall speak hereafter. P^qc -, *This distinction between the portions or periods of duration, L -J for which the ownership of things real may be granted or devised, (a) See Co. Litt. 43. b ; Burton, § 723. (6) See Smith's Executory Interests annexed to Fearne, Part 1, o. 3. OP FREHHOLDS OF INHEEITANOB. 99 and the portions or periods of duration for which the rightful possession of things real may be granted or devised, or, in other words, between the parts into which the ownership of things real may be divided, and the parts into which the rightful possession of things real, when constituting a distinct interest, may be divided, forms the distinction in point of es- sence between real property and terms for years, and the infallible cri- terion as regards the manner of their creation. Thus, a devise of land to or in trust for a person indefinitely or for life, or to or in trust for him and the heirs of his body, or his heirs, confers upon him the owner- ship of the land, either legal or equitable, or both legal and equitable, giving him a freehold estate and real property. But a devise of land to or in trust for a person for years, though it be for 10,000 years, only confers upon him the rightful possession, either legal or equitable, or both legal and equitable, which is quite distinct from and collateral to the ownership of the land, and is a mere chattel interest, term for years, or chattel real, which on his death will pass like the rest of his person- alty, not to his heir, but to his executor or administrator. The land itself is in words granted or devised in each case ; but, in the former case, the ownership of the land is given, a freehold estate is created, and the grantee or devisee takes real property ; while, in the latter, the pos- session only is given, a term for years only is created, and the grantee or devisee takes only a chattel interest, a chattel real, a thing personal. This distinction is strikingly exemplified by the two cases of a grant or devise of land to a person for life, and a grant or devise of land to a person for ninety-nine years, if he shall so long live. Here the land itself is in each case granted or devised in words, and the eventual dura- tion of the two interests must be exactly alike ; but, in *the first j- ^q„ -. case, the grantee takes a portion of the ownership of which the '■ J land is susceptible, a freehold, a real estate; while, in the latter, he takes only a portion of the possession of which the land is susceptible, a term for years, a chattel interest, a chattel real, a thing personal. An estate of freehold cannot be created out of an estate less than free- hold ; so that an estate of freehold cannot be devised out of a term of years, however long the term may he.M Estates of freehold are, either, I. Freeholds of inheritance; or, II. Freeholds not of inheritance. (cZ) CHAPTER II. [«97] OF FEEEHOLDS OP INHERITANCE. A PREEHOLD of inheritance is an estate which, on the death of the first taker, devolves to his heirs general or special. (c) 1 Cruise T. 8, c. 1, | 34. (d) 2 Bl. Com. 104, 120; 1 Cruise T. 1, § 39. 100 SMITH ON REAL AND PBESONAL PROPERTY. Freeholds of inberitanoe are either — I. Fees simple, or, II. Limited fees, (a) Section I. Of an Estate in Fee Simple. In the sense in which the term is ordinarily and properly used, an es- tate in fee simple (or, as it is frequently termed for brevity, a fee) is an absolute estate of inheritance, clear of any condition, limitation, or re- striction to particular heirs, and descendible to the heirs general, whether male or female, lineal or collateral. (6) But in another sense, in which the term is sometimes used, an estate in fee simple is an estate of inheritance descendible to the heirs general, whether male or female, lineal or collateral, without restriction. In this sense, a fee simple may be given in such a manner as to be subject to be defeated in a given event, (c) In order to create by deed an estate in fee simple in favour of a pri- r *Q8 n ^^'® individual, as distinguished from a corporation, *it is abso- L J lutely necessary to use the word heirs, as, to A. and his heirs, (c^) This rule, however, admits of a few exceptions : thus — 1. If one coparcener or joint tenant releases all his right to another, it will pass a fee without the word heirs.(e) 2. If one coparcener grants a rent to the other for equality of parti- tion, an estate in fee simple in the rent will pass without the word heirs, as the rent comes in lieu of the inheritance. (/) ^ 8. In releases that enure by way of mitter le droit, the word heirs is not necessary to create a fee simple. (5') The word heirs need not be used in a will to create an estate in fee simple ;(A) but still, in the case of wills made before the year 1838, it is necessary that there should be some indication of an intention to give a fee. With regard to the question what are suflBcient indications of such an intention, as a general rule, a devise to a person indefinitely, or to hinl and his assigns, only gave him an estate for life.(j) But — 1. Any words sufficiently indicative of an intention to give the whole of the testator's interest, would give the devisee a fee.(7(;) Hence a de- vise to a person "in fee simple," or "to him for ever," or "to him and (a) 2 BI. Com. 104. (b) See Co. Litt. 1, b, 189, a; 2 Bl. Com. 106 ; Burton, g 14. (c) See Co. Litt. 1, b ; 2 Bl. Com. 104 : Burton, 23 14, 15 : 1 Cruise T. 1, 3 41. (d) Co. Litt. 8, b, 9, a. ' • ) . a (e) Co. Litt. 9, b ; 4 Cruise T. 32, i;. 21, § 7 ; 2 Pres. Shep. T. 327, 346 ; Burton, § 57. (/) 4 Cruise T. 32, c. 21, § 7 ; Co. Litt. 10, a. [g) 4 Cruise T. 32, c. 21, § 8 ; Co. Litt. 9, b. (h) Co. Litt. 9, b ; 6 Cruise T. 38, c. 11, J 2. (i) 6 Cruise T. 38, c. 13, § 9 ; Co. Litt. 9, b : Burton, ? 284. (k) 6 Cruise T. 38, c. 11, ?| 2, 9. OP AN ESTATE IN FEB SIMPLE. 101 his successors," or "to him and his blood," or "to him and his," or to a person generally "to give, sell, or do what he pleases with it," would always give him the fee ; but a devise to a person expressly for life, with a power of disposal, would only give an estate for life with a power to dispose of the reversion. (Z) Again, the words " all my real property," or *"all right, title, and interest," or "all property," will carry r ^qq -■ an estate in fee simple. (m) So, also, will the word "remainder," L J or "reversion," after a disposition of a particular estate. (m) So the word "part" or "share," as denoting the testator's interest, carries the fee.(o) And the words "all my estate" or "my estate" pass a fee sim- ple,(p) unless the word estate is used as unequivocally descriptive merely of the lands devised, and not of the interest in them.(g') Wherever it is possible, however, the Courts, in effectuation of the real intention of the testator, will construe the word estate as referring to the interest of the testator rather than to the land itself. And the circumstance of the tes- tator being described as in the occupation of the estate, is not enough to make the word "estate" a mere description of locality; as where the testator uses the expression "my estate that I now live in."M Nor is the circumstance of the estate being referred to as called by a certain name.(s) And under a devise of "all that farm or estate I bought of A., containing about twenty acres, situate at &c., and in the occupation of &o.," it was held that the devisee took a fee simple. (<) The word "perpetual," however, as applicable to an advowson, is only descriptive of the thing devised, and not of the quantum of interest, (zt) 2. Where a devise is made without any words of limitation, but the testator imposes upon the devisee the obligation of making any payment, whether annual or in gross, and whether great or small, in consequence of which he might be a loser if the interest devised to him ceased with his life, inasmuch as he might not enjoy the estate long enough to *enable him to reimburse himself, he will take a fee. But where r^:-,(xn-, the charge is thrown entirely on the land devised, the devisee L J will not take the fee, as in that case he can be no loser by taking for life only.(a;) 3. A devise generally, with a limitation over if the devisee dies under age, will give the first devisee an estate in fee simple ;(y) for, if the prior devisee were only to take an estate for life, the time of his death must be immaterial to the devise over. 4. Under a devise to trustees and their heirs, " upon trust for the use (I) Burton, ? 290; Co. Litt. 586; 6 Cruise T. 38, c. 13, § 5. (m) 6 Cruise T. 38, u. 11, || 33, 35 ; Footner v. Cooper, 2 Drew, 7. (n) 6 Cruise T. 38, c. 11, g 47. (o) Burton, § 288. (p) 6 Cruise T. 38, c. 11, § 24; Burton, ? 286. (?) See 6 Cruise T. 38, c. 13, ? 35. (r) Doe d. Pottow T. Fricker, 6 Exch. 510. (s) Burton, ^ 287. (t) Burton t. White, 7 Exch. 720. See also Burton, g 289. (ti) 6 Cruise T. 38, c. 13, g 35 ; Burton, ^ 289. (x) 6 Cruise T. 38, c. 11, ?J 55, 62, 66, and c. 13, §J 25, 29 ; Burton, | 291 ; Winter v. Perratt, 69 ; CI. & Fin. 606; East v. Twyford, 4 H. L. Cas. 553 ; Doe d. Sams T. Garlicli, 15 L. J. (Exch.) 54. (y) 6 Cruise T. 38, c. 11, ?§ 74, 75. 102 SMITH ON REAL AND PERSONAL PROPERTY. and benefit of" a person, his interest is coextensive with theirs, and therefore he takes an equitable fee.(K) 5. The general rule, under the old law, is, that trustees take as great an estate as the purposes of the trust require, and no more. (a) Hence, even under the old law, where lands were devised to trustees for the purpose of performing any trusts which required the absolute property, an estate in fee simple would pass to the trustees without any words of limitation. (6) And in the case of a devise to trustees for sale, though only a part of the inheritance was required to be sold, yet the Court considered them as trustees of the whole inheritance, (c) But, on the other hand, in cases not within the stat. 1 Vict. c. 26, where there is a devise for trustees for particular purposes, even with words of limitation or other expressions which, in the case of a devise to a person for his own benefit, would carry the fee, the Courts will consider the legal estate as vested in the trustees as long as the execution of the trust re- quires it, and no longer ; and will therefore, as soon as the trusts are r*1 01 1 satisfied, ^consider the legal estate as vested in the persons who L J are beneficially entitled to it.(c?) And therefore, where lands were devised before the stat. 1 Vict. c. 26, to trustees and their heirs, in trust to permit A. to take the rents and profits during his life, with a proviso that they should pay an annuity to another person, A. took the legal estates on the death of that person in A.'s lifetime, (e) In regard to wills made since the commencement of the year 1838, it is enacted by the stat. 1 Vict. c. 26, s. 28, that " where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention appear by the will." By this enactment the rule of law is reversed. An indefinite devise now prima facie imports a devise in fee, while such a devise, before the year 1838, primS. facie imports a devise for life only. By s. 30 it is further enact- ed, " that where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication." And by s. 31 it is further enacted, " that where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, r*i flon ^^^ ^^^ purposes of the trust may continue beyond the *life of L -I such person, such devise shall be construed to vest in such trus- (z) Moore v. Cleghorn, 10 Beav. 423. (a) Adams v. Adams, 6 A. & E. N. S. 860 ; Burton, § 294. (6) 6 Cruise T. 38, c. 11, § 18 ; Burton, g 292 | 2 Spence's Eq. Jur. 295. (c) 2 Spence'3 Bq. Jur. 295. (d) 1 Cruise T. 12, c. 1, § 28 ; Burton, ? 294 ; Co. Litt. 290, b, u. 1, YIII. (e) Adams v. Adams, 6 A. & E. N. S. 860. OF EBBS SUBJECT TO A CONDITION, ETC. 103 tee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate deter- minable when the purposes of the trust shall be satisfied." It will be seen in a subsequent page, that, in consequence of the rule in Shelley's case, a person may take an estate iu fee simple, by virtue of a limitation of a freehold to himself, followed by a remainder to his heirs.(/) The power of alienation is so inseparably incident to an estate in fee simple, that any general restriction of this power annexed to such an estate on its creation is absolutely void.(^) Section II. Of Limited Fees : and First, of Base or Qualified Fees. A limited fee is an estate which is either descendible to heirs of a certain class or heirs sustaining a certain character only, or is subject to some condition, limitation, or restriction, which may abridge its duration. Limited fees are of four kinds : 1. Base or qualified fees. 2. Fees subject to a condition subsequent or conditional limitation. 3. Fees conditional at the common law. 4. Fees tail. •• A base or qualified fee is an estate which is descendible to the heirs general, but subject, either in terms or by operation of law, to a limita- tion or qualification which serves to mark out the bounds of such estate so as to *render it determinable in a given event before the fail- p^i/^..-, ure of heirs general. As where land is given, to- A. and his L J heirs, tenants of the manor of Dale, or to A. and his heirs so long as B. has heirs of his body(A), or where a person, by means of an imperfect alienation of a tenant in tail, has an estate to himself and his heirs so long as the tenant in tail shall live or there shall be issue inheritable under the entail. The proprietor of a base or qualified fee has the same rights and privi- leges over his estate till the qualification upon which it is limited is at an end, as if he were tenant in fee simple. (t) Section III. Of Fees subject to a Condition Subsequent or Conditional Limitation. A fee subject to a condition subsequent or a conditional limitation, is an estate which is descendible to the heirs general, but subject to the (/) See infra, Sect. 4. {g) 1 Cruise T. 1, ? 49. (A) See 2 Bl. Cora. 109 ; 1 Cruise T. 1, H 76—79, aad T. 2, c. 2, H 10, 41 ; 1 Pres. Shep. T. 107 ; Burton, 715. [i) 1 Cruise T. 1, ? 80. 104 SMITH ON REAL AND PERSONAL PROPERTY. destructive operation of a condition subsequent or a conditional limita- tion subjoined to the clause whereby such estate is created. It will be perceived that this kind of fee is included in the second definition which has beeen given in the first section as a definition of an estate in fee simple, in the sense in which the term " fee simple" is sometimes, though improperly used. [*104] *Section IV. Of Conditional Fees at the Common Law. A conditional fee, at the common law, was an estate which was given to a person and the heirs of his body, and not to his heirs general. The courts, which so greatly favoured alienation, treating these fees as sub- ject to a condition that the donees had issue, held, that, when the donee had any such issue, the condition was performed, and the estate became absolute to the extent of enabling the donee or his issue to alien or charge the land, and thereby bar not only the issue of the donee, but also the donor of his right to the estate on failure of issue. But if the donee had no issue, or if neither he nor his issue aliened, as the land could descend to no other person by the terms of the grant, it reverted to the donor on failure of issue. (A) The donee of a conditional fee might alien the lands before issue had. But such alienation did not bar the donor's right of- reverters whenever there happened to be a failure of issue. (?) The learning of conditional fees is necessary to be known ; first, as explanatory of the origin of entails ; and secondly, because it is appli- cable to such inheritances descendible to the heirs of the body alone as are not within the statute of entail. (m) Where a devisee would take an estate tail, either expressly or by implication, if the property were entailable, he will take a fee conditional if the property is copyhold of which there is no custom of entail ; and, in such case, if he is also the heir at law of the devisor, and, as such, rsiniil ^^^ the possibility *of reverter, the fee conditional will merge in L J that; so that on the death of the testator he will be seised in fee simple, (ra) Section V. 0/Fees Tail. From the mode of construing conditional fees adopted by the Courts, the purposes for which they were intended were completely frustrated ; and therefore the nobility, in order to perpetuate their possessions in their own families, procured the statute of Westm. 2, 13 Edw. 1, usually (k) Co. Litt. 19, a,, n., VI. T, 241, a, n. 4, 290, b, n. 1, V. 1, 326, b, n. 1, IT. ; 2 Bl. Com. 110, HI ; 1 Cruise T. 2, ch. 1, g§ 4, 5, 7 ; Burton, H 641-2. (I) 1 Cruise T. 2, c. 1, ? 6. (m) 2 Bl. Com. 111. (ra) Doe (J. Simpson v. Simpson, 4 Bing. N. C. 333 ; Burton, § 1284. OP FEES TAIL. 105 called the Statute de Bonis Conditionalibus, to be made.(o) By that statute, it was in effect enacted, that the intention of the donor should be observed, so that the donee should not have the power, by alienation, of barring the right of his issue, if any, or of the donor, if there should be no issue, or if such issue should fail. In the construction of this statute, the Judges held, that the donee took a particular estate, which they denominated fee tail, and that the donor had an ultimate fee simple left in him expectant upon the determination of such particular estate, (p) A fee tail or an estate tail is therefore an estate descendible to the heirs of the body of the person to whom it is given, in things within the Statute de Bonis. Estates tail are either general or special. An estate tail general is an estate which is descendible to all the heirs of the body, or all the heirs male of the body, or all the heirs female of the body of a sole tenant in tail, by or on whomsoever begotten ; so that, however often he or she may marry, his or her issue generally, or issue male or issue female by [*106] *each marriage, are, in successive order, capable of inheriting : as, where land is given to A. and the heirs of his or her body, or the heirs male of his or her body, or the heirs female of his or her body. An estate tail special is an estate which is descendible to all the heirs of the bodies, or all the heirs male of the bodies, or all the heirs female of the bodies of two persons to whom it is given, or of the body of one person to whom it is given, by a particular husband or wife : as, where an estate is given to A. and B. and the heirs of their bodies, or to A. and to the heirs of his body begotten upon*B., or to B. and the heirs of her body begotten by A.(g) From these definitions it will be perceived that estates tail, whether general or special, may be either in tail male or in tale female. Thus, if lands are given to a man and the heirs male of his body, this is an estate in tail male general; but, if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail female special. And whenever an entail is limited to one sex, no descendant of the donee can make himself inheritor to such a gift, unless he can deduce his descent from such donee wholly through that sex;(r) so that, if a donee in tail male has a daughter, who dies, leaving a son, such son cannot inherit the estate. (s) In a deed, the word heirs is as necessary in the creation of an estate tail as in the creation of an estate in fee simple. And there must also be some words of procreation or lineal descent, to show, in effect, that by the word heirs the lineal descendants of the donee are intended, although no technical or precise language is necessary for this purpose. Thus, a grant to A. and the issue of his body, or to A. and his children, will only pass estates for life, for want of words *of inheritance. And |-^^ „„, if a grant is made to A. and his heirs male or female, the word L J (o) 1 Cruise T. 2, c. 1, § 8. (p) 2 Bl. Com. 112 ; 1 Cruise T. 2, c. 1, ?J 8, 9. (?) See Co. Litt. 19, b, 20, b; 2 Bl. Com. 113; 1 Cruise T. 2, c. 1, J 13; Burton, § 647. (r) 1 Cruise T. 2, c. 1, § 15 ; Co. Litt. 19, b, u. 4. (s) 2 Bl. Com. 114; 1 Cruise T. 2, c. 1, ? 14; Burton, § 649. 106 SMITH ON REAL AND PERSONAL PROPERTY. male or female will be rejected, and the grant will pass a fee simple, for want of words of procreation or lineal descent, to show out of whose body the heirs are to issue. But a grant to A. and his heirs which he should beget of his wife, or to A. and his heirs if he have heirs of his body, and if he die without heirs of his body to revert to the donor, will create an estate tail.(if) Even in the case of a deed, under a limitation to a person and the heirs of his body " begotten," heirs begotten at a future time will take ; and under a limitation to a person and the heirs of his body " to be begotten," heirs previously begotten will take.^w) In a devise, the word heirs is not necessary to create an estate tail, or a fee of any kind. Hence, where lands are devised to A. and his issue, or to A. and his children, A. having no children at the time, he will take an estate tail; because it is clearly not the intention of the testator to give A. an estate for life only, but that his children should be benefited by the devise; and they cannot take as immediate devisees, not being in existence at the death of the testator; nor can they take by way of remainder, the devise being immediate. (a;) " Where a testator devises in remainder to the unborn child of a prior taker, even though it be by the designation of eldest son, but he appears to have intended that all the issue of the prior taker should inherit, so far as the rules of descent will permit ; in such case, to give effect to the paramount intent of admitting all the issue, the prior taker will have an estate tail, and the description, eldest son, child, &c., will not be regarded as a designatio personae, as pointing out a particular individual r*l nsn '^^° '^^ '^ **^^^ ^J "^^J °f contingent remainder, but as a nomen L J coUectivum, and a word of limitation." (z) Where a testator gave his real estate to his eldest son for life, and to his " eldest legitimate son" after his death ; and, in default of such issue, he gave it " in like manner" to another son ; and, in case he should have no legitimate issue male, then over ; " the eldest legitimate son" was nomen colleetivum, and not a designatio personse, and the first taker took an estate tail male ; for the words " in like manner" showed that the first son was to have the same estate as the second, and the second clearly took an estate tail male by implication, (a) With regard to the necessity for words of procreation or lineal descent in a will, although a devise to a person and his heirs gives him an estate in fee simple, yet, if the word heirs be qualified by any subsequent words which show the intention of the testator to restrain it to the heirs of the body of the devisee, the devise will in that case only create an estate tail. (6) And so a devise to A. and his heirs male gives an estate in tail male.(c) In a devise upon trust to settle upon the " issue in tail male," those words are not to be considered as one entire and indivisible expression, (i) Co. Litt. 20, b ; Litt. s. 31 ; Co. Litt. 27, a. ; 2 Bl. Com. 115 ; 4 Cruise T. 32, c. 21, §§ 11, 12, 16, 18 ; Burton, §5 651-2, 658 ; 1 Pres. Shep. T. 102. (u) Co. Litt. 20, b ; 1 Pres. Shep. T. 105. (i) 6 Crmse T. 38, c. 12, § 27. (z) Smith's Executory Interests annexed to Fearne, g 537. (a) Lewis v. Paxley, 16 M. & W. 733. (i) 6 Cruise T. 38, c. 12, J 7. (c) Burton, § 658. OF PEES TAIL. 107 and describing as such the first taker and the estate to be taken, and designating as the first purchaser the issue male or sons to the exclusion of the daughters of the person whose issue is spoken of; but the word issue expresses the parties to take, i. e. daughters as well as sons, and the words " in tail male" the estate to be taken, whether the words " in strict settlement" be added or not ; because the word " issue" is expres- sive of either sex, and an estate in tail male may be limited to daughters as well as to sons, or an estate in tail female to sons as well as to daughters. (cf) * Where an estate is given to the heirs of the body of a person p^, ^q-. who is dead at the time, the person first answering the descrip- L J tion of such special heir will take an estate tail by purchase, descendible to all the issue of the ancestor to whose heirs of the body the gift is so made, whether they are the issue of such special heir or not, in the same manner as if the estate tail had been given to the ancestor himself. And the same is the case where an estate is given to the heirs of the body of a living person ; but no estate of freehold is given to him, with which the gift made to the heirs of his body could coalesce under the rule of law called the rule in Shelley's case.(e) An estate tail may arise under the rule in Shelley's case,(/) in favour of a person to whom apparently an estate for life only is given, with a remainder to his heirs general or special. The rule in Shelley's case may be thus stated : " When a person, by any deed or will, takes a freehold interest, and, by the same deed or will, a remainder of the same quality, as legal or equitable, is afterwards limited, whether mediately or immediately, to his heirs or the heirs of his body, by that description and in that character, or to his heir or the heir of his body, in the singular number, but as a nomen collectivum in the sense of heirs or heirs of the body ; the inheritance, in fee, or in tail, is executed or attaches originally in the person to whom the free- hold is limited, as if it had been limited to him and his heirs general or special, instead of attaching originally in the individual first answering the description of his heir general or special."(5') "^Limitations of subsequent interests which are not by way of p^, .. „-, remainder, are not within the rule.(?) L J Under the rule in Shelley's case, and the doctrine of merger, the sub- sequent interest is executed in the ancestor in five ways : — I. In posses- sion absolutely. Thus, " if the subsequent limitation of the inheritance follows immediately after the limitation of the freehold to the ancestor, the freehold merges in the inheritance, and the ancestor becomes seised of an estate of inheritance in possession." (i) II. In interest, " if there is any interest intervening between the ancestor's freehold and the (d) Trevor v. Trevor, 1 H. L. Cas. 239. («) See 4 Cruise T. 32, § 33 ; Burton, § 654. (/) As to the law upon this subject, see Smith's Executory Interests annexed to Fearne, Part II. ch. 12. [g] Smith's Executory Interests annexed to Fearne, § 401. See also Id. J 393 —400. (A) Smith's Executory Interests annexed to Fearne, § 401, a,. (i) Id. I 408. 108 SMITH ON REAL AND PERSONAL PROPERTY. inheritance limited to his heirs general or special, and such interest is vested." (/) III. In possession, "subject to the liability of afterwards becoming only executed in interest, if there are interests intervening, but they are only contingent."(A!) IV. In possession, to some purposes only, in certain special cases. (^) V. As a contingent remainder, if the subsequent limitation is expressly limited upon a contingency. (m) The reasons of the rule appear to be these : — 1. " In the cases falling within the rule, the two limitations to the ancestor and to his heirs or the heirs of his body, would, generally and in the main, have virtually accomplished the same purposes as a gift of the inheritance, in fee or in tail, to the ancestor himself; and therefore the law construed those limi- tations to amount to such a gift, in order to prevent the injury which the lord and the specialty creditors would have sustained, if parties had been allowed, generally and in the main, virtually to create an estate of the same quantity, and the same alienable and transmissible quality, as r«nn '^^^ limited to the ancestor himself; and yet, by a particular ■- J *mode of limitation, fraudently to evade the claims of the lord and the specialty creditors of the ancestor."(7i) 2. Another reason was, " the desire to facilitate alienation, by vesting the inheritance in the ancestor, instead of allowing it to remain in abeyance until his decease.'Vo') 3. " In cases that fall within this rule, there are two co-existing yet inconsistent intents ; the one of which may be termed the primary or paramount intent, and the other, the secondary or minor intent. And as these, by reason of their inconsistency, cannot be both effectuated, the secondary or minor intent is sacrificed, in order to give effect to the primary or paramount intent. The primary or paramount intent, in cases falling within the rule, is, that the ancestor should have the enjoy- ment of the estate for his life; and subject thereto, that the estate should descend to all the heirs general or special of the ancestor, and to none but those who are heirs of the ancestor. The secondary or minor intent is, to accomplish the primary or paramount intent in a particular mode; in such a mode, (as the grantor or devisor imagines,) as to secure that primary or paramount intent from being defeated by the act of the ancestor; in other words, the secondary or minor intent is, that the ancestor should have a life estate only, and that the heirs should take by purchase."(p) In regard to the application and non-application of the rule in cases of legal estates and trusts executed, three general rules or propositions may be laid down : — 1, "No circumstances, however strongly and con- clusively indicative merely of an intent that the ancestor should take a life estate only, and that his heirs general or special should take by pur- chase, will be sufficient to prevent the operation of the rule ; nor, indeed, r*1121 ^'^^^ ^^^ most positive direction to that effect *be sufficient for L J the accomplishment of such a purpose : because, such circum- (y) See Smith's Executory Interests annexed to Pearne, ? 409. (k) Id. i 410. n) Id. i 411—417. (m) Id. ? 418. In) Id. I 419—428. (o) See Harg. Tracts, 498, 500. (j)) See Smith's Executory Interests annexed to Pearne, ? 429 — 450. OF FEES TAIL. 109 stances or directions only serve to make the secondary intent more clear, without negativing the existence of, or in any way affecting, the primary intent." 2. " Nor will the application of the rule be excluded by any words which do not unequivocally indicate, but are only capable of being regarded as indicating, the objects of succession to be individuals other than persons who are to take simply as heirs general or special." 3. "But if there are any words referring, not merely to the mode of succession, but to the objects of succession, and clearly and unequivo- cally explaining or indicating them to be individuals other than persons who are to take simply as heirs general or special of the ancestor, the rule will not apply. For, these words thereby negative the existence of the primary intent, which would otherwise be furnished by the technical word heirs, in connexion with the estate of the ancestor; and thus leave but one intention to be accomplished, namely, the intention that the heirs should take by purchase." (5) In regard to trusts executory, " the rule is not applied in the case of executory trusts created by will, if there is a clear indication of an intent that it should not be applied. But, in the absence of any such indication, it will be applied.'Vr) " In the case of executory trusts created by marriage articles, the Court of Chancery will refuse to apply the rule, even in the absence of particular indications of an intent that it should not be applied, except — I. In those cases where it is not in the power of either parent, without the other, to bar the issue. 2. Where the issue are otherwise effectually provided for by the articles ; or it appears, from other limitations, that the parties knew and intended *the distinction between words which give the parent an estate j-^.. .. „-. for life only, and those which would give him an estate L J tail. 3. Where a trust executory, created by a formal settlement not expressed or not clearly appearing to be made in pursjiance of the articles, is substituted for the articles. The reason for not extending the rule to trusts executory, applies with peculiar force to those created by marriage articles ; because marriage articles are considered as mere heads of agreement ; and a principal intention is, to secure an effectual provision for the issue, who are all purchasers for valuable consideration, and not mere volunteers, like devisees. Hence, where it is agreed to limit lands to the husband for life, remainder to the heirs of his body by his intended wife, or, to the wife for life, remainder to the heirs of her body by her intended husband, or to the husband and wife for life, remainder to the heirs of their bodies ; these words are construed to mean first and other sons of the marriage, and the heirs of their bodies."(s) A limitation to a person for life by one instrument, and a limitation to his heirs or heirs of his body by another, cannot unite according to the rule in Shelley's case. There is, however, one exception to this in the case of an appointment ; for a limitation to a person for life by deed, and a limitation afterwards in his lifetime to his heirs or the heirs of (q) Smith's Executory Interests annexed to Pearne, § 453, i12, 4T9. ]?or a number of points in support and illustration of these propositions, see Id. 454— 488, b. (r) Id. ? 490. (s) Id., J 490, 494-6. 110 SMITH ON REAL AND PERSONAL PROPERTY. his body, under an execution of a power of appointment contained in the deed creating the life estate, will coalesce ; because the limitation of the inheritance takes effect, as if it were contained in the deed creating the power.(<) In cases of a devise to a person, followed by a devise to his issue,(M) _j|j-.- ._ an estate tail sometimes arises in his favour, *by analogy to the L J rule in Shelley's case, and under the doctrine of approximation to the intention of the testator, called the cy pres doctrine. Thus, " where real estate is devised, either directly to, or by way of executed trust for, a person and his issue, whether in one unbroken limitation, or in two distinct limitations, the word issue will be construed a word of limitation, so as to confer on the ancestor an estate tail, if there are no expressions clearly showing, that, by issue, the testator meant children, or particular individuals among the descendants of the ancestor, and no expressions indicative of an intent that the issue should take by pur- chase, or none but what are capable of being resolved into the mere redundant expression of that which would be included in an estate tail in the ancestor."(z) One reason of this is, that the word issue is ill adapted for a word of purchase, by reason of its ambiguity; whereas it possesses the same aptitude for a word of limitation as the technical expression heirs of the body.(o) Another reason is, that, in such cases, " there are two co- existing yet inconsistent intents ; the one of which may be termed the primary or paramount intent, and the other, the secondary or minor intent. And as these, by reason of their inconsistency, cannot be both effectuated, the secondary or minor intent is sacrificed, in order to give effect to the primary or paramount intent. The primary or paramount intent, in the cases treated of in this place, is, that the ancestor should have the enjoyment of the estate for his life ; and, subject thereto, that the estate should descend to all his descendants, so far as the rules of descent will permit. The secondary or minor intent is, to accomplish the primary or paramount intent in a particular mode ; in such a mode, r*i 1 p,-\ ^' •^®^^* ^^ ^^^ devisor supposes, as to secure that primary or L J *paramount intent from being defeated by the act of the ancestor : in other words, the secondary or minor intent is, that the ancestor should have a life estate only, and that his issue should take by purchase. (6) " But in the case of an executory trust by marriage articles, in favour of a person in esse and his issue, his children will take as purchasers, even in the absence of any indication that they should take by purchase : because, they are considered as purchasers for valuable consideration ; and, in the case of an executory trust, the intent that the issue should take by purchase can be effectuated without sacrificing the primary in- tent of admitting all the issue; for, the conveyance to be made in pur- suance of the trust can be so framed, that all the descendants shall take, (t) 2 Sugd. Pow. 24-B. (u) For a discussion of this subject, see Smith's Executory Interests annexed to Fearne, Part II. ch. 13. (z) Smith's Executory Interest annexed to Fearne, J 504. la) Id. I 510—513. (6) Id. g 520.22. . OF FEES TAIL. Ill before the estate can revert or go over. So that, where it is agreed to limit lands in remainder to or for the issue of the tenant for life, a strict settlement will be directed to be made upon the first and other sons in tail, remainder to the daughters, &c. In the case of an executory trust by will, in favour of a person in esse, and his issue, the children will take by purchase, if, on the whole, it appears most probable that the testator intended them to take in that manner. Where the limitation to the ancestor, viewed by itself, would create a mere equitable estate, and the limitation to the issue a legal estate, or vice vers& ; the issue will take by purchase, in the same manner as the heirs of the body, under similar circumstances."(c) " Where a testator devises an estate tail to a grandchild, by a child not yet born at the testator's death, to take by purchase; and he appears to have intended that all the issue of such unborn child should take, so far at least as the rules of. descent will permit; the courts, though obliged *to sacrifice his minor intent, that the grandchild, by r*iio-i such unborn child, should take by purchase, because it is con- L J trary to the rule against perpetuities, will nevertheless, under the doc- trine of approximation, or, as it is commonly called, the cy pres doctrine, give effect to his paramount intent, that all the issue of the unborn child should take, by giving an estate tail to such unborn child, so as to enable the grandchild to take derivatively through such unborn child, though it cannot be allowed to take in the particular mode pointed out by the testator."(e) Where a testator attempts to create a perpetual succession of life estates in favour of children and more remote descendants, the children will take estates tail under the cy pres doctrine, or doctrine of approxi- mation, in order that the descendants of such children may take deriva- tively through such children, as they cannot take independently by purchase, on account of the rule against perpetuities. (/) An estate tail may be created by implication. (^) Thus, where a tes- tator, after devising real estate to one person, without any express devise to the issue of such person, makes a devise over to another on an inde- finite failure of issue male or female, or issue in general, of the prior taker ; in such case, the prior taker has an estate tail by implication, with a remainder over to the other person. This construction is adopt- ed, in order to effectuate the indirectly declared intent that the estate should go over on, but not until, an indefinite failure of issue male or female, or issue in general, of the prior taker. And it is adopted, as well where the prior limitation is in words which would pass a fee, as where it is indefinite, or expressly for life. (A) *In cases of a limitation over on failure of issue, it is some 1-^1 1 17-1 times a question whether an indefinite failure of issue male or ■- -1 (c) Smith's Execntory Interests annexed to Fearne, § 531-3. (e) Id. J 534. (/) Id. g 536, 536, a. (g) 6 Cruise T. 38, c. 12, ? 32. (A) See Smith's Executory Interests annexed to Feame, g 564, 564 a, 564 d. As to cases of a limitation over on an indefinite failure of issue of a prior taker, where there is an express devise to his issue, sons, daughters, or children, see | 569,583. And as to cases of a limitation over on an indefinite failure of issue of a person to whom no express devise is made, see Id. g 585-9. 112 SMITH ON REAL AND PERSONAL PROPERTY. female or issue in general is intended, or merely a failure of issue with- in a certain time. As regards real estate, " no distinction exists be- tween the words ' die without issue,' and <■ die without leaving issue,' and « in default,' or < on' failure,' and ' for want of issue ;' but all those expressions, in devises made before the year 1838, are construed to im- port of themselves an indefinite failure of issue. But in the case of per- sonal estate, bequeathed before the year 1838, while the words ' die without issue,' of themselves, are construed to import an indefinite fail- ure of issue, the words ' die without leaving issue' are construed, in their natural and obvious sense of dying without leaving issue living at the death of the person the failure of whose issue is spoken of, because, the construing them to refer to an indefinite failure of issue would not benefit the issue, in the case of personal estate, by. implication in favour of the parent, in the same manner as that construction would, in the case of real estate."(i) By Stat 1 Vict. c. 26, s. 29, it is enacted, " that, in any devise or bequest of real or personal estate, the words ' die without issue,' or ' die without leaving issue,' or ' have no issue,' or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his _.-,„-, issue, unless a contrary intention shall appear *by the will, by L J reason of such person having a prior estate tail, or of a prece- ding gift being, without any implication arising from such words, a limi- tation of an estate tail to such person or issue, or otherwise : provided, that this Act shall not extend to cases where such words as aforesaid im- port if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue." Where, under a power of appointing to children only, and not to more remote descendants, an appointment is made by will to a child, re- mainder to his children in tail, who are not objects of the power, the child himself will take an estate tail, in order to effectuate the general intent.(A) But such a construction is not adopted where the appoint- ment is by deed.(?) Any number of estates tail may be created in succession in the same hereditaments, and by the same deed, leaving an ultimate fee simple ex- pectant on the last of such estates, which may either be disposed of by the same deed, or may be left undisposed of in the donor, and, like every other reversion, may be either retained by him and his heirs, or after- wards disposed of, either entirely or partially, by carving less estates out of it. In the case of an estate tail special, in some instances the estate tail vests in both the parents ; in other instances, in only one of the parents. (i) See Smith's Executory Interests, annexed to Pearne, J 538-9. For a number of other rules relating to this question, see Id. § 540-562. (i) 2 Sugd. Few. 4—10, 56—61. [}) Id. p. 61. OF FEES TAIL. 118 And sometimes both parents are mentioned, but one only takes an estate tail general. If the word heirs, or any other word of inheritance which may be used instead of the word heirs, is in terms applied to one only of the parents, the estate tail vests in that parent only. But if the word of inheritance is in terms applied to both the parents, or is not applied to one more than *to the other of them, the estate tail vests in p^, -, „-, them both.(m) Thus, where lands are given to a man and his L J wife, and to the heirs of their two bodies begotten, both together take an estate tail. And the same is the case if they are single, or even if they are married, but not to each other, for they both take an estate tail, on account of the possibility that they may marry. (m) And if land is given to a man and his wife, and to the heirs of the body of the man, the husband has an estate tail general, and the wife an estate for life. And if land is given to the husband and wife, and to the heirs of the -hus- band which he shall beget on the body of his wife, the husband has an estate tail special, and the wife an estate for life only. And if a gift is made to the husband and wife, and to the heirs of the body of the wife by the husband begotten, the wife has an estate tail special, and the husbsnd a term of life only. But if lands are given to the husband and wife, and to the heirs which the husband shall beget on the body of the wife, both of them have an estate tail.(o) With regard to what may be entailed, the only words used in the Statute de Donis is the word " tenement." But that is to be taken in its most comprehensive sense. Hence, all hereditaments of freehold tenure which savour of the realty may be entailed ; but things personal, whether they be chattels personal or chattels real, and an office which merely relates to personal chattels, and an annuity which charges only the person and not the lands of the grantor, cannot be entailed. Nor can an estate for another's life. The statute does not extend to copy- hold hereditaments ; but there is a special custom in many manors au- thorising the entail of lands within those manors. (j?) A *custom rfioA-i to create entails of copyholds may be said to exist wherever in- L J stances have occurred not merely of the limitation of estates to heirs of the body, but of the alienation of the ancestor being defeated by the issue, or of a remainder being enjoyed upon the failure of issue. (j) Although estates pour autre vie are not within the Statute de Donis, and therefore cannot be entailed, yet they are sometimes limited to a person and the heirs of his body ; and in such case he is a quasi tenant in tail; so that, if he dies in the lifetime of the cestui que vie, without having disposed of the estate, it will devolve to the heirs of his body.(r) " Chattels, whether real or personal, cannot be entailed, not being transmissible to the real representatives, as such, and not being within the Statute de Donis, even if they were so transmissible. Such being (m) See 4 Cruise T. 32, c. 21, § 29 ; 1 Pres. Shep. T. 102, 103. (re) 4 0raiseT. 32, u. 21, ? 26. (o) 4 Cruise T. 32, c. 21, § 28 ; 1 Pres. Sliep. T. 102,-103. (p) 2 Bl. Com. 113 ; 1 Cruise, T. 2, c. 1, ? 27 ; Burton, J 646, 1284 ; Co. Litt. 20, a, and n. 5. (q) Burton, I 1284, n. (r) Id. ? 732. January, 1856. — 8 114 SMITH ON EEAL AND PERSONAL PEOPERTT. the case, ' it is a general rule, that, where the words would raise an estate tail in real estate, they will give the absolute property in per- sonalty.' "(s) One mode of barring estates tail was by warranty ; but warranties having long fallen into disuse, and are abolished by the statute 3 & 4 Will. 4, c. 74, s. 14. (m) Notwithstanding the Statute De Donis, a tenant in tail might always, by any ordinary and appropriate assurance, alien or charge his estate, so far as to bind himself, and even so as to bind his issue, unless they entered to avoid such alienation or charge; except in the case of a limi- tation of an estate to commence after his own death, which was abso- r*19n I'ltely void in its creation; and except that when *anything is L -J granted by a tenant in tail out of land entailed (as a rent,) such grant will be absolutely void upon the death of the grantor, unless the remainderman or reversioner in fee join in the grant, in which case it is good as against him, if the tenant in tail dies without issue, (x) And, by. certain modes of assurance (such as by a feoffment, fine, or recovery under certain circumstances,) a tenant in tail in possession might alien or charge, so as not only to bind himself, but he might take away the right of entry of his issue, and of the remainderman and reversioner, unless the reversion were in the Crown, and reduce them to a right of action only, which effect is termed a discontinuance ;(y) and, under cer- tain circumstances, a tenant in tail might before the stat. 3 & 4 Will. 4, c. 74, by a fine or recovery, and he may now, by an enrolled conveyance under that Act, make an effectual alienation or charge, as against him- self, his issue, and all claiming in remainder, reversion, or expectancy. By statute 42 Geo. 3, c. 116, s. 52, tenants in tail are enabled, by deed indented and inrolled or registered, to convey parts of their estates for the redemption of the land tax charged thereon. (z) The effect of an alienation in fee by a tenant in tail, by an assurance which does not bar the issue in tail and those who are entitled in re- mainder, reversion, or expectancy, is to give the alienee a qualified or base fee commensurate with the estate tail; that is, an estate of inheri- tance, descendible to his heirs general, so long as the tenant in tail shall live, or there shall be issue inherita|3le under the entail; but, on the one hand, capable of being converted into an absolute fee simple by the act or default of the issue in tail and those who are entitled -in remainder, r^ion-i reversion, and ^expectancy; and, on the other hand, subject to L J be defeated by the entry or action of any of those parties. (a) The issue in tail is not bound by his ancestor's contracts respecting (s) Smith's Executory Interests annexed to Pearne, § 593, 593 a. For a discus- sion on this subject, see Id. Part 2, ch. 19, 20. (() As to the barring of entails in copyholds, see title on Alienation of Copy- holds, infra. (u) The subject is discussed in 2 Bl. Com, 300-3 ; 1 Steph. Cora. 468 — 472 ; 4 Cruise, T. 32, c. 24 I 11—47 ; Co. Litt. 365, a, u. (1,) 373, b., n. (2). [z) See 1 Cruise, T. 2, c. 2, ^ 4, 5, 9, 12 ; Burton, § 671, 715 ; 2 Pres. Shep. T. 243, and n. (36.) {y) See 1 Cruise T. 2, c. 2, g 6, 7, 8 ; Burton, ? 671-2, 674. (2) 1 Cruise, T. 2, c. 2, ? 48. (a) See 1 Cruise, T. 2, 0. 2, ^ 10; Burton, 2 715; 1 Pres. Shep. T. 107, OF PRBBHOLDS NOT OF INHERITANCE. US the estate tail, unless the issue does any act towards carrying the con- tract or agreement into execution, or in any manner accepts it.(i) And therefore, if tenant in tail contracts to sell the trees growing on the in- heritance, unless the vendee severs them during the life of tenant in tail, the issue in tail will have a right to them as part of the inheri- tance.(c) A quasi tenant in tail in possession of an estate pour autre vie, whe- ther he has issue or not, has complete power to bar the entail and the remainders over, by any act inter vivos, without any declaration of an intention so to do, even by a surrender made only with a view to obtain a renewal of the lease for life, or by articles of agreement to sell or settle the estate, ((i) For the purposes of alienation, he stands in the position of a person who has the whole estate and the absolute dominion. And the quasi entail, and the remainders over, will be barred, if a quasi tenant in tail in remainder concurs with the tenant for life in aliening the estate, or if the tenant for life procures a renewal, and then conveys to the quasi tenant in tail. But a quasi tenant -in tail in remainder, without the concurrence of the tenant for life, cannot defeat the remain- der, even if he can bar the entail.(e) *TITLE V. [*123] OF FREEHOLDS NOT OF INHERITANCE. Freeholds, as we have seen, are, in the most comprehensive sense of the term, either freeholds of inheritance or freeholds not of inheritance. But the word freehold simpliciter is now generally used to denote an estate for life, in opposition to an estate of inheritance. (a) A freehold not of inheritance, or an estate for life, in the more com- prehensive sense of the term, is an estate that is appointed to endure for a life or lives, or for some uncertain period which may last for a life or lives, but cannot last beyond a life or lives, and yet is not confined to a given number of years. In illustration of this definition, it may be observed, that an estate for ninety-nine years if A. shall so long live, is not a freehold or an estate for life, but an interest less than freehold, a chattel real, a term for years ; because, although it is commensurate with the duration of a life, yet it is not for an uncertain period; and, although it cannot last beyond the life of A., yet it is confined to a given number of years. But the estaite need not be expressly confined to a given number of years to constitute it a chattel interest; for if it is actually or virtually, though not expressly, (J) 1 Cruise, T. 2, c. 2, J 18, 25, 26 ; 1 Jarm. & Byth. by Sweet, 579. (c) 1 Jarm & Byth. by Sweet, 579 ; 1 Cruise, T. 2, c. 1, g 32. (d) 1 Jarm. & Byth. by Sweet, 547-8 ; Allen v. Allen, 2 D. & W. 307 ; Burton, ? 732. (e) Allen t. Allen, 2 D. & W. 307. (a) Co. Litt. 266, b, n. 1. 116 SMITH ON REAL AND PERSONAL PROPERTY. confined to a given number of years, it is a chattel interest. Thus, if lands in lease at a fixed rent are granted to A. until he has received 100?. out of the profits, the certainty of the period makes the interest a r*1941 "'i^*'*^^ j(^) ^°' '^ ^^ actually *or virtually confined to a given L J number of years, to a number of years ascertained, and defined at the time by the relative amount of the rent and the sum to be raised thereout. And so, if land is devised to executors for payment of debts and until debts be paid, they take but a chattel interest. And upon the same principle, tenants by statute merchant, statute staple, and elegit, have but chattel interests. (c) A tenant for life, or his representatives, shall not be prejudiced by any determination of his estate, except by his own act ; so that, if a tenant for his own life sows or plants the land, and dies before harvest, his executors shall have the emblements, or the annual artificial profits, as a compensation for the trouble, and expense of tilling, manuring, and sowing the land, and for the encouragement of husbandry. The same is also the case if a life estate is determined by act of law, as where a lease for life is made to husband and wife during coverture, and they are divorced a vinculo matrimonii. (c?) So it is also if a person is tenant for the life of another, and cestui que vie, that is, the person on whose life the land is held, dies after the corn is sown. The under-tenants or lessees of a tenant for life represented him, and stood in his place ; except that if he determined his estate by his own act, his under-tenants or lessees had the emblements. (e) Some alteration has been made in the law upon this subject by the Stat. 14 & 15 Vict. c. 25 ; by s. 1, of which, " where the lease or tenancy of any farm or lands held by a tenant at rackrent shall determine by the death or cesser of the estate of any landlord entitled for his life, or for any other uncertain interest, instead of claims to emblements, the tenant shall continue to hold and occupy such farm or lands until the expira- _^„^. tion of the then current year of his *tenancy, and shall then L J quit, upon the terms of his lease or holding, in the same manner as if such lease or tenancy were then determined by effluxion of time or other lawful means during the continuance of his landlord's estate ; and the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his predecessor or such tenant's lessor could have done if he had been living or had continued the land- lord or lessor, a fair proportion of the rent for the period which may have elapsed from the day of the death or cesser of the estate of such predecessor or lessor to the time of the tenant so quitting, and the suc- ceeding landlord or owner and the tenant respectively shall, as between themselves and as against each other, be entitled to all the benefits and advantages, and be subject to the terms, conditions, and restrictions, to which the preceding landlord or lessor and such tenant respectively would have been entitled and subject in case the lease or tenancy had determined in manner aforesaid at the expiration of such current year : provided (b) Burton, | 726, (c) Co. Litt. 42, a. 43, b. (d) 2 Bl. Com. 122-3; Co. Litt. 55, b. («) 2 Bl. Com. 124. OF ESTATES FOR LIFE, ETC. 117 always, that no notice to quit shall be necessary or required by or from either party to determine any such holding and occupation as aforesaid." Freeholds not of inheritance are of four kinds : — I. Estates for life specifically so called. II. Estates tail after possibility of issue extinct. III. Estates in dower or free bench. IV. Estates by the curtesy. The first kind are created by some legal instrument ; the last three by operation of law. *CHAPTER I. [*126] OF ESTATES TOR LIFE, SPECIFICALLY SO CALLED. An estate for life, specifically so called, is an estate that is created by some legal instrument, and is to endure for some uncertain period, which may last for a life or lives, and cannot last beyond a life or lives, and yet is not confined to any given number of years. Estates for life are of three kinds : estates for the life of the grantee or devisee ; estates for the life or lives of some other person or persons ; and estates for the life of the grantee or devisee, and for the life or lives of some other person or persons, (a) An estate for the life or lives of some other person or persons is called an estate pour autre vie ; the grantee or devisee is called tenant pour autre vie ; and such other person or per- sons cestui que vie, or cestuis que vie. The first two kinds of estates for life may be created not only by words expressive of the duration thereof, but also by a gift to a person indefi- nitely ; for except in those particular cases already noticed, in which a fee simple will pass without the word heirs, if lands are conveyed to a natural person without any word of inheritance, he will take an estate for life only. And he will take for his own life, as being the highest and most beneficial estate which the terms of the conveyance will pass ; unless the grantor is only tenant for his own life, or for the life of some other person, in which case the grantee will take an estate for the life for which the grantor holds ; or unless the grantor be only tenant in tail, in which case the grantee will take an estate for the life of the 7-^^,-1 n^-, *grantor only, as being the largest estate capable of passing by L J the words which the\grantor has a right to give. (6) And with the ex- ceptions already noticed, a similar rule applies to an indefinite devise prior to the year 1838. A life estate may also be created by necessary implication. Thus : — 1. Where a testator devises to his heir apparent or heir presumptive, after the death of another to whom no express devise is made, such other person will take an estate for life by implication, (c) unless the will con- (a) Co. Litt. 41, b. (J) 2 Bl. Com. 121 ; 4 Cruise, T. 32, c. 21, J 39 ; 1 Pres. Shep. T. lOT. (c) 1 Jarman on Wills, 465, 466. 118 SMITH ON REAL AND PERSONAL PROPERTY. tains a residuary devise ;(cZ) as he cannot, without the grossest absurdity, be supposed to mean to devise real estate to his heir, at the death of the other person, and yet that the heir should have it in the meantime, ■which would be to render the devise nugatory.(e) 2. And, for the same reason, where there is a residuary devise, and the testator devises particular lands to the residuary devisee, to take efifect in possession on the decease of another person to whom no ezpress devise is made, such other person will take an estate for life by impli- cation. (/) 3. But where a testator devises to a person who is neither heir apparent, nor heir presumptive, nor residuary devisee, after the death of A., no estate will arise to A. by implication ;(^) because it ia possible to suppose, that, intending the land to go to the heir during the life of A., he left it for that period undisposed of. (A) Ecclesiastical persons, and all persons who are presented to any civil office, are quasi tenants for their own lives, unless the contrary is expressed in the form of donation, (i) r*1 281 *There are some estates for life, which, as the definition implies, L J though they may last for life, and on that account are reckoned estates for life, may determine upon a contingency before the life expires. Thus, if an estate is granted to a woman during her widowhood, or to a man until he shall be promoted to a benefice, an estate for life is granted, determinable, however, in the lifetime of the widow by her second mar- riage, or in the lifetime of the man by his promotion to a benefice.(i) And where an estate is granted to a man for his life generally, it may determine by his ciyil death ; as if he enters a monastery, whereby he is dead in law. The grant, however, is usually made " for the term of a man's natural life ;" which can only determine by his natural death.(A) Tenant for life has the power of alienating his whole estate and interest, or of creating out of it any estate less than his own, unless he is restrained by condition. (Z) In order to assist such persons as have any estate in remainder, rever- sion, or expectancy, after the death of others, against fraudulent conceal- ments of their deaths, it is enacted by the stat. 6 Ann. c. 18, that all persons on whose lives any lands or tenements are holden, shall (upon application to the Court of Chancery and order made thereupon,) once in every year, if required, be produced to the court, or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements till the party shall appear to be living. (m) ((?) 1 Jarmau on Wills, 474. (e) Id. 466. (/) Id. 474. (g) Id. 465. As to the doctrine of implication in certain other cases of unfre- quent occurrence, see Mr. Jarman's observations, p. 467, &c. (A) Id. 466. (i) 2 Bl. Com. 123 ; 1 Cruise, T. 3, c. 1, § 53. {k) 2 BL Com. 121. [I) 1 Cruise, T. 3, c. 1, § 32. (m) 2 Bl. Com. 177. OF AN ESTATE TAIL AFTER POSSIBILITY, ETC. 119 *CH AFTER II. [*129] OE AN ESTATE TAIL AFTER POSSIBILITY OP ISSUE EXTINCT. An estate tail after possibility of issue extinct, is an estate which the law creates in fayour of the survivor, where an estate tail special is given to a man and woman, or to a man or woman, and, in the first case, either of them, or, in the second case, the party who is not tenant in tail, but by or on whom the issue is to be begotten, dies, and at the time of the death of such person, or afterwards in the lifetime of the survivor, there happens to be a failure of issue inheritable under the entail. Thus, if an estate is given to a man and his wife and the heirs male of their bodies, and either of them dies without male issue of the marriage, or, having such issue, such issue afterwards dies without issue male in the lifetime of the survivor, such survivor becomes tenant in tail after possi- bility of issue extinct. And so if an estate is given to a man and the heirs of his body by his present wife, or to a woman and the heirs of her body by her present husband, and, in the first case, the wife dies, or, in the second case, the husband dies, in case of a failure of issue of the marriage in the lifetime of the survivor, such survivor becomes tenant in tail after possibility of issue extinet.(ci) It will appear from the definition, 1. That this estate can only arise where an estate tail special is created. 2. That it can only arise by death ; and not by advanced age ; nor by any limitation ; nor by any human act, such as a divorce a vinculo matrimonii. By such a divorce, a tenant *in special tail becomes a bare tenant for life. (6) 3. p^-ioA-i That it may arise by the death of a tenant in special tail, where L J the survivor is also tenant in tail under the same entail; but that it cannot arise by the death of a sole tenant in special tail ; for it is in reality rather a reduction of an old estate in special tail to a privileged estate for life, than the creation of an entirely new estate ; so that the survivor, in order to be tenant in tail after possibility of issue extinct, must, in the first instance, have been tenant in special tail. 4. That a person will have tbis estate only, and not an estate tail, although he have issue, if the issue are not such as are capable of inheriting under the entail ; as, where the estate is in tail male, and the issue are females, or males not descended from the tenant in tail wholly through males, or where the issue are by some other husband or wife than the one by or on whom the issue is, according to the terms of the entail, to be begotten. (a) See Litt. ? 32, 33, 34; 2 Bl. Com. 124-6 ; 1 Cruise T. 4, ? 1-3. (b) Co. Litt. 28, a; 2 Bl. Com. 125. 120 SMITH ON REAL AND PERSONAL PEOPERTT. [*131] *CHAPTEE III. or AN ESTATE BY THE CURTESY. An estate by the curtesy of England, is an estate for life to which a man becomes entitled on the decease of his wife, in lands or tenements, of which she was seised for any estate of inheritance otherwise than in joint tenancy, where he has had by her issue born alive and capable of inheriting her estate. There are, therefore, four requisites to the existence of an estate by the curtesy : 1. Marriage; 2. Seisin of the wife for an estate of inherit- ance; 3. Issue born alive in the wife's lifetime, and capable of inherit- ing; 4. The death of the wife. (a) 1. If the marriage be only voidable, and is not annulled during the life of the wife, the husband will be tenant by the curtesy. (6) 2. With respect to the seisin, it is necessary, in certain cases, as will presently be shown, that the seisin of the wife should be of the most perfect kind. And, in all cases, it is indispensable that she should be seised for an estate of inheritance of some kind, and in such things whereof curtesy may be had, and not in joint tenancy. All corporeal hereditaments are liable to curtesy; and of these an actual seisin, and not a mere constructive seisin, is necessary, unless the estate of the wife is only an equitable estate not settled to her separate use. So that, if an heiress dies before she or her husband has entered, the husband shall not be tenant by the curtesy. But if her husband had entered before her death, it would have sufficed, (c) 1 Qoi *-^'^ actual seisin being required, a person cannot be tenant L J by the curtesy of a remainder or reversion expectant upon an es- tate of freehold, unless the particular estate be determined during the coverture, except perhaps in the case of a lease for life whereon rent is reserved. But a man is entitled to curtesy of a reversion expectant on an estate for years, because the wife is seised of the freehold, though subject to the term.fd) Some incorporeal hereditaments, such as advowsons, tithes, commons, and rents, are liable to curtesy.(e) And of these a constructive seisin, commonly called a seisin in law, is sufficient. (/) As it is a rule in equity, that money agreed or directed to be laid out in the purchase of land shall be considered as land, to all intents and purposes, so, a man may be tenant by the curtesy of money agreed or directed to be laid out in the purchase of land.(y) 3. The issue must be born during the life of the mother; for, if the mother dies in labour, and the csesarean operation is performed, the hus- band shall not be tenant by the curtesy, because, at the instant of the (a), Co. Litt. 29, a. b; 2 Bl. Com. 127; 1 Cruise T. 5, c. 1, ^ i, 15, 11. (b) 1 Cruise T. 5, c. 1, ? 5. (c) 1 Cruise T. 5, c. 1, ^ 6 ; Co. Litt. 29, a, and n. 6. (d) 1 Cruise T. 5, c. 1, | 13 ; o. 2, § 23 ; 2 BI. Com. 127 ; Co. Litt. 29, a,. («) 1 Cruise T. 5, c. 2, § 16. (/) Co. Litt. 29, a,. Iff) 1 Cruise T. 5, c. 2, J 13. OF AN ESTATE BY THE CURTESY. 121 mother's death, he was not entitled, as having had no issue born, but the land descended to the child while he was yet in his mother's womb; and the estate being once so vested shall not afterwards be taken from him. (A) This is an absurd and cruel refinement. The issue must also be capable of inheriting the mother's estate. Therefore, if a woman is tenant in tail male, and has only a daughter, the husband is not entitled to be tenant by the curtesy. (i) And where land is devised to a woman and her heirs, but if she should die leaving issue, *then to her child or children, and his, her, or their heirs r,|:iqq-i and assigns, if more than one child, to take as tenants in com- l J mon ; her husband is not entitled to be tenant by the curtesy, because the estate of the wife determines on her dying leaving issue, and the children then take as purchasers by force of the gift over, and not by descent from her.(^) It is immaterial, whether the issue be born before or after the seisin of the wife ; nor does it matter if the issue dies before the seisin of the wife.(Z) And, although a woman have issue by a former husband, yet if her second husband has issue by her, he shall be tenant by the cur- tesy; because his issue by possibility may inherit, if the first issue should die without issue. (m^ 4. Although the estate of a tenant by the curtesy is not consummate until the death of the wife, yet it commences previously for some pur- poses.(?i) Thus, the husband, from the moment of the child's birth or of the acquisition of the property to the wife (which ever last happens), is enabled to convey by feoffment an estate for his own life to another person. Before the birth of a child, he can convey a good estate for the joint lives only of himself and his wife.(o) No entry is necessary to complete this estate ; for, on the death of the wife, the law adjudges the freehold to be in the husband imme- diately, (p) Curtesy is an incident so inseparably annexed to an estate of inherit- ance in hereditaments of freehold tenure, that it cannot be restrained by any proviso or condition whatever, (j) Curtesy is not incident to copyholds, unless there be a *spe- p^, „ < -■ cial custom to warrant it. Where a custom of this kind pre- L J vails, it is construed strictly, and not extended to cases to which it does not precisely apply. (r) When it is incident, it is considered as a con- tinuation of the estate of the wife, and therefore as perfect without ad- mittance. (s) And although the wife be not actually admitted to the copyhold, yet the husband will be entitled to curtesy. (A And by the custom of some manors the husband of a copyholder is entitled to cur- (h) 2 Bl. Com. 127. (j) Co. Litt. 29, b ; 2 Bl. Com. 128. (k) Barker v. Barker, 2 Sim. 253. (I) 1 Cruise T. 5, c. 1, § 7, 18 ; 2 Bl. Com. 128 ; Co. Litt. 29, b. (m) 1 Cruise T. 5, c. 1, g 20. (n) Co. Litt. 30, a. (o) Burton, ^ 350. (p) 1 Cruise T. 5, c. 2, ^ 28. (g) 1 Cruise T. 11, ? 48, 52 ; and T. 5, c. 2, g 10. (r) 1 Cruise T. 10, c. 3, J 49; Burton, § 1311. (s) Burton, f 1311. (<) 1 Cruise T. 10, t. 3, J 51. 122 SMITH ON KBAL AND PERSONAL PROPEETT. tesy, though he has no issue by his wife. But such estate is forfeitable by a second marriage, (m) In gavelkind lands, a husband may be tenant by the curtesy without having any issue. But he has only a moiety of the wife's lands, and he loses his estate if he marries again, (x) Where the fee is evicted by a title parmanount, both curtesy and dower necessarily cease. So where the donor enters for breach of a con- dition, the right to curtesy and dower is defeated. And so when a per- son has a qualified or base fee, the right to curtesy and dower ceases when the estate is determined. But where an estate in fee simple is made determinable upon some particular event, if that event happens, curtesy and dower do not cease with the estate. (y) [*135] *CHAPTER IV. OF DOWEK, FEEEBENCH, AND JOINTURE. Section I. Of Bower J generally. Dower, in cases not within the Dower Act, is an estate for life, to which (except where it is prevented, barred, or lost,) a woman becomes entitled, on the decease of her husband, in one third of the lands and tenements of which he was seised in deed or in law, at any time during the coverture, for any estate or inheritance in possession otherwise than in joint tenancy, and to which any issue which she might have had, might by possibility have inherited. (a) Dower, in cases within the Dower Act, is an estate for life, to which (except where it is prevented, barred, or lost,) a woman becomes enti- tled, on the decease of her husband, in one third of the lands and tene- ments to which he died legally or equitably entitled, for any estate of inheritance in possession otherwise than in joint tenancy, and which any issue which she might have had, might by possibility have inherited. By the custom of gavelkind the widow is entitled to a moiety, but only during her widowhood, (i) Besides dower at the common law, and by particular custom, there were two other species of dower, called dower ad ostium ecclesise, and dower ex assensu patris. But these are abolished by the stat. 3 & 4 Will. 4, c. 105, s. 13. {u) 1 Cruise T. 10, c. 3, J 53. \x) Co. Litt. 30, a, and u'. 1 ; 2 Bl. Com. 128. (.y) 1 Cruise T. 6, c. 2, | 24 ; and T. 38, c. 17, ? 27. (a) See 2 Bl. Com. 129; 1 Cruise T. 6, c. 2, g i, 3, 6; Burton, \ 349. (i) Burton, I 349. OF DOWEB, FREBBENCH, AND JOINTUEB. 123 The wife of a tenant in tail will be dowable, though the r^iog-i ♦estate tail determines by failure of issue, if any issue by her L J would have been capable of inheriting the estate tail. This is an excep- tion to the rule, cessante statu primitivo cessat et derivativus.(c) By the old law, a woman was not entitled to dower of an equitable esta.te.{d) But by sect. 2 of the stat. 3 & 4 Will. 4, c. 105, it is enacted, " That, when a husband shall die, beneficially entitled to any land for an interest which shall not entitle his widow to dower out of the same at law, and such interest, whether wholly equitable, or partly legal and partly equitable, shall be an estate of inheritance in posses- sion, or equal to an estate of inheritance in possession (other than an estate in joint tenancy), then his widow shall be entitled in equity to dower out of the same land." Before the passing of the stat. 3 & 4 Will. 4, c. 105, it was absolutely necessary that the husband should be seised ; but a seisin in law was sufficient, because otherwise the wife might have been deprived of her dower by the neglect or design of her husband, (e) But the necessity of seisin is now dispensed with in the case of widows married on or before the 1st of January, 1834; for, by sect. 3 of the Dower Act, it is enacted, " That, when a husband shall have been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same if he had recovered possession thereof, she shall be entitled to dower out of the same although her husband shall not have recovered possession thereof; provided that such dower be sued for or obtained within the period during which such right of entry or action might be enforced." No widow shall be endowed of lands or tenements, whose issue, if she had any, might not by possibility have inherited them. It is not necessary that the wife should have had *issue, in order to be ^^.„--. dowable ; but yet it is necessary that any issue which she might <- J have had, should be capable of inheriting the estate. Therefore, if a man seised in fee simple has a son by his first wife, and afterwards mar- ries a second wife, she shall be endowed of his lands ; for her issue might by possibility have been heir on the death of the son by the for- mer wife. But, if lands are given to a person and the heirs of his body begotten on his present wife, if she dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed ; for her issue conld not by any possibility inherit themYee) Dower is an incident so inseparably annexed to an estate tail, that it cannot be restrained by any proviso or condition whatever.(/) A widow is dowable of several incorporeal hereditaments, such as ad- vowsons, tithes, commons, offices, franchises, and rents, (gr) Dower is due of mines wrought during the coverture, whether by the husband or by lessees for years, paying pecuniary rents or rents in kind, (c) Co. Litt. 241, a, n. 4, IV. (d) Co. Litt. 29, a, u. 6, 290, b, n. 1 ; 1 Cruise T. 6, c. 2, § 23. (e) 1 Cruise T. 6, c. 1, | 19 ; Co. Litt. 31, a. (ee) 2 Bl. Com. 131. (/) 1 Cruise T. 6, c. 2, J 4. Iff) 1 Cruise T. 6, c. 2, §11. 124 SMITH ON REAL AND PERSONAL PROPERTY. and whether the mines were under the husband's own land, or had been absolutely granted to him, to take the whole stratum in the land of others. But dower is not due of mines and strata unopened, whether under the husband's land or the soil of others.(A) A widow is not dowable of lands assigned to another woman in dower. Thus, if the ancestor of a married man dies, and he endows the widow of such ancestor of one third of the lands which descended to him, and dies, his widow will only be entitled to one-third of the remaining two-thirds; r*m81 ^°'"' ^^ '^ ^ ™^® °^ ^*^' *'^^* ^°^ ^^ ^"'^ P®'^ ^°^ *debet.(ij ■- J This rule is only applied where dower is actually assigned. (A) No right of curtesy or dower attaches upon an estate held in joint tenancy ; for the right of survivorship is preferred to all charges and incumbrances which do not amount to at least a partial alienation of the share; and of course a conveyance by a joint tenant of his share to another person, which destroys the right of survivorship, will not let in the right to dower ; because he thereby ceases to be seised the very instant the right of survivorship is destroyed : he is never seised, except subject to the right of survivorship, which is paramount to the right to dower. (Z) A woman is not entitled to dower out of an estate in remainder or reversion expectant on an estate of freehold ; and hence, if a man makes a lease for life, reserving rent to him and his heirs, and then marries and dies, his wife shall not be endowed of the reversion, because the husband was not seised of the immediate freehold during the coverture ; nor shall she be endowed of the rent, because he had but a particular estate, and no estate of inheritance in the rent. But a woman is dow- able of a reversion expectant on a term for years, because the husband is seised of the immediate freehold and has a present estate, though sub- ject, as regards the possession, to a term of years. (m) And if a person devise lands to his executors for payment of debts, and, after payment thereof, to his son in tail, and the son marries, and dies before the debts are paid, his wife shall have dower ; because the estate of the executors is only a chattel interest, and the immediate freehold vested in the son on the death of the father. But the wife's dower will not commence till the debts are paid.(ra) r*mQ1 *The wife of a mortgagee is not dowable of the land in mort- L -I gage.(o) Nor can a Jewess have dower.(p) And a widow is not dowable of a wrongful estate. (g) The title to dower attaches at the instant of the marriage, if the hus- band is then seised, or the instant he becomes seised after marriage ; and, prior to the Dower Act, it would not be defeated or affected by an alien- (h) 1 Cruise T. 6, c. 2, § 1 ; Burton, ? 1164. (i) 1 Cruise T. 6, c. 2, § 18; Co. Litt. 31, a, {k) 1 Cruise T. 6, c. 2, § 20. h) Burton, § 353; 1 Cruise T. 6, c. 2, § U; Co. Litt. 35, a, n. 1. (m) 1 Cruise T. 6, c. 1, g 22, and c. 2, § 8 ; Burton, § 354 ; 9 Jarm. & Byth. by Sweet, 159. (k) 1 Cruise T. 6, c. 1, § 23. (o) 1 Cruise T. 6, o. 2, ? 23. (p) l Cruise T. 6, c. 1, § 32. (j) 1 Cruise T. 6, c. 2, J 16. USES TO PREVENT DOWER. 125 ation of, or charge upon, the property after the marriage by the husband alone. (r) And where a man, immediately before his marriage, privately and secretly conveys his estate to a trustee for himself, in order to deprive his wife of dower, such conveyance will be deemed fraudulent and void.(sj The widow has no estate, however, in the lands of her husband till assignment ; for the law casts the freehold on the heir immediately on the death of the ancestor.(<) Yet, as soon as the assignment is made, the widow is in of the estate of her husband, and the heir is not con- sidered as having ever been seised of that part whereof the widow is endowed. (m) The assignment of dower must be absolute, and not subject to be de- feated by any condition, nor lessened by any exception or reservation. But, where the lands were leased for years before the marriage, the assignment of dower is made with a proviso that the tenant for years shall not be disturbed. (x) A rent issuing out of the land whereof the widow is dowable, may be assigned for dower; but an assignment of other lands, or of the rent of other lands, or of a term of years, or of a rent for years or for the life of the person who assigns it, will not be good.(^) *By the Statute of Merton, 20 Hen. 3, c. 2, it is enacted, that |-*i4m a dowress may dispose by will of the growing corn ; otherwise, L J that it shall go to her executors. (z) By the stat. 3 & 4 Will. 4, c. 27, s. 41, " No arrears of dower, nor any damages on account of such arrears, shall be recovered or obtained by any action or suit for a longer period than six years next before the commencement of such action or suit." Section II. Of the Modes of preventing, at Law and in Equity, the Title to Dower from arising, independently of the Dower Act : and herein, of Uses to prevent Dower and Legal Jointures. There are certain modes by which dower may be prevented from ever arising, even independently of the Dower Act. I. One way is, by conveying or devising the property so as virtually to give the grantee or devisee the benefit of an estate of inheritance in possession, and yet to limit the property to him in such a manner that he does not actually take such an estate. This object has been sought to be efifected in different modes, with different degrees of success. Thus, Formerly it was a practice to limit the estate to a purchaser and a trustee and their heirs, but, as to the estate of the trustee and his heirs, (r) See 2 Bl. Com. 132 ; 1 Cruise T. 6, c. 4, § 1, and c. 2, § 32. (s) 1 Cruise T. 12, c. 2, § 24. (t) 1 Cruise T. 6, c. 3, J 1. (u) 1 Cruise T. 6, c. 3, J 21 ; Oo.Litt. 241, a. n. 1. (x) 1 Cruise T. 6, c. 3, ^ 13. (y) 1 Cruise T. 6, c. 3, § 11, 12 . (z) 1 Cruise T. 6, o. 2, § 27. 126 SMITH ON REAL AND PERSONAL PROPERTY. in trust for the purchaser and his heirs. But this exposed the purchaser to the chance of the trustee's dying in his lifetime, in which case the right of dower would attach upon the estate. In other instances, the r*1 41 1 ^^''^'^ ^^^ limited to the purchaser and a trustee, and *the heirs L -I of the trustee, but in trust for the purchaser ; or immediately to the trustee and his heirs in trust for the purchaser and his heirs. But each of these modes was objectionable, as they kept the legal fee from the purchaser, and exposed him to all the inconvenience of its escheating to the Crown for want of heirs of the trustee, or of its becoming vested in infants, married women, or persons residing at a distance, not easily discoverable, or not willing to join in the conveyances required to be made of it. (a) To prevent this inconvenience, Mr. Butler suggested, that, as there can be no dower of a remainder or reversion expectant upon an estate of freehold duration, the estates may be at first limited to such uses as the purchaser shall appoint, and, for want of appointment, to the use of a trustee, his heirs and assigns, during the life of the purchaser, in trust for him, and subject thereto to the use of the purchaser, his heirs, and assigns. (6) Another mode is, to convey or devise to the use of the grantee or- devisee and his assigns for life, without impeachment of waste, and imme- diately after the determination of that estate by any means (or by any means in his lifetime), to the use of a trustee and his heirs (or, more usually, his executors and administrators), during the natural life of the grantee or devisee, upon trust for him and his assigns ; and, after the determination of that estate, to the use of the grantee or devisee himself, in fee or in tail, or to the heirs or heirs of the body of the grantee or devisee. By this contrivance, the inheritance is "a remainder as much as in the mode suggested by Butler, so that no title to dower ever arises. These uses are termed uses to bar or prevent dower. This mode was suggested by Fearne.(c) r*14.91 *^^' ■^'lo^i'sr way of preventing the title to dower from ever L -1 arising is by a jointure. As it was held, before the Statute of Uses, that a woman was not dowable of a use, estates were frequently conveyed to uses in order to bar dower. (c?) When the Statute of Uses was passed, for the purpose of converting uses into legal estates, all women then married would have become dowable of such lands as had been held to the use of their husbands, and would also have been enti- tled to any lands that were settled on them in jointure. A clause was therefore inserted in the Statute of Uses, by which it was enacted that a certain provision made for the wife should operate as a bar of dower.(e) This statute has given rise to the modern jointure, which Lord Coke defines to be, " A competent livelihood of freehold for the wife, of lands or tenements, &c., to take effect presently in possession or profit after (a) 3 Co. Litt. 3V9, b, n. 1. (J) Co. Litt. 319, b, u. 1. (c) See Fearne, 347, and notes ; Co. Litt. 379, b, u. 1 ; 239, b, n. 3 ; 9 Jarm. & Byth. by Sweet, 74, u. {k) ; 156, n. (A) ; Smith's Executory Interests annexed to Fearne, g 258. (d) 1 Cruise T. 7, c. 1, ? 2. (e) Id. i 3, 4. USES TO PREVENT DOWER. 127 the decease of her husband, for the life of the wife at least, if she her- self he not the cause of its determination or forfeiture.'Y/) As this statute contradicts the common law, it has always been con- strued strictly; and no estate is a good jointure and a bar to dower at law under this act, unless it is attended with the following circum- stances :(5') — 1. It must commence and take effect, in possession or profit, immediately on the death of the husband ; for otherwise it is not so beneficial as dower.(A) 2. It must be for the wife's life, or for some greater estate, and not for the life or lives of another person or any number of other persons, or for any number of years, however many. But although the statute recites five kinds of estates which may be limited by way of jointure, yet these are only mentioned as examples, and do not exclude any other estate consistent with the intention of the *act.(i) 3. The estate must be limited to the wife herself, and r^i 4^0-1 not to any other person in trust for her.(7i;) 4. It must be made L J in satisfaction of the wife's whole dower. (?) 5. It must be expressed or averred to be in satisfaction of her whole dower, or (which amounts to the same thing) of her dower indefinitely, (m) 6. It must be made before marriage, (m) A jointure which has these requisites prevents the title to dower from ever arising, whether at law or in equity, even in the case of an infant. (0) A power to jointure a wife in proportion to the fortune she brings, does not arise if the fortune is settled to her separate use. But it is not necessary that the portion should be paid to the husband. It may be settled on him and the wife and family, (p) In execution of a power to jointure, it is necessary that the lands which are subject to the power should be conveyed to the wife herself, and not to trustees for her.(j) A general power to jointure to a particular amount does not autho- rise an appointment clear of natural outgoings, as parochial payments and repairs, &c.(r) And even where the jointure is to be of the clear yearly value of a certain sum, it only means clear of charges which are usually borne by the tenant, and not of those which are usually borne by the landlord.(s) And where land of a given value is to be set- tled, the jointure will only be free from such taxes as were in being at the time of executing the power, and from the amount of then existing taxes which *were then payable, and not from any future in- r:);-!^^-! crease of such taxes ; for otherwise, whenever any tax was in- •- -1 creased, the jointress would come into a Court of equity to make good (/) 1 Cruise T. 1, c. 1, ? 5. {g) Id. ? 6. (h) 2 Bl. Com. 138 ; 1 Cruise T. 7, 0. 1, § T. {i) 2 Bl. Com. 138 ; 1 Cruise T. T, c. 1, § 9, 35. (k) 2 Bl. Com. 138 ; 1 Cruise T. 7, u. 1, § 12. {l) 2 Bl. Com. 138 ; 1 Cruise T. 1, c. 1, § 1^- (m) See 2 Bl. Com. 138; 1 Cruise T. 1, c. 1, § 17, 18. (n) 2 Bl. Com. 138; 1 Cruise T. 7, c. 1, I 21. (0) 1 Cruise T. 7, c. 1, 1 22, 31. {p) 2 Sugd. Pow. 301. (?) 2 Sugd. Pow. 291. {r) 2 Sugd. Pow. 294. (s) 2 Sugd. Pow. 294—5. 128 SMITH ON REAL AND PERSONAL PROPERTY. against the remainderman the deficiency in the jointure thereby occa- sioned.(i) It has long become a general practice to limit a rent charge to the intended wife for her life as a jointure, to commence on the death of the husband, with powers of distress and entry, and a term for years for further securing the payment of it. This has been found by experience to be more convenient both to the widow and to the heir ; as a more cer- tain income is thereby provided for the former, and the latter continues in the possession and management of the whole estate, (m) A jointress is considered in equity as a purchaser for valuable consi- deration, even though she brought her husband no fortune, marriage alone being deemed a valuable consideration ; and therefore an agree- ment to settle a jointure will be decreed to be specifically performed. (a;) For the same reason a jointress will be relieved in equity, as also at law, against a prior voluntary conveyance. (y) And a Court of equity will also set aside a satisfied term for years in favour of a jointress, though it will not do so in favour of a dowress.(«) Where lands limited or agreed to be limited in jointure are either covenanted or even merely expressed to be of a certain annual value, and afterwards prove deficient, the jointress is entitled to have the defi- ciency made good out of other lands of the husband, and to come in as a specialty creditor upon the husband's estate for the arrears of the defi- ciency, with interest, (a) And the neglect of a married woman during r*iA^n coverture will not afiect her rights, and a *Court of equity will L J notwithstanding assist her in case her jointure proves defi- cient. (5) A jointress is not entitled to the crops sown at the time of her hus- band's death ; because jointure is not a continuance of the estate of her husband, like dower, (c) There is a proviso in the statute 27 Hen. 8, c. 10, s. 7, " That, if any woman be lawfully expulsed or evicted from her said jointure, or from any part thereof, without any fraud or covin, by lawful entry, or by discontinuance of her husband, then every such woman shall be en- dowed of as much of the residue of her husband's tenements or heredita- ments whereof she was before dowable, as the same lands and tenements so evicted and expulsed shall amount or extend uato."(c?) Where a jointure is settled before marriage pursuant to the statute, it so far resembles dower before the late Act, that it cannot be defeated by the alienation of the husband alone, or be charged with any incum- brances created by him after the marriage. fe) But if a wife joined with her husband in levying a fine, or suffering a common recovery of the lands settled on her as jointure, or out of which the jointure was to issue, she was thereby barred of such jointure, upon the same principle (t) 2 Sugd. Pow. 296. (u) 1 Cruise T. 1, c. 1, § 42. (x) 1 Cruise T. 7, c. 2, § 1. [y) 1 Cruise T. 1, c. 2, § 7. (z) 1 Cruise T. 7, c. 2, | 8. (a) 1 Cruise T. 7, c. 2 J 16—19. (S) 1 Cruise T. 1, c. 2, | 9. (c) Id. c. 1, § 40. (d) 2 Bl. Com. 138 : 1 Cruise T. 7, c. 1, 3 43. (e) 1 Cruise T. 7, c. 3, J 1. USES TO PREVENT DOWEE. 129 as that by which a fine or recovery would bar her of dower. (/) If the jointure whereof the wife levied a fine or sufiered a recovery were made before marriage, the wife was then barred not only of her jointure, but also of her claim to dower. But if the jointure were made after mar- riage, a fine or recovery by the husband and wife of such jointure would not bar the wife of her right to dower( g) A general devise of other lands or a bequest of personalty by a hus- band to his wife, will not operate as a bar to *jointure settled on f-71 °^ "^"'^ term.(^) And hence also, *a general gift of a term of L J years will pass all the estate and interest of the testator, with- out any additional words. (?) A lease that is to begin in futuro, as well as a common law lease in proesenti before entry, is called an interesse termini. (m) An interesse termini is assignable and releaseable, but cannot be surrendered, nor will it occasion a merger, (b) One species of estate for years is a tenancy from year to year, so long as both parties . please. This estate maybe either created by express words, or, as we shall see in the next chapter, by construction of law. A tenancy from year to year continues against a grantee of the rever- sion. (o) And it does not determine by the death of the tenant, but devolves to his executors or administrators.(j3) In the absence of any express agreement respecting the power of determining the tenancy by notice, a tenancy from year to year may be determined by either party at the expiration of any year of the tenancy, by giving, on one of the usual quarter days, half a year's notice, expiring on the quarter day on which the tenancy commenced. Thus a tenancy commencing at Lady- day, may be determined by a notice delivered on or before the preceding Michaelmas-day . (2) A lease for years cannot, by the agreement of the parties, be made to the heirs of the lessee, nor entailed on the heirs of his body ; and there- fore, if a lease be made to J. S. and his heirs, or to J. S. and the heirs male of his body, the executors of J. S., and not his heirs, or heirs male, shall have it, and may sell the term.^r) r*1'i8n *■'■" consequence of 11 Geo. 2, c. 19, s. 18, tenants giving L J written or verbal notice to quit, and afterwards holding over, shall pay double rent.(s) And by the stat. 4 G-eo. 2, c. 28, s. 1, where any tenant holds over after demand made and notice in writing given for delivering the possession, such person so holding over shall pay double the yearly value of the lands so detained, for so long time as the same are detained, to be recovered by action of debt, against the reco- vering of which penalty there shall be no relief in equity. (<) The demand may be made for that purpose even after the tenancy has ex- pired, if the landlord have done no act in the meantime to acknowledge the continuance of the tenancy ; and he will thereupon be entitled to double value as from the time of such demand, if the tenant holds over.(M) Where a demise is for some time, no notice to quit is neces- sary at or before the end of the term, to put an end to the tenancy. (k) 2 Bl. Com. 144. (I) 6 Cruise T. 38, c. 11, § 82. (m) 2 Pres. Shep. T. 242, 26'7. \n) Id. a. (2) (0) 1 Cruise T. 9, c. 1, § 22. (p) Id. I 24. (q\ 6 Jarm. & Byth. by Sweet, 566, u. (a). \t) 2 Pres. Shep. T. 2'n ; 1 Id. 86. (5) 1 Cruise T. 9, c. 2, 3 11, 12. (0 Id-S 5. («) Id. 2 10. OP ESTATES FOR TEAKS. 137 But a demand of possession and notice in writing, &c., are necessary to entitle the landlord to double value, (cc) Where leaseholds for years or for lives are settled upon several per- sons in succession, there, in the absence of any express direction, the rule is, to apportion the charges for the renewal thereof between the tenant for life and the remainderman, in proportion to the enjoyment they have of the renewed lease, (y) Tenants for years are exempted by the stat. 6 Ann, c. 31, s. 7, fro& all actions for damages on account of accidental fire ; but not where there is a covenant in a lease for years of a house to rebuild, without any exception. (z) Every tenant for years has incident to and inseparable *from ^^■. p-Q, his estate, unless restrained by special agreement, the same L estovers to which tenants for life are entitled.(a) Where the determination of an estate for years is certain, the tenant is not entitled to emblements ; because it was his own folly to sow when he knew he could not reap. But when the determination of an estate for years depended on an uncertain event, as where a tenant for life let the lands for years, or where a term of years was made determinable on the death of a particular person, there the tenant was, by the old law, entitled to emblements in the same manner as a tenant for life. (5) But by the stat. 14 & 15 Vict. c. 25, s. 1, (as we have already seen,)(c) the tenant, instead of having emblements, is to hold until the expiration of the current year. Long terms for years are often created for securing the repayment of money lent on mortgage, and for other purposes. Prior to the stat. 8 & 9 Vict. c. 112, such terms did not determine on the mere performance of the trusts for which they were created, unless there was a special pro- vision to that effect ; but the legal interest continued in the trustee, after they were performed; and at law the term continued to be a term in gross, as distinct and separate from the inheritance as it was at first. But in equity the term might become attendant on the inheritance by express declaration, as where the term was assigned to a trustee in trust to attend the inheritance, or in trust for the purchaser, his executors, administrators, and assigns. Again, a satisfied term might become attendant on the inheritance by mere implication ; for, as equity always considers who has the right to the land in conscience, if the term was not subject to any ulterior limitation to which the inheritance r^-ioA-i *was not subject, and the owner of the inheritance was entitled L J to the whole trust of the term, it was attendant on the inheritance by implication, unless such implication were rebutted; partly to protect the inheritance, and partly to keep real estates in the right channel, as otherwise the term, which is often the only valuable interest, would have gone to the executor or administrator, leaving the heir a mere nominal inheritance. And whether attendant by express declaration or by mere (x) 1 Cruise T. 9, c. 2, § 10. (y) 2 Spence's Eq. Jur. 545, 546. (z) 1 Cruise T. 8, c. 2, § 16, 11. (a) 1 Cruise T. 8, c. 2, ? 1 ; 2 BI. Com. 144. (J) 1 Cruise T. 8, c. 2, § 18; 2 BI. Com. 145. (c) Supra, p. 124-5. 138 SMITH ON REAL AND PERSONAL PROPERTY. implication, the term then followed the descent to the heir, and all the alienations made of the inheritance, or of any particular estate or interest carved out of it by deed, or by will, or by act of law, it was capable of being entailed and limited over after a general failure of issue, provided the inheritance was so entailed and limited over ; it was not forfeited for felony ; it was not devisable, before the late Wills Act, without the formalities requisite for devising real estate ; and, in short, it was governed in equity by the same rules generally as the inheritance. In consequence of satisfied terms being deemed terms in gross at law, but capable of being rendered completely subservient to the ownership of the inheritance in equity, they were often made of the greatest use in protecting the inheritance from mesne estates, charges, and incum- brances. Thus, if a bona fide purchaser for valuable consideration, mortgagee, lessee, or other incumbrancer, took a conveyance, lease, or assignment, defective by reason of some estate, charge, or incumbrance subsequent to the creation of a long satisfied term for years and prior to his own conveyance, lease, or assignment, and of which he had no notice at the time of his contract, he might effectually protect himself against all persons claiming under such estate, charge, or incumbrance, by taking an assignment of the satisfied term, whether in gross or r*1fin ''ttendant, to a *trustee for himself, or by taking an assignment L J thereof to himself, where he took the conveyance, lease, or assignment of the estate or interest to be protected in the name of a trustee ; for he might use the legal estate in such satisfied term to defend bis possession during the continuance of the term ; or, if he had lost the possession, to recover it.(e) A term for years will protect a purchaser for valuable consideration from the claim of dower, though such purchaser had notice of the mar- riage at the time of his purchase. (/) But if a term standing out in a trustee to attend the inheritance, will not protect a purchaser from the claim of dower, unless it is actually assigned to a trustee for him.(^) Where a term for yeai's is vested in a trustee upon an express trust, a purchaser will not protect himself by taking an assignment of such term after notice of the trust.(A) Where a term for years had been assigned to a trustee for a crown debtor, it would not protect a purchaser against the crown debts, although he purchased bona fide and without notice; but where the term has never been assigned to attend for the crown debtor, but has been assigned to a trustee for a bona fide purchaser, it will protect him against the crown debts. (i) The Court of Chancery will set aside a term for years in favour of a jointress. And a tenant by the curtesy is also entitled to the aid of equity against a trust term assigned to attend the inheritance and set up against him by the heir.(/i;) An attendant term might at any time be disannexed by the proper (c) Co. Litt. 290, b; Story's Bq. Jur. § 998—1002, and notes; Sugd. Concise Views, 4V7, 485, 486 ; 1 Cruise T. 12, >;. 3, g 6—10, 13, 16, 21, 28, 29, 31, 33, 34. (/) 1 Cruise T. 12, c. 3, I 38. (y) Id. ? 43. (A) Id ? 35. (i) Sugd. Concise View, 484. (k) 1 Cruise T. 12, c. 3, | 49. 01" ESTATES FOR YEARS. 139 acts of the parties in interest, and be turned into *a term in r^inon gross, when it failed of a freehold to support it, or was divided L J from the inheritance by being made the subject of different limitations from those of the latter.(n By the stat. 8 & 9 Vict. c. 112, s. 1, every satisfied term which was attendant on the 31st of December, 1845, was on that day to cease, except that if attendant by express declaration it shall afford the same protection as it would have afforded, if it had continued to subsist, but had not been assigned or dealt with after that day. And by s. 2, every term which, after the Slst of December, 1845, shall become satisfied and attendant, shall cease immediately upon the same becoming so attendant. The words are these : — "Every satisfied term of years, which, either by express declaration or by construction of law, shall upon the Slst day of December, 1845, be attendant upon the inheritance or reversion of any lands, shall on that day absolutely cease and determine as to the land upon the inheri- tance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years which shall be so attendant as aforesaid by express declaration, although hereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim, and demand as it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with, after the said Slst day of December, 1845, and shall, for the purpose of such protection, be considered in every court of law and of equity to be a subsisting term." (Sect. 1.) " Every term of years now subsisting or hereafter to be created, becoming satisfied after the said Slst day of December, 1845, and which, either by express declaration or by construction of law, shall after that day become attendant upon the inheritance or reversion of any lands, shall immediately *upon the same becoming so attendant abso- p*-if.q-i lutely cease and determine as to the land upon the inheritance or L J reversion whereof such term shall become attendant as aforesaid." (Sect. 2.) " In the construction and for the purposes of this act, unless there be something in the subject or context repugnant to such construction, the word ' lands' shall extend to all freehold tenements and hereditaments, whether corporeal or incorpereal, and to all such customary land as will pass by deed, or deed and admittance, and not by surrender, or any un- divided part or share thereof respectively ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male." (Sect. 3.) According to the true construction of this statute, a satisfied term was intended to protect the person for whose benefit it was assigned to attend the inheritance, for the statute does not mean that the term is to sub- sist to protect the party entitled to the inheritance, in whomsoever the (I) Story's Eq. Jur. 1002 ; 1 Cruise T. 12, c. 3, | 26- T. 140 SMITH ON REAL AND PERSONAL PROPERTY. right may be shown to be. So that the term cannot be set up by a person claiming adversely to the person for whose benefit the assignment was made.(m) The modern doctrine, contrary to former decisions, is, that down to the passing of the stat. 8 & 9 Vict. c. 112, the surrender of a term which had been assigned to attend the inheritance is not to be presumed from mere lapse of time.(9i) Where a term has been assigned to attend the inheritance, a surrender ought not to be presumed, unless there has been a dealing with the estate in a way in which reasonable men and men of business would not have dealt with it unless the term had been put an end to.(o) r*lfid.n *Terms for years in copyholds may be created by surrender; L J and these are true customary estates. But the practice is not usual, (p) II. Of an Estate at Will. An estate at will is an estate which simply confers a right to the pos- session of lands or tenements, for such indefinite period as both parties shall concur in choosing that it shall continue. An estate at will may be created by words expressive of an intention that the one party shall have the possession at the will of both or either of them. But although this estate may be created by words, which only express that the estate is to be at the will of one of the parties ; yet, every estate at will is in law at the will of both parties. And therefore, where a lease is made to hold at the will of the lessor, the law implies it to be at the will of the lessee also. And so, when the lease is made to hold at the will of the lessee, the law implies it to be also at the will of the lessor. (y) An estate at will may arise by implication, as well as by express words. Thus, if a tenant for years holds over his term, and continues to pay his rent as before, such payment and acceptance of rent creates an estate at will.(r) An estate at will is determined by the death of either party. (s) It may also be determined on the part of the lessor by an express declara- tion that the lessee shall hold no longer, which must either be made on the land, or else notice of it given to the lessee. (<) But any act of ownership exercised by the landlord which is inconsistent with the nature of this estate, will also operate as a determination of it. Thus, r*lfi'in '^ ^^ enters on the land and cuts down *trees demised, or makes L -la feofi'ment or a lease for years to commence immediately, the estate at will is thereby determined. On the other hand, any act of desertion, or any act inconsistent with this estate which is done by the tenant, will also operate as a determination thereof. Thus, if the (m) Doe d. Cadwalader t. Price, 16 M. & W. 603. (n) Doe d. Earl of Egremont v. Langdon, 12 A. & E. (N. S.) Vll. (o) Wilde, C. J., in Gerrard, dem.. Tuck, ten., 8 Mann. Gr. & Sc. 249. (p) Burton, § 1314. (?) See 1 Cruise T. 9, c. 1, § 5 ; Co. Litt. 55, a. ir) 1 Cruise T. 9, c. 1, g 3. (s) Id. 3 13, and c. 2, Z 1. (0 Id. J 11. OF AN INTEREST BY SUFPBK AN CE.. 141 tenant assigns over the land to another, or commits an act of waste, his estate is thereby determined. But a verbal declaration by the les- see that he will not hold the lands any longer, does not determine the estate, unless he also waives the possession. (m) Although either party may determine the tenancy at any time, yet neither party can, by determining the tenancy, unfairly prejudice the other in regard to the rent or emblements. So that, if the lessee deter- mines the tenancy before the day on which the rent is due, he must still pay the rent up to that day ; but where the lessor determines the tenancy at such a time, he loses the rent. On the other hand, if the lessor de- termines the tenancy before the corn or other produce is reaped or gathered in, the lessee shall still have the emblements, and free ingress, egress, and regress, to take them away; but where the lessee determines the tenancy at such a time, he loses the emblements. (a;) If either party dies before the rent is due, the estate at will, if it is in a house, shall continue until the next rent day ; and if it is in lands commencing at Michaelmas, it shall continue until the summer profits are received by the representatives of the tenant.(y) As the lessor may determine the tenancy at any time, a tenant at will has nothing that can be granted by him to a third person. And there- fore, if a tenant at will assigns over his estate to another, who enters on the land, he is a disseisor, (a) *It is no longer usual to create tenancies at will by express 1-^1/50-1 words ; and the Courts lean strongly against implying them, L J and incline rather to construe demises for uncertain terms or void leases, especially where an annual rent is reserved, as creating tenancies from year to year, (a) And even where a parol agreement is void under the Statute of Frauds, it is a tenancy from year to year; because, though the statute says it shall be only an estate at will, the meaning of the statute is, that such an agreement shall not operate as a term.fM III. Of an Interest hy Sufferance. An interest by sufferance is an interest which arises where a person comes into possession of land by lawful title otherwise than by act of law, but keeps it longer than he has any title to retain it. Thus, if a tenant pour autre vie continues in possession after the death of cestui que vie, or a tenant for years after his term is expired, or a lessee at will after the death of the lessor, without any fresh leave from the owner of the estate, the person so holding over is a tenant at sufferance. But no man can be tenant at sufferance of the king ; for his tenant hold- ing over shall be considered an absolute intruder.(c) Where a person comes to a particular estate by act in law, as if a (u) 1 Cruise T. 9, c. 1, ? 12. [x) 2 Bl. Com. 145-7 ; 1 Cruise T. 9, c. 1, § 8. 13; Co. Litt. 55, », 55, b. (y) 1 Cruise T. 9, c. 1, § 13. (z) 2 Bl. Com. 145 ; 1 Cruise T. 9, c. 1, ^ 6 ; Burton, I 19. (a) 2 Bl. Com. 147 ; 1 Cruise, T. 9, c. 1, I 1-21. (b) 1 Cruise T. 9, c. 1, I 20, 21. (c) 2 Bl. Com. 152; 1 Cruise T. 9, 0. 2, § 12; Co. Litt. 57, b, 570, b, n. 1. 142 SMITH ON KBAL AND PERSONAL PROPEETT. guardian after the full age of the heir continues in possession, he is not a tenant at sufferance. (cZ) IV. Of Chattel Interests created for special Purposes. There are some interests created for the purpose of raising money out of lands or tenements, which are considered as chattel interests. r*1 fivn *Thus, where a testator devises lands to his executors, " for L J payment of his debts and until his debts be paid," this gives them a chattel which has no relation to the life of the persons in whom it is vested, but is bounded by the period when the purpose for which it was created may happen to be accomplished; so that, if the debts be paid in the surviving executor's lifetime, it will cease; and on the other hand, if they be not paid in his lifetime, it will go to his executors, instead of ceasing upon his death. (c^(^) And where the owner of land grants a rent out of it to another, with a clause enabling him, when the rent shall be in arrear, to enter upon the land, and take the profits until the arrears be satisfied, if the grantee of the rent enters pursuant to that clause, he has a chattel interest, the duration of which is bounded by the accomplishment of the required pur- pose, namely, the raising the amount of such arrears. (e) Again, if a man devises lands to his wife till his son comes of age, to provide his children with necessaries, this is a chattel interest which does not determine in case of the death of the wife before the son comes of age, but goes to her executors. (/) Of a similar nature are estates by statute merchant, statute staple, and elegit, the duration of which is measured by the satisfaction of a debt. (^) These will be more particularly noticed in a subsequent part of this work. [*168] *TITLE VII. OP ESTATES OE INTERESTS IN SEVERALTY AND IN COMMUNITY. With reference to the several or joint character of the ownership, real property is held — I. In severalty. II. In community : i. e., 1. In joint tenancy, 2. By entireties, 3. In coparcenary, 4. In common. Things personal may belong to their owners not only in severalty, but {d) 1 Cruise T. 9, c. 2, J 2. {dd) See Burton, § 866 ; 1 Cruise T. 8, c. 1, J 5. (e) See Burton, I 867. (/) 6 Cruise T. 38, c. 13, 5 46. (g) Burton, I 868. OF THE GENERAL LAW AS TO JOINT TENANCY. 143 also in joint tenancy and in common. But chattels cannot be vested in coparcenary, because they do not descend from the ancestor to the heir. (a) ♦CHAPTER I. [*169] or AN ESTATE IN JOINT TENANCY AND OP A TENANCY BY ENTIRETIES. Section I. Of the General Law as to Joint Tenancy. An estate or interest in joint tenancy is a joint interest in a plurality of persons during their joint lives, with benefit of survivorship between or among them, created by a limitation of an estate of inheritance, or for life, or for years, or at will, or by a limitation of personal estate, to two or more persons as joint tenants or in joint tenancy, or to them with benefit of survivorship, or to them indefinitely, without any words importing a dis- tinctness, of interest in each. Thus, if a life estate is given to A., B., and C, indefinitely, and one dies, the whole belongs to the other two, for their lives, by survivorship ; and if a second dies, the whole belongs to the sole survivor, for his life. So, if an estate in fee is given to A. and B., each during their joint lives has a fee, but on the death of one of them the whole estate belongs to the survivor in fee.(aa) So when legacies are given " to a person and her children," without any words of severance, she having children at the date of the will, the legatees will take as joint tenants. (S) And under a limitation to the next of kin simpliciter, the father, mother, and children, if living, will all take as joint tenants.(c) *A11 natural persons may be joint tenants; but bodies politic r^-i^A-i or coporate cannot be joint tenants with each other. Nor can L J the king or any other corporation, whether sole or aggregate, be joint ten- ant with a natural person.(e) There are, however, some cases in which there may be a joint tenancy without an equal right of survivorship. Thus, if lands are let to A. and B. during the life of A., if B. dies, A. shall have all by survivorship; but if A. dies, B. shall have nothing.(/) If a gift be to two persons for their lives, this is understood as extend- ing to the life of the survivor, and the parties are joint tenants. ^^) Whenever lands are devised to two or more persons, with a benefit of survivorship among them, they will take as joint tenants, though there be other words in the will indicating an intention to create a tenancy in common. (A) And hence, under a devise to trustees in fee, for the use of (a) 2 Bl. Com. 399 ; Co. Litt. 182, a. 198, a. {aa) See 2 Bl. Com. 180 ; 2 Cruise T. 18, c. 1, § 2, and T. 38, c. 14, § 3 ; Litt. 211, 280. (b) 2 Rop. Leg. by White, 1360. (c) Withy v. Mangles, 4 Bear. 358. (e) 2 Cruise T. 18, c. 1, ? 38. (/) Id. | 32. Iff) Burton, § 736. (A) 6 Cruise T. 38, o. 14, § 3. 144 SMITH ON REAL AND PERSONAL PROPERTY. three children, the rents to be paid for their maintenance, " or to the survivor or survivors of them, share and share alike," they take equita- ble estates in fee as joint tenants, and not as tenants in common.(i) If a gift is made to two persons of the same sex, or two persons of different sexes who cannot lawfully intermarry, or two persons of one sex and a third of another sex, and to the heirs of their bodies, they have an estate in joint tenancy for their lives, and yet they have several in- heritances in tail. (A:) And so, where a testatrix devised to two women, M. and J., to hold to them, their heirs and assigns, for ever; but in case they should both die without issue, then she devised to two others, to hold to them, their heirs and assigns, for ever, as tenants in common; it P^, _, -. was held, that M. and J. did not take as tenants in common for life, L -I but as joint tenants for life, with several inheritances in tail; so that on the death of M. leaving issue, J. became entitled to the whole for life, and after the death of J. the heirs of the body of M. became entitled to it.(Z) Persons having a joint estate for life with several inheritances in tail cannot convey away the inheritance distinct from their ownership for life, because it is divided only in supposition and consideration of law.(m) Joint tenancy cannot arise by descent or act of law, but merely by purchase or acquisition by the act of the party. («) Limitations which confer an estate in joint tenancy at law, will have the same effect in equity, when there are no circumstances which afford grounds for a departure from the rule of law ; so that, where two or more persons purchase lands, and advance the money in equal shares, and take a conveyance to them and their heirs, this is a joint tenancy. But joint tenancy is not favoured in equity, because "equity delighteth in equality," and therefore leans against the right of survivorship, as giving the survivor a great advantage over the other party ; so that Courts of equity will lay hold of any circumstances which will enable them to vary in this respect from their practice of following the law. Thus, if two persons advance a sum of money by way of mortgage, and take a mortgage to them jointly, and one of them dies, his representatives will be entitled to his proportion as a trust. So, if two persons jointly purchase an estate, and pay unequal proportions of the purchase money, and take the conveyances in their joint names ; in case of the death of either of them, there will be no survivorship, but they will be deemed to be purchasers in the nature of partners, and to have intended to hold the r*(i79T estate in proportion to the sum which each advanced. (o) And L -I where real estate is purchased for partnership property and on partnership account, the legal estate, in whomsoever it may be vested, is in equity deemed to be partnership property, not subject to survivor- ship.(j)) [i) Moore ¥. Cleghorn, 10 B. 423. (k) 2 Cruise T. 18, c. 1, § 7—10 Co. Litt. 182, a.— 184, a. (l) Forrest v. Whiteway, 3 Exch. 367. (m) 2 Cruise T. 18, c. 1, § 10; 2 Pres. Shep. T. 243. (») 2 Bl. Com. 181. (o) Story's Eq. Jur. g 1206 ; Coote, Mortg. 163, ed. 3 ; 2 Cruise T. 18, c. 1, J 33 ; 2 Spence's Eq. Jur. 206, 207, n. (a), 214 ; 1 Sugd. Concise View, 553. {p) Story's Eq. Jur. § 1207 ; 2 Spence's Eq. Jur. 207 ; 2 Bl. Com. 399 ; Sugd. Concise Tiew. 553. OP THE GENERAL LAW AS TO JOINT TENANCY. 145 Joint tenants, as such, have one and the same interest. As joint tenants, one cannot have one quantity or portion of ownership or inte- rest, and another person a different quantity or portion of ownership or interest. Thus, one joint tenant, as such, cannot be tenant for life, and the other for years ; one cannot be tenant in fee, and the other tenant in tail. But one joint tenant, in addition to the portion of ownership or interest in respect of which he is denominated a joint tenant, may have an ulterior portion of ownership or interest, as tenant in severalty. Thus, if land is granted to A. and B. for their lives, and to the heirs of A., here A, and B. are joint tenants of the freehold during their respective lives, and A. has a remainder in fee in severalty. And if land is given to A. and B. and the heirs of the body of A., here both have a joint estate for life, and A. has a several remainder in tail.(2) Joint tenants have also unity of title : their estate must be created by one and the same act, whether legal or illegal ; as by one and the same grant, or by one and the same disseisin. But, although some of the persons to whom an estate is limited be in by the common law, and others by the Statute of Usesj yet they will take in joint tenancy. M At the common law, unity of time is necessary : the interests of the joint tenants must vest at one and the same *time. But in the r-i^-ino-i case of deeds under the Statute of Uses, and in the case of devises L J and bequests, this is not necessary, (s) Lastly, there must be unity of possession. Joint tenants are said to he seised per mie et per tout, by the half or moiety and by the whole. Each has an undivided moiety of the whole, and not the whole of an undivided moiety.(<) But although each joint tenant is said to be seised of the whole, yet he cannot alien or forfeit more than his own share ; and if all join in a conveyance, each gives but his own part. (a) If one joint tenant makes a charge as distinguished from an alienation, it is good as against himself; but if he dies in the lifetime of the other, it does not affect the survivor ; for jus accrescendi prsefertur oneribus.(x) So, if one joint tenant acknowledges a recognizance or a statute, or suffers a judgment in an action of debt, &c., and dies before execution had, it shall not be executed afterwards. But if execution be sued in the life of the conusor, it shall bind the survivor, (a) But if there are two joint tenants in fee or for life, and one of them makes a lease for years to a stranger, it will be good against the survivor, even though such lease does not commence till after the death of the joint tenant who made it, because it is a kind of alienation. fy) Estates which are held in joint tenancy are not subject to dower or curtesy. (a) (q) See 2 Bl. Com. 181 ; 2 Cruise T. 18, c. 1, § 4, 5, 6, 12, 13. [r) 2 Cruise T. 18, c. 1, J 23. («j See 2 Bl. Coni. 181 ; 2 Pres. Shep. T. 235 ; Co. Litt. 188, a, and n. 13; 2 Cruise T. 18, c. 1, § 18. {t} 2 Bl. Com. 182 ; Co. Litt. 186, a. (u) Burton, J 36 ; Co. Litt. 186, a. {x) 2 Cruise T. 18, c. 1, ? 53 ; Co. Litt. 184, b, 185, a. (y) 2 Cruise T. 18, c. 1, 1 57 ; Litt. J 289 ; Co. Litt. 186, a. (z) Co. Litt. 184, b. (a) 1 Cruise T. 18, c. 1, ? 52, and T. 5, c. 2, J 22. ANUARY, 1856. — 10 146 SMITH ON REAL AND PERSONAL PROPERTY. If the lessee of two joint tenants surrenders his lease to one of them, it shall enure to both, because of the privity or relation of their estate. (6) P^,„.-. One joint tenant cannot make a feoffment, as such, of his *part L -I of the land to his companion : because the latter is already seised per mie et per tout. But he may release to his companion ; and an in- tended deed of feoffment by one joint tenant to another would operate as a release. (c) And even joint tenants of a copyhold (having been admit- ted) may convey their shares to each other by release. (rf) For the same reason that a feoffment was not the proper mode of con- veyance by one joint tenant to another, an equivalent to livery, that is, a conveyance by lease and release, was not necessary. Yet, before the abolition of the lease for a year, conveyancers, from an abundance of caution, generally adopted the lease and release, fearing that the joint tenancy might have been previously severed ; in which case a mere release would not have been sufficient.(e) *Section II. Of the Destruction of Joint Tenancy. I. An estate in joint tenancy is destroyed by the destruction of the unity of title. Thus, 1. An estate in joint tenancy may be destroyed by the alienation of one joint tenant to a stranger, as it destroys the unity of title. (/) And where there are only two joint tenants, the joint tenancy is entirely de- stroyed. But where there are three or more joint tenants, it is only destroyed as to the share of the alienor. Thus, if one of three joint tenants conveys away his share, the two others will continue to be joint tenants among themselves; but they are tenants in common relatively to r^-irrr-, thc aUcnee, and he is simply a tenant *in common. (y) And if L -1 one of two joint tenants in fee leases for life, or if one of two joint tenants for years leases for years, the joint tenancy is thereby severed.(/i) So, in the case of a joint tenancy for a term for years, a mortgage is a seve- rance, (t) And an agreement to alien by an adult will operate as a severance in equity. (y) But articles of agreement by an infant, though made in con- sideration of marriage, will not operate as a severance of a joint tenancy. (A) And a devise can in no case operate as a severance of a joint tenancy j it being a maxim of law that jus accrescendi prajfertur ultimas voluntati.(i^) (b) 2 Bl. Com. 182. (c) 1 Pres. Shep. T. 205 ; 2 Id. 327 ; 2 Cruise T. 18, c. 2, ? 22 ; 4 Id. T. 32, c. 6, §23. (d) Burton, ^ 1303, n ; Co. Litt. 59, a, n. 2. . (e) 6 Jarm. & Byth. by Sweet, 588. (/) 2 Bl. Com. 185 ; 2 Cruise T. 18, c. 2, § 8. ] (g) See 2 Bl. Com. 186 ; Burton, ? 36-38. (A) 2 Cruise T. 18, u. 2, ? 11, 12. (i) Id. ? 13. (/) 2 Cruise T 18, >;. 2, J 20, 21 ; Sugd. Concise View, 147. (k) 2 Cruise T. 18, i;. 2, | 17. (l) 2 Cruise T. 18, c. 2 ; Burton, J 19 ; Co. Litt. 185, a, 185, b. OF THE DESTRUCTION OF JOINT TENANCY. I47 And as, until the late act, the law only considered what estate the devisor had at the time of making his will, without regard to any subsequent event, a devise by a joint tenant who afterwards severed the joint tenancy was void, because the devisor was joint tenant when he made his will.(m) But the surrender of one of the joint tenants to the use of his will ope- rated, as it still does, as a severance of the estate. («,) 2. An estate in joint tenancy may also be destroyed by the aliena- tion of one joint tenant to another, as that also destroys the unity of title.(o) If there are but two joint tenants, and one releases to the other, the joint tenancy is entirely destroyed. But if there are three joint ten- ants, and one of them releases by deed to one of his companions all the right which he hath in the land, the releasee has a third part of the land with himself and his companion in common, and he and his com- panion hold the remaining two parts in joint tenancy. If, however, one joint tenant releases to all the others, *they are in from the first 1-^-170-1 feoffor or grantor, and not from him who released, and they con- L J tinue to hold in joint tenancy. (^) II. An estate in joint tenancy is destroyed by the destruction of the unity of interest, which may be caused either by the act of the parties, or by the operation- of law.(2') Thus, if one of two or more tenants for life acquires, by purchase or descent, the reversion in fee, the joint tenancy is thereby severed. (?•) And if a lease is made to two men for their lives, and afterwards the lessor grants tjie reversion to them and the heirs of their two bodies, the joint tenancy is severed, and they are tenants in common in possession. (s) III. An estate in joint tenancy is destroyed by the destruction of the unity of possession. Thus, joint tenants may sever the joint tenancy by a voluntary partition among themselves. («) They may also obtain a partition of the estate by an application to the Court of Chancery. (a) At law, partition by joint tenants must at all times have been made by a deed, except where the estate was only for years, when they might make partition without deed.(a;) But by 7 & 8 Vict. c. 76, s. 3, and 8 & 9 Vict. c. 106, s. 3, a deed is necessary to the partition of leasehold as well as freehold hereditaments. A written agreement to make parti- tion operates, however, as a severance of a joint tenancy in equity, though the legal estate is still held in joint tenancy. (y) But an agreement by the husbands of two joint tenants to make partition, with a partition made under such an agreement, will not bind the inheritance of the wives, (z) (m) 6 Cruise T. 38, c. 3, ? 28. (n) 6 Cruise T. 38, u. 4, ? 3 ; 2 Co. Litt. 59, b. (0) 2 Cruise T. 18, c. 2, | 22. (p) 2 Cruise T. 18, c. 2, § 24; 2 Bl. Com. 186. (?) 2 Cruise T. 18, c. 2, g 2. (r) 2 Bl. Com. 185, 186 ; 2 Cruise T. 18, c. 2, ? 4, 6. (s) Co. Litt. 182, b. (t) 2 Cruise T. 18, 0. 2, § 29. (u) See Story's Eq. Jur. § 650-8. (x) 2 Cruise T. 18, c. 2, ^ 29 ; Co. Litt. 169, a, 187, a. Q/) 2 Cruise T. 18, c. 2, | 45-6. (2) Id. ^ 47. 148 SMITH ON REAL AND PERSONAL PROPERTY. rtt-i-rn-, *IV. The last mode by which an estate in joint tenancy may L -I be destroyed, is, by the devolving of all the shares on one of the joint tenants by survivorship, by which he acquirfes afl estate in seve- ralty, (a) Section III. Of a Tenancy hy Entireties. This is a tenancy which arises when a conveyance is made to husband and wife, in which case they do not take by moieties, but each has the entirety, and they are called tenants by entireties. If a conveyance is made to husband and wife and a third person, the latter has a moiety for his share, and the husband and wife take the other moiety between them. (J) But where a testatrix gave the residue of her real and personal estate equally between her brother, her sister, her nephew W. and E. his wife, and E. was neice of the testatrix, so that husband and wife were equally of kin to the testatrix, the husband and wife each took a share, and not merely one share between them.fc) No alienation of the husband will prejudice the wife, when they are tenants by entireties for life, in tail, or in fee.((?) [*178] *CHAPTER II. OF AN ESTATE IN COPARCENARY. An estate in coparcenary, by the common law, is an estate in fee or in tail, held by two or more females, to whom it has descended, as the next heirs of the person last entitled, or by the representatives of such females in an uninterrupted course of descent from them, whether such representatives are male or female, (a) Parceners always claim by descent ; and therefore, if two sisters pur- chase land, to hold to them and their heirs, they are not parceners, but joint tenants. And it follows that no estates can be held in coparcenary but estates of inheritance. f6) Parceners, though they have an unity, have not an entirety of inte- rest. They are properly entitled each to the whole of a distinct moiety, and therefore there is no jus accrescendi or right of survivorship between them ; for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the land continues in a course of descent, and united in possession, so long are the tenants (a) 2 Cruise T. 18, c. 2, I 49. (6) See Burton, § 757 ; Litt. § 291. (c) Warrington v. Warrington, 2 Hare, 54. (d) 1 Pres. Shep. T. 131. (a) See 2 Bl. Com. 187, 188 : 2 Cruise T. 19, 3 1 ; Litt. 3 241, 242. (b) 2 BI. Com. 188. OF AN ESTATE IN COPARCENARY. 149 thereof, whether male or female, called coparceners, or for brevity par- ceners, and make but one heir.(c) But, besides parceners by the common law, there are also parceners by particular custom, where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &o.[d\ ♦Curtesy and dower are incident to estates held in coparcen- ^^^ „„-. ary, as no survivorship takes place. But in such a case dower L J can only be assigned in common. fe) Coparceners may convey to each other either by release or feoflF- ment.(/) An estate in coparcenary may be dissolved : 1. By partition, which disunites the possession, converting the estate into two or more estates in severalty. 2. By alienation of one parcener, which disunites the title and may disunite the interest, changing the estate into a tenancy in com- mon. 3. By the whole at last descending to and vesting in one single person, which brings it to an estate in severalty.(^) There are four sorts of partitions by private agreement. The first is where coparceners mutually agree as to their respective shares.(A) If coparceners of full age and unmarried, and of sane memory, make such a partition of lands in fee simple, it is eifeotual for ever, though the values be unequal. But if it is of lands entailed, or if any of the par- ceners are of non-sane memory, it shall bind the parties themselves, but not their issues, unless it is equal. If any are covert, it shall bind the husbands, but not the wives or their heirs. If any are within age, it shall not bind the infants. (i) 2. The second mode of voluntary parti- tion is where coparceners agree to choose some friend to divide the lands, in which case the eldest daughter shall choose first, and the other daughters according to their seniority.(7(;) 3. The third mode of volun- tary partition is where the eldest makes the division of the lands, in which case she shall choose last; for to avoid partiality, cujus est divisio, alterius est *electio.(?) 4. The fourth mode of voluntary parti- i-^inr,-, tion is to have the lands divided, and then the sisters to draw ^ -I lots for their shares, (m) Coparceners may also obtain partition of the estate by an application to the Court of Chancery, (ra) In consequence of the Statute of Frauds, 29 Car. 2, c. 3, no legal par- tition eould be made between coparceners without deed. And by the Stat. 7 & 8 Vict. c. 76, s. 3, and 8 & 9 Vict. c. 106, s. 3, a deed is ne- cessary to the partition of freehold or leasehold hereditaments. But an (c) 2 Bl. Com. 187-8 ; 2 Cruise T. 19, ? 1, 6. (d) 2 Bl. Com. 187 ; 2 Cruise T. 19, § 2. (e) 2 Cruise T. 19, § 10. (/) 6 Jarm. & Byth. by Sweet, 589 ; 4 Cruise T. 32, c. 6, § 22, 24 ; 2 Pres. Shep. T. 326-7. {(/) 2 Bl. Com. 189, 191 ; 2 Cruise T. 19, § 11, 33. (A) 2 Cruise T. 19, § 12 ; Litt. § 243. (i) 2 Cruise T. 19, § 13 : Litt. 166, a. (k) 2 Cruise T. 19, | 14 ; Litt. § 244. (l) 2 Cruise T. 19, ^ 16 ; Co. Litt. 166, b. (m) 2 Cruise T. 19, ? 17 ; Litt. ? 246. (n) Co. Litt. 169, a, n. 1, VIL ; Story's Eq. Jur. | 646, et seq. 150 SMITH ON REAL AND PERSONAL PROPERTY. agreement in writing to make a partition will have the same effect in equity as an actual partition at law.(o) If two houses of unequal value descend to two coparceners, each upon a partition shall have a house ; the one having the house of the highest value paying to the other and her heirs yearly a certain sum sufficient to make the partition equal in value, which sum is called a rent for owelty or equality of partition. (jp) Partition may he made so that each one may have the property during one particular time of the year, and the other for some other time of the year, yearly ; or so that each may have it for a certain number of years alternately to them and their heirs ; or, so that each may have the pos- session of different parts of the property alternately to them and their heirs, (g') [*181] ■ *CHAPTBR III. OF AN ESTATE IN COMMON. An estate in common, or a tenancy in common, is a joint undivided ownership of the same subject of property by two or more persons, created either by such a destruction of an estate in joint tenancy or coparcenary as does not sever the unity of possession, or by a limitation to such per- sons in a deed or will, either expressly as tenants in common, or in terms which import a distinctness of interest in each. (a) Wherever real or personal estate is devised or bequeathed to two or more persons, and there are any words in the will indicating an intention that the devisees or legatees shall take several and distinct shares in it, they will be tenants in common.(5) As where so much of a sum of money or residue is given to A., and so much to B., or to them "in equal shares," or " share and share alike," or where a distinct " share" of either of the legatees is referred to, or where the legacy is given to two or more, " to be divided equally amongst them," or merely " to be divided amongst them, or to them jointly and equally," or " to and amongst them," or " to them respectively."(c) where words of severance have been accompanied with other expres- sions importing a benefit to surviving legatees, the modern rule seems to be, that, in the absence of any indication of a contrary intention, the survivorship will be confined to the period of division of the fund.(rf) r*189T *When distinct legacies are given to three or more persons as ■- -I tenants in common, with a bequest to the survivors upon the death of any of them within a given period, without any words referring to accrued legacies, then, upon the death of two or more legatees, their (o) 2 Cruise T. 19, § 19. (p) 2 Cruise T. 19, 8 31, 31. (q) 2 Cruise T. 19, | 18. (a) See 2 Bl. Com. 191-3 ; 2 Cruise T. 20, ? 3, 4, 5, 1. (b) 6 Cruise T. 38, c. 15, § 10 ; 2 Rop. Leg. by White, 1367. (c) 2 Rop. Leg. by White, 1367. {d) 2 Rop. Leg. by White, 1373. OPANBSTATE IN COMMON. 151 original legacies only will survive. But accrued legacies will also sur- vive where the legacies are not given separately and distinctly, but as an aggregate fund made divisible among a class of legatees, with benefit of survivorship among them.(e) A limitation in remainder to the right heirs of A. and B. will give to such heirs, if their parents die during the particular estate, an estate in common. But a limitation to the heirs of husband and wife will be con- sidered as a limitation to the heirs of both, according to that relation, that is, to the children of both.(/) Where an estate is limited to two or more persons, it is sometimes difficult to determine whether a joint tenancy or a tenancy in common is created. The law, indeed, leans in favour of a tenancy in common rather than a joint tenancy; but, in order to exclude all doubt, it is the most usual, as well as the safest way, when intending to create a tenancy in common, to negative a joint tenancy, as well as to express a tenancy in common; as, to A. and B., to hold as tenants in common and not as joint tenants. (gr) In this tenancy, the only unity which is essential is that of possession. There either may or may not be an unity of interest, title, and time. So that one tenant in common may hold his part in fee simple, and another in fee tail. One may take by descent from A. at one time, another by purchase from B. at a different time. (A) But, under the doctrine of uses or executory devises, persons taking at differeat times may take as joint tenants. When *a class of r^ioq-i persons, as children, are to take as tenants in common, one or L J more may take the entirety as they come in esse ; and when more are born, the estate will open and admit them to their shares. But if they are to take by way of remainder, they must be capable during the parti- cular estate. (i) Tenants in common have no entirety of interest, but take by distinct moieties, having distinct undivided freeholds in every part of the lands. Hence, 1. There is no survivorship between them. 2. Under the old law, one of them could not transfer any part to the other without livery of seisin, or what was equivalent to it.(^) So that they could not re- lease to each other the immediate freehold of lands without previously creating an estate capable of enlargement by release, as by a bargain and sale for a year.(?) But now, in consequence of the statutes 4 Vict. c. 21, s. 1, and 7 & 8 Vict. c. 76, s. 2, and 8 & 9 Viet. o. 106, s. 2, a re- lease is sufficient without any prior lease, and, indeed, the immediate freehold will pass by a mere grant. (to) Estates held in common are subject to dower and curtesy. (n) (el 2 Rop. Leg. by White, 1398. (/) 4 Cruise T. 32, c. 20, § 19. {g) 2 BI. Com. 193, 194. (A) 2 Bl. Com. 191, 192 ; 2 Cruise T. 20, § 2. \i) 2 Pres. Shep. T. 235. (k) 2 Bl. Com. 194 ; 6 Jarm. & Byth. by Sweet, 589 ; 2 Cruise T. 20, J 8 ; aad 4 Cruise T. 32, c. 6, 25. m 6 Jarm. & Byth. by Sweet, 589 ; 4 Cruise T. 32, c. 6, J 25. (m) See infra, pp. 578—580. (n) 2 Cruise T. 20, ? 21, 23. 152 SMITH ON KBAL AND PERSONAL PROPERTY. Estates in common can only be dissolved in two ways; 1. By uniting all the interests in one tenant by purchase or otherwise, which brings the whole to one estate in severalty. 2. By making partition among the several tenants in common, which gives them estates in severalty.(c>) In consequence of the Statute of Frauds, (29 Car. 2 c. 3,) no legal partition could be made between tenants in common without deed. And by the stat. 7 & 8 Vict. c. 76 s. 3, and 8 & 9 Vict. o. 106, s. 3, a deed r*1841 '^ necessary to the partition of *freehold or leasehold heredi- •- -■ taments. But an agreement in writing to make partition will have the same effect in equity as an actual partition at law.(p) A tenant in common can compel a partition by an application to the Court of Chancery.(2) Prior to the stat. 4 & 5 Vict. c. 35, the Court of Chandfery had no jurisdiction to make a partition of lands of copyhold or customary tenure. But by s. 85 of that statute, it is enacted that " it shall be lawful for any Court of Equity, in any suit to be thereafter instituted therein for the partition of lands of copyhold or customary tenure, to make the like decree for ascertaining the rights of the respective par- ties to the suit in such lands, and for the issue of a commission for the partition of the same lands, and the allotment in severalty of the respec- tive shares therein, as, according to the practice of such court, may now be made with respect to lands of freehold tenure." [*185] *TITLE VIII. OF LEGAL AND EQUITABLE INTERESTS. Interests may be, I. Merely Legal; II. Merely Equitable; III. Both Legal and Equitable. I. A merely legal interest is such an interest in or ownership of real or personal property, as is not of a beneficial, but simply of a possessory and.fiduciary character. II. A merely equitable interest is a beneficial interest in or a benefi- cial ownership of real or personal property, unattended with the pos- sessory and legal ownership thereof. III. An interest both legal and equitable is an interest in or owner- ship of real or personal property, which confers a right both to the possession and the beneficial enjoyment of such property, as well at law as in equity. The possession spoken of here and in many other places, may be either personal, or by substitute, as by one's termor for years, whose interest, though not connected in title with our own, is not inconsistent with it. Or it may be either actual, where the land is occupied by one's self (o) 2 Bl. Com. 194. (p) 2 Cruise T. 20, § 26 ; and see infra, p. 549. (?) See Story's Eq. Jur. J 650—657. OF LEGAL INTERESTS; AND HEREIN OF USES. 153 or one's bailiflF, or one's bailiff, or virtual, where it is occupied by one's tenant for years, or by a termor for years whose title is consistent with our own. Or it may be either executed, as where the land is occupied by one's self or one's bailiff, or executory, as in the case of a remainder- man or reversioner during the continuance of the parti'cular estate of freehold, or of the heir (before entry) of a person who died actually seised. (n) ♦CHAPTER I. [*186J OF LEGAL interests; AND HEREIN OP USES. Legal interests, which we have already defined, may be created in various ways, of which we propose to treat in the third part of this work. One of these ways is by limitation of uses. Originally, the terms use and trust were perfectly synonymous ; uses at common law being in most respects what trusts are now : and the terms use and trust are both employed in the Statute of Uses to denote the same thing. (aa) But, in consequence of that statute operating so as to execute or convert some uses into legal interests, but not others, an essential distinction now exists between uses and trusts. Those which the statute executes, and sometimes also some of those uses which it does not execute, and which are in reality trusts, are still called uses; while the term trusts is applied to those uses which the statute does not execute, and is never properly applied to those which the sta- tute does execute. A use executed by the statute is a legal estate or interest. A use before the Statute of Uses was, and a trust, as distin- guished from a use, now is an equitable estate or interest. These dis- tinctions will be more fully unfolded by the observations which follow in this and the next chapter. At the common law, the beneficial ownership, that is, the right to the rents and profits, and the disposition of the estate, were inseparably an- nexed to the possessory and legal seisin or ownership. (&) But the ecclesi- astics, borrowing the *idea of a use from the fidei commissum or |-j|.-„__ trust of the Civil Law, in order to evade the Statute of Mortmain, L J procured conveyances to be made to some lay person, with a secret agree- ment that they should hold the lands for use of ecclesiastics, and permit them to take the rents and profits, (c) And the clerical Chancellors of those days compelled the feoffees to uses to execute them ; John Wal- tham. Bishop of Salisbury and Chancellor to King Richard IL, having invented the writ of subpoena, returnable only into Chancery, for the purpose of compelling a discovery of such uses, where they were de- clared in a secret manner. (cZ) This gave the beneficial ownership a separate existence, apart from, and collateral to the possessory and legal (a) Smith's Executory Interests annexed to Fearne, | 49. ' (aa) 1 Cruise T. 12, c. 1, | 2 ; Co. Litt. 271, b, n. 1, II. (b) See 1 Cruise T. 11, p. 1, | 1. (c) 1 Cruise T. 11, c. 1, ^ 4, 5. (d) 1 Cruise T. 11, c. 1, § 12, 13. 154 SMITH ON REAL AND PEKSONAL PROPBETT. seisin or ownership. But it was only in a Court of equity that it was recognised as distinct from the possessory and legal ownership or sei- sin. (e) The use was still no right, title, or interest at law ; for the Courts of common law still regarded the feoffee to uses as clothed with the beneficial ownership, as well as with the possessory and legal seisin or ownership. (/) The invention of uses soon became productive of very great grievances. Feoffments to uses were usually made in a secret manner, so that where a person had cause to sue for land, he could not find out the legal tenant against whom he was to bring his prascipe. Husbands were deprived of their estates by the curtesy, and widows of their dower ; creditors were defrauded ; the king and the other feudal lords lost the profits of their tenure, their wardships, marriages, and reliefs ; and an universal obscu- rity and confusion of titles prevailed, by which means purchasers for valuable consideration were frequently defeated.(^) r*i ssn -^^ ^ remedy for these grievances, several statutes were *made, L J to subject uses to the same rules as legal estates. (^) But means having been found of evading these statutes,(i) it was enacted by the Stat. 27 Hen. 8, c. 10, called the Statute of Uses, " that where any person or persons stand or be seised, or at any time hereafter shall hap- pen to be seised, of and in any honours, castles, manors, lands, tene- ments, rents, services, reversions, remainders, or other hereditaments, to the use, confidence, or trust of any other person or persons, or of any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise, by any manner or means, whatever it be ; in every such case all and every such person and persons, and bodies politic, that have or hereafter shall have any such use, confidence, or trust, in fee simple, fee tail, for term of life or for years, or otherwise, or any use, confidence, or trust, in remainder or reversion, shall from henceforth stand and be seised, deemed and ad- judged in lawful seisin, estate, and possession of and in the same honours, castles, &c., to all intents, constructions, and purposes in the law, of and in such like estates as they had or shall have in use, trust, or confidence of or in the same ; and that the estate, title, right, and possession that was in such person or persons, that were or hereafter shall be seised of any lands, tenements, or hereditaments, to the use, confidence, or trust of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them that have or hereafter shall have such use, confidence, or trust, after such quality, manner, form, and condition, as they had before, in or to the use, confidence, or trust that was in them. And that where divers and many persons be or hereafter shall happen to be jointly seised of and in any lands, tenements, rents, reversions, remainders, or other r«18QT hereditaments, to the use, confidence, *or trust of any of them L J that be so jointly seised; in every such case, those person or (e) See 1 Cruise T. 11, o. 2, § 2. (/) See 1 Cruise T. 11, c. 2, § 1, 4, 5, 1. (ff) 1 Cruise T. 11, c. 2, ^ 40. (A) 1 Cruise T. 11, i;. 2, g 41 ; 2 Bl. Com. 332. (!) 1 Cruise T. 11, c. 3, § 1. OP LEGAL INTERESTS; AND HEREIN OF USES. 155 persons which have or hereafter shall have any such use, confidence, or trust in any such lands, &c., shall from henceforth have, and be deemed and adjudged to have, only to him or them that have or hereafter shall have any such use, confidence, or trust, such estate, possession, and seisin of and in the same lands, &c., in like nature, manner, form, condition, and course, as he or they had before in the use, confidence, or trust of the same lands, tenements, or hereditaments." It is evident, from the words of this statute, that the intention of the Legislature was entirely to abolish uses, by destroying the estate of the feoffees to uses, and transferring it from them to the cestui que use, in such a way as to change the use into a legal estate. And the statute has so far answered the intention of the makers of it that no use, upon which the statute operates, can exist in its former state for more than an instant ; as the legal seisin and possession of the land must become united to it, immediately upon its creation, so that, where this statute operated, lands conveyed to uses could never, in future, become liable to the charges or incumbrances of the feoffees, but, on the other hand, would be always subject to the charges and incumbrances of the cestui que use, and to all the rules of the common law. Thus they ceased to be devisable ; and by that means the great object of King Henry VIII. was attained, which was to preserve his right to wardship, and other feudal profits, out of the lands of the nobility. (^) In the case of an assurance operating by transmutation of the posses- sion, it is not necessary that the word use or trust should occur, in order to raise a use for the statute to execute. And hence, when a man made a feoffment sub conditione, ea intentione that his wife should have the lands for her life, remainder to his youngest son in fee, and r^iqrv-i *the feoffee died without making any estate, and the heir of the <- J feoffor entered, it was resolved that there was not a condition, but an use which was executed presently according to the intent. (Z) The operation of the Statute of Uses is to execute the use, that is, to convey the possessory and legal estate, seisin, or ownership from the person who is seised to the use, to the person in whose favour the use was created, who is called the cestui que use, and to transmute such use, whether such use is in praesenti, vested remainder, or reversion, and whether created by express words or by implication of law, into a pos- sessory and legal estate, seisin, or ownership, either with or without the equitable and beneficial ownership, as the case may be, by the mere force of the statute, without entry or claim or any other act of the par- ties. As already observed, the framers of the statute intended to abolish uses and trusts, as equitable and beneficial interests, separate from the possessory and legal estate, seisin, or ownership. It was intended to convert all uses of freehold hereditaments into estates, both legal and equitable, that is, into estates which confer a right both to the posses- sion and beneficial enjoyment, as well at law as in equity. But there are many uses (as we shall see in the next chapter) which the statute does (k) 1 Cruise T. 11, o. 3, g 3, 4. (l) 2 Pres. Shep. T. 514, 620, n. (24). 156 SMITH ON REAL AND PERSONAL PROPERTY. not execute at all; and which, therefore, remain as uses before the statute, or, in other words, as trusts, in the sense of merely equitable interests ; as where a use is engrafted on a use ; in which case the sta- tute only executes the first use, because there is no one seised by the effect of the conveyance itself, independently of the statute, to the use of the person to whom the second use is limited. And even as to those uses which the statute does execute, the intention of the framers of it is often only partially accomplished. For, where a further use in favour r*lQn '^^ some other person is engrafted on the use *executed, as where L -la conveyance is made to A. to the use of B., to the use of or in trust for C, as such further use or use upon a use is not executed by the statute, so neither is it at all affected by the statute, but it remains a trust which confers the equitable and beneficial interest or ownership on the person to whom such further use is limited, so as to leave the per- son to whom the first use is limited only a possessory and legal estate, seisin, or ownership, instead of the legal and equitable interest con- joined and consolidated together, as intended by the framers of the act. (to) The statute executes uses which, in their origin, are contingent or future, whether limited by way of remainder or executory limitation ; but it does not execute contingent uses, until they cease to be contin- gent, or even future uses which are not contingent, unless limited by way of remainder, until they cease to be future ;f?i) for, until they so cease to be contingent or future, the words of the statute, " seisin, estate, and possession," have no proper application to them ; the seisin, estate, and possession of the person seised to such uses cannot be annexed to such uses, since until that time they are necessarily collateral to the legal seisin, estate, and possession. (o) No person can convey a use in land of which he is not seised in pos- session, remainder, or reversion, when the conveyance is made.(p) And the seisin, which is to serve the use, or, in other words, the estate out of which the use is to arise, should be at least coextensive with the use. |-^.Q„_ If the use is greater in quantity than the estate out of which it L J *is limited, it will cease upon the determination of that estate, but will be good in the meantime. So that, if lands are given to A. for his life, to the use of B. for his life, if A. die, B.'s estate is deter- mined. So, if a conveyance is made to A., omitting " and his heirs," to the use of B., his heirs and assigns, B.'s estate ceases on the death of A.{q) A use cannot arise on a release by way of extinguishment of right, for there is not any seisin or estate ; nor on a surrender of an estate of freehold, for the estate is extinct by the operation of the surrender. (y) (m) Compare 2 Bl. Com. 333 ; 1 Cruise T. 11, c. 3, § 4, 33, 34, 35 ; 2 Pres. Shep. T. 605, 517 ; Co. Litt. 271, b, n. 1, IIL, IV. And see infra, p. 198. (n) 2 Pres. Shep. T. 505 ; 1 Cruise T. 11, c. 3, § 33 ; Sugd. Introduction to Powers, p. XV. ; but see Preston's remarks in 2 Pres. Shep. T. 505, 517. (o) See Smith's Executory Interests annexed to Fearne, § 47, 48, 52 — 55. Ip) 1 Cruise T. 11, <^. 3, J 20. (q) 1 Cruise T. 11, c. 3, § 19 ; 3 Jarm. & Byth. by Sweet, 219 ; 2 Pres. Shep. T. 524. (r) 2 Pres. Shep. T. 507. OE LEGAL INTERESTS; AND HEREIN OE USES. 157 A bargain and sale, under a common law authority, or under an Act of Parliament, raises a seisin, on which uses may be limited which the statute will execute ; and therfore the property may be conveyed to the ordinary limitations to prevent dower, including the power of appointment. But a statutory bargain and sale, or a covenant to stand seised, does not raise a seisin, but only transfers a use. And although the statute executes, the use limited to the bargainee or covenantee, so that he becomes seised, yet, if a use were limited to arise out of the seisin by the bargain and sale or, covenant to stand seised, it would be a use upon a use, and consequently a mere trust. (s") All natural persons, except aliens, having a legal estateof freehold, may be seised to a use.(i!) ,But although mention is made in the statute of persons being seised to the use &c. of bodies politic, nothing is said of bodies politic being, seised to the use of others; and therefore, if lands are given to a corporation; for any use or upon any trust, the statute does not operate upon it.hA All natural persons and corporations who are capable of t-j^iqo-i *taking lands by any common : law conveyance, may have a use L J limited to them.(x) The cestui que use must in general be a different person from him who is seised to a use ; for the words of the statute are, "where any person or persons stand or be seised, &c. to the use, confidence, or trust of any other person or persons" &c.(y) And Lord Bacon says, "That, where the party seised, to the use and the cestui que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use to take effect by the common law."(z) Thus, if A. be . enfeoffed to the use of himself and B., by a literal construction of, the statute, B. would take his share of the estate by Act of Parliament, leaving A. to take his immediately by the feoffment; but then they would, contrary to the intention, be tenants in common instead of joint tenants, because identity of title is essential to joint tenancy; and therefore it has been decided, that they are both in by the statute. (a) Not only corporeal hereditaments, but also incorporeal ones, such as advowsons, tithes, rents, &c., are within this statute. (6) But there cannot be a use of a thing which is not in esse, as a way, common, &c., which are newly created, (c) Although the Statute of Wills, 32 Hen. 8, c. 1, was subsequent to the Statute of Uses, yet the Statute of Uses, being a remedial law, will execute uses limited by will.(c?) But where land is devised to uses, (s) 3 Jarm. & Byth. by Sweet, 238 ; 9 Id. 425-6 ; 1 Pres. Shep. T. 227 : i Cruise T. 32, c. 10, § 34. (t) 1 Cruise T. 11, c. 3, ^ 19 ; 2 Pres. Shep. T. 509. [u) Burton, | 130 ; 1 Cruise T. 11, c. 3, § 10. (2:) 1 Cruise T. 11, u. 3, § 24. (y) 1 Cruise T. 12, c. 3, | 26 ; Co. Litt. 271 , b, n. 1, TI. (z) 1 Cruise T. 11, c. 3, | 26 ; Burton, § 157. (a) Burton, J 159. (b) 1 Cruise T. 11, 0. 3, ? 20. (c) 4 Cruise T. 32, c. 9, | 16, 17 ; 1 Pres. Shep. T. 222, n. (5). (d) 2 Pres. Shep. T. 508 ; Burton, § 281 ; 1 Cruise T. 12, c. 1, § 24 ; 3 Jarm. & Byth. by Sweet 224; 1 Sugd. Pow. 171, 172. But see Co. Litt. 271, b, n. 1, vm. 1. . > J 158 SMITH ON REAL AND PERSONAL PROPERTY. and the Statute of Uses cannot operate for want of a seisin to serve the uses, the devise (in some cases, at least) may yet take effect under the r*1Q4.n S'^*'^*'^ °^ Wills. Thus, an immediate devise to uses 'without L J a seisin to serve them, is good under the Statute of Wills, though it would be void if it depended on the Statute of Uses ; as where a devise is made, not to a devisee to the use of A. for life, but imme- diately to the use of A. for life, with remainders over.(e) If a person conveys his lands in fee, without any consideration or declaration of the uses, or evidence of intent as to the uses of such con- veyance, the uses result back to himself, and the statute immediately transfers the" legal estate to such resulting use. And the same doctrine applies to any portion of the use which is not disposed of.(y) The doctrine of resulting uses only extends to those cases where an estate in fee simple passes; for, if a person conveys an estate to another in tail, without any rent reserved or any consideration whatever, whether good or valuable, real or nominal, and without any declaration of uses, no use will result to the donor, and consequently the donee will hold to his own use ; because, by a gift of this kind, there is a tenure created between the donor and the donee in tail, which amounts to a considera- tion, and prevents the use from resulting. ((/) And for the same reason, if a person leases lands to another for life or for years, no use will result to the lessor. So, if a lessee for life or years grants over his estate without any declaration of use, the grantee will have it to his own use. (A) In the case of a conveyance of an estate for life or years without consi- deration, although a use be declared of part of the estate to the grantee, yet there will be no resulting use to the grantor, (i) ..QP *As a general rule, the use will result according to the estate L J which the parties have in the land; so that, if they were joint tenants, the use will result to them in joint tenancy. (A) Where, how- ever, a tenant in tail suffers a recovery, if a use results to him, it is a resulting use in fee simple ; because it cannot be supposed that he would go to the expense of suffering a recovery, if he were only to take back the same estate which he had before. f?) As a devise imports a bounty, it follows, that it must be to the use of the devisee, if not otherwise declared, and that no use can in any case result to the heirs of the devisor, unless it appears by the will itself that the devise was not made to the use of the devisee. But if a person is merely named as a devisee to uses, and the use fails, there will be a re- sulting use to the heir of the devisor.(m) Where a use is expressly limited to the owner of the estate, he will not be allowed to take any resulting or implied use inconsistent with the (e) 3 Jarm. & Byth. by Sweet, 224-5 ; Co. Litt. 271, b, u. 1, VIII. 1. (/) 1 Cruise T. 11, u. 4, § 19, 20, 40; 9 Jarm. & Byth. by Sweet, 83 ; 2 Pres. Shep. T. 501, 522. iff) 1 Cruise T. 11, c. 4, § 50 ; 2 Pres. Shep. T. 513, 522. (A) 1 Cruise T. 11, i;. 4, § 51 ; 2 Pres. Shep. T. 513, 522, 525. (i) 1 Cruise T. 11, c. 4, § 52. (k) 1 Cruise T. 11, c. 4, § 30 ; 2 Pres, Shep. T. 513, 522. (Z) 1 Cruise T. 11, c. 4, § 58; 2 Pres. Shep. T. 522. (m) 1 Cruise T. 11, c. 4, J 54. OF BXPEESS PRIVATE TEUSTS. 159 use limited to him, unless the use limited is void or ineapahle of taking effect, as where it is too remote or uncertain. (n) *CHAPTEE II. [*196] OF EQUITABLE INTERESTS OE TEUSTS. Section I. Of Trusts, Generally. An equitable estate is a right in equity to take the rents and profits of lands, whereof the legal estate is vested in some other person, and to compel the person thus seised of the legal estate, who is called the trustee, to execute such conveyances of the land as the person entitled to the profits, who is called the cestui que trust, shall direct, and to defend the title of the land. (a) But (as we shall see in the course of the following pages) there are other equitable interests or trusts, which, although of a different character, all come within the definition of an equitable interest in a preceding page, as being a beneficial interest in, or a beneficial ownership of, real or personal property, unattended with the possessory d legal ownership thereof. The word trust is sometimes used to denote the confidence reposed in the person who is the trustee; and, at other times, to denote the equita- ble interest or the right in equity of the person for whose benefit that confidence is reposed. And the term trust estate is sometimes used to import an estate held in trust ; and, at other times, the beneficial interest in an estate so held in trust. Trusts, in the sense of equitable interests, may be divided into three *kinds : express trusts, implied trusts, and constructive trusts ; ^ , q„-, though the last two are frequently confounded, or, at least, L J classed together, and sometimes designated by the name of implied trusts, and sometimes by the name of constructive trusts. (6) Section II. 0/ Express Private Trusts. An express trust is a trust which is clearly expressed by the author thereof, or may fairly be collected from a written document.(c) Express trusts are either executed or executory. A trust executed is a trust which is formally and finally declared by the instrument creating (n) 1 Cruise T. 11, c. 4, § 45 ; 2 Pres. Shep. T. 522. (a) 2 Bl. Com. 328 ; 2 Cruise T. 11, c. 2, g 6 ; and T. 12, c. 1, ? 3 ; 2 Pres. Shep. T. 501, 602. (J) Smith's Manual of Equity, 99, ed. 4. (c) Id. 100. 160 SMITH ON REAL AND PERSONAL PROPERTY. it. A trust executory is a trust raised either by a stipulation or by a direction, in express terms or by necessary implication, to make a settle- ment or assurance to uses or upon trusts which are indicated in, but do not appear to be formally and finally declared by the instrument con- taining such stipulation or direction. (d!) Although an executory trust is necessarily directory, yet a trust may be directory and at the same time executed, where it is finally declared in the instrument creating it. Where uses are expressly and clearly limited, which the Statute of Uses will not execute, that is, convert into legal estates, trusts are thereby created ; for, modern uses, unexecuted by the statute, are trusts, just as all uses were trusts before the statute was made.(e) And 1. As the words of the statute are, " where any person or persons r*iQ8T *sball be seised to the use, confidence, or trust of any other L J person or persons," &o., and not where a use shall be limited to any person, to the use of or in trust for any other person, where uses are engrafted on uses, the statute only executes the first use. Hence, where an estate is limited by a conveyance operating by transmutation of the possession, or, rather, of the seisin, to A. and his heirs, to the use of B. and his heirs, to the use of or in trust for C. and his heirs, the statute executes the use to B. and his heirs, but the use to C. and his heirs is not executed by the statute, but is a trust.(y") So, a convey- ance or devise to A., to the use of A., in trust for B., or unto and to the use of A., in trust for B., gives A. the legal estate, and B. an equitable estate only.(^) And where lands are conveyed by covenant to stand seised, or by a bargain and sale operating under the Statute of Uses, as distinguished from a bargain and sale under a common law authority or an authority given by Act of Parliament, or by an appointment under a power, to A. and his heirs, to the use of B. and his heirs, the legal estate vests in A. and B., only takes a trust ; because these conveyances do not operate by directly transferring the possession, or rather the seisin, to the covenantee, bargainee, or appointee, bnt only raise a use in hig favour, which the statute executes ; and therefore any use declared upon such a conveyance is a use upon a use, which the statute does not exe- cute. (A) 2. Where an estate is devised to one for the benefit of another, the courts will execute the use in the first or second devisee, as may appear best to efli'ectuate the intention of the testator, (i) The statute does not execute uses or trusts, *where the consequence would be, that [*199] the legal estate would be taken from a trustee, and yet it is re- (d) Smith's Executory Interests annexed to Fearne, 3 489 : 2 Spence's Eq. Jur. 128, 129, 131, 132, 133. (e) 1 Cruise T. 12, c. 1, § 2 ; 2 Pres. Shep. T. 502. (/) See 2 Bl. Com. 335-6 ; 1 Cruise T. 12, c. 1, ? 4, 10; 1 Speuce's Eq. Jur. 490; 3 Jarm. & Byth. by Sweet, 219, 220. (g) 3 Jarm. & Byth. by Sweet, 224. (A) See 1 Cruise T. 12, c. 1, | 9 ; 4 Cruise T. 32, c. 10, J 34, and c. 9, § 2, 3 ; 1 Pres. Shep. T. 22T ; 2 Pres. Shep. T. 507, 509 ; 3 Jarm. & Byth. by Sweet, 222, 238. (i) 1 Cruise T. 12, c. 1, g 24 ; 3 Jarm. & Byth by Sweet, 225 ; Co. Litt. 271, b, n. 1, VIII. 1. OP EXPRESS PEIVATE TRUSTS. 161 quisite that he should continue to hold the estate, in order to perform the trusts.(A And hence, where a devise is made to a person in trust to pay over the rents and profits to another, the former takes the legal estate. But where a devise is made to a person in trust to permit another to receive the rents and profits, the latter takes the legal estate ;{»») unless it is on some other account necessary that the former should have the legal estate, in order to do any legal act which he is required to do.(m) And where an estate is devised to trustees for the separate use of a woman, the courts, the better to efiectuate the testator's intentions, will, if possible, construe the devise so as to vest the legal estate in the, trus- tees, (o) Where lands are devised to trustees, in trust to sell or mort- gage them, in order to raise money for payment of debts, and, subject thereto, in trust for a third person, the trustees will take the legal estate ; for otherwise it would not be in their power to execute the trust. But where lands are devised to trustees, charged with the payment of debts, upon trust for a third person, the trustees will not take the legal estate. (p) 3. Nor does the statute extend to uses or trusts of chattels real or personal ; for, the words of the statute are " when any person is seised to the use," &c., and the word " seised" is inapplicable to personal estate. (2) But we must distinguish between a use of a term for years, and a use of land for a term of years created de novo. The use of a term is not executed by the statute, because no one can be seised of a term. But the use of land for a term created for the *first time i-^nAA-, by the instrument limiting such use, will be executed by the ■- -■ statute ; because a person may be seised of the land, and it matters not whether he is so seised to the use of another for a term or in fee. So that, if a term of years is assigned to A. to the use of B., he takes only a trust. But if a person, being seised in fee, makes a feoffment to A. to the use of B. and his heirs and assigns for a term of years, the statute executes this use in B., and he takes the legal estate in such term.(?-) 4. Copyhold estates are not within the Statute of Uses j because a transmutation of possession by the sole operation of the statute, without the concurrence or permission of the lord, would be an infringement of his rights, and would tend to his prejudice. (s) No particular form of expression is necessary to the creation of a trust.(«) And a trust may be created although there may be an absence of any expressions in terms importing confidence, (it) (I) 1 Spence's Eq. Jur. 466 : 2 Story's Eq. Jur. 3 970 : Co. Litt. 290, b, n. 1, Tin. (m) 1 Cruise T. 12, c. 1, ? 13 ! Oo. Litt. 290, b, n. 1, Till. (n) 1 Cruise T. 12, c. 1, | 24. (0) 1 Cruise T. 12, c. 1, ? 15. (p) 1 Cruise T. 12, c. 1, ^ 20, 31. (?) 2 Bl. Com. 336; 1 Spence's Eq. Jur. 466 ; 2 Story's Eq. Jur. § 970 ; 1 Cruise T. 12, c. 1, § 34 ; 2 Pres. Shep. T. 527. (r) 2 Pres. Sliep. T. 506-7 ; 3 Jarm. & Byth. by Sweet, 236 ; Co. Litt. 271, b, u. 1, Tin. 3. (s) 1 Cruise T. 11, c. 3, § 22 ; 1 Cruise T. 12, c. 1, | 66 ; 1 Spence's Eq. Jur. 466 ; 2 Pres. Shep. T. 505, n. (7), 507, 527 ; Co.'Litt. 271, b, n. 1, Vllt. 2. (i) 1 Spence's Eq. Jur. 498 ; 2 Spence's Eq. Jur. 20. («) Page V. Cox, 10 Hare, 169. January, 1856. — 11 162 SMITH ON REAL AND PERSONAL PROPERTY. There are many oases arising under wills, in which it is very difficult to determine whether or not a trust was intended to be created. It may, however, be laid down as a general rule, that expressions of recommenda- tion, confidence, hope, wish, and desire, are considered to create trusts, if the object and the property which is to form the subject of the sup- posed trusts are certain and definite, and if, regard being had to the whole context and circumstances of the will, the subject-matter, the previous conduct of the testator, the situation of the parties, and the probable intent, the expressions appear to have been intended to be imperative ; and expressions showing a desire that an object should be r*9nn *aocomplished, will be deemed imperative, unless there are plain L J express words or there is a necessary implication that the testator did not mean to exclude a discretion to accomplish the object or not, as the party may think fit. But if either the object or the subject is not definite ; or if a discretion and a choice to act or not is given ; or if the prior disposition of the property imports an absolute ownership, as where it is given without any fetter in a former part of the will ; or if the motive assigned is beneficial to the donee ; or if the words which con- template a benefit to a third person appear to be expressive of the motive by which the testator was actuated, rather than of a trust in favour of such person, as where a legacy is given to A., the better to enable him to maintain his children ; no valid trust will be created by words of this character. (cc) And any words by which it is expressed, or from which it may be implied, that the first taker may apply any part of the subject to his own use, are held to prevent the subject of the gift from being considered certain; and a vague description of the object, that is, a description by which the giver neither clearly defines the object himself, nor names a distinct class out of which the first taker is to select, or which leaves it doubtful what interest the object or class of objects is to take, will prevent the object from being certain within the meaning of the rule.(?/) But where in terms or in efieot a gift is made to a parent for or towards the support of himself and children, the mere fact that the parent may apply part of the property for his own support, does not render the subject uncertain, so as to prevent the disposition from being construed to create a trust in favour of his children : it is only an uncer- r«9n91 **''^*'y which the court can remove by ascertaining, *if necessary, L J what should be devoted to the children. («) Again, the family of A. will often be a sufficient designation of the objects j for the con- text may render it definite, and show that it means the heir at law of A., or, in other cases, the children of A., or, in others, the brothers and sisters or next of kin of A., according to the Statutes of Distribution. Generally speaking, neither the husband nor the wife will be considered as included under the word " family." Although the term " relations" (a;) Story's Eq. Jur. § 1069, 1070, and notes ; 2 Spence's Eq. Jur. 64-71 ; Briggs T. Penny, 3 Mac. & G. 546; 2 Rop. Leg. by White, 1417, 1446; Thorp v. Owen, 2 Hare, 607 ; 6 Cruise T. 38, c. 10, § 7, et seq. (y) Story's Eq. Jur. § 1070, note; 2 Spence's Eq. Jur. 69, 72, 78; Green T. Marsden, 1 Drewry, 646. (z) 2 Spence's Eq. Jur. 463-465. OF EXPRESS PRIVATE TRUSTS. 163 is still more indefinite, the court has executed a trust in favour of relations, by giving the property, when personal, to the next of kin according to the Statutes of Distribution, but per capita.(a) But where a testator devised his leasehold estates to his brother A. for ever, " hoping he would continue them in the family," this did not create a trust ; for the words gave a choice, and the object was not definite.(&) And where a testator bequeathed to his wife all the residue of his personal estate, " not doubt- ing but that she will dispose of what shall be left at her death to his two grandchildren ;" these words did not create a trust, because the property would be uncertain ; for it might be just what she chose to leave.(c) But it sometimes happens, that, although no valid trust is created, yet it is clear that a trust was intended ; and in such instances the party to whom the gift is made is as completely excluded from taking beneficially as if a valid trust were created. This is the case where the words are directly or indirectly imperative, but the objects are too indefinite, or are not pointed out at all, or not in such a way that the court can take judicial notice of them.(i^) Trusts in real property, which are exclusively cognizable r;(;t)nq-i *in equity, are generally governed by the same rules as legal L -* estates, (e) But, 1. The construction put upon trusts executory, in some cases, differs from that which prevails in regard to legal estates and trusts executed. The limitations by which equitable estates and interests are created by way of trust executed, are construed in the same manner as similar limi- tations of legal estates and interests would be construed in a court of law j so that, for example, what would create an estate tail in the one case, will create an estate of the same kind in the other case. But such a constructive assimilation does not always take place in regard to equitable estates and interests created by way of trust executory. For, in the cases of trusts executory, there is often no substantial analogy forming a ground for such assimilation ; because the words are not so much actual limitations, such as those by which legal estates and interests are created, as instructions or intimations as to the mode in which the author of the trust wishes the property to be settled by some future conveyance, set- tlement, or assurance referred to in the instrument creating the trust ; and therefore to be construed according to the intent of the party, as presumable from the nature of the case, or from the other parts of the instrument, rather than according to what would be the strict operation of the words, supposing them to be actual limitations contained in a for- mal and final instrument.r/") In the case of trusts executed, then, a court of equity puts the same (a) Story's Eq. Jur. g 1071 ; 2 Speaoe'a Eq. Jur. 73-76. (6) Story's Eq. Jur. I 1072 ; 2 Spence's Eq. Jur. 75. (c) Story's Eq. Jur. | 1073. (d) Story's Eq. Jur. § 979, a, b ; Briggs v. Penny, 3 Mac. & G. 546 ; 2 Eop. Leg. by White, 1438. (e) 1 Spence's Eq. Jur. 492, 499, BOO, 502, 875, 876, 878 ; 2 Pres. Shep. T. 507, n. (8) ; Co. Litt. 290, b, n. 1, XVI. (/) As to these trusts, see Smith's Executory Interests, annexed to Fearne, J 489-502, and J 601-637. 164 SMITH ON REAL AND PERSONAL PROPERTY. constiuction on technical words as that which is put by a court of law on limitations of legal estates. But in the case of trusts executory, equity considers the apparent intent to be collected from the whole instrument, or, where the language is doubtful, the presumable intent, rather than r*2n41 *^^^ strict import of technical words.(^) Thus, where the legal L -I estate is limited to one for life, remainder to the heirs male of his body, he takes an estate tail male under the rule in Shelley's case. And where in a will or voluntary/ deed there is a mere direction to settle an estate on one for life, to be followed by a remainder to the heirs of his body, as there is nothing of an inchoate or executory nature in the in- strument itself, and the words are formal and explicit, and there is nothing in the instrument to show or afford a presumption that the words were not intended to be used in their technical sense, the mere reference to a further instrument does not render the trust executory ; and there- fore the limitations, as regards the rule in Shelley's case, receive the same construction as similar words used in limiting legal estates. But if articles express that an estate is to be settled on the husband for life, with remainder to the heirs of his body, then the inchoate nature of the instrument, combined with the allusion to a further instrument, renders the trust executory. And as the issue in this case are purchasers for valuable consideration, so equity will construe the articles as giving an estate for life only to the husband, with a remainder in tail to the children. (A) 2. Before the late Act of Dower, courts of equity held that equitable estates were not subject to dower ; because, before the question was tried, it was the general opinion, that, by the creation of a trust estate, dower was prevented from attaching ; and it is a maxim, that communis error faoitjus; and to have held that trust estates were subject to dower, would have affected a large proportion of the estates in the kingdom. (i) 3. An equitable estate, being incapable of livery of seisin and of every . . ^ form of conveyance which operates by the ^Statute of Uses, a mere L J declaration of trust, if in writing signed by the party bound, or his agent lawfully authorized, was held sufficient to transfer such equitable estates ; except that a fine or recovery was required, where the same would havebeen necessary if the estate had been a legal estate.(^) In practice, however, trust estates have been usually conveyed in the same manner as legal estates. (Z) Thus, it is usual for the mortgagee of an equitable inheritance, on the satisfaction of the debt, to execute indentures of lease and release, professedly to re-convey the estate ; and for the mortgagee of an equitable term to execute a deed of surrender ; though in both these instances the deeds operate merely as a discharge from the equitable lien or contract created by the mortgage, for which purpose a receipt in full for the mortgage money would be equally effective. (to) ((/) See 2 Spence's Eq. Jur. 131-135. (h) 2 Spence's Eq. Jur. 136. (i) X Spence's Eq. Jur. 501 ; Co. Litt. 290, b, n. 1, XVI. (k) See Story's Eq. Jur. § 974, 974, a, and notes, and § 975 ; 1 Spence's Eq. Jur. 497, 500, 506, 877; Co. Lltt. 299, b, u. 1, SVI. [l) 1 Spence's Eq. Jur. 506 ; 9 Jarm. & Byth. by Sweet, 515. (m) 9 Jarm. & Byth. by Sweet, 515, n. (e). OP EXPRESS PRIVATE TRUSTS. 165 4. Trusts are independent of the rules of the common law founded on tenure ; so that a life interest in a trust estate was not forfeited on any alienation by the tenant for life, even by fine;(m) nor is it liable to escheat to the lord in consequence of attainder or want of heirs.(o) Before the passing of the statute 39 & 40 Geo. 3, c. 98, a person might suspend the enjoyment of real and personal estate, and direct that the whole of the rents, profits, and produce thereof should be accumulated, for as long a period as that during which it was allowable to suspend the vesting of the ownership or property of and in such real and personal estate, (p) The mischievous extent to which Mr. Thellusson availed *him- r* on«-| self of this power gave rise to the statute 39 & 40 Geo. 3, c. 98, L -I called the " Thellusson Act."(i!) By sect. 1 of this act, it is enacted, " That no person or persons shall, after the passing of this act, by any deed or deeds, surrender or sur- renders, will, codicil, or otherwise howsoever, settle or dispose of any real or personal property, so and in such manner that the rents, issues, proiits, or produce thereof shall be wholly or partially accumulated ; for any longer term than the life or lives of any such grantor or grantors, settler or settlers ; or the term of twenty-one years from the death of any such grantor, settler, devisor, or testator ; or during the minority or respective minorities of any person or persons who shall be living, or in ventre sa mere at the time of the death of such grantor, devisor, or testator ; or during the minority or respective minorities only of any person or persons who, under the uses or trusts of the deed, surrender, will, or other assurances, directing such accumulations, would, for the time being, if of full age, be entitled unto the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumu- lated : and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void, and the rents, issues, profits, and produce of such property so directed to be accumulated, shall, so long as the same shall be directed to be accumu- lated contrary to the provisions of this act, go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed." By sect. 2, however, it is provided, " That nothing in this act con- tained shall extend to any provision for payment of debts of any grantor, settler, or devisor, or other person or persons, or to any provision for raising portions for any *child or children of any grantor, settler, pi^o a^-i or devisor, or any child or children of any person taking any L J interest under any such conveyance, settlement, or devise, or to any direction touching the produce of timber or wood upon any lands or tenements ; but that all such provisions and directions shall and may be made and given as if this act had not passed." (n) 1 Spence's Eq. Jur. 500, 505 ; 1 Cruise T. 12, c. 2, J 11. (o) 2 Pres. Shep. T; 507, n. (8). Ip) Smith's Executory Interests annexed to Fearne, § 738, a. (t) See Hargrave on the Thellusson Act ; Chitty's Statutes, by Welsby and Bea- Tau ; and Smith's Executory Interests annexed to Fearne, Part III. Ch. 5. 166 SMITH ON EEAL AND PERSONAL PKOPBRTT. By aeot. 4, it is enacted, " That the restrictions in this act contained sh»ll take effect and be in force with respect to wills and testaments made and executed before the passing of this act, in such cases only where the devisor or testator shall be living, and of sound and disposing mind, after the expiration of twelve calendar months from the passing of this act." Section III. Of Implied Trusts. An implied trust is a trust founded in the unexpressed but pre- sumable intention of a party. Thus, where a person buys freehold, copyhold, or leasehold land, and pays the purchase money for it, but takes the conveyance or assignment in his own name and that of another or others, or exclusively in the name of another or others, whether jointly or successively, the trust of the legal estate will result to the person who advanced the purchase money ; for it is presumed that the real purchaser intended the purchase to be for his own benefit, and took it in the name of another or others merely to answer some collateral purpose. The same doctrine is applied to securities taken in the name of a third person.(s) And proof of the payment of the purchase money by the real purchaser may be furnished either by the language of the r«on«T deed itself, or by some memorandum or *note of the nominal •- -■ purchaser, or by his answer to a bill of discovery, or by papers left by him and discovered after his death. (<) In like manner, there will be a resulting trust, where stock is pur- chased in the name of the purchaser and a stranger, or is transferred by the owner into the name of himself and a stranger. But if a man de- livers money or transfers stock to another, even though he is a stranger, no implied trust will arise, unless upon evidence. (li) No resulting trust will be raised, where a contrary intention, unre- butted by other evidence or grounds of presumption, is indicated by the terms or the object and purpose of the instrument creating the trust, or is established by written or parol evidence, or may be presumed from the relation between the parties. (x) And hence, in general, there will be no resulting trust where a purchase is made or a security is taken by a husband or a father (either solely or jointly with his own name or that of a stranger) in the name of a wife, or in the name of a legitimate or illegitimate child who is unprovided for, or considered by the husband or father as unprovided for or as insufficiently provided for, or by a grandfather in the name of his grandchild, who is unprovided for, or considered by the grandfather as unprovided for, or insufficiently pro- vided for, where the father is not living ; because it will be presumed [s) Story's Eq. Jur. ^ 1201, 1201, a; 1 Spence's Eq. Jur. 511 ; 2 Spence's Eq. Jur. 201, 219 ; 1 Cruise T. 12, u. 1, § 41 . Sugd. Concise View, 556. [t) Story's Eq. Jur. I 1201, note; 2 Spence's Eq. Jur. 202. (u) 2 Spence's Eq. Jur. 219. (x) Story's Eq. Jur. g 1196, a, note, and 1202 ; 1 Cruise T. 12, c. 1, J 44. OF IMPLIED TRUSTS. 167 that it was intended as an advancement and provision, in discharge of a moral obligation, and as a token of affection, unless there are circum- stances which furnish a strong presumption of a contrary intention, such as a contemporaneous declaration or act to manifest an intention that the party should take as a trustee. A subsequent act or declaration will not suffice to negative an advancement. Nor will possession or receipt of the rents by the person who advanced the money, where *it r^nnn-i may be fairly regarded as having been had as a trustee for the L J other party. In other cases, where the relationship is not such as to ground a pre- sumption of advancement, the recognition of relationship and expressions of affection or regard ought to be looked to, in determining whether a beneficial gift was intended. (a) Where property is given upon trust, and the trusts fail, either en- tirely or partially, by reason of the failure of the intended objects or purposes, or some of them, or of the illegality or indefinite nature of the trusts or some of them, or otherwise ; or where the trusts are fully and finally fulfilled, without exhausting all the property out of which they were to be fulfilled, there is a resulting trust of such property, or of so much thereof as remains unexhausted, to the party creating the trust, or to his heir or legal representatives, unless there is sufficient evidence or presumption of a contrary intention. (a) But where there is an absolute, and, for anything that appears to the contrary, a beneficial gift, with an ineffectual or partial trust engrafted on it, the property, or so much as is unexhausted by such partial trust, will remain in the donee. (6) And where there is an absolute gift, with an illegal condition, the condition is void, and there is no resulting trust, but the donee may retain the whole ; as where a testator bequeathed leasehold property upon condition that the legatee should assign a parti- cular part to a charity.(c) An implied resulting trust also arises where a conveyance, transfer, devise, or bequest of land or other property, without *any con- r^n-.^-, sideration, express or implied, real or nominal, purports or is •- -^ proved to have been made upon trust, but no distinct use or trust is stated, (c^ If a devise is to an infant or a married woman, the presumption is against the devise being upon trust ; yet this presumption must yield to the fair construction of the will, if, according to that, the testator ap- pears to have intended a trust. (e) A discretion as to the application of the property given may be so large, that the gift may amount to an absolute gift : as where there is (2) Story's Eq. Jur.g 1202—1205, and note; 2 Spence's Eq. Jur. 214—219, 227, 228 ; 1 Cruise T. 12, c. 1, g 72, 78, 80, 82 ; Sugd. Concise View, 557—559. (a) Story's Eq. Jur. g 1196, a, 1200 ; 1 Spence's Eq. Jur. 510 ; 2 Spence's Eq. Jur. 22, 80, 243—246 ; 1 Cruise T. 12, c. 1, § 55, 56. (b) See 1 Spence's Bq. Jur. 510; 2 Spence's Eq. Jur. 23, 80. (c) 2 Spence's Bq. Jur. 229. , (d) Story's Eq. Jur. ? 1197, 1199; 2 Spence's Eq. Jur. 57, 199, 225, 226; 1 Cruise T. 12, c. 1, ? 60; Brigga v. Penny, 3 Mac. & G. 546. {e) 2 Spence's Eq. Jur. 225. 168 SMITH ON REAL AND PERSONAL PROPERTY. an uncontrolled power to give away the property as and to whom the donee may think fit. But if the discretion is limited to certain general purposes, though they may be too indefinite to be enforced, the donee is a trustee. (/) There can be no resulting or implied trust between a lessor and his lessee, because every lessee is a purchaser by his contract and his cove- nan ts.(^) The heir will take, as personal estate, the benefit of the surplus inte- rest in a term or other particular interest carved out of the inheritance for a particular purpose which does not exhaust the whole, as against the devisee, that is, where the devisee takes only what remains after the particular interest so given is carved out.(^) A legacy to the heir or next of kin will not, of itself, preclude their claim to the surplus undisposed of. Nor will a bare intention to ex- clude, however expressed and accompanied by words of anger or anti- pathy, or even negative words, be sufficient to exclude the heir, in respect of the beneficial interest in real estate undisposed of, or the next of kin in respect of personalty, unless it be either specifically, or, as part l-^n^ ^ _ *of a fund, actually and effectually, devised away to some one L -J else, either directly or by the same kind of necessary implica- tion as would in other cases be admitted to constitute an actual gift.(i) Where a person has covenanted to lay out money in the purchase of land, or to pay money to trustees to be laid out in the purchase of land to be settled, if he afterwards purchases lands to himself and his heirs, but does not settle it, the land will be subject to the trusts upon which the land to be purchased was to be settled ; for, unless the con- trary clearly appears, it will be presumed that he purchased in fulfilment of his covenant, upon the principle that acts capable of being considered as done in fulfilment of an obligation shall be so construed. (A;) And where a trustee or agent is bound by a trust to lay out money in land, if he actually lays it out, the act will, if possible, be presumed to have been done in execution of the trust. (Z) Section IV. Of Constructive Trusts. A constructive trust, as distinguished both from an express and from an implied trust, may be defined to be a trust which is raised by con- struction of equity, in order to satisfy the demands of justice, without reference to any presumable intention of the parties. (m) Thus, Where a person is under a covenant or agreement, for valuable consi- (f) 2 Spence's Eq. Jur. 225. (g) 1 Cruise T. 12, c. 1, § 85. (h) 2 Spence's Eq. Jur. 230. (i) 2 Spence's Eq. Jur. 232. {k) Story's Eq. Jur. § 1210; 2 Spence's Eq. Jur. 204. (I) 2 Spence's Eq. Jur. 205. (m) See Story's Eq. Jur. g 1195, 1254; 1 Spence's Eq. Jur. 509. OF CHAEITABLE TRUSTS. 169 deration, to convey, transfer, or pay money or other property to or for the use or benefit of another, a constructive trust arises in favour of the latter against the *former and his representatives, and those r^212"1 claiming under him as volunteers or with notice of the covenant L J or agreement; because, where things are covenanted or agreed to be done, equity treats them, for many purposes, as if they were done.(i) Where any fraud is committed in obtaining a conveyance of real pro- perty, the grantee in such case will be considered in equity as a con- structive trustee for the person who has been defrauded. (/<;) If a mortgagee, or a person having a limited interest in leasehold property under a settlement by deed or will, renews the term on his own account, he will be held to be a trustee for all the persons interested in the old lease. (?) Section Y. Of Charitable Trusts. I. Charitable Trusts Generally. {w?j Charities are so highly favoured in the law, that they have always re- ceived a more liberal construction than the law will allow in gifts to in- dividuals, (ra) Thus — 1. In regard to the want of proper trustees, if a testator makes a be- quest for charity to such persons as he shall afterwards name executors, or to such persons as his executors shall name, and he appoints no executors, or the *executors die in the lifetime of the testator, j-^n-i o-i and no others are appointed; or if the trustees of a charitable L J legacy all die in the testator's lifetime ; or if a corporation intrusted with a charity fails; the Court of Chancery will execute the charity. (o) So, if a legacy is given to persons who have no legal corporate capacity to enable them to take as a corporation ; as where a legacy is given to churchwardens for a charitable purpose. And so if a corporation for whose use a charity is designed is not in esse, and cannot come into ex- istence but by some future act of the crown. (p) 2. The Court of Chancery will supply all defects in conveyances, where the vendor is capable of conveying, and has a disposable estate, (s) See Story's Eq. Jur. J 1212, 1231. (4) 1 Cruise T. 12, c. 1, § 65. (l) 1 Spence's Eq. Jur. 512 ; 2 Spence's Eq. Jar. 299, 302, 303 ; 1 Cruise T. 12, e. 1, ? 63 ; 1 Rop. Leg. by Wliite, 317 ; Co. Litt. 290, b, n. 1, XI. (m) Various statutes have been passed on the subject of Charities ; as to which, see Stamp's Index to the Statute Law, tit. " Charities." And, in 1853, a very im- portant Act was passed for the better regulation of charitable trusts (16 & 17 Vict. c. 137) ; but a new bill has been brought into Parliament upon the same sub- ject. {n) Story's Eq. Jur. § 1165; 2 Spence's Eq. Jur. 246, 247. (o) Story's Eq. Jur. g 1165, 1166, 1177; 2 Rop. Leg. by White, 1186, 1190, 1192. [p] Story's Eq. Jur. § 1169, 1170. 170 SMITH ON REAL AND PERSONAL PROPERTY. and the mode of conveyance does not contravene the provisions of any statute, (j) 3. In regard to the objects, it matters not how uncertain the persons or objects may be. For if a bequest' is made in the most general and indefinite manner simply for charitable purposes, eo nomine (a religious purpose being deemed a charitable purpose,) the Court of Chancery will treat it as a valid charitable bequest, and will dispose of it for such charitable purposes as it shall think fit.(r) Hence, if a man devises a sum of money to such charitable uses as he shall direct by a codicil an- nexed to his will or by a note in writing, and he leaves no direction by note or codicil, the Court of Chancery will dispose of it to such chari- table purposes as it shall think fit.(s) But where the bequest may, in conformity to the express words of the will, be disposed of in charity of a discretionary private nature, or be employed for any general benevo- r»9id.i ^^^^ °^ useful purposes, or for any general ^purpose, whether L J charitable or otherwise, or for charitable or other general pur- poses, or for benevolent, religious, and charitable purposes, at discre- tion, the bequest will be void, as being too general and indefinite for the Court of Chancery to execute, and the property will go to the next of kin.(r?') In order to constitute a valid charitable bequest in general terms, it must be made in such a way that there is no option given to apply it to any other than one of those purposes which are denominated charitable in the stat. 43 Eliz. c. 4, or one of such purposes as the court construes to be charitable by analogy to those mentioned in that statute. (ss) And hence, a bequest to be applied in " assisting indigent but deserving indi- viduals, or encouraging undertakings of general utility," is void, on ac- count of the option to apply it to other purposes, which, though they may be benevolent, are not such as are deemed charitable, or regarded by the court as within the technical description of charitable pur- poses. (<) But a gift to trustees to apply in such manner as they in their uncontrolled discretion should think proper, " for the benefit, ad- vancement, and propagation of education and learning in every part of the world, as far as circumstances will permit," is a good charitable bequest, (m) And a bequest to the Queen's Chancellor of the Exchequer for the time being, to be by him appropriated to the benefit and advan- tage of Great Britain, is a valid charitable bequest, so far as it relates to pure personalty.(a;) And a legacy for Roman Catholic schools for the purpose of promoting the Roman Catholic religion is good under the Stat. 2 & 3 Will. 4, c. 115, which is retrospective in its operation. ("y) (?) Story's Eq. Jur. § llTl. (r) Story's Eq. Jur. | 116'? ; 2 Rop. Leg. by "White, 118G, 1198; Baker v. Sutton, 1 Keen, 224. (s) Story's Eq. Jur. § 1167 f 2 Rop. Leg. by White, 1186, 1190, 1198. {rr) See Story's Eq. Jur. | 1157, 1158, 1164, note 4 to Ed. 6, 1167, 1169, 1183. (ss) Story's Eq. Jur. 1155. (t) Kendall v. Granger, 5 Beav. 300. (u) Whicker v. Hume, 14 Beav. 509 ; 1 D. M. & G. 506. (x) Nightingale v. Goulburn, 5 Hare, 484. (y) West T. Shuttleworth, 2 My. & K. 684 ; Bradshaw v. Tasker, 2 My. k K. 221. OP CHARITABLE TRUSTS, 171 But a legacy to priests and *ohapels for the benefit of prayers r-^„^ r-. for the repose of the soul of the testator is void, not within the L J terms, but within the spirit, of the stat. of 1 Edw. 6, c. 14:.(») Where the party has specified any particular object, and that object is contrary to the policy of the law, or, from some other reason, cannot be accomplished at all, or not in the way prescribed, the court will devote the property to some other charitable purpose, if the nature of the gift, or the concurrence of other charitable gifts in the same instrument, indicates that although the specified object was the favourite, yet it was not the exclu- sive object of the giver, but that he would have substituted some other charitable object, had he imagined that his favourite design might possibly be incapable of being accomplished. But where no such indication appears, (as where the testator's object is to build a church at W., and that can- not be eifected,) the next of kin will take.(a) When there are no objects in esse, but some may arise, the Court will keep the fund for them. And when there can be no such objects as those which are specified, or when the specified objects cease to exist, the court will remodel the charity. (6) 4. In regard to the surplus income, if a testator clearly shows an in- tention to devote the whole income of a property to charitable purposes, it will be so applied, although his specific charitable dispositions do not exhaust the whole income, (c) And when the increased revenues of a charity are more than sufficient for the specified objects of charity, the surplus will not go to the heir-at-law or next of kin of the founder, but will be applied to similar charitable purposes, and to the augmentation of the benefits of the charity.((f) *5. And, to give another instance of the favour shown to r-^n-i^-, charity, lapse of time is no bar in the case of charitable trusts, (e) L J Where the donor of a fund to be devoted to a superstitious purpose, provides, in the deed of disposition, that, in case the purpose shall be adjudged void and incapable of being carried into eifect, then the fund shall be in trust for his executors and, administrators, the trust will be sustained, and the Crown will not be entitled. (/) But where a testator gave the residue of his personal property, upon trust for the establishment of a charitable receptacle, if the same could be done, for a number of poor people ; but if no such institution could be conveniently established, he requested that the property be disposed of in certain charitable donations ; such a bequest was held void under the Statute of Mortmain, on the ground that the primary and direct object was the acquisition of a dwell- ing-house for the charitable purpose j and it was only in case no such in- (z) West V. Shuttleworth, 2 My. & K. 684. (a) See Story's Bq. Jur. ^ 1167-1169, 1172, 1176, 1181, 1182; 2 Rop. Leg. by White, 1204, 1221. (6) Story's Eq. Jnr. J 1169, 1170, U70, a, 1176 ; 2 Spence's Eq. Jur. 79. (c) 2 Spence's Eq. Jur. 248 ; 2 Rop. Leg. by White, 1223. (d) Story's Eq. Jur. § 1178, 1181 ; 2 Spence's Eq. Jar. 248. (e) Story's Eq. Jur. g 1192, a. (/) 2 Rop. Leg. by White, 1125. 172 SMITH ON EBAL AND PERSONAL PROPERTY. stitution could be " conveniently" established, and not in case it could not be lawfully established, that the bequest over was to take effeet.(gr) II. Dispositions in favour of Charities void under the Mortmain Act. By the Stat. 9 Geo. 2, c. 36, commonly called the Mortmain Act, it is enacted, that "no manors, lands, tenements, rents, advowsons or other hereditaments, corporeal or incorporeal, whatsoever, nor any sum or sums of money, goods, chattels stocks in the public funds, securities for money or any other personal estate whatsoever, to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, shall be given, r*917n granted, alienated, limited, released, transferred, assigned or L J *appointed, or any ways conveyed or settled to or upon any per- son or persons, bodies politic or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or incumbered by any person or persons whatsoever, in trust, or for the benefit of any charitable uses whatsoever ; unless such gift, conveyance, appointment or settlement of any such lands, tenements or hereditaments, sum or sums of money, or personal estate (other than stocks in the public funds) be and be made by deed indented, sealed and delivered in the presence of two or more credible witnesses, twelve calendar months at least before the death of such donor or grantor (including the days of the execution and death) and be inrolled in his Majesty's High Court of Chancery, within six calendar months next after the execution thereof; and unless such stocks be transferred in the public books usually kept for the transfer of stocks six calendar months at least before the death of such donor or grantor (including the days of the transfer and death) and unless the same be made to take eifeot in possession for the charitable use intended, imme- diately from the making thereof, and be without any power of revoca- tion, reservation, trust, condition, limitation, clause, or agreement what- soever, for the benefit of the donor or grantor, or of any person or per- sons claiming under him." (Sect. 1.) "Nothing hereinbefore mentioned relating to the sealing and deliver- ing of any deed or deeds twelve calendar months at least before the death of the grantor, or to the transfer of any stock six calendar months before the death of the grantor or person making such transfer, shall extend, or be construed to extend, to any purchase of any estate or interest in lands tenements, or hereditaments, or any transfer of any stock, to be made really and bonS fide for a full and valuable consideration actually paid at or before the making such conveyance or transfer without fraud or collusion." (Sect. 2.) r*218n *"j^ll gifts, grants, conveyances, appointments, assurances, L J transfers and settlements whatsoever, of any lands, tenements or other hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect any lands, tenements or hereditaments, or of any stock, money, goods, chattels or other personal estate, or secu- rities for money to be laid out or disposed of in the purchase of any lands, tenements or hereditaments, or of any estate or interest therein, (ff) Att. Gen. T. Hodgson, 15 Sim. 146, and 10 Jur. 300. OF CHARITABLE TRUSTS. 173 or of any charge or incumbrance affecting or to affect the same, to or in trust for any charitable uses whatsoever, which shall at any time from and after the said 24th day of June, 1736, be made in any other manner or form than by this act is directed and appointed, shall be absolutely, and to all intents and purposes, null and void." (Sect. 3.) With regard to the cases within the act, this statute has been held to apply to — 1. Bloney charged on real estate. (^) 2. Terms for years. (i) 3. Money due on mortgage or mortgaged estates of which the mortgagee is in possession.^/c) 4. A bequest of money to exonerate lands in mortmain. (Z) 5. Money secured on turnpike tolls. (m) 6. Navigation shares in canals and rivers, where they are real estate. (ra) 7. A bequest of money secured upon the poor rates and county rates. fo) 8. A judgment debt due to the testator, which in his lifetime had been reported in a creditor's suit to be an incumbrance affecting the real estate of the debtor.(p) *9. The profits arising from moormg chains in the river r^oiqn Thames.(5) L -I 10. A bequest is void under the act, if it tends directly to bring fresh lands into mortmain ; as where money is bequeathed to be laid out in the erection of buildings for a charity, in the event of land being given for the purposes of the charity within a certain time from the testator's decease, with a limitation over in the event of no such gift being made jM or where a testator gives his residuary pro- perty to certain persons, with a request that they would be pleased to entreat the lord of a manor to grant a site for a charitable purpose to be accomplished by means of the property so given. (s) A charitable bequest of money to be expended in the erection or repair of buildings is void, unless the testator expressly states in his will his intention that the money so bequeathed is to be expended on some land then already in mortmain. (<) And where a testatrix directed the residue of her estate to be applied towards establishing a school in connexion with a certain chapel for the time being, and " to pay the same over to the treasurer for the time being of such school now or hereafter to be built," it was held, that such residuary gift was void under the statute, even as to the personal estate, as it would be a due execution of the trust to devote the money to buying land and building a school-house thereon ; there being no school-house in existence. (m) (/i) 2 Rop. Leg. by White, 1128. (»■) 2 Rop. Leg. by White, 1131. (k) 2 Rop. Leg. by White, 1131. (l) 2 Rop. Lep. by White, 1134. (m) 2 Rop. Leg. by White, 1137. (») 2 Rop. Leg. by White, 1137. See Walker v. Milne, 11 Beav. 507, 509. (o) 2 Rop. Leg. by White, 1138. [p) 2 Rop. Leg. by White, 1139. (g) 2 Rop. Leg. by White, 1139. (r) Trye v. The Corporation of Gloucester, 14 Beav. 173. (s) Mather v. Scott, 2 Keen, 172. (t) Trye v. The Corporation of Gloucester, 14 Beav. 196; Pritchard t. Arbouin, 3 Russ. 456. (w) LoDgstaff v. Rennison, 1 Drewry, 28. 174 SMITH ON EEAL AND PERSONAL PEOPERTT. 11. The lien of a testator for the unpaid purchase money of land which he has contracted to sell, is an interest in land under the Statute of Mortmain, so that the purchase money will not pass by his will to a charity. (a) r*220n *^^' -^I'lioig'^ *^^ s'^*- 9 ^6°- 2; c. 36, does not mention the L J case of a bequest of the proceeds of the sale of land, yet it is settled that a bequest of the whole or any part of such proceeds is within the spirit and meaning of the act, and therefore void.(y) 13. Where a deed of gift of a rent charge to trustees for a charitable purpose is duly enrolled, and otherwise legal on the face of it, it is never- theless void under the Mortmain Act, if there was any agreement or understanding among the parties to it, when it was executed, that pay- ment of the annuity should not be enforced during the life of the grantor ; or if such was his design in executing it, and that design is acquiesced in by all the parties. («) III. Exceptions or Cases not within the Mortmain Act. 1. By the 4th section, it is provided, " that this act shall not extend, or be construed to extend, to make void the dispositions of any lands, tenements or hereditaments, or of any personal estate to be laid out in the purchase of any lands, tenements or hereditaments, which shall be made in any other manner or form than by this act is directed, to or in trust for either of the two Universities within that part of Great Britain called England, or any of the colleges or houses of learning within either of the said Universities, or to or in trust for the colleges of Eton, Win- chester, or Westminster, or any or either of them, for the better support and maintenance of the scholars only upon the foundations of the said colleges of Eton, Winchester, and Westminster." 2. By the 6th section, the act is not to extend to Scotland. *3. Nor does it extend to Ireland. r*99n 4. The Mortmain Act does not apply to the Colonies, where •- -I there is no express legislative enactment in this country that it shall apply to them. And it does not apply to New South Wales, not- withstanding the Stat. 9 Geo. 4, c. 83, s. 24. That statute introduces the English laws, but only " so far as they can be applied ;" an expres- sion which was considered to mean " so far as the same can be reason- ably and properly applied, having regard to the laws and institutions then existing."(o) 5. Where trustees are not required or directed to invest in real estate money bequeathed to charity, but it is merely left to their discretion to do so or not, the bequest has been supported upon the principle that the (x) Harrison v. Harrison, 1 Euss. & My. 11; Sugd. Concise View, 123; 2 Eop. Leg. by White, 1129. (y) Att. Gen. v. Lord Weymouth, Amb. 20 ; Curtis v. Button, 14 Ves. 537 ; Trustees of the British Museum t. White, 2 S. & S. 595 ; Waite v. Webb, 6 Madd. 71 ; Currie v. Pye, 17 Ves. 462 ; Page T. Leapingwell, 18 Ves. 464 ; 2 Bop. Leg. by White, 1129. (2) Way V. East, 2 Drewry, 44. (a) Whicker v. Hume, 14 Beav. 524 ; 1 D. M. & G. 506. OF CHARITABLE TRUSTS. 175 trustees ought not to be permitted to exercise that discretion to the pre- judice of legatees.(6) 6. A further exception occurs by the custom of London, in the case of a devise by a freeman of London of land within the city.(c) 7. Bequests may be made of money to be applied simply in meliora- tion of lands in mortmain, or for building upon them.(d) In the case of Adnam v. Cole, it was held, that the gift of money to arise from the sale of chattels real for the purpose of building an organ gallery and purchasing an organ for the parish church, was within the statute and void.(e) But the point was not argued, and the decision was clearly wrong. 8. Policies of assurance are not so connected with land as to be within the Mortmain Act, although the assets of the assurance companies, out of which the amount assured is to be paid, consist partly of real estates. (/) *9. If real estate is devised to a vicar and churchwardens and r:(cr)9o-i their successors, and certain other trustees, their heirs and assigns, <- , J upon trust to distribute the rents and profits annually, on a certain day, amongst certain families named, according to their circumstances, as in the opinion of the trustees they might need such assistance, this is a beneficial devise to objects who may lawfully take land by devise, and therefore not void within the Statute of Mortmain. (gr) 10. Shares in a company are not within the Mortmain Act. And this is the case, even where it may happen that all their property may at any given time consist of real estate or chattels real, if by the Act of Parlia- ment or by the deed by which the company was established, the shares are declared to be personal estate. Thus, it has been very properly held that the act does not extend to shares in a gas-light and coke com- pany, or in a dock company,(A) or in a banking company, even though unincorporated, and though its assets consisted of real estate and mort- gages. (i) With regard to canal shares, where by Act of Parliament they are declared to be personal estate. Sir John Leach, in Tomlinson v. Tomlin- son,(7i;) held that a bequest of them to a charity was void; but Lord Langdale, in Walker v. Milne,(Z] held that such a bequest was good. Lord St. Leonards, in Meyers v. Perigal, abstained from expressing any opinion upon that point ; but upon the principles on which he decided that case, the decision of Lord Langdale was correct. The truth is, a share in a company, where it is not real estate, though it may savour of the realty, is not like the *share of a tenant in _^_._-. common of lands, but is practically and virtually a mere share <- J (b) 2 Rop. Leg. by White, 1145. (c) 2 Rop. Leg. by White, 1157. [d) 2 Rop. Leg. by White, 1165. (e) Adnam v. Cole, 6 Beav. 353. If) March t. Att. Gen., 5 Beav. 431. Iff) Liley v. Hey, 1 Hare, 580. (h) 2 Rop. Leg. by White, 1179; Thompson v. Thompson, 1 Coll. C. C. 381 ; Sparling v. Parker, 9 Beav. 457 ; Hilton v. Giraud, 1 De 6. & S. 183 ; Walker v. Milne, 11 Beav. 507. (») Ashton V. Lord Langdale, 15 Jur. 868 ; and Myers v. Perigal, 2 D. M. & G. 599. {*) 9 Beav. 459. [I) U Beav. 507. 176 SMITH ON REAL AND PERSONAL PROPERTY. in pure personalty. It is practically and virtually a mere share in the profits of the undertaking for the purposes of which the company was established, while the company continues to exist, attended with a right to participate in the proceeds of the sale of the aggregate property, whatever it be, in the contingent event of the company being dissolved. A share is an entire thing ; and if it is a share in a company the pro- perty of which is partly real and partly personal, in proportions which cannot be determined, it is impossible to say that such a share is real property which devolves upon the heir. And even if it is a share in a company the property of which consists entirely of real estate, yet if, by the Act of Parliament or deed whereby the company was established, the shares are declared to be personal estate, such shares are then practically and virtually shares in pure personalty. The act is intituled " An Act to restrain the disposition of lands, whereby the same become unalienable." This title agrees with the pre- amble, but only expresses one of the two intents expressed or intimated in the preamble. The preamble is in these words : " Whereas gifts or alienations of lands, tenements or hereditaments, in mortmain, are pro- hibited or restrained by Magna Charta, and divers other wholesome laws, as prejudicial to and against the common utility ; nevertheless this public mischief has of late greatly increased by many large and impro- vident alienations or dispositions made by languising or dying persons, or by other persons, to uses called charitable uses, to take place after their deaths, to the disherison of their lawful heirs." It may be collected from the preamble of the act, that the objects sought to be accomplished by the statute are twofold : First, to prevent dispositions of lands, tene- ments, or other hereditaments, or any estate or interest therein, or any r*994.1 '^^^''g^ O"^ incumbrance affecting the same, &c., *to such uses that L -I such lands, tenements, or other hereditaments, or estate or interest therein, or charge or incumbrance, &c., could not be alienated. And secondly, to prevent dispositions tending to the undue disherison of lawful heirs. And such being the case, it is conceived, that when a testamentary disposition in favour of a charity does not tend to render any lands, tenements, or other hereditaments, or any estate or interest therein, or any charge or incumbrance affecting the same, &c., unaliena- ble, and does not tend to the disherison of lawful heirs, such a testamen- tary disposition does not contravene the statute. At first sight, this view may seem inconsistent with various decisions, with which in reality it is in perfect accordance. Thus, it has been held that the proceeds of real estate cannot be given by will to a chari- table use ; yet in such a case, so far from the gift tending to restrain alienation, by the very terms of the gift alienation is to precede the possession of the testator's bounty. But then such a disposition amounts to the disherison of the heir by will; and therefore it has been held to be within the prohibitions of the statute. On the other hand, the gift of a mortgage in fee to a charitable use may tend to render land unalienable. And even the gift of a term of years to a charitable use might virtually have the same efi^ect of rendering the term, if not the land itself, unalienable. INTERESTS COLLATERAL TO OWNERSHIP. 177 11. By the stat. 43 Geo. 3, c. 107, and a number of other aots,(^) devises in favour of Queen Anne's Bounty are exempted from the Mort- main Act, and many other exemptions are created in favour of the Church, and of certain charities, &o. ^CHAPTER III. [*225] OP INTERESTS BOTH LEGAL AND EQUITABLE. As already observed, an interest both legal and equitable is an interest in or ownership of real or personal property, which confers a right both to the possession and to the beneficial enjoyment of such property, as well at law as in equity. This is the kind of ownership ordinarily created by common assurances, where no trust is declared, results, or arises. As the legal and equitable estates may exist separately in different persons, so they may coexist separately and distinctly in the same per- son, unless they are both coextensive and of the same quality ; in which case the equitable estate will merge in the legal estate, or rather will so coalesce with it as to cease to have any separate existence, (a) *TITLE IX. [226] OF INTERESTS CLOTHED WITH THE OWNERSHIP, AND INTERESTS COLLATERAL TO THE OWNERSHIP. Interests, when considered in this relation, may be divided into these different species : I. Vested interests or actual estates. II. Executory interests, or interests only, as distinguished from actual estates. (aa) (p) See Stamp's Index to the Statute Law of England, tit. " Mortmain." (a) See 2 Spence's Eq. Jur. 879, 880, and Smith's Executory Interests annexed to Fearne, g 50 ; 1 Cruise T. 12, c. 2, I 34, 35. (aa) In the following chapter, an endeavour has been made to present to the reader, in a small compass, some of the leading principles of this most intricate and subtle subject of legal investigation, which is fully discussed in the writer's " Original View of Executory Interests in Real and Personal Property," forming the second volume of the tenth edition of Fearne. Notwithstanding modern en- actments, this subject is still of the utmost practical importance. Multitudes of cases connected with it are sent to counsel ; and hundreds are annually decided by the Courts, especially on short cause days, though comparatively few are re- ported. In some of these cases, there have been as many aa six different con- structions contended for, by as many different parties. The writer has generally referred to his own work on Executory Interests, annexed as a second volume to Fearne, rather than to Fearne; because the work of that most profound lawyer relates to real estate only, and because the subject of executory iqterests (other than contingent remainders) was in its infancy in Fearne's day. February, 1856 12 178 SMITH ON REAL AND PERSONAL PROPERTY. III. Eights of entry or action. IV. Mere possibilities. V. Mere adverse possessions. VI. Expectancies. VII. Powers. VIII. Charges. IX. Liens. [*227J *CHAPTEIl I. OF VESIED AND EXEOUTORT INTERESTS. Section I. Of Vested and Executory Interests generally. A VESTED interest, or an actual estate, is the entire ownership of which any subject of property is susceptible, or a portion thereof, actually acquired by and residing in the person who is said to have such vested interest or actual estate. And a present vested interest is the entire ownership of which any subject of property is susceptible, or the immediate portion thereof, actually acquired by and residing in the per- son who is said to have such present vested interest. Whereas, a future vested interest in lands or tenements, is a portion of the ownership thereof, next after a preceding vested interest for life or in tail, and actually acquired by and residing in the person who is said to have such future vested interest. A future vested interest in chattels is a portion of the ownership thereof, next after a preceding vested interest, and actually acquired by and residing in the person who is said to have such future vested interest. An executory interest is the ownership, or a portion thereof, which remains to be had in any subject of property from a future time or event, and which is appointed by the terms of the instrument creating such executory interest to be acquired at that time or in that event by the person to whom such interest is limited. And when the time or event is certain, the interest is a certain execu- tory interest ; when the time or event is contingent, the interest is a contingent executory interest. r*2281 *When the right is a right of present possession, and the L -I party is in possession, whether personally or by substitute, the estate is said to be vested in possession. When it is a present right of having the possession whenever it may become vacant by the determina- tion of a preceding chattel interest, or whenever it may become vacant by the determination of a preceding freehold estate, or at some other future time to which only the possession, and not the ownership, is post- OF VESTED AND EXECUTOKY INTERESTS. 179 poned; in each of these oases, the estate is said to be vested in right or interest. (a) I. Where an uncertain event forms part of the original description of a devise or legatee, and not merely of a superadded description, the interest is necessarily contingent on account of the person ; as where a gift is made " to the children who shall be living" at a particular time, and not " to the children or the survivors," " or to the children or such of them as shall be living."(6) II. Where a devise or bequest is made to a person " when" or " as soon" as he shall attain a given age, or when or as soon as an event shall happen which may never occur at all, or " at," or " upon," or " from and after" his attaining such age or the happening of such event, whether the words of contingency precede or follow the words of gift, the gift is contingent, unless there are indications of immediate vesting. (c) But the gift is vested — 1. If the testator does not annex the time to the devise or bequest itself, but merely to the payment, possession, or enjoyment; as where he gives A. a legacy, to be paid when he shall attain the age of twenty- one years. This distinction, however, does not apply to charges on real estate, or where the period may never arrive, unless it is the attainment of a given age.(rf) *2. Where the event is the attainment of a certain age, or _^ ._ where, in the case of a residuary bequest, the event is that of L J marriage, unless it is with consent, and the testator gives the whole of the intermediate income of real estate, or of personal estate not arising from a charge on real estate, to the person to whom he devises or bequeaths such estate, and the attainment of such age or the marriage does not form part of the original description of the devise or legatee, and there is no limitation over in case of the death of the party under that age or without having been martied.M 3. Where executors are empowered to make advances out of the respective portions of children to whom a residuary bequest is made on their attaining a certain age, without any limitation over.(/) 4. Where the postponement to a certain age, or to a future period which is sure to arrive, is not part of the original description of the devisee or legatee, and seems merely to arise from the circumstances of the estate, or appears to be for the accomplishment of some special purpose uncon- nected with a suspension of the property or ownership ; such as pay- ment of debts, improvements, the better management of the property, or the convenience of a prior taker. (^) 5. Where a bequest is made to children, when they shall attain a certain age, and the testator appoints a trustee for them during the intermediate t\me.(h\ 6. In two cases, one of which was decided by the house of lords, (a) Smith's Executory Interests annexed to Fearne, § 19, 80. (b) See Id. ? 281-4. (c) See Id. § 285. (d) See Id. | 310—327, 342-3. (e) See Smith's Executory Interests annexed to Fearne, § 328 — 339, 341, 368. But see 1 Rop. Leg. by White, 581. (/) Id. § 340. (g) Id. 2 340, a. (A) Id. 2 345. 180 SMITH ON REAL AND PERSONAL PROPERTY. where a devise was made to a person when he should attain twenty-one, or at twenty-one, it was held that he took a vested interest, in conse- rtnon-i quenoe of there being a *limitation over in the opposite event. L J But these decisions seem entirely wrong.(t) III. Where a bequest is made to a person, "if" or "in case" or "provided" he shall attain a given age, whether the conditional expres- sions precede or follow the gift, there, inasmuch as the words " if" "in case," " provided," properly import contingency, the bequest will be contingent, notwithstanding the disannexing of the period from the gift or the existence of a prior devise or bequest.(^) IV. And so where a devise is made to a person "if" or " in case" or " provided" he shall attain a given age, and the conditional expressions precede the gift, the devise will be contingent.(Z) V. But where, in a devise, the Vord " provided" yb?fo!«s the words of gift, and there is no limitation over, it generally imports a condition subsequent, instead of a condition precedent suspending the vesting of the estate. Where a devise is made to a person provided he lives to attain a certain age, and the words provided &e. follow the words of gift, and there is a limitation over in the opposite event, the word provided imports a special or collateral limitation. And where, in a devise, the words of gift are followed by the word "if" or "in case" he shall attain a certain age, the conditional expressions import a special or collateral limitation.(m) VI. Where the interest would be an executory interest, if the event to which the devise has reference were uncertain, it will be equally executory if the devise has reference to a time or event which is sure to occur. The only difference is, that, in the former case, the interest is a contingent executory interest; whereas, in the latter, it is a certain executory interest, (n) r*9^n *" ^'^"'^ words as when, then, after, as soon as, and even the L -I word if, or the words in case, though apparently amounting to a condition precedent, which must be performed before a remainder or quasi remainder can become a vested interest, have no other force than to point out the time when the remainder or quasi remainder is to be clothed with the possession or enjoyment, in cases where the condition to which they refer would have been necessarily implied without them by the words which usually introduce a vested remainder."(o) Section II. Of Remainders and Quasi Remainders. The term remainder is sometimes used in a lax sense, to denote any (i) See Smith's Executory Interests annexed to Fearne, ? 351 — 366. (k) Id. I 290-3, 344 ; 1 Rop. Leg. by White, 567-8. (I) Smith's Executory Interests annexed to Fearne, § 296-7, 344. (m) See Id. § 296—298, 351, 351 a ; supra, pp. 43—48. W Id. ? 301. (o) Smith's Executory Interests annexed to Fearne, I 346. OF EEMAINDEKS AND QUAISI REMAINDERS. 181 kind of subsequent interest, or the limitation thereof. But " a re- mainder, strictly so called, is an estate or interest in lands or tenements, which is limited, either directly or indirectly, to take effect in possession, or in enjoyment, or in both, subject only to any term of years or contin- gent interest that may intervene, immediately after the regular expira- tion of a particular estate of freehold previously created together with it, by the same instrument, out of the same subject of property."(p) " A remainder, as the word itself imports, is always limited after a particular estate. And any preceding estate for life or in tail is termed a particular estate; but the term is not applied to any estate in fee, however limited. Hence, no estate can be limited by way of remainder on the regular expiration of a fee, even though it may be only a qualified fee which cannot last longer than an estate tail. So that if an estate is limited, even by way of use or devise, to A. and his heirs, while B. or any issue of body shall be in ^existence ; and after the decease ^^^„^^ of B. and failure of his issue, to C. and his heirs ; or if an estate L J is limited, even by way of use or devise, to A. and his heirs, while he and his heirs shall continue lords of the manor of Dale ; and if A. and his heirs shall cease to be lords of the manor of Dale, to C. and his heirs ; the latter limitation, in each case, is, void ;" for fees of this qua- lified kind may endure for ever, so that there can be no remainder after them, but only a possibility of reverter. (pp') " An interest of freehold duration, which is limited after, and only preceded by, a term for years, may be designated a remainder in rela- tion to the prior term for years, so far as regards the possession or bene- cial interest.'Yj) But such an interest is not a remainder as regards the seisin or ownership. For, " as in the case supposed, there is no other preceding interest than a term for years; and, as a term for years is a mere right extending to the possession, with or without the exclusive beneficial interest, and not a portion of the seisin, property, or owner- ship ; it follows that the freehold interest cannot be said to be a remain- der, remnant, residue, or remaining portion of the seisin, property, or ownership. "(r) "If a freehold interest is limited to a person in being and ascertained, to take effect on the certain regular expiration of a term for years, in possession, without being preceded by any other freehold interest, such freehold interest is at present vested interest, subject to the term, as re- gards the possession, with or without the exclusive beneficial in- terest."(s) And in other cases, where a freehold interest is limited after, and is only preceded by, a term of years, it is not a remainder, though it may be good as a springing interest by way of use or devise. (<) *Where lands are given in undivided shares to two or more r^nqon persons for particular estates, so that upon the determination of L -1 the particular estates in any of those shares they remain over to the (p) Id. § 159; see also § 159 a— 164. , (pp) Smith's Executory Interests annexed to Fearne, J 165. (?) Id g 245. (r) Id. § 246. (s) Id. § 248. (t) See Id. Part. II. c. 4, passim. 182 SMITH ON REAL AND PERSONAL PEOPBRTT. other grantees, and the remainderman or reversioner is not let in till the determination of all the particular estates, there the grantees take their original shares as tenants in common, and the remainders limited among them on the failure of the particular estates are called cross re- mainders. No technical words are necessary to create such remainders ; for any expressions which sufficiently indicated the intention of the par- ties will have that effect, (m) But cross remainders cannot be created by mere implication in a deed.(a;) Cross remainders may arise in a will by necessery implication; as where tenements are devised to two persons severally in tail, or the same tenement is devised to two as tenants in common in tail, and upon failure of their issue to a third person, with an apparent intention that he should take the whole of them.(!/) Where cross remainders are to be raised by implication between two persons only, the presumption is in favour of cross remainders ; where they are to be raised between more than two, the presumption is against them, except as between seve- ral members of the same family. But such presumption may be rebut- ted, in each case, by circumstances of plain intention. (z) A quasi remainder, or a remainder in personal property, is an inte- rest in chattels real or personal, limited as a legal or equitable interest by will, or as an equitable interest by deed, by way of trust, to take effect in possession, or in enjoyment, or in both, immediately after the regular expiration of another interest created together with it, by the same instru- ment, out of the same subject of property. l-^„n .-, *It cannot be limited, as a legal interest, by deed at common L J law; because at the common law it was considered that there could be no remainder in personal property, on account of the original shortness of terms for years and their liability to destruction by certain legal means, and on account of the liability of chattels personal to de- struction and loss in various ways. So that if a term of years is granted to A. for life, and after his death to B., the whole term belongs to A. (a) Nor can a quasi remainder in personal property be limited as a legal interest by deed by way of use ; because the Statute of Uses does not execute a use of personal property. A bequest of consumable articles to a person for life, or so long as such person shall remain unmarried, is a gift of the absolute interest; and a limitation over intended to take effect as a quasi remainder is void, even though such person die or marry in the testator's lifetime. (6) Eemainders, or quasi remainders, are either vested or contingent. A vested remainder or quasi remainder is a portion of ownership which is next after a preceding portion of ownership, and actually acquired by and residing in the person who is said to have such vested remainder or quasi remainder. A contingent remainder or quasi remainder is a por- (u) 4 Cruise T. 32, c. 21, g 59. (x) 4 Cruise T. 32, ^. 21, § 60 ; Edwards v. Alleston, 4 Russ. T8. (y) 6 Cruise T. 38, ^. 15, § 26—30 ; Burton, | 668. (z) 6 Cruise T. 38, u. 15, s. 44. Burton, § 669, 670. (a) See Smith's Executory Interests annexed to Fearne, 3 168, 168 b ; 1 Pres. Shep. T. 116. (6) Andrew v. Andrew, 1 Coll. 690. OF REMAINDERS AND QUASI REMAINDERS. 183 tion of ownership which is next after a preceding portion of owner- ship, and is not yet acquired by the person who is said to have such contingent remainder or quasi remainder, but is appointed by the terms of the grant, devise, or bequest, to be acquired by and to reside in him only on a contingent event. Or, if defined with reference to the right of possession or enjoyment, a vested remainder or quasi remainder is " one that is so limited to a person in being and ascertained, that (subject to any such ^chattel or other interest collateral to the seisin, pro- r^^ooc-i perty or ownership, as extends to the possession or enjoyment) L J it is capable of taking effect, in possession or enjoyment, on the certain determination of the particular estate, without requiring the concurrence of any collateral contingency." A contingent remainder or quasi re- mainder '< is one that is so limited as not to be capable of taking effect in possession or enjoyment, on the certain determination of the parti- cular estate, without the concurrence of some collateral contingency ."(c) There are four classes of contingent remainders : — 1. "Where the remainder depends entirely on a contingent determi- nation of the preceding estate itself : as if A. makes a feoffment to the use of B. till C. returns from Rome, and after such return of C., then to remain over in fee." 2. " Where the contingency on which the remainder is to take effect, is independent of the determination of the preceding estate : as if a lease be made to A. for life, remainder to B. for life, and if B. die before A., remainder to C. for life." 3. " Where a remainder is limited to take effect on an event, which, though sure to happen some time or other, yet may not happen till after the determination of the particular estate : as if a lease be made to J. S. for life, and after the death of J. D., the lands to remain over to another in fee." 4. " Where a remainder is limited to a person not ascertained, or not in being, at the time when such limitation is made :" as if a lease be made to one for life, remainder to the right heirs of J. S., who is living; or remainder to the first son of B., who has no son then born ; or if an estate be limited to two for life, remainder to the survivor of them in iee.{d) *" A remainder after an estate tail may seem to be a contin- r^nofi-i gent remainder of the first kind. But a failure of issue, though L J it may not happen till a very distant period, and though it is entirely uncertain when it will happen, is considered certain to happen some time or other. And hence a remainder limited on an estate tail, with- out reference to a failure of issue at any particular time, and without requiring the concurrence of any collateral contingency, does not fall within the definition of, and therefore is not an exception from, the first kind of contingent remainders, but is strictly and properly a vested remainder." The usual limitation to trustees to preserve contingent remainders is (c) Smith's Executory Interests annexed to Fearne, J 173, 174: see also ^ m— 182. {d) Fearne, 5—9. 184 SMITH ON REAL AND PERSONAL PROPERTT. an exception from the first class of contingent remainders. 'In Smith d. Dormer v. Parkhurst,(e) it was held to be a vested remainder; a deci- sion which was only defensible on the ground of necessity, in order to avoid overturning thousands of settlements. (/) The person who will be heir or heir of the body, even if in being, is unascertained till the death of the ancestor. And hence remainders to the heirs, or heirs of the body, of a living person are contingent remain- ders, except where the word heirs, or the words heirs of the body, is or are used, not in their technical sense, but for "sons, daughters, or children," or for heir apparent or presumptive, or where a limitation was made to the heirs of the grantor, before the stat. 3 & 4 Will. 4, c. 106, which was wholly inoperative, or where the rule in Shelley's case creates an exception, (^f) " A contingent remainder cannot vest at all, unless it vests during the existence of a previous estate of freehold, or at least at the very in- stant of the determination of the sole or last subsisting previous estate of freehold, (A) r*9^7l y ^^^ °^^ ^^^> " ^ contingent remainder of the measure *of L J freehold, unless the legal estate is in trustees, must be supported by a previous vested freehold estate j that is, it must be originally pre- ceded by a vested interest, of the measure of freehold, which is capable, in its original limitation, of enduring till the vesting of the remainder ; otherwise it is void ab initio j and one such previous estate of freehold must actually endure until that period. "(z) Hence, by the old law, " whenever the legal estate is not in trustees, and there is, in the first instance, or there happens to be, eventually, but one preceding estate of freehold duration, and that estate is deter- mined, so as not even to exist as a right of entry, before the event hap- pens on which a contingent remainder is to vest, such remainder is neces- sarily destroyed. And it will never afterwards arise, even though the particular estate be subsequently restored. The preceding estate might be determined, so as to cause the destruc- tion of a contingent remainder limited thereon, whether at common law or otherwise, in various ways :(a) 1. " By regular expiration. 2. By disseisin and toiling of the right of entry. 3. By the destructive opera- tion of a feofi"ment, fine, or recovery, by the tenant of the preceding estate, whether he is beneficially entitled or not. 4. By forfeiture. 5. By merger."(6) By the stat. 7 & 8 Vict. c. 76, s. 8, it was enacted, "that after the time at which this act shall come into operation no estate in land shall be created by way of contingent remainder ; but every estate which be- fore that time would have taken effect as a contingent remainder shall take effect (if in a will or codicil) as an executory devise, and (if in a (e) 18 Vin. 413 ; 4 Bro. Cas. Pari. 353. (/) See Smith's Executory Interests annexed to Fearne, Part. II. CIi. 5. {g) Id. Part II. Ch. 10, 11, 12. (A) Id. ? 702 ; see also § 703—704. (2) Smith's Executory Interests annexed to Fearne, J 757 ; for an elucidation of this, see Id. Part. III. c. 8. (a) Id. g 766, 777 ; see also § 783. (4) See Id. Part III. >;. 9, J 1, 2. OF REVERSIONS. 185 deed) as an executory estate of the same nature and having the same properties as an executory devise; and *contingent remainders r^nqo-i existing under deeds, wills, or instruments executed or made •- J before the time when this act shall come into operation shall not fail, or be destroyed or barred, merely by reason of the destruction or merger of any preceding estate, or its determination by any other means than the natural effluxion of the time of such preceding estate, or some event on which it was in its creation limited to determine." But by the stat. 8 & 9 Yiot. c. 106, s. 1, this enactment was very properly repealed, as from the time of the taking effect thereof, and by s. 8, contingent remainders are protected against destruction by forfeiture, surrender, or merger of the particular estate. The words are these : " That a contin- gent remainder, existing at any time after the 31st day of December, 1844, shall be, and if created before the passing of this act, shall be deemed to have been, capable of taking effect, notwithstanding the de- termination, by forfeiture, surrender, or merger of any preceding estate of freehold, in the same manner in all respects, as if such determination had not happened." " There is no necessity for the continuance of a preceding particular estate of freehold to preserve contingent remainders, where the legal estate in fee is vested in trustees : for, the legal estate of the trustees will be sufficient to preserve the contingent remainders, notwithstanding the regular expiration of the particular estate before the contingent remainder can vest."(c) And in the case of hereditaments of copyhold tenure, " where the preceding estate is determined by the act of the tenant, as by surrender to the lord or to another person, or acceptance of the reversion, or for- feiture, and would not have expired, by original limitation, before the vesting of the contingent remainder, such remainder is supported by *the ordinary freehold in the lord." " If, however, the freehold r^noq-i of inheritance in the lord of a manor becomes united with a par- L J ticular estate of copyhold, by a deed of enfranchisement, the contin- gent remainders expectant upon such particular estate are thereby de- stroyed, "(t?) Section III. 0/ Reversions. A reversion is that portion of ownership, which, on the creation of a par- tial interest only, remains undisposed of, and therefore vested in the person by whom such partial interest is created. And it is so called, because, on the expiration of such partial interest, the possession of the land or other thing which is the subject of such interest, reverts to the person or the representatives of the person who created the partial interest. The whole or a part^of this reversion or undisposed of portion of owner- (c) Smith's Executory Interests annexed to Fearne, | 783. (rf) Smith's Executory Interests annexed to Fearn^ | 786 — 788, 186 SMITH ON REAL AND PERSONAL PROPERTY. ship may be made the subject of a disposition by a subsequent instru- ment. A reversion, which remains undisposed of, is always vested ;(e) and so a reversion, or the immediate part of it, when simply transferred, is always vested ; but a contingent interest may be created out of a rever- sion. And where a future interest is of such a nature, that, if it had been limited by the same instrument by which a proceeding partial inte- rest was created, it would have been a vested remainder expectant on such preceding interest, it will, if limited by a subsequent instrument, constitute the reversion, or the immediate part of the reversion, expectant on such preceding interest, and will be a vested interest. But where r*9d.m *^ future interest is of such a nature, that, if it had been limited L -J by the same instrument by which a preceding partial interest was created, it would have been a contingent remainder or other exe- cutory interest, it will, if limited by a subsequent instrument, be an exe- cutory interest of some kind, other than a contingent remainder, in relation to such preceding interest. (A;) Hence, when the whole of the reversion, or that part of it which immediately adjoins a partial interest previously created, is made the subject of disposition by a subsequent instrument, and limited to take effect in possession (subject only, in the case of real estate, to any term of years or contingent interest that may intervene) simply on the regular expiration of the partial interest previously created, such limitation passes a vested interest. But a limitation of the whole or of a part of such undisposed of portion of ownership in any other way passes only an executory interest j as for instance, where the subsequent disposition of the whole of such undisposed of portion of ownership is made to depend on a contingency unconnected with the expiration of the partial interest previously created, or where the subsequent disposition affects only that part of such undisposed .of portion of ownership, which remains to be had from and after a time subsequent to the expiration of the partial interest previously created. Where a gift is made of a qualified or base fee, no reversion remains in the donor,(Z) but only a possibility of reverter. Where a person having only a particular estate in lands, grants a smaller estate than his own, he has a reversion left in himself, (m) Where a person creates an estate for years by demise at common law, r*9 ^^^' ^° "^^^ '^"■j ^^^^ immediately to the use of 0. *and L J his heirs." (2:) In the case of real estate the interest so defeated must be of the measure of freehold. And in the case of real estate, limitations of these interests " can only be by way of use or devise. They would be void if inserted in a deed at common law, being foreign to the simplicity of the conveyances employed before uses and devises were introduced. When these limitations are by way of use, they are sometimes called shifting uses, and sometimes springing uses. Those which are by devise are usually designated by the generic name of executory devises. These limitations partake of the destructive nature of conditions subsequent, and the creative nature of limitations in the derivative sense. And hence they are appropriately termed conditional limitations. "(a) (v) Id. g 694. Oa the subject of alternative limitations, see also Id. Part II. c. 21, 22, 24. (x) Id. § 137 ; see also ? 138—146. (y) Id. § 147. {/) Smith's Executory Interests annexed to Pearne, § 149. (a) Id. J 149, a, 150, 151. In illustration of the distinction between remainders and conditional limitations, see Id. Part II. c. 7. OP VESTED AND EXECUTORY INTERESTS. 189 The term executory devise, bequest, or limitation, when used in con- tradistinction as it generally is, not only in a generic sense, to imme- diate devises, bequests, or limitations, but also in a specific sense, to such executory limitations as are by way of contingent remainders, denotes " ' such a limitation of a future estate or interest in lands or chattels as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law,' or, in other words, it denotes limitations of springing interests, limitations of interests by way of con- ditional limitation, and quasi remainders after a life interest in personal estate ; as distinguished from those limitations of future interests which were good limitations at common law ; namely, limitations by way of re- mainder, limitations of the whole or the immediate part of a reversion, augmentative limitations, and diminuent limitations. An alternative limitation, though always an executory devise in the generic sense of the term, as opposed to an immediate devise, is not *always an ^^„.-. executory devise in the specific and usual sense, in contradis- L J tinction to contingent remainders; for many alternative limitations are contingent remainders in relation to the particular estate. "(6) Section V. Certain other Points connected with the subject of Vested and Executory Interests. Limitations may operate in difflerent characters, that is, as remainders, or as alternative limitations, or as conditional limitations, in regard to another limitation, in different events,(c) or in regard to different limi- tations,((^) or in regard to different portions of property.(e) " A limitation shall, if possible, be construed to be a remainder, rather than an executory devise. Or, to express the rule more precisely, and in its true extent, a limitation, whether by deed or devise, shall, if it possibly can, consistently with other rules of law, be construed to be a remainder rather than an executory limitation not by way of re- mainder."(/) It is also a general rule, that " an interest shall be construed to be vested, rather than contingent. Or, to express the rule more precisely, in doubtful cases an interest shall, if it possibly can, consistently with other rules of law, be construed to be vested in the first instance, rather than contingent; but, if it cannot be construed as vested in the first instance, it shall be construed to become vested as early as possible."(^) Thus, where a testator devises or bequeaths to a person *by r-^nAa-\ any description denoting a person sustaining a particular charao- L J (J) Smith's Executory Interests annexed to Pearne, § 111, a: see also 111. b, 111, c. (c) Id. Part II. c. 24. (d) Id. Part II. c. 25. (e) Id. Part II. c. 26. (/) Id. g 196-7. For the reasons of this, see Id. I 198-9. (g) Id, ig 200-1. For the reasons of this rule, see Id. g 202—209. 190 SMITH ON REAL AND PERSONAL PROPERTY. ter (suoh as heir, next of kin, youngest or only surviving son, or a child other than and except the first or eldest or an only son, or the nearest in blood,) the devise or bequest creates a vested interest in favour of the person answering that description at the death of the testator, rather than at any subsequent period, unless there are indications of a contrary intention. And the mere circumstance of the person answering the de- scription at the death of the testator being the object of a prior limi- tation in the same will, is not of itself a sufEcient indication of such a contrary intention/A) Again, although a portion or legacy may seem prima facie to depend upon the person interested surviving his parents, yet there is the strongest leaning against this construction, especially in the case of a marriage settlement ; so that if it is possible to satisfy the words by putting a different construction upon them, the court will do so.(i) So a condition precedent annexed to a preceding interest will not be applied to a subsequent interest, where it does not necessarily extend to it.(^) Executory interests, other than those in remainder after or engrafted on an estate tail, must be so limited, that, from the first moment of the instrument creating them taking effect (which, in the case of a deed, is the time of execution, and in the case of a will, the death of the testator, it may be said that they will necessarily vest in right, if at all, within r*94.71 ^^^ period occupied by the life of a person in being, that is, L J ^already born, or in ventre matris, or the lives of any number of persons described and in being, " not exceeding that to which testi- mony can be applied to determine when the survivor of them drops," and by the infancy of any child born previously to the decease of such person or persons, or the gestation and infancy of any child in ventre matris at that time ; or, within the period occupied by the life or lives of such person or persons in being, and an absolute term of twenty-one years afterwards, and no more, without reference to the infancy of any person ; or, within the period of an absolute term of twenty-one years, without the reference to any life.(?) Thus, " if a limitation is to take effect on an indefinite failure of issue in general, or of issue male or female, or by a particular marriage, and not merely on a failure of issue within a life or lives in being and twenty-one years and a few months afterwards ; it is within the foregoing rule against perpetuities, and therefore void for remoteness ; unless it is a remainder after, or a limita- tion engrafted on an estate tail ; or limitation of a sum of money to be raised by means of a term in remainder after an estate tail ; or a limi- tation over of a term which is determinable on the dropping of a life or (h) See Smith's Executory Interests annexed to Fearne, § 210 — 214 ; Baker v. Gibson, 12 Beav. 101 ; Matthews v. Paul, 3 Swanst. 328 ; Pearce v. Vincent, 1 Cr. & M. 598 ; Clapton v. Bulwer, 5 My. & Or. 108 ; Jenkins r. Gower, 2 Coll. 537 ; Wilkinson v. Garrett, 2 Coll. 643 ; Smith v. Smith, 12 Sim. 317 ; Minter v. Wraith, 13 Sim. 62 ; Urquhart v. Urquhart, 13 Sim. 613 ; Ware v. Rowland, 15 Sim. 587 ; Butler V. Bushnell, 3 My. & K. 232 ; In re Trusts of Barber's Will, 1 S. & G. 118 ; Bird V. Luckie, 8 Hare, 301. (i) See Smitli's Executory Interests annexed to Fearne, J 215 — 222. (k) See Id. § 222, a. (l) Smith's Executory Interests annexed to Fearne, J 706; see also Co. Litt. 271, b, n. 1, VI. 12; Burton, § 824 ; Lewis on Perpetuity, 459. 460. OF RIGHTS OF ENTRY, ETC. 191 lives in being, where a tenant right of renewal does not exist."(»i) The reason why some kind of limit was prescribed for the vesting of such executory interests, is, that executory interests (other than those which are in remainder after or engrafted upon an estate tail, and which were capable of being destroyed by the tenant in tail by means of a recovery,) could not be destroyed by the prior devisees or legatees ; and they there- fore tended to a perpetuity, by being unalienable until the contingency happened on which they were to vest in right, *which is incon- 1-^940-1 sistent with the welfare of the state, and therefore contrary to L J the policy of the law. Nor have the particular limits so proscribed been arbitrarily adopted. The court, in setting the bounds they have to the suspension of the vesting, have been governed by analogy to the case of a strict entail, which could not be protected from fines, and recoveries, longer than for the life of the tenant , for life in possession, and the attainment of twenty-one by the first issue in tail.(m) A contingent limitation over of property from one charity to another, in the event of the former neglecting for a year to observe the directions of the will by which the property was bequeathed, is not within the principle of the rule against perpetuities, and therefore not within the rule ; because the property is neither more nor less alienable on account of such limitation over.(o) " Executory interests in real property, which are not contingent on account of the person, descend to the heirs of the persons to whom they are limited, and such executory interests in personal property pass to the executors or administrators of the persons to whom they are limited, where they die before the contingency happens on which such interests are to vest."(j)) " These executory interests, if engrafted on an estate tail, might be destroyed by the tenant in tail, by means of a common recovery. But such interests cannot be prevented or destroyed by any alteration what- soever in the estate out of which or after which they are limited." (j) ♦CHAPTER II. [*249] or RIGHTS OF ENTET OR ACTION, MERE POSSIBILITIES, MERE ADVERSE POSSESSIONS AND EXPECTANCIES. In consequence of modern enactments, which are noticed in other parts of this work, the subject of this chapter is now of comparatively little practical importance, and therefore a very little space will here be (to) Smith's Executory Interests annexed to Pearne, J 714. (n) Smith's Executory Interests annexed to Fearne, § 707-8. On the subject of remoteness, see Mr. William David Lewis's learned and elaborate Treatise on the Law of Perpetuity. See also Smith's Executory Interests annexed to Fearne, g 709—738. (0) Christ's Hospital v. Granger, 1 Mac. & 6. 460. (p) Smith's Executory Interests annexed to Fearne, J ^43. (?) Id. 2 789—790. 192 SMITH ONKEAL AND PERSONAL PEOPBKTY. given to it, though points connected with it will be found in subsequent Present rights of entry are of two kinds : The first kind is that right of immediate entry which is incident' to a vested interest, where the actual seisin or possession has never been acquired, as in the case of an heir-at-law before entry, if the land is not out on lease for years ;(a) or where the actual seisin or possession has been lost by abatement, intrusion, or disseisin, but not the right of possession. (J) The second kind is that right of entry which exists in favour of a person who has a present right to take advantage of a condition which has been broken, the breach of which does not ipso facto determine the estate which was subject to such condition. (fi) A right of action for the recovery of an estate exists (as we shall See hereafter) in certain cases where there is originally no right of entry, or where the right of entry has ceased. (li) The word possibility has a general sense, in which it includes even executory interests, which are the objects of a limitation. But in its r*9flfn ^°^^ specific sense, it is that kind *of contingent benefit which L -1 is neither the object of a limitation, like an executory interest, nor is founded in any lost but recoverable seisin, like a right of entry. Of this nature is a possibility of reverter on the grant of a qualified or determinable fee.(e) For, as the qualified or determinable fee may endure for ever, there cannot be any remaining portion of the seisin or ownership to constitute an actual reversion, or to form the subject of any ulterior limitation in remainder.(y) And of the same nature is a contingent right of entry in case there should be a breach of a condition subsequent. A mere adverse possession, without any estate or interest, exists in the case of an abator, intruder, or disseisor, who, in the first instance, has the actual possession, but no right of possession. (gr) An expectancy is a general term which may include various kinds of future interests, but is specifically applied to a mere hope of succession, unfounded in any limitation, provision, trust, or legal act whatever ; such as the hope which an heir apparent or presumptive has of succeed- ing to the ancestor's estate. This is sometimes termed a bare or mere possibility. (^) It may be remarked in this place, that property in chattels personal may be either in possession or in action. Property in possession is that of which a person has not only the right of enjoyment, but has also the actual enjoyment. Property in action is that to which a man has only a bare right, enforceable by action or suit, without any occupation or (a) 1 Cruise T. 1, J 20. (b) See Pearne, 286, and n. (c) | 2 Bl. Com. u. 13 ; 3 Bl. Com. 168-9 ; and Title on Adverse Possession, infra. (c) See Fearne, 381, n. (a), I. 1, and p. 56, supra, (d) See Title on Adverse Possession, infra. (e) Fearne, 381, n, (a), I. 1. (/) See Smith's Executory Interests annexed to Fearne, § 159, 165, and supra, p. 231, 232. (g) 2 Bl. Com. c. 13; 3 Id. 168-9 ; and see Title on Adverse Possession, infra. (A) Fearne, § 301 ; Smith's Executory Interests annexed to Fearne, § 71. OE POWERS. 193 enjoyment, and which is hence denominated a chose in action. The first is subdivided into two sorts — property in possession absolute, and pro- perty in possession qualified. *The former is that to which a r^oK-i-i person has the exclusive and permanent right. The latter is L J that to which he has not an exclusive right, or not a permanent right, but a right which may sometimes subsist, and at other times not subsist; as in the case of game, water, and goods pawned or pledged upon con- dition, (i) *CHAPTEE III. [*252] OF POWERS. I. The Nature and different hinds of Powers, (a^ A POWER is an authority by which a person reserves to himself or confers on another the right to do an act in law.(S) Powers are of three kinds : 1. Common law authorities ; as powers given by will without the intervention of the Statute of Uses. 2. Statutory powers, not by way of use. 3. Powers limited by way of use, and oper- ating under the Statute of Uses. Statutory powers, not by way of use, are sometimes designated by the general term of common law authori- ties, (c) In the case of a common law power given by a will, or of a statutory power not by way of use, the estate which is limited by the exercise of the power, passes by force of the will or act of parliament, and the per- son who executes the power merely nominates the party to take the es- tate; except in the case of a power of attorney, which- is an authority given by one person to another to execute a conveyance for the former.(c?) *A power under the Statute of Uses is a mere right to declare j- _p.„-, a use which is executed by the statute, (e) L J Some of these powers are simply powers of appointment, serving to confer a right of declaring the original uses of a subject of property. Others are mere powers of revocation, serving to confer a right of setting (i) See 2 Bl. Com. 389-396. (a) On Appointments and Leases under Powers, see infra. And on the whole subject, see Lord St. Leonards' most learned and Taluable work on Powers (ed. 1,) from which, as the references show, many of the points are taken, although they are generally expressed in a different and condensed form. The task of selecting, arranging, and condensing these points within so small a compass was attended with no little thought and labour ; and it is hoped that the present Chapter, with what is to be found in Part III. on Appointments and Leases under Powers, will prove of use to many ; although of course it will not supersede the necessity of the reader's making himself master of the Treatise of Powers, and adding from thence to the points contained in this Compendium. (i) 4 Cruise T. 32, u. 13, § 1. (c) See 1 Sugd. Pow. 1, 2, 171-2 ; 4 Cruise T. 32, c. 13, § 1. (d) 1 Sugd. Pow. 1, 2, 242. («) 1 Sugd. Pow. 224 ; Co. Litt. 271, b, n. 1, VIL I. February, 1856. — 13 194 SMITH ON REAL AND PERSONAL PROPERTY. aside uses previously declared. While others are powers of revocation and new appointment, giving a right of setting aside uses previously de- clared, and limiting new ones in their place, which the statute executes, as it executed the uses originally declared. (/) Several of these powers are not usually called powers of revocation, such as powers of jointuring, leasing, and charging settled estates with the payment of money ; yet all these are in fact powers of revocation as well as of appointment ; for they operate as revocations pro tanto of the preceding estates. (A) A power may be given or reserved, 1. To a person who has an estate limited to him by the deed creating the power ; 2. To a person who had an estate at the time of the execution of the deed, but conveys away such estate by that deed, reserving to himself a power over the property ; 3. To a stranger to whom no estate is given, but for whose benefit the power is to be exercised; or, 4. To a stranger to whom no estate is given, and by whom the power is to be exercised for the benefit of some other per- son. (i) Powers limited to the first three persons above mentioned, may be termed powers connected with an interest ; while powers limited to the person last mentioned may be termed powers unconnected with an interest or naked powers. P^„ _ ... Powers limited to the first two persona above mentioned, *when L J they concern lands, are sometimes termed powers relating to the landjfA;) while powers limited to the person last described are generally called powers collateral to the land,, or simply collateral. The term col- lateral is, however, also applied to certain other powers. (?) For, powers limited to the first three persons above mentioned are divided into powers appendant or appurtenant, and powers collateral or in gross. (to) Powers appendant or appurtenant are those which are limited to a person to whom an estate is limited by the deed creating the power, and which enable him to create an interest which will wholly or partly fall within the compass of and affect that estate ; as where an es- tate for life is limited to a person, with a power of granting leases in possession. (ii) Powers collateral or in gross are those which, even if given to a person to whom an estate is limited, do not enable him to create an interest which will wholly or partly fall within the compass of and affect that estate. (o) A power simply collateral, or a naked power, or a power unconnected with an interest, is a power given to a person who had no interest at the time of the execution of the deed, and to whom no estate is limited by the deed, to dispose of or charge property (/) See 1 Sugd. Pow. 462 ; 4 Cruise T. 32, c. 13, § 3. (h) 4 Cruise T. 32, c. 13, § 4; Co. Litt. 2^, b, u. 1, VII. 1. (i) 1 Sugd. Pow. 39, 40. h) 4 Cruise T. 32, c. 13, § 5 ; Co. Litt. 242, b, n. 1, II. (l) 4 Cruise T. 32, c. 13, J 5 ; 1 Sugd. Pow. 40, 41 ; Co. Litt. 242, b, u. 1, IL (m) 1 Sugd. Pow. 40, 41. tn) See 1 Sugd. Pow. 40 ; 4 Cruise T. 32, c. 13, § 6 ; Co. Litt. 242, b, n. 1, II. (o) See 1 Sugd. Pow. 40, 41 ; 4 Cruise T. 32, c. 13, ? 9, 10 ; Co. Litt. 242, b, n. 1, lit OP POWERS. 195 in favour of some other person ; as where a power is given to a stranger to revoke a settlement, and appoint new uses.( j>) Powers are also divided into general and particular. A general power is a right to appoint to any person or persons the donee may choose to select. A particular power is a right to appoint to certain objects desig- nated in the deed creating the power. (2) *Where in a partnership deed it is stipulated that the interest _^.._-. of one of the partners in the partnership concern, in case of his L J death before the expiration of the partnership term, shall not belong to the surviving partner, but shall go to such persons or person as he shall by will name and appoint, and in default of such appointment, to his widow, children, executors, or administrators, as therein mentioned ; this does not create a power of appointment in the technical sense, but is a mere bargain that the partnership property shall not accrue to the surviving partner, but that the partner to whose share the stipulation relates shall have a power of disposing of it by will, or, if he should die intestate, that it shall devolve to his family. And therefore it will pass under the general description in his will, of " all other his estate and effects of whatsoever nature or description" without any allusion to the power, (r) II. The Creation of Powers. Any words which clearly indicate an intention that a person should have a power are sufficient to create one, whether in a deed or in a will.(s) By the old law, it was not necessary that the author of a power should require the observance of any particular forms in the execution of powers. So that a power, even though it related to real estate, might be reserved to be executed by a simple note in writing, or by an unattested will. But if the author of the power required it to be executed by a will or a writing purporting to be a will, without saying more, the power could only be exercised by a will duly executed, like any other, under the Statute of Frauds. This distinction, however, applies only to wills made before the year 1838. For by sect. 10 of the stat. 1 Vict. *c. 26, r^n^r.-, " no appointment made by will, in exercise of any power, shall L -I be valid, unless the same be executed in manner required" by the Act with respect to ordinary wills. f^) And a testator cannot by his will prospectively create for himself a power to dispose of his property by an instrument not duly executed as a will or codicil. (m) Powers could not be reserved on a bargain and sale to any but the bargainor, as the consideration must be paid to him in order to raise the use. (a;) But where a power is limited by way of use by a conveyance operating by transmutation of possession, the appointee acquires an {p) 1 Sugd. Pow. 42 ; 4 Cruise T. 32, c. 13, § 11. (?) 1 Sugd. Pow. 471 ; Co. Litt. 271, b, u. 1,VII. 2. (r) Ponton v. Dann, 1 Russ. & My. 402. (s) See 1 Sugd. Pow. 118, 119 ; 4 Cruise T. 32, c. 13, J 14. (t) 1 Sugd. Pow. 155—157. (u) Johnson v. Ball, 5 De G. & S. 85. (x) 1 Sugd. Pow. 160. 196 SMITH ON EEAL AND PERSONAL PROPERTY. equitable estate or a use by the appointment, and then the Statute of Uses instantaneously transfers the legal estate itself to him, without reference to any consideration, (y) Where an estate is to arise by the exercise of a power, the seisin out of which it is to be served must be commensurate with such estate, as the estate cannot endure beyond the seisin out of which it is to arise. So that if a life estate were conveyed to A. to such uses as B. should appoint, and B. were to appoint to C. in fee, the estate appointed to C. would cease on the death of A. And where it is intended to create a legal estate by an appointment by force of the Statute of Uses, and not a mere equitable estate, the land should be conveyed to the releasee, &o., to the uses intended to be appointed, and not to and to the use of the releasee, &c., to the uses intended to be appointed. (z) By the common law, powers and authorities may be given to certain persons who in other cases are incapable of disposing of lands on account of particular incapacities and disabilities. For, the execution of a naked r#9fi7l P°^8'' °^ authority cannot be attended with any prejudice to the L J *persons labouring under such incapacities, or to those for whose benefit the authority is exercised.(a) III. Powers to appoint to Children or Relations. A younger child who becomes the eldest, and as such takes the estate provided for the eldest or only son, before receiving his portion, is not within a power of appointing portions for younger children. (6) And on the other hand, an elder son unprovided for may take under such a pro vision, (c) If, under a power of appointing to one or more of a class of children exclu- sively of the others, in such shares and proportions, and in such manner and form as the donee may direct, the donee appoints to some of the children upon condition that the appointees shall, at the request in writing of the donee, release certain other property to the other objects of the power, and the donee appoints that if such release be not made, the property appointed shall go over to such other objects of the power, this is a good limitation over, for not only do the words "in such manner and form" give a greater liberty as to the mode of appointment, but such a dis- position is within the scope of the power in other respects, which is the distribution of the fund according to the donee's view of the exigencies of the family.(t^) Where estates are devised in strict settlement, with a general power for a tenant for life to charge portions for his younger child or children, such a power includes all the younger children by any marriage. (e) Where a testator bequeaths an amount of stock upon trust, after the decease of the prior takers, to transfer and pay over unto their children, r*9'iSl ™ ^^^^ shares as the survivor *shall by will appoint, this creates L J a gift to the children, subject to the power, but the objects of M 1 Sugd. Pow. 161, 162. (z) 1 Sugd. Pow. 175. (a) 4 Cruise, T. 32, c. 2, g 27. (i) 2 Sugd. Pow. 269. h) Id. 270-1. (d) Stroud t. Norman, 1 Kay, 313. (e) 2 Sugd. Pow. 281. OF POWERS. 197 the power and the gift are the children living at the death of the sur- viving parent, and therefore the representative of a child who died in the lifetime of the surviving parent has no interest in the fund.(/) Under a power to appoint real or personal property amongst children in such proportions as the donee shall think fit, he need not give abso- lute interests to any one or more of them, but he may carve it out into particular interests as he pleases. But a merely reversionary interest cannot be given to any one child, if it is intended for a portion. (^) Although a power to raise portions out of real estate be given generally, yet equity will not permit it to be exercised in such a manner as to raise them, or even to render them vested so as to be transmissible, before the time when the portions are wanted, even though interest is given in the meantime. And although the power is to raise the portions when the parent shall think proper, yet that is only to enable him to raise them in his lifetime, if necessary. (^) A power to appoint " amongst the children as the donee shall think proper," does not authorize an exclusive appointment :(i) a discretion is only given as to the amount. Where a person has a power of selection amongst relations, he may appoint to relations who are not capable of taking under the Statutes of Distribution. But where a person has only a power of appointing to relations generally, and not to such of them as he shall think fit, he can only appoint to the next of kin within those statutes. (A;) *IV. Shares in Default of Appointment. r*259] If a fund is given to certain objects, in such proportions as a third person shall appoint, if no appointment is made, the objects named will take equally. So that where a bequest was made to several relations " or their children," in such proportions as another person should appoint, and no appointment was made, such relations and their children all took in equal shares, because there was a general intention in favour of the whole class ; and as the particular intention in favour of particular individuals of the class to be selected by the donee of the power failed, by reason of the selection not being made, the court carried into effect the general intention. (m) But if a person, making no gift himself, merely empowers another to give property, the gift must be made, or no person can claim, though th? persons to whom the intended gift was to be confined are named. (ra) Where there is no hotchpot clause, appointments to several of a class of equal portions to the fund, will not exclude them from participating in the gift in default of appointment. (o) Nor will an appointment to one of a class of a part of a fund, where it is not expressed to be " in lieu of," but only " as and for her part, share, or proportion," prevent (/) 'Woodcock V. Benneck, 4 Beav. 190. \g) Sugd. Pow. 272, 273. (h) See 2 Sugd. Pow. 281, 283. («■) 1 Sugd. Pow. 538. {k) 2 Sugd. Pow. 242, 243. h) 2 Spence's Eq. Jur. 83. (m) Penny T. Turner, 2 Phil. 493. (n) 2 Spence's Eq. Jur. 84. (o) 2 Sugd. Pow. 217. 198 SMITH ON EBAL AND PBKSONAL PROPERTY. her participating in the unappoiuted fund limited to the class equally " in default of appointment."{p) A power of appointment does not prevent the vesting of real or per- sonal estate limited in default of appointment, but the interests limited in default of appointment vest, subject to be divested by an exercise of the power. (2') V. Powers to Sell, Mortgage, Charge, or Exchange. r*9rm -^^y words from which it can be inferred to have been *the L -I intention of the testator that his lands shall be sold for payment of his debts, will operate as a power of sale.(r) Where a will contains a direction or power to raise money out of the rents and profits of an estate, to pay debts, portions, or legacies, and the money must be raised and paid, before it could be raised out of the rents and profits, courts of equity have extended those words to a power to raise by sale or mortgage, unless restrained by other words. (s) But where the words are to raise a sum of money out of the annual profits, there the trustees cannot sell or mortgage. (?) In equity, an unlimited power to charge an estate authorizes a trust to sell the estate, and divide the proceeds amongst the objects of the charge ; and a power to grant the land enables a charge of a sum of money on the land.fw) A power given generally to raise a sum out of an estate authorizes a sale of such estate. (a;) A power to sell and raise money implies a power to mortgage, unless it is apparent that a sale out and out is alone intended. (y) " G-enerally speaking, a power of sale out and out for a purpose or with an object beyond the raising of a particular charge, does not authorize a mortgage; but where it is for raising a particular charge, and the estate itself is settled or devised subject to that charge, there it may be proper to raise the money by mortgage, and the court will support it as a conditional sale. "(2) Where a person has a power to charge lands with a sum of money, r*9fin ^^ ™^y *^^° charge them with the payment of *the interest; L -1 because the principal must carry interest; otherwise it could not be raised, (a) By the statute 21 Hen. 8, c. 45, where lands are willed to be sold by executors, though some of them refuse to act, yet the rest may sell.(i) (p) Wombwell v. Hanrott, 14 Beav. 143 ; .1 Sugd. Pow. 354; 2 Id. 217. (g) 2 Sugd. Pow. 4, 5 ; Smith's Executory Interests annexed to Fearne, J 369 a. (r) 6 Cruise, T. 38, c. 16, § 26. (s) Story's Bq. Jur. § 1064, 1064 a; 2 Spence's Eq. Jur. 316, 406; 4 Cruise, T. 32, c. 13, I 19. (0 4 Cruise, T. 32, c. 13, J 19. (u) 1 Sugd. Pow. 485, 486; 4 Cruise, T. 32, c. 16, § 55. (s;) 1 Sugd. Pow. 513. (j^) 1 Sugd. Pow. 513 ; 2 Spence's Eq. Jur. 369, 408 ; Haldenby v. Spofforth, 1 Beav. 390. (z) Stronghill v. Anstey, 1 De G. Mac. & G. 645. [a] 4 Cruise, T. 32, c. 13, § 18; 1 Sugd. Pow. 515, 516; 2 Id. 283. (i) 1 Sugd. Pow. 142 ; Burton, J 236. OP POWERS. 199 And though the letter of the law extended only to cases where executors had a bare power to sell, yet, being a beaeficial act, it was by construc- tion extended to the case of lands devised to executors to be sold.(c) Where a testator, by his will, charges his real estates with the pay- ment of debts generally, and then devises the same estates to trustees, in trust for other persons, the trustees have authority to sell or to mort- gage the real estates, or a part thereof, for the payment of the debts. (d) But where a testator simply charges or subjects his real estate with or to the payment of debts, that does not give the executor an implied power of selling or mortgaging such real estate, or any part thereof, but the executor can only enforce the charge in a Court of Equity. (e) Powers of sale and exchange need not be expressly confined within the rule against perpetuities ; because, if there is a preceding estate tail such powers may be barred by the tenant in tail; and if once an estate in fee in possession has been acquired by any one claiming under the limitations of the settlement by which the power was created, it naturally ceases. (/) Where a power of sale is given, without restriction, to a party having a limited interest only, it may well be held that the power to sell imports a negative upon the power to buy ; because the power to sell is in the nature of a trust, and it is obvious that the party who is interested to *sell cannot in such a case safely be permitted to buy. And p^__--, even a restriction put upon the power of sale will not in all cases '- J authorize the party to whom the power to sell is given to become the purchaser of the estate which is the subject of the power. But there are cases in which the court would permit the party who has the power to sell to become the purchaser of the estate. It must in each case depend on the circumstances under which, and the purposes for which, the power was given, and upon the nature and extent of the restrictions which are put upon the exercise of the power. In proportion as the power is restricted, the dangers incident to allowing the donee to pur- chase are diminished. (^^ Where a power of sale in a settlement is given to trustees and the survivor, his executors and administrators, trustees appointed by the court in place of those trustees cannot exercise the power.(/i) VI. Powers of Revocation. A power may be reserved to revoke either the whole settlement or any particular limitation only.(i) If a man has a power of revocation and of limiting new uses, and he limits new uses, that is a revocation. (j) A power to appoint new uses implies a power to revoke the former (c) 6 Oruise, T. 38, c. 16, § 24. (d) Story's Eq. Jur. § 1064 b ; Ball v. Harris, 4 My. & Or. 284. (e) Doe d. Jones v. Hughes, 6 Exch. Eep. 223. (/) 2 Sugd. Pow. 472. }g) Sir G. J. Turner, T. C, in Beaden t. King, 9 Hare, 519. (A) Newman v. Warner, 1 Sim. N. S. 457. (i) 1 Sugd. Pow. 177. [J) 1 Sugd. Pow. 415, 416; 2 Pres. Shep. T. 526. 200 SMITH ON EBAL AND PERSONAL PROPBETT. ones; for otherwise the power to appoint new uses could not be exercised. (A) And a power to do an act (as a power of sale) which cannot be fully effected without an appointment, authorizes an appoint- ment, and therefore a revocation. (?) On the other hand, although in the original settlement a power of r*2fiST ^6'^°<'^*'io'i o'^ly ^s reserved, yet a power to limit *new uses is ■- J implied, unless a contrary intention can be collected, or it is declared that the estate shall remain to the use of the settlor and his heirs, or the estate is expressly limited to other uses.(m) Whether the power be a general or special one, unless perhaps it be a simply collateral power, the donee may, by the appointment, reserve a power of revocation or of revocation and new appointment ; and such a power may be reserved toties quoties.(»i) A person who has a power of revocation may revoke part at one time and part at another; but he cannot revoke either the whole or the same part more than once, by deed, unless he reserves a new power of revo- cation in the deed of revocation. (o) For even where the original power expressly authorizes the donee to appoint and to revoke his appoint- ments from time to time, yet on every execution a new power of revoca- tion must be reserved, (ja) Where a person settles his estate to the use of himself for life, remainder over reserving to himself a power of revocation, and executes his power, he becomes immediately seised of his former estate, without any entry or claim, (g') VII. The Extinction, Suspension, Qualification, and Merger of Poioers. The first and most obvious mode by which powers may be extin- guished, is by a complete execution of them. (r) r*9fi4.1 ■^^ ''^^ person or one of the persons whose consent is neees- L J sary to the execution of a power, dies before it is executed, *and without having assented, the power is extinguished, (s) If a power reserved over a legal estate is defectively executed at first, it may be executed over again, and the last execution will stand; the first being a mere nullity. (<) Except by a complete execution of it, a power simply collateral can- not be suspended, barred, or extinguished by any act whatever of the donee or of any other person. (m) [h) 4 Cruise, T. 32, c. 13, I 22; I Sugd. Pow. 238; Co. Litt. 271, b., n. 1, Til. 1. (l) 1 Sugd. Pow. 238. (m) 1 Sugd. Pow. 461, 462. As to the question, whether a power of reTOcation only in a deed executing a power, authorizes a limitation of new uses, see 1 Sugd. Pow. 454-462 ; and Sheffield r. Donnop, 1 Hare, 42. (n) 1 Sugd. Pow. 446, 462-3 ; 4 Cruise, T. 32, o. 13, § 23, 25. (o) 2 Pres. Shep. T. 525, u. 32 ; 4 Cruise, T. 32, t. 13, 3 23 : 1 Sugd. Pow. 243, 449. {p) 1 Sugd. Pow. 449. {q) 4 Cruise, T. 32, c. 16, § 79, 81. (r) 4 Cruise, T. 32, c. 18, ? 1. (s) 1 Sugd. Pow. 319. (i!) 4 Cruise, T. 32, c. 18, § 2. (m) 1 Sugd. Pow. 45, 46 ; 4 Cruise, T. 32, c. 18, § 17, 18 ; 2 Pres. Shep. T. 333 ; Co. Litt. 242 b., u, 1, III. OF POWERS. 201 A total alienation of the estate operates as an extinguishment of a power appendant, where it cannot be exercised without defeating or prejudicing the interest granted. Thus, if tenant for life, with a power to grant leases in possession, conveys away his life estate, the power is extinguished; because the donee could not exercise it without deroga- ting from his own grant.(x) Upon the same principle, if the whole fee is in the terre-tenant, subject to a power of appointment; as where an estate is limited to him for life, remainder to such uses as he shall' ap- point, and, in default of appointment, to him in fee, or where it is limited to such uses as he shall appoint, and, in default of appointment, to him in fee, there, if be conveys the whole estate to a stranger in fee, his power of appointment is destroyed. (y) Where a person having a p'bwer appendant makes a feoffment or other conveyance of the land only for the purpose of creating a particular estate, as an estate for life or a term for years, this does not extinguish the power; but in some cases it suspends the power during such parti- cular estate, and, in other cases, it curtails the power in such a way, that any interest created by the power must be subject to the particular estate or interest previously *created.(2;) And where a tenant p^i^ooK-i for life, with powers of leasing, jointuring, and charging, parts L J with the beneficial interest in the estate by conveying it to a person for ninety-nine years, if he shall so long live, the freehold remains still in him, and his powers are not destroyed. And where he joined with the remainderman in suffering a common recovery, the conveyance to make a tenant to the precipe was usually during the joint lives of the tenant for life and the intended tenant to the prsecipe, so that the reversion remained in the tenant for life, and all his powers were thereby pre- served, (a) And a power appendant is not destroyed by a mortgage, security, or charge; but it may be suspended, curtailed, or qualified thereby. (6) With respect to those powers relating to land which are called powers in gross, as the estates to be created by them do not fall within the compass of the person's estate to whom they are given, a conveyance or alteration of that estate will not affect them.(c) And although a tenant for life assume to pass a fee, yet if he conveys by an innocent convey- ance (and all conveyances are now of that character), the power will not be destroyed ; because such conveyances pass only what the tenant for life lawfully may pass, namely, his estate for life.fii) But formerly, if a tenant for life, with power to jointure or to create any other estate to commence after his own, conveyed away his estate by feoffment to a (x) 1 Sugd. Pow. 56; Burton, § 177; 4 Cruise, T. 32, c. 18, ? 5, 6, 7 ; Co. Litt. 242, b., n. 1, IV. (y) 4 Cruise, T. 32, c. 18, § 14 ; Burton, ? 175 ; 1 Sugd. Pow. 79 ; Co. Litt. 242, b., n. 1, IV. (2) 4 Cruise, T. 32, c. 18, § 9; Burton, | 176; 1 Sugd. Pow. 47-51 ; Co. Litt. 242,b., n. 1, IV. (a) 4 Cruise, T. 32, c. 18, § 16. (b) 1 Sugd. Pow. 57, 62 ; Co. Litt. 242 b., n. 1, IV. (cj 4 Cruise, T. 32, c. 18, § 11; 1 Sugd. Pow. 85; Co. Litt. 242, b, n. 1, V. (d) 1 Sugd. Pow. 85-6 ; Co. Litt. 242, b, u. 1, V. 202 SMITH ON REAL AND PEESONAL PROPERTY. stranger and his heirs j as this species of assurance, prior to the recent enactment, 7 & 8 Vict. c. 76, s. 7, and 8 & 9 Vict. c. 106, s. 4, not only transferred the estate which the feoffor might lawfully pass, hut also a r*2fiRn tortious fee, the whole inheritance was divested, and the *seisin L J out of which the uses created by the power were to be fed was destroyed, by which means the power became extinct. And if a tenant for life levied a fine or suffered a recovery of the lands, the power was also destroyed, unless the fine or recovery were accompanied, preceded, or followed by a deed by which it was directed to operate as a confirma- tion or exercise of the power.(e) But a feoffment, fine, or any other assurance of a part of the land, was an extinguishment of the power as to that part only.(/) Present powers relating to the land, whether appendant or in gross, may be destroyed by a release to any one having an estate of freehold, in possession, remainder, or reversion, in the lands to which the power relates. ((/) Any contract entered into by the donee of a power, with which an exercise of the power would be inconsistent, prevents, at least in equity, a valid exercise of it.(A) A power given to a person having a particular estate in the land, is merged by his acquisition of the fee simple, (i) Where there is no object for the execution of a power, it of course ceases. (^3 VIII. Powers generally. Where the object of a power, whether in a deed or will, is to create a perpetuity, it will be considered simply void.(?) As a general power is tantamount to a limitation in fee in this respect, because it enables the donee to dispose of the fee or any less estate to whom he pleases, and as he pleases, there is not even a tendency to a perpetuity in such a power. r*2fi71 ^^^ though the interest of the person who *takes until appoint- •- -' ment is in effect tied up, it is for no longer period than the life of the donee of the power. But particular powers have a tendency to a perpetuity, and therefore, under a particular power, as a power to appoint to children, no estate can be created which would not have been valid if limited in the deed or will creating the power. And in the case of a power created by will, to appoint to children, those who are born in the testator's lifetime, though after his will, stand in the same situation as children born at the execution of the deed, where the power is created by deed.(m) A power may be given to a person in esse to appoint an estate amongst his grandchildren or more remote issue born during his life ; and even where the power is given to appoint to grandchildren or more remote (e) 4 Cruise, T. 32, c. 18, ? 13; 1 Sugd. Pow. 93, 94; Co. Litt. 242, b, n. 1, VI. (/) 4 Cruise, T. 32, c. 18, § 8 ; 1 Sugd. Pow. 93. (g) 4 Cruise, T. 32, c. 18, ? 3 ; 1 Sugd. Pow. 89, 90 ; Co. Litt. 242, b, n. 1, V. (h) Co. Litt. 242, b., n. 1, VII. (») 4 Cruise, T. 32, c. 18, J 25. {k) Id. I 21. (i) 1 Sugd. Pow. 178. (m) 1 Sugd. Pow. 471-475 ; Co. Litt. 271, b., u. 1, VII. 2. OF POWERS. 203 issue generally, yet if he only appoints to such as are living at his death, it will be good. And a power to appoint to " issue," includes all issue however remote, born in due time.(?i) Where property is limited to a person for life, and then for such per- sons, &c., as he shall appoint by will, and, in default of appointment, to his executors or administrators, he may assign the fund absolutely, and thereby extinguish his power. And where, in default of appointment, the fund is settled on another, the donee may, with the concurrence of that person, make a present title to the fund.(o) Where the power does not involve any personal trust or confidence, but is tantamount to an ownership, it may be exercised by attorney, in the same manner as a fee simple may be conveyed by attorney. (ji) And where a power is given to a person and his assigns, and it is annexed to an interest in the dpnee, it will pass with it to any person who comes to *the estate mediately or immediately under him, whether the r^c^aa-, claimant is an assignee in fact, or an assignee in law, as an heir ■- -' or executor. And the donee of a power not annexed to an interest may delegate the power by virtue of an express authority in the deed by which it was created. (g) " In all cases, in order to determine what is the real meaning of the words of a power, it is competent for the court to look to the whole in- strument in which it is found, and to examine and consider the conse- quences to the remainderman and to the other objects of the deed, for the purpose, if the words are ambiguous, of adopting that construction of them which may produce the least inconvenience, and best harmonize with all the other provisions which the parties have thought proper to ■ make."(r) But these consequences cannot be permitted to control powers expressed in words of unambiguous meaning, according to the ordinary acceptation of the terms used.(sj (n) 1 Sugd. Pow. ITS, 415. (o) Id. 19, 80. Ip) 1 Sugd. Pow. 215, 216, 237 J White v. Wilson, 1 Drewry, 304; 4 Cruise, T. 32, c. 16, g 67. (?) 1 Sugd. Pow. 215 ; 4 Cruise, T. 32, c. 7, § 22, and c. 16, § 68. (r) Alderson, B., in Slieely v. Lord Muslierry, 1 H. L. Cas. 584. (s) Lord Cottenham, C, Id., 593. The law as to Appointments and Leases under Powers has been reserved for Part III., to which it more properly belongs. — (See Index.) 204 SMITH ON REAL AND PERSONAL PROPERTY. [*269] #CHAPTER IV. OS CHARGES AND LIENS. Section I. 0/ Charges. A CHAEQB on real or personal definite estate, is a sum of money pay- able out of the same. Where a testator devises an estate in trust to pay debts and other charges, no beneficial interest passes to the devisee, but he is a mere trustee for the payment of debts and charges, and, as to the residue, after payment thereof, a trustee for the heir. But where an estate is devised, charged with or subject to debts and other charged, the whole beneficial interest passes to the devisee, subject only to the payment of the debts, and other charges. (o) In the interpretation of wills, favour to creditors has been an acknow- ledged principle of construction, (i) And real estate may be charged by will with the payment of debts, even by a mere expression of an inten- tion that the testator's debts should be paid, without any other indica- tion that they are to be paid out of the real estate, and whether such expression be contained at the beginning of the will, or in any other part. But if a testator directs a particular person to pay, it is natural to pre- sume that the testator intended him to pay out of the funds with which P2701 ^® '^ entrusted, *and not out of other funds over which he has L -J no control; and if the executor is pointed out as the person to pay, that excludes any presumption that other persons not named are to pay, or that the debts are to be paid out of the real estate, (c) An ex- ception, however, occurs where a testator charges his executors with the payment of his legacies, and devises and bequeaths real and personal estate to them, for he thereby charges his real estate, as well as his per- sonal estate, with the legacies. (cZ) Although all the real estates of a deceased are now rendered liable for his debts generally, the creditors have no charge on the land ; so that they cannot follow it; their remedy is merely personal. (e) The effect of a charge of all the testator's debts on his real estate, is to take the real estate out of the operation of the statutes against fraud- ulent devises and of the stat. 3 & 4 Will. 4, c. 104, which renders real estate liable to the testator's simple contract debts, and to subject it, as equitable assets, to the payment of all debts of whatever degree, pari (a) Story's Eq. Jur. § 1245: 2 Spence's Eq. Jur. 23, n. (6), 226 ; 1 Rop. Leg. by White, 505, 508. (6) 2 Spence's Eq. Jur. 327, n. [ff] ; 1 Rop. Leg. by White, 672. (c) See Story's Eq. Jur. g 1246, 1247, 1247 a; 2 Spence'e Eq. Jur. 320-322 ; 6 Cruise, T. 38, c. 16, § 7, 8 ; 1 Rop. Leg. by White, 672. (d) Cross T. Kennington, 9 Beav. 150. (c) 2 Spence's Eq. Jur. 344. OP CHAKGES. 205 passu, so as to destroy the priority to which specialty debts would other- wise be entitled under those statutes. (/) If a legacy is given generally, the legatee must resort to the personal estate only. (5') But it may be charged on real estate either expressly or by plain implication. (A) Thus, where a testator makes a provision in the same clause for payment of debts and legacies together, the natural inference is, that he intends both to be paid in the same way ; and there- fore if the debts are payable out of a mixed fund, so will be the legacies. So a bequest of legacies, *f olio wed by a gift of all the residue of ,p^„„,-. the testator's real and personal estate, will operate as a charge ■ L J of the legacies upon the entire property.(i) A general charge of legacies on real and personal estate will not render real or personal estate speci- fically devised or bequeathed liable to pecuniary legacies in case of a deficiency in the personal estate. (A;) And even where real estate is charged, it will not be held to be liable until after the general personal estate is exhausted, unless there is an intention to exonerate the personal estate ;(Z) as where nothing is given to the legatee but a sum to be raised out of the real estate, or where a portion of the real estate or its produce is appropriated as a fund for payment of the legacies. fm) Where the testator charges his legacies on his real and personal estate, the realty and the personalty bear the charge rateably, according to their relative value ; and if some of the legacies fail by lapse or otherwise, so much of the realty as would have been applicable to the payment of the legacies which fail, belongs, if undisposed of, to the heir, and so much of the personalty as would have been so applicable, to the next of kin.(m) If a testator merely charges his lands with the payment of his debts, the estate must be sold by the person to whom it descends or is devised; and in such case the purchaser will not be liable to see to the applica- cation of the purchase-money. (0) Whether real estate is subject to debts or legacies, or both, by way of trust or of charge, or by way of legal power in the nature of a trust, the estate can only be turned into money, and the proceeds distributed, in case of dispute or diflSculty, through the agency of the Court of Chan- cery, (p) *Where the estate is charged with annuities, it is not the course to discharge the lands : they will be charged in the hands L J of a purchaser, (qj (/) 11 Jarm. & Byth. by Sweet, 435. Ig) 2 Spence's Eq. Jur. 327, 334, 342. (h) See 2 Spence's Eq. Jur. 32'7-329, 342. (j) 2 Spence's Eq. Jur. 328. (k) Coote Mortg. 3d edit. He ; 6 Cruise, T. 38, c. 16, § 21. h) 2 Spence's Eq. Jur. 338. (m) 2 Spence's Eq. Jur. 342. (n) 1 Rop. Leg. by White, 680. (0) 2 Spence's Eq. Jur. 367. (p) 2 Spence's Eq. Jur. 365. (g) 2 Spence's Eq. Jur. 369. It may here be mentioned, that estates may be charged for draining purposes under powers in various Acts of Parliament; «,s to which, see Coote on Mortgages, 562-8 ; and Stamp's Index to the Statute Law. 206 SMITH ON REAL AND PERSONAL PROPERTY. Section II. Of Liens. (r\ A lien is a hold upon property, for the satisfaction of a claim attach- ing thereto, under an express charge or contract or constructive trust.(s) Liens in equity are wholly independent of the possession of the property. The usual way of enforcing a lien in equity, if not discharged, is by sale of the property to which it is attached. (i) The lien of a solicitor on the deeds, books, and papers of his client, for his costs, is not like a lien arising in the case of contract : it has not the character of a pledge or mortgage ; but it is merely a right to with- hold the deeds, books and papers, which have come into his possession as solicitor, and not a right to enforce his claim against the client. It prevails as against the representatives of the client, but it is only com- mensurate with the right of the client, and is subject to the rights of third persons as against him. Hence, a prior incumbrancer cannot be affected by it ; and when a mortgage is paid off, the solicitor of the mort- r*97^T 8*S®6 cannot retain the *deeds.(M) And so where a purchaser L J makes a mortgage, and afterwards the purchase is completed, and the deeds are delivered to the solicitors of the purchaser, who have no notice of the mortgage, their lien, either for their general bill of costs or for their costs relating to the conveyance, cannot prevail against the mortgagee. (?;) But a solicitor has a lien upon a fund realised in a suit, for his costs of the suit or immediately connected with it ; and this is a lien which he may actively enforce, (a;) If one of two joint tenants of a lease renew for the benefit of both, he will have a lien on the moiety of the other joint tenant for a moiety of the fines and expenses.(y) A trustee is entitled to a lien on the trust estate for his expenses. («) Annuitants scheduled to a trust deed do not acquire any lien upon the trust estate, unless they are made parties to the deed.(o) A covenant for consideration to charge or settle particular lands, or all the present estates of the covenantor, will create a lien on that pro- perty. So a covenant to settle or charge lands of a certain value by a certain time will bind even after-purchased lands belonging to the cove- nantor at that time. And the parties entitled to the benefit of the covenant will take vested interests, though they die before the time fixed for the execution of the covenant. And it is the same with a covenant to settle or charge all lands to be acquired in a certain time.(i) [r] On this subject the reader is referred to Coote on Mortgages, ed. 3, Chap. 15, 19. (s) Smith's Executory Interests annexed to Fearne, J Y4. I (<) Story's Eq.Jur. § 1217. (m) 2 Spence's Bq. Jur. 800, 801. iv) Pelly v. Walker, 3 D., M. & G. 'l6. (a:) 2 Spence's Eq. Jur. 802. (v) 2 Spence's Eq. Jur. 803. (z) 2 Spence's Eq. Jur. 803. (a) 2 Spence's Eq. Jur. 804. (6) Coote Mortg. 3d edit. 227. OF MORTGAGES. 207 *TITLE X. [*274] OF ABSOLUTE AND DEFEASIBLE INTERESTS ; AND PARTICULARLY OF INTERESTS BY WAY OF SECURITY. CHAPTER I. OP ABSOLTITE AND INDEFEASIBLE INTERESTS. Absolute interests (as opposed not to limited or partial interests, but to defeasible interests) are interests which are not created as securities, nor subject, by the terms by which they are limited, to any liability to determine at all, or not before the time when they would expire by force of the general limitation, express or implied. (a) Defeasible interests are interests which are created as securities, or are liable to be divested by an action, or subject, by the terms in which they are limited, to a liability to determination, before the time when they would expire by force of the general limitation, express or im- plied. (a) These are of several kinds : — 1. An interest which is subject to an express condition subsequent properly so called, or to a defeasance. (a) 2. An interest which is subject to a mixed condition. (5) 3. An interest which is subject to a special or collateral limitation. (a) 4. An interest under a limitation in default of appointment, which confers a vested inte- rest, subject to be divested by an appointment. (c) 5. Interests gained by abatement, intrusion, disseisin, discontinuance, and deforcement, where the rightful owner has a right of action for recovery of his es- tate. (d) 6. Interests by way of security. *CHAPTER II. [*275] OF MORTGAGES.(aa) A LEGAL mortgage is a security created by means of a transfer, by a debtor to his creditor, of the legal ownership of real or personal estate, subject to be defeated by the discharge of the debt. Where land is conveyed on trust, in case a sum and interest should not be paid by a day named, to sell, and after payment of principal, (a) See p. 47-9, supra. (h) See p. 43-6, supra. (c) See p. 256, supra. (d) See title on Adverse Possession, infra. [aa) On this subject the reader is referred-generally to Mr. Coote'a most learned, elaborate, and valuable work, the third edition of which is edited by him and his son, Mr. Richard Coote, — a gentleman peculiarly qualified for such a laborious and diflScult work. See also 5 Jarm. & Byth. by Sweet; and Co. Litt. 205, a, n. 1, 208, a, li. 1. 208 SMITH ON REAL ANB PERSONAL PROPERTY. interest, and costs, to pay over the surplus and reoonvey the unsold part of the estate ; and the grantee covenants not to sell without giving six months' notice; and the grantor covenants to pay the debt and interest; but there is no proviso for redemption ; this is a mere mortgage, and the grantor is entitled to six months' time to redeem. (6) There is a kind of mortgage called a Welsh mortgage, which however has now fallen into disuse, in which there is no condition or proviso for repayment at any time. The agreement is, that the mortgagee, to whom the estate is conveyed, shall receive the rents till his debt is paid, and in such case the mortgagor and his representatives are at liberty to redeem at any time.(c) There is a species of transaction which bears some resemblance to a r*97fii mortgage, but yet it is very different. It ^consists of an L J absolute bona fide sale and conveyance, with a collateral agreement for repurchase and reconveyance on repayment of the pur- chase-money ; and such collateral agreement may either be intro- duced into the agreement for sale at the time, or may be made at a subsequent period. (li) Of this class is an agreement for the purchase of the equity of redemption, entered into bona fide and subsequently to a mortgage, which was made and concluded without reference to any such agreement, followed by a subsequent agreement between the parties that the mortgagor might have the estate, on payment of principal, interest, and costs. Of the same nature is a release of the equity of redemption, with a collateral agreement to re-convey on payment of the purchase-money. (e) But where an agreement for a repurchase is con- temporaneous with the agreement for purchase, the transaction will usually be treated as a mortgage ; repurchase being regarded as meaning redemption. (/) If the money paid by the grantee would be a grossly inadequate price for the absolute purchase of the estate ; if he was not let into immediate possession of the estate; if he accounted for the rents to the grantor, and only retained an amount equivalent to interest; or if the expense of preparing the deed of conveyance was borne by the grantor; each of these circumstances has been considered as evidence, showing, with more or less cogency, that the conveyance was intended merely by way of security, (gr) A conveyance will not be deemed a mortgage or held to be a security only, though it be for an undervalue, if it is not so gross as to show that necessity or pressure amounting to fraud could alone have induced the r»977n P®""^"^" *° enter *into such a contract, and though the purchaser L J afterwards declare that he will take the money given as the con- sideration at any time, with damages for it, or the like ; for if it is not a mortgage in principio, it shall not be so by parol agreement afterwards. (i) (b) Bell T. Carter, 17 Beav. 11. (c) 2 Spence's Eq. Jur. 616. (d) 2 Spence'a Eq. Jur. 619, 621 ; Coote, Mortg. 3rd edit. 14. (e) Coote, Mortg. 3rd edit. 14. (/) 2 Spence's Eq. Jur. 621, note a; Coote, Mortg. 3rd edit. 11. Iff) 2 Spence's Eq. Jur. 620, 622. (i) 2 Spence's Eq. Jur. 622, 623. OF LEGAL MORTGAGES OF KEAL PROPERTY. 209 Where the transaction is clearly one of purchase with a right of repurchase, the time limited ought precisely to be observed ; and there is no principle on which the court can relieve, if it is not so observed.(^) In case the transaction is one of repurchase, and not of redemption, if the purchaser dies seised, and then the right of repurchase is exercised, the money will go to the real representatives, and not to the personal representatives, as it would in the case of a mortgage. (?) If a transaction is to be considered in the light of a mortgage as to one party, it must as regards the other.(TO) Section I. Of Legal Mortgages of Real Property. 1. Generally, every description of property, and every kind of interest in it, which is capable of absolute sale, may be the subject of a legal mortgage or its equivalent in equity. (ji) Kectories impropriate and tithes in lay hands are subject to the like mode of mortgage as any other *speoies of real estate, (o) And the stat. 1 & 2 Vict. c. 106, rjKn7Q-' authorizes the bishop, on the avoidance of a benefice not having L J a fit house of residence, to raise money for building a residence by mortgage of the glebe, tithes, rents, and profits, and prescribes a form of mortgage. (^) II. 1. So long as the mortgagor remains in possession, the mortgagee's estate is not absolute even at law. For by stat. 15 & 16 Vict. c. 76, s. 219, 220, if an ejectment be brought by the mortgagee, and no suit be pending in any court of equity for redemption or foreclosure, the pay- ment of principal, interest, and costs shall, except in certain cases, be deemed a satisfaction of the mortgage, and the court may compel the mortgagee to reconvey the estate, (g) But when the mortgagor has ceased to be in possession, and there has been a default in payment of the money at the stipulated time, the estate of the mortgagee becomes absolute at law. Yet his estate is in equity treated as a mere security for the principal and interest and costs properly incurred in relation to the mortgage, and follows the nature of the debt. And although, where the mortgage is in fee, the legal estate descends to the heir of the mort- gagee, yet, in equity, it is deemed a chattel interest and personal estate, and belongs to the personal representatives as assets. (r) 2. As to the mortgagee's rights, he is entitled to enter into possession of the lands, and, after notice to the tenants, to recover the rents and profits, unless there is some agreement to the contrary ; and if the security is insuflicient, he may fell timber, and sell it, and apply the (k) 2 Spence's Eq. Jur. 623 ; Coote, Mortg. 3rd edit. 14. [I) 2 Spence's Eq. Jur. 624. (m) 2 Spence's Eq. Jur. 623 ; Coote, Mortg. 3rd edit. 19. (n) 2 Spence's Eq. Jur. 614; Coote, Mortg. 3rd edit. 101. (o) Coote, Mortg. 3rd edit. 208. {p) Coote, Mortg. 3rd edit. 208. (j) The stat. '7 Geo. 2, c. 20, s. 1, 3, contains similar provisions. (r) Coote, Mortg. 3rd edit. 539 ; 2 Spence's Eq. Jur. 296. February, 1856. — 14 210 SMITH ON REAL AND PERSONAL PROPERTY. produce towards the liquidation of Lis debt j but with this exception he P^n„q, may not commit waste. He may grant leases, subject to the L J *equity of redemption, and void, by ejectment, without notice, any leases that have been made by the mortgagor, without his concur- rence, subsequently to his mortgage. He must, however, account for the rents he receives, and pay an occupation-rent for such part as he may keep in his own possession. (s) In the case of a lease made prior to the mortgage, although it is not strictly necessary, yet in order to afford evidence of the tenant's admis- sion of a notice to pay rent to the mortgagee, the tenant sometimes signs an acknowledgment of attornment, and sometimes he attorns without any notice. And if a mortgagee does not wish to disturb the possession of a lessee under a lease made subsequent to the mortgage, sometimes the lessee attorns to the mortgagee at the rent reserved by the lease, in order to create a tenancy with the mortgagee, and to enable him to dis- train for the rent.(i) And where the mortgagor himself is in possession, he sometimes attorns and becomes tenant to the mortgagee at a rent equal to the amount of the interest, with an addition sufSoient to cover the expenses of insuring the buildings, (m) A mortgagee is not allowed to obtain any advantage out of the secu- rity beyond his principal and interest.(a;) A mortgagee cannot, at the time of the mortgage, stipulate, that, if the interest be not paid at the time, it shall be converted into princi- pal. (y) To convert interest into principal, the interest must first become due, and then there must be an agreement in writing signed, to make it principal, at least so as to affect the estate ; and the interest cannot r*9Sm ^^^^ ^^^^ ^® turned into principal to the prejudice *of subsequent L J incumbrances of which the mortgagee has notice at the time of the agreement.(») If a certain rate of interest is reserved, an agreement, that, if such in- terest be not punctually paid, a higher rate of interest shall be payable, is in the nature of a penalty, against which the court will relieve. But the same object may be attained by reserving the higher rate, and pro- viding for an abatement in the event of punctual payment.(a) Interest is payable de die in diem, and must therefore be apportioned. The consequence is, that if a tenant for life of a sum of money secured by mortgage dies within a current half year, his executors will be en- titled to the interest up to the day of his death. (5) By the stat. 3 & 4 Will. 4, c. 27, s. 42, " no arrears of rent, or of in- terest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress. (s) Story's Eq. Jur. ^ 1016, 1016, b; 2 Spence's Eq. Jur. 642, 645, 646, 648 ; Coote, Mortg. Srd edit. 332, 334, 344; 3 Jarm. & Byth. by Sweet, 37. (<) 3 Jarm. & Byth. by Sweet, 37. lu) 3 Jarm. & Byth. by Sweet, 44. (x) Coote, Mortg. 3rd edit. 12, 430. (jr) 2 Spence'3 Eq. Jur. 628 ; Coote, Mortg. 3rd edit. 430-1. h) 2 Speace's Eq. Jur. 656; Coote, Mortg. 3rd edit. 431. (a) Coote, Mortg. 3rd edit. 440 ; 2 Spence's Eq. Jur. 631. (6) Coote, Mortg. 3rd edit. 442. OF LEGAL MORTGAGES OF ElEAL PEOPBRTT. 211 action, or suit but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent : provided nevertheless, that where any prior mortgagee or other incum- brancer shall have been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit shall be brought to any person entitled to a subsequent mortgage or other in- cumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover in such action or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in *such possession |-^„j,.- or receipt as aforesaid, although such time may have exceeded L J the said term of six years." But by the stat. 3 & 4 Will. 4, c. 42, s. 3, an action of covenant or debt upon any bond or specialty may be brought within twenty years after the cause of such action or suit. And hence it has been decided, that a mortgagee, having the further security of a bond or covenant, can recover in equity, by virtue of his mortgage, twenty years of interest.(c'> Leases made by the mortgagor to the mortgagee at a rent are looked upon with great suspicion, as likely to have originated in the mortgagee's having taken advantage of the necessities of the mortgagor to obtain a lease upon terms upon which the property would not have been let ex- cept for those necessities. W) The mortgagee in possession has a right to add to his debt any sums he may be compelled to pay for arrears of rent, or for maintaining the title to the estate, or for rebuilding the premises, or for necessary re- pairs, or the expenses of collecting the rents or renewing a renewable leasehold, with interest from the time the sums were advanced. But the mortgagee not being allowed any advantage beyond his principal and interest, he cannot by contract or otherwise entitle himself to make any charge for management, (e) Hence also he is not allowed to make any charge as receiver, if he himself has personally received the rents, even though it may have been agreed that he should be paid for his trouble in receiving them, and though a receiver might have been employed at the expense of the mortgagor. And it is only where the owner himself, in the ordinary course of management, would have had to employ one, that the mortgagee is entitled to employ a bailiff or receiver, unless with the sanction of the mortgagor. (/) *A mortgagee of a West India estate may stipulate that the r^ooQ-i consignments shall be made to him. And, if out of possession, L J he may take a certain reward for the management of the estate, pro- vided he do not make that employment a condition. But when he takes possession, he is not at liberty to charge the mortgagor, whom be has ousted, for the trouble he takes on his own account ; and he cannot (c) Coote, Mortg. 3rd edit. 444; Elrey v. Norwood, 5 De Gex & Sm. 240. (d) 2 Spence's Bq. Jur. 632. (e) 2 Spence's Eq. Jur. 649, 650, 653; Coote, Mortg. 3rd edit. 343-4. (/) 2 Spence's Eq. Jur. 807. / 212 SMITH ON EEAlf AND PERSONAL PEOPBRTY. charge or stipulate for commission on consignments, insurance, and the like, but stands in the possession of a mortgagee in possession of an English estate. (^) As a mortgagee is not allowed any advantage beyond securing his principal and interest, where an advowson is mortgaged, and the living becomes vacant prior to the foreclosure, the mortgagee is compellable in equity to present the nominee of the mortgagor } even although nothing but the advowson be mortgaged, and the deed contain a cove- nant that on any avoidance the mortgagee shall present. But he may pray a sale of the advowson. (A) The mortgagee is at liberty to stipulate for the option of pre-emption, in case the mortgagor should determine to sell.(i) A mortgagee is not bound to produce his mortgage deed, or indeed any of the deeds in his possession, to the mortgagor or any person claim- ing under him, until payment of the principal and interest due and his costs, though the application be made bon& fide, only to obtain informa- tion with a view to paying off the mortgage. r/u) As an incident to the right of a mortgagee, he is at liberty to devise the legal estate in the mortgaged property to trustees, if he thinks fit, instead of allowing it to descend to his heir at law ; and the mortgagor r*ocq-i must bear the costs *of obtaining a re-conveyance, although they L -I may have been increased by such devise. (Z) If a mortgagee in possession turns out or refuses to accept a responsible tenant, he is liable for any loss occasioned thereby, (m) In the absence of particular circumstances, statutes, judgments, and recognizances, at law and in equity, and equitable charges of every kind, in equity, all rank according to their dates. (n) But if a third incum- brancer by mortgage, without notice of a second incumbrance at the time of lending his money, should purchase the first legal mortgage, judgment, statute, or recognizance, even after notice of the second mort- gage, so as to acquire the legal title, and should hold both securities in his own right, equity will tack both incumbrances together in his favour ; so that the second mortgagee will not be permitted to redeem the first, without redeeming the third also ; on the principle, that where the equi- ties are equal, the law shall prevail. But if a puisne creditor by judg- ment, statute, or recognizance, should buy in a prior mortgage, he would not be allowed to tack his judgment to such mortgage, so as to cut out or postpone a mesne mortgage ; because he did not originally advance his money on the immediate credit of the land, and, by his judgment, he did not acquire any right in the land, but, before the statute 1 & 2 Vict. c. 110, only a lien on the land, which might or might not be en- forced on it;(o) although now, under the 13th section of that act, except (ff) 2 Spence's Bq. Jur. 630 ; Coote, Mortg. 3rd edit. 343. (A) Coote, Mortg. 3rd edit. 33, 367; 2 Spence's Eq. Jur. 629: 3 Cruise T. 21, c. 2, B. 35. (i) 2 Spence's Eq. Jur. 631 ; Coote, Mortg. 3rd edit. 14. (k) 2 Spence's Eq. Jur. 655 ; Coote, Mortg. 3rd edit. 345, 368. (l) 2 Spence's Bq. Jur. 669. (m) 2 Spence's Bq. Jur. 806. (n) 2 Spence's Eq. Jur. 727; Coote, Mortg. 3rd edit. 410. (o) See Story's Eq. Jur. ^ 412—416, 418, 421 ; 2 Spence's Eq. Jur. 734, 735, 737, OF LEGAL MORTGAGES OP REAL PROPERTY. 213 as regards purchasers, mortgagees, or creditors, who became such before the time for the commencement of the act, a judgment will operate as a charge on real estate. *Upon the principle, that, where the equities are equal, the r^i-oo^-i law shall prevail, if a first mortgagee, who has the legal estate, L -I or the better right to call for it, lends to the mortgagor a further sum- on another mortgage, or on a statute or judgment, or even if he lends a further sum or note, and it is distinctly agreed at the time to be on the security of the mortgaged property, he will be entitled to retain till both sums are paid, as against a mesne mortgage, of which he had no notice at the time of the further adva,nce.(p'\ But a statute or judgment creditor who is the first incumbrancer, cannot, by buying a subsequent mortgage, tack it to his statute or judgment, because he did not advance his money on the immediate Credit of the land.(2) And a prior mort- gagee, having a bond debt, has never been permitted to tack it against any intervening incumbrancer of a superior rank between his bond and mortgage, nor against other specialty creditors, even against the mort- gagor himself, but only against his heir, in order to avoid circuity of action. The reason given is, that the bond debt, except in the hands of the heir, was not a charge on the land.(r) And as copyholds, prior to the 1 & 2 Vict. c. 110, were not liable at law to an extent, a judgment debt could not be tacked to a mortgage of copyhold land.(s) And when a puisne mortgagee has bought in a prior incumbrance, but the legal estate is vested in a trustee, or the puisne mortgagee has not obtained the legal title, or he takes in autre droit, the incumbrances are paid in the order of their priority in point of time, according to the maxim, Qui prior est tempore, potior est in jure, and the principle that he who has the better right to call for the legal title, or for its protection, shall prevail. (<) *Where a first mortgagee voluntarily, distinctly, and unjusti- - „ fiably agrees to allow the mortgagor to retain the title deeds, he L J will be postponed to a second mortgagee. (it) So if he conceals his mortgage from a person who, as he knows, is about to lend money to the mortgagor, he will be postponed to that person. (x) But a mortgagee of an equitable estate in land has no occasion to give notice to the trustees, either to complete his title as against his mortgagor, or to secure to him- self his priority against subsequent incumbrancers. (y) A declaration of trust of an outstanding term, accompanied by a delivery of the deeds 740; Coote, Mortg. 3rd edit. 209, 210, 383, 385, 389, 403, 407, 408; but see 2 Spence's Bq. Jur. 722, 723. (p) Story's Eq. Jur. § 417, and note; 2 Spence's Eq. Jur. 721, 735, 739 ; Coote, Mortg. 3rd edit. 409, 410. (?) 2 Spence's Eq. Jur. 740. (r) Story's Eq. Jur. J 418 ; 2 Spence's Eq. Jur. 723—725, 735 ; Coote, Mortg. 3rd edit. 393. (a) Coote, Mortg. 3rd edit. 389. (t) Story's Eq. Jur. § 419 ; 2 Spence's Eq. Jur. 745. (u) Story's Eq. Jur. § 393, and see § 1010 ; 2 Spence's Eq. Jur. 766, 767. (x) Story's Eq. Jur. | 390 ; 2 Spence's Eq. Jur. 732, 766 ; Coote, Mortg. 3rd edit. 415. (y) 2 Spence's Eq. Jur. 764; Coote, Mortg. 3rd edit. 210, 416. 214 SMITH ON EBAL AND PERSONAL PROPERTY. creating and continuing the term, will give a subsequent incumbrancer a better equity than a mere declaration of trust taken by a prior incum- brancer. (a) But it will not create a prior equity in a subsequent in- cumbrancer, that he claims by a legal title, while the prior incumbrancer claims by an equitable title.(a) Yet, if the first incumbrancer has a declaration of trust only by the borrower, and none by the trustee, and the second incumbrancer has a formal mortgage of the equity of redemp- tion, and the trustee is a party to that deed, and declares himself to be a trustee for the second incumbrancer, the second will have a better equity to call for the legal estate than the first.(6) 3. As to the remedies to secure the discharge of the mortgage, where there is no power of sale in the deed, a bill for a foreclosure is in common cases deemed the appropriate and exclusive remedy ;(c) but by the stat. 15 & 16 Vict. c. 86, s. 48, on a foreclosure suit being instituted, the Court may now direct a sale. r*98fil *"^ decree of foreclosure on a mortgage cannot be obtained L -I until the estate has become forfeited at law by breach of the condition. A default in payment of a half-year's interest on the appointed day will be a suflSoient breach of condition to enable the mortgagee to foreclose, (c?) An intermediate mortgagee is entitled to file a bill of foreclosure against the mortgagor and the subsequent mortgagees. (e) A person enti- tled to a part only of the mortgage money cannot file a bill to foreclose a portion of the estate. (/) A bill of foreclosure may be filed notwith- standing a decree for redemption ; for the mortgagor may make default.(^) Where a decree of foreclosure is made against an infant heir or devisee of the mortgagor, the infant has a year and a day to show cause against the decree on his coming of age ; but he can only do this by showing error in the decree, or falsifying the accounts for fraud or error. (^) A foreclosure suit cannot be brought but within twenty years after the right to bring such suit first accrued, or within twenty years after the last payment of any part of the principal money or interest. (i) With respect to incumbrances subsequent to the mortgage but prior to the filing of the bill, the rule appears to be, that the decree of fore- closure will bind all those who are parties to it, but not the rest.(A) Even after a decree of foreclosure has been signed and enrolled, and the mortgagee has been in possession for many years, nevertheless the Court will, under special circumstances, open the decree. Equity, how- ever, will not open the decree by reason of the over-value of the estate (T) Though a power of sale be harshly exercised, and at a time when, having (2) Story's Eq. Jur. § 421, b, and note ; 2 Spence's Eq. Jur. T29. (a) Story'a Bq. Jur. § 421, b, note, J 1035, a. (b) 2 Spence's Eq. Jur. 729. (c) Story's Eq. Jur. ^ 1026. (/) Coote, Mortg. 3rd edit. 497. (e) 2 Spence's Eq. Jur. 674. (/) 2 Spence's Eq. Jur. 674. (ff) 2 Spence's Eq. Jur. 675. (A) 2 Spence's Eq. Jur. 680, 681. ft) See stat. 3 & 4 Will. 4, c. 27, s. 2, and stat. 7 Will. 4 & 1 Vict. c. 28. Uc) Coote, Mortg. 3rd edit. 504. (l) Coote, Mortg. 3rd edit. 496. OP LEGAL MORTGAGES OF HEAL PROPERTY. 215 regard to the interests of the mortgagor, *he would not have r^non-, been advised to sell, yet the sale cannot be impeached on that L J account, (m) But where the power of sale is given to a trustee, it is his duty to attend equally to the interests of both parties.(m) A sale may be made without notice to the mortgagor, and without his concurrence, unless that is made a condition. (o) And the concurrence of the mortgagor cannot be required by a purchaser, although there be an express covenant on his part to join in the sale.(p) Where the surplus produce on the execution of a power of sale in a mortgage in fee is directed to be paid to the mortgagor, his executors, &c., this is not of itself a conversion of the equity of redemption into personal estate. If the sale takes place in the lifetime of the mortgagor, the surplus is personal estate ; but if he dies before the sale is made, the equity of redemption descends to the heir, and he is entitled to the sur- plus.(^) A trustee for sale cannot become the purchaser. (?•) Where there are several incumbrancers, a decree for sale of an incum- bered estate does not alter the relative rights of the parties : the pur- chase money is substituted for the estate. (s) The court will not prevent a mortgagee from using all the remedies belonging to his character of mortgagee, and exercising all the powers that are given to him, as and when he pleases, even concurrently. (rt A power of sale is only an additional remedy, and therefore does not inter- fere with the right of the mortgagee to foreclosure, (m) If a debt is secured by a mortgage of real estate, and also by covenant and collater- ally by bond, the mortgagee may pursue all his remedies at the same time. If he obtain full *payment on the bond or covenant, the r^noo-i mortgagor is, by the fact of payment, entitled to the estate, and L J foreclosure is prevented or not allowed. But if the mortgagee obtains only part payment on the bond or covenant, he may go on with his fore- closure suit, and giving credit in account for what he has recovered on the bond or covenant, he may foreclose for non-payment of the remain- der. ^ On the other hand, if he obtains a foreclosure first, and alleges that the value of the estate is not suiEcient to satisfy the debt, he is not absolutely precluded from suing on the bond or covenant ; but it is held that by doing so he gives to the mortgagor a renewed right to redeem, or, in other words, opens the foreclosure ; and consequently, upon the commencement of an action against the mortgagor on the bond after foreclosure, he may file a bill for redemption, and upon payment of the whole debt secured by the mortgage, he is entitled to have the estate back again, and the securities given up. After foreclosure, therefore, the court will not restrain the mortgagee from suing on the bond, pro- vided he retains the mortgaged estate in his own power, ready to be (m) 2 Spence's Eq. Jur. 634, 646. (n) 2 Spence's Eq. Jur. 636. (o) 2 Spence's Eq. Jar. 635. (p) Coote, Mortg. 3rd edit. 127. (q) 2 Spence's Eq. Jur. 636; Coote, Mortg. 3rd edit. 130. (r) 2 Spence's Eq. Jur. 636. (a) 2 Spence's Eq. Jur. 618. (t) 2 Spence's Eq. Jur. 634. (m) 2 Spence's Eq. Jur. 636. 216 SMITH ON REAL AND PERSONAL PROPERTY. redeemed, in case the mortgagor should think fit to avail himself of the opening of the foreclosure. (x) III. We have already seen that as long as the mortgagor continues in possession, he has a right of redemption, even at law, under the stat. 15 & 16 Vict. c. 76, s. 219, 220, if an action of ejectment is brought against him, and no suit for redemption or foreclosure is pending in a court of equity. And until foreclosure, the mortgagor, whether in pos- session or not, is considered in equity as substantially the owner of the estate, though his ownership is subject to restrictions for the protection of the mortgagee. Hence, if the mortgagor applies to be allowed to redeem, before the right of redemption is lost by a lapse of twenty r*9SQi y^^"^^) <^iiring *which no acknowledgment has been made by the L -I mortgagee of the mortgagor's title or of his right of redemption, the mortgagee will then be treated precisely as a trustee for the mort- gagor, inasmuch as he will be compelled to re-convey the estate, and account for every kind of profit that he has made in the ordinary way, or which, but for his wilful default, he might have made.(y) This is termed an equity of redemption. An equity of redemption is so inseparable an incident to a mortgage, that it cannot be disannexed from such a transaction, or controlled even by an express agreement, (z) It may be considered as an almost universal rule, that, in order to protect the debtor against oppression by the creditor, wherever a con- veyance or assignment of an estate is originally intended as a security for money, whether this intention appears on the deed itself, or by any other instrument, or even by parol evidence, and whether directly or indirectly, it will ever after be considered in equity as a mortgage, and therefore redeemable on the usual terms, though at the time of the loan, or as part of the same transaction, there may have been an express agreement between the parties that it shall not be redeemable, or that the right of redemption shall be confined to a particular time or to a particular person or description of persons ; for such an agreement will be void. (a) And upon the same principle, equity will not allow the mortgagee to enter into a contract with the mortgagor, at the time of the loan, for the absolute purchase of the lands for a specific sum, in case of default made in payment of the mortgage money at the appointed time. (6) r*9C)m *The equity of redemption constitutes an equitable estate in L J the land, which is descendible in the same manner as the land itself is by the general law or the particular custom, and may be granted, devised, and entailed; and if entailed, might have been barred by a fine or recovery, and may now be barred by a disentailing deed, and is liable (x) 2 Spence's Eq. Jur. 682. (y) See Story's Eq. Jur. § 1013, 1016, 1028, a ; and 3 & 4 Will. 4, c. 27, s. 28 ; 2 Spence's Eq. Jur. 644, 645, 648, 710, 806; Coote, Mortg. 3rd edit. 345. (z) Story's Eq. Jur. g 1019; 2 Spence's Eq. Jur. 618, 619, 628; Coote, Mortg. 3rd edit. 11, 12, 14. (a) Story's Eq. Jur. ^ 1018; 2 Spence's Eq. Jur. 618—623 ; Coote, Mortg. 3rd edit. 11, 12, 14. (4) Coote, Mortg. 3rd edit. 14. OF LEGAL MORTGAGES OF REAL PROPERTY. 217 to a tenancy by the curtesy, but before the statute 3 & 4 Will. 4, c. 105, s. 2, was not liable to dower, (c) The owner of the equity of redemption of part of the estate in mort- gage cannot separately redeem his pa;-t : the mortgagee has a right to insist that the whole of the mortgaged estate shall be redeemed toge- ther.(cZ) And where a mortgagee has two mortgages on different estates separately mortgaged to him by the same mortgagor, and one of them is a deficient security for the debt, or the title to one of them is defec- tive, and the other is more than sufficient, the mortgagor and his heirs, or the purchaser of one estate, will not be permitted to redeem it with- out redeeming the other, the mortgagee has a right to insist that all that is due to him shall be paid. An exception occurs where the mortgagee files a bill to foreclose both mortgages, in which case the mortgagor may redeem one, and allow himself to be foreclosed as to the other.(e) Even a tenant for life, a tenant by the curtesy, a jointress, a tenant in dower in some cases, a reversioner, a remainderman, a judgment credi- tor, a tenant by elegit or by statute merchant, the lord of a manor hold- ing by escheat (as regards a mortgage for a term of years, created by a mortgagor who has died without heirs, though not as regards a mortgage in fee, under which the whole estate has passed to the mortgagee, so that there can be no escheat), and indeed every *other person having i-jj-nqin a legal or equitable interest in or lien on the land, may insist on L J redeeming the mortgage, in order duly to enforce his claim : and when any such person does so redeem, he or she obtains by substitution the rights and interests of the original mortgagee. But, as a general rule, a cestui que trust must redeem through his trustee ; and no creditor, or annuitant, or legatee of the mortgagor, who has not a specific security upon the property mortgaged, can file a bill to redeem, though the mort- gaged property would, if redeemed, be applied in a course of administra- tion in discharge of his claims. (/) A purchaser of an equity of redemption cannot file a bill to redeem an existing mortgage until his purchase is completed. (^) Every person who has a right to redeeem the mortgage, may redeem any prior incumbrancer, on payment of principal, interest, and costs due to him ; the redeeming party being also liable to be redeemed by those below him, who are all liable to be redeemed by the mortgagor. (A) A mortgagor may, as we have seen, by a subsequent deliberate act, extinguish his equity of redemption. A mortgagee may purchase the equity of redemption of the mortgagor; but the court views such a transaction with jealousy. («') By the stat. 4 & 5 Will. 3, c. 16, if a mortgagor shall not acquaint a (c) Story's Eq. Jur. J 1015 ; 2 Spence's Eq. Jur. 642, 645 ; Goote, Mortg. 3rd edit. 26. (rf) 2 Spence's Eq. Jur. 666. (e) Story's Eq. Jur. g 1023, note; 2 Spence's Eq. Jur. 651, 666, T26; Coote, Mortg. 3rd edit. 397 ; Sugd. Concise View, 136. (/) Story's Eq. Jur. § 1023 ; 2 Spence's Eq. Jur. 660—663 ; Coote, Mortg. 3rd edit. 515—518. (ff) 2 Spence's Eq. Jur. 668. (A) 2 Spence's Eq. Jur. 665. (i) 2 Spence's Eq. Jur. 654. 218 SMITH ON REAL AND PBESONAL PROPBETT. mortgagee witli the existeDce of a prior judgment, statute, or recogniz- ance, affecting the property, and shall not pay off such judgment, statute, or recognizance, or shall not acquaint a mortgagee with the existence of of a prior mortgage of the same property, he shall lose his equity of re- r*2Q21 '^6™P*'ion-(^':) And as we have seen, the equity of *redemption L J may be lost by the operation of the Statute of Limitations. In settling the accounts between the mortgagor and mortgagee, where the latter had been in possession and receipt of the rents, it often becomes a question of importance, whether the account shall be taken simply by ascertaining the aggregate amount of principal, interest, and costs due to the mortgagee at the period of redemption, on the one hand, and the aggregate amount of rents received by him, on the other ; or whether rests shall from time to time be made, so that the excess of the rent or value beyond the interest may be applied in sinking the principal. The rule on this point is, that the court will adopt one or the other mode of taking the account, as the justice of the case requires. But annual rests are never made, except when the effect upon the whole would be benefi- cial to the mortgagor; for, to make rests in other cases would give the mortgagee more than the interest upon his principal sum. And Courts of Equity will not require annual rests to be made, where the interest of the mortgagee is in arrear at the time when the mortgagee takes pos- session, even though the rents and profits may exceed the annual inte- rest. (Z) Annual rests will equally be directed in respect of the occupa- tion rent fixed on a mortgagee in possession, as in respect of rents re- ceived. (m) The mortgagor is not entitled to the possession in respect of his equit- able estate, unless there is some special agreement to that effect, but he holds it solely at the will of the mortgagee, who may at any time, with- out giving any prior notice, recover the same by ejectment against him or his tenants under a tenancy created subsequently to the mortgage, and not confirmed by him ; and he is not even entitled to reap the crop. p^oQo-i But so long as he continues in *possession by the permission of L J the mortgagee, he is entitled to take the rents and profits in his own right, without rendering any account whatever to the mortgagee, though the mortgaged property may have beodme an insufficient security. But he will not be permitted to do anything which may diminish the security of the mortgagee. Yet he may cut down timber when in pos- session, unless the land alone would be a scanty security. (») A mortgagee in possession is not obliged to lay out money any further than to keep the property in necessary repair, and then only to the amount of the surplus rents ; and he has no right to make it more ex- pensive for the mortgagor to redeem than may be required for the pur- pose of keeping the property in a proper state of repair, and of protect- ing the title to the property. Hence, he will not be allowed for general (Jc) See Coote, Mortg. 3rd edit. 211. (l) Story's Bq. Jur. g 1016, a; 2 Spence's Eq. Jur. 809; 5 Jarm. & Byth. by Sweet, 400. (m) 2 Spence's Eq. Jur. 811. (n) Story's Bq. Jur. g 1017 ; 2 Spence's Eq. Jar. 646, 648 ; Coote, Mortg. 3rd edit. 325, 332, 334 | 3 Jarm. & Byth. by Sweet, 44. OF LEGAL MORTGAGES OF REAL PROPERTY. 219 improvements made without the consent or acquiescence of the mortga- gor.(o) But under a late act (3 & 9 Viot. c. 56) the mortgagee or incum- brancer in fee in possession may obtain authority, by application to the Lord Chancellor or the Master of the Rolls, to make improvements by draining, &c. ; the expenses to be a charge on the land, payable by in- stalments, with interest.(jj) IV. Mortgages of copyholds usually consist of a conditional surrender in the Manor Court by the mortgagor to the mortgagee and his heirs. By the condition the surrender is made void on payment by the mort- gagor, &c., of principal and intesest to the mortgagee, &c., on a given day ; the condition is entered on the rolls, and immediately follows the surrender. The condition may, however, be contained in a separate deed of defeasance of even date with the surrender. But this mode shoiild never be resorted *to when it can be avoided, as the defeasance r^nQ^^-i may be lost.(g') L J In addition to the surrender and condition, there is usually a previous covenant to surrender, containing covenants for the title and for payment of the money. (r) If the money is paid at the stiulated time, and the surrender has not been perfected by admittance, it becomes void without further ceremony, and the surrenderor is in possession, without any re-admission or fine; or if the mortgagee has been admitted, and has taken possession, the mortgagor may yet resume his estate by making an entry on the land.(s) But as upon admittance a fine becomes due to the lord, it is not usual for a mere mortgagee to be admitted to be copyhold until some suspicion arises that his loan will not otherwise be repaid.(«) A surrenderee not being a tenant until admittance, cannot in the mean time pass the lands by surrender. He may, however, make an equitable transfer of them. And he may also devise the lands ; and in the case of a will made before 1st of January 1838, they would pass in equity, but the devisee was not entitled to admission as legal tenant; for a legal devisee of copyholds could not be made before admittance ; and there- fore, although the devisee may have been admitted, the surrenderor or his heir still remained tenant to the lord.(M) After breach of the condition, a mortgagee of a copyhold may proceed to foreclose the estate, even before admittance, (x) Since the passing of the 55 Geo. 3, c. 192, surrenders of copyholds to the use of a will are no longer necessary. But, prior to that statute, a surrender made by the mortgagee to the use of his will before admit- tance was void, and *would not have been made good by a sub- r^nqc-i sequent admittance.(a) L J If the surrenderee is admitted, and the condition is broken by the (o) Story's Eq. Jur. J 1016, b ; 2 Speuce's Eq. Jur. 808; Ooote, Mortg. 3rd edit. 344. (p) Coote, Mortg. 3rd edit. 344. (q) Coote, Mortg. 3rd edit. 112. (r) Coote, Mortg. 3rd edit. 116. (s) Burton, ^ 1265; Coote, Mortg. 3rd edit. 113. (t) Burton, § 1266. (u) Coote, Mortg. 3rd edit. 114. (x) Coote, Mortg. 3rd edit. 500. (2) Coote, Mortg. 3rd edit. 116. 220 SMITH ON REAL AND PERSONAL PKOPERTT. non-payment of the money, his estate i^ absolute, and when the mortgage is paid off, a readmission and fine will be necessary, and the mortgagor will thereupon gain a new estate; and the descent be altered, so that if the lands had originally descended to him ex parte materna, they will afterwards descend as if he had taken by purchase. (a) After the conditional surrenderee has been admitted, he becomes the tenant of the lord, and the surrenderor may release to him the equity of redemption, before condition broken. (i) The mortgagor may in the mean time, and until the admittance of the mortgagee, make a second surrender, which will be good, if the first surrender is not perfected by admittance. But although the first sur- render is not enrolled, the second mortgagee, though without notice of the former, does not, by the inrolment of his surrender, acquire priority, (c) The equity of redemption may be of course mortgaged without sur- render, and will pass by deed, being an equitable interest only.() XII. Where an estate is mortgaged, the equity of redemption, unless there appears a clear intention of making a new settlement, remains subject to the old uses or trusts to which the land was subject before the mortgage. («)) And the mere form of reservation of the equity of re- demption if often not of itself sufiicient to alter the previous title. It is frequently supposed to arise from inaccuracy or mistake, (x) Thus, where a husband is seised jure uxoris, and he and his wife join in a mortgage, reserving the equity of redemption to him and his heirs, he has the equity of repemption jure uxoris, as he before had the legal estate, unless there is some recital of intention that the husband shall take the benefit, or it is evident that the transaction is more than a mere mortgage, or where the limitation of the estate is perfectly distinct from the equity of redemption. (y) Where a mortgage is made of the wife's lands, to secure money bor- rowed by the husband — and in the absence of evidence to the contrary, the loan will be presumed to have been obtained for hia purposes — his r*Rnm s^'^'^j especially where *he covenants to pay the debt, is made ■- J to pay the mortgage money, at the instance of the heir of the wife as well as of the wife herself; although the husband may have paid ofi' the mortgage, and taken an assignment in trust for himself, his execu- («) 2 Spence's Eq. Jur. 652, 653 ; Coote, Mortg. 3rd edit. 441—528. {{) See 2 Spence's Eq. Jar. 650, 651 ; Coote, Mortg. 3rd edit. 509. (u) Story's Eq. Jur. ^ 484. M Story's Eq. Jur. | 485 ; 2 Spence's Eq. Jur. § 837. fw) Wood T. Wood, 1 Beav. 187. [x) 1 Sugd. Pow. 349, 350. (y) 2 Spence's Eq. Jur. 306, 644; Coote, Mortg. 3rd edit. 523, 524; see also Eadleston t. Collins, 3 D. M. & G. 1 ; Whitbread v. Smith, Id. 727. OF LEGAL MORTGAGES OF REAL PROPERTY. 223 tors, &c. 5 and though hy consequence legacies given by the husband may be defeated : for the wife joining in the security does not make it less the debt of the husband, and her estate is considered as surety only for the debt.(a;) XIII. After notice of a second mortgage, the first mortgagee is answer- able to the second for the rents and profits he has received or might have received, (y) And where the mortgagee enters, and then permits the mortgagor to receive the rents, he will be accountable, as mortgagee in possession, to a subsequent incumbrancer, of whose incumbrance he had notice. (z) XIV. The registration of a deed is not of itself notice ; and conse- quently, if, subsequently to a registered assignment of a mortgage, pay- ments are made by the mortgagor to the mortgagee without notice of the assignment, they must in account be allowed by the assignee. And if a mortgagee, having a legal estate under a deed duly registered, makes further advances, he will in England have preference over an interme- diate incumbrancer or purchaser of whose title he has not notice, although the intermediate deed of sale or charge be duly registered. And if a subse- quent mortgagee obtains the legal estate, he will in England have pre- ference over a prior equitable incumbrance duly registered, of which he had not notioe.(a) XV. An assignment of a mortgage is an assignment of the debt. It is not necessary that notice should be given *to the mortga- gor.(J) But an assignment should not in any case be taken of L J a mortgage without inquiry of the mortgagor as to the sum really due; for the assignee takes subject to the account between the mort- gagor and the mortgagee, although no receipt be indorsed on the mort- gage deed for any part of the mortgage-money which has been actually paid off.(c) If a mortgagee in possession assigns over his mortgage without the assent of the mortgagor, the mortgagee is still bound to answer for the profits both before and after the assignment, though assigned only for his own debt ; for he is under a trust to answer for the profits of the pledge. ((^) XVI. The purchaser of a mortgage, as a general rule, has a right to claim, against the mortgagor, and all deriving title under him, the full amount of what is due on the security, whatever he may have given ; for as he takes the risk, so he is allowed the gain, if any. But an heir, a trustee, an agent, or an executor, can only claim the amount which he gave for it; unless he has bought in that security to protect one of his own.(e) XVII. A gift of a mortgage security, is a gift of all the testator's in- terest in the money and the security. (/) (x) 2 Spence's Eq. Jur. 841, 842 ; Coote, Mortg. 3rd edit. 485. (y) 2 Spence's Eq. Jur. 648. (z) 2 Spence's Bq. Jur. 806. (a) Coote, Mortg. 3rd edit. 3'78. (6) 2 Spence's Bq. Jur. 655 ; Sugd. Concise View, 137. (c) Sugd. Concise View, 137. (d) 2 Spence's Eq. Jur. 656 ; Coote, Mortg. 3rd edit. 366. (e) 2 Spence's Bq. Jur. 657, 739; (/) 2 Spence's Eq. Jur. 655. 224 SMITH ON REAL AND PERSONAL PROPERTY. XVIII. Where a testator devises all his real estates, whatsoever and wheresoever, the legal estate in mortgaged premises will pass by the will, unless a different intention is to be collected from the content. But it would seem that a general or even a particular devise of the mortgaged lands will not of itself have the effect of carrying the bene- ficial interest in the mortgage. (^) / XIX. Generally speaking, a purchaser of an equity of redemption, r*Rfl9n ^^''^ notice of subsequent incumbrances, stands *in the same L J situation, as regards the subsequent incumbrancers, as if he had himself been the mortgagor. And where a second equitable mortgagee, who becomes such without notice of the first equitable mortgagee, after- wards, with notice of the first incumbrance, obtains the legal estate from the mortgagor, he holds the legal estate subject to the first incum- brance. (^) XX. If a mortgagee cancels a mortgage, and it is found so in his pos- session on his death, it is as much a release as cancelling a bond ; but it does not convey or revest the estate in the mortgagor, for that must be done by a deed : the legal estate in such a case, descends upon the heir ; but there being no debt at law or in equity, at least upon the mortgage, the court holds the heir to be a trustee for the mortgagor.(i) XXI. If the debt is paid off, the mortgage is extinguished in equity, and the mortgagee is deemed a trustee for the mortgagor, (/c) And an extinguishment of the mortgage debt will take place where the mortgagee becomes the absolute owner of the equity of redemption ; for then the equitable estate merges in the legal ; unless it was apparently his inten- tion, or it is manifestly for his interest, to keep the incumbrance alive.(Z) XXII. The mortgagee cannot be compelled to reconvey until the money is in pocket: payment into court is not sufSoient.(m) By the stat. 7 & 8 Vict. c. 76, s. 9, it is enacted, " that when any person entitled to any freehold or copyhold land by way of mortgage has or shall have departed this life, and his executor or administrator is or shall be entitled to the money secured by the mortgage, and the legal estate in such land is or shall be vested in the heir or devisee of such r*^nm *ioortgagee, or the heir, devisee, or other assign of such heir or L J devisee, and possession of the land shall not have been taken by virtue of the mortgage, nor any action or suit be depending, such execu- tor or administrator shall have power, upon payment of the principal money and interest due to him on the said mortgage, to convey 1^ deed or surrender (as the case may require) the legal estate which became vested in such heir or devisee ; and such conveyance shall be as effectual as if the same had been made by any such heir or devisee, his heirs or assigns." But by the stat. 8 & 9 Vict. c. 106, s. 1, this enactment is repealed from the 1st of October, 1845, and it only commenced from the beginning of the same year.(m) It is enacted, however, by the stat. 13 & 14 Vict. c. 60, s. 19, " that (ff) 2 Spence's Eq. Jur. 655. {h) 2 Spence's Eq. Jur. 746. (i) 2 Spence's Eq. Jur. 749. (A) 2 Spence's Eq. Jur. 640. (l) Story's Eq. Jur. ^ 1035, b. (m) 2 Spence's Eq. Jur. 653. (re) See 7 & 8 Vict. c. 76, s. 13. 01" EQUITABLE MORTGAGES, ETC. 225 when any person to whom any lands have been conveyed by way of mortgage shall have died without having entered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of such mortgage shall have been paid to a person entitled to receive the same, or such last-mentioned person shall consent to an order for the re-oonveyance of such lands, then in any of the following cases it shall be lawful for the Court of Chancery to make an order vesting such lands in such person pr persons, in such manner and for such es- tate, as the said court shall direct; (that is to say,) 1. When an heir or devisee of such mortgagee #hall be out of the jurisdiction of the Court of Chancery, or cannot be found : 2. When an heir or devisee of such mort- gagee shall, upon a demand by a person entitled to require a conveyance of such lands or a duly authorized agent of such last-mentioned person, have stated in writing that he will not convey the same, or shall not convey the same for the space of twenty-eight days next after a proper deed for conveying such lands shall have been tendered to *him r-^on^-, by a person entitled as aforesaid, or a duly authorized agent of L -I such last-mentioned person : 3. When it shall be uncertain which of several devisees of such mortgagee was the survivor : 4. When it shall be uncertain as to the survivor of several devisees of such mortgagee, or as to the heir of such mortgagee, whether he be living or dead : 5. When such mortgagee shall have died intestate as to such lands, and without an heir, or shall have died and it shall not be known who is his heir or devisee : And the order of the said Court of Chancery made in any one of the foregoing cases shall have the same eifeot as if the heir or devisee or surviving devisee, as the case may be, had duly executed a convey- ance or assignment of the lands in the same manner and foi^ the same estate." And by s. 20, the court is enabled to appoint a person to con- vey or assign, should it be deemed more convenient than a vesting order. XXIII. Where a person makes a mortgage in fee, and dies intestate without heirs, the equity of redemption does not escheat to the crown, but belongs to the mortgagee, subject to the debts of the mortgagor. (o) As the personal representatives are entitled to the money, and as the land is in equity a pledge for the payment, it follows, that, if the pledge is forfeited, the personal representative must be also entitled to the land composing the pledge ; and therefore if the mortgagee dies, and his heir obtains a release of the equity of redemption, or the land becomes irre- deemable from length of time, it will nevertheless belong to the personal representative, and the heir will be a trustee for him.(p) *Section II. [*305] Of Equitable Mortgagee of Real Property. Besides mortgages created by a formal instrument, and valid at law as well as in equity, there are equitable mortgages. These are created either by a written instrument, or by a deposit of deeds or copies of Beale v. Symonds, 16 Beav. 406. {p) Ooote, Mortg. 3rd edit. 510. iPEBRTJARY, 1856 15 226 SMITH ON REAL AND PERSONAL PROPERTY. court roll, with or without writing, (a) Any written agreement or direc- tions, or other instrument in writing, which shows that it waa the inten- tion of a creditor thereby to make his land or other property a security for the debt, will be equivalent in equity to an actual mortgage by deed or to a pledge. (6) And a deposit of title-deeds with a creditor, or with some third person on his behalf (whether with or without any written memorandum, and even without a word passing,) as security for an ante- cedent debt, or on a fresh loan of money, constitutes an equitable mort- gage, (c) Such deposit is of itself evidence of an agreement executed for a legal mortgage of the estate, of which agreement the creditor may avail himself, by filing a bill or claim, as of an agreement in writing for that purpose. And if, by agreement, a vendor keeps the title deeds and conveyance of the estate to the purchaser in his own custody, as a secu- rity for the purchase-money unpaid, he has an equitable mortgage on the estate. (cZ) And an equitable mortgagee may himself create an equitable mortgage by depositing the deeds with a third person, although he does not deliver over the memorandum. (e) The meaning and object of the deposit may be explained by parol r*^flfin evidence. (/) And evidence is admissible to show *that a de- L -I livery of deeds to a third person, by a person not being the party whose estate is sought to be charged, even though no money passed at the time, constituted an equitable mortgage, (^f) The deposits will cover subsequent advances, if it clearly appear that they were made upon the faith of that security, or that the original de- posit was continued with an agreement for a further advance. (A) An equitable mortgage by deposit of title deeds will have preference over a sutjsequent purchaser or mortgagee of the legal estate with notice, but not over a subsequent purchaser or mortgagee who had no notice of such equitable mortgage, (i) An equitable incumbrancer on property, who has distinct notice of a prior incumbrance, cannot, by concealing his knowledge from his as- signee, give such an assignee a better right than that which he himself possesses. (A;) An equitable mortgagee by deposit is a purchaser within the stat. of 27 Eliz. c. 4, so as to avoid a prior voluntary settlement in equity, though not at law. So he may avoid such a settlement as a creditor under the 13 Eliz. c. 5, if he was a creditor at the time of the settle- ment. (A (a) 2 Speiice'3 Eq. Jur. Ill ; Coote, Mortg. 3rd edit. 165. (b) 2 Spence's Eq. Jur. 111-119. (c) Story's Eq. Jur. ^ 1020 ; 2 Spence'a Eq, Jur. T81 ; Coote, Mortg. 3rd edit. 165, 169. (d) Sugd. Concise View, 5S6. (e) Coote, Mortg. 3rd edit. 173. (/) 2 Spence's Eq. Jur. ISi. (;. 1, ^ 28 ; 1 Cruise T. 5, c. 2, J 29 ; Coote, Mortg. 3rd edit. 439. [q) Story's Bq. Jur. § 488, n ; Coote, Mortg. 3rd edit. 439. OF ASSETS. 259 V. Extinction of Incumbrances. Where a purchaser of a reversionary interest in personalty, which is subject to two incumbrances, pays off the prior one, but out of the purchase moneys, and not out of his own moneys, the prior debt is thereby extinguished ; and consequently, though the vendor agrees that the purchaser, in respect of such payment, shall stand in the place of the prior incumbrancer, and have the full benefit of his security, yet the purchaser will not be entitled to priority over the subsequent incum- brancer. (r) Where a debtor appoints his creditor the executor or one of the execu- tors *of his will, and the creditor proves the will, as he thereby r^oori-i becomes debtor to himself, so the right of action is necessarily L J gone.(s) Where a woman marries her creditor or debtor, the debt is thereby absolutely extinguished. (<) So if a creditor appoints his debtor to be his executor, this in effect extinguishes the debt at law; but in equity the executor is converted into a trustee of the debt for the parties interested in the estate. (m) The presumption of equity is that a charge is extinguished, where the owner of it becomes the owner of the fee, unless the intention of the owner of the inheritance were to keep it on foot. But this intention need not be expressed by any distinct act or words. It may be pre- sumed, if it would have been very injurious to him to have merged the charge, (a;] Where a tenant in tail entitled to a charge on the estate is an infant, the charge is not merged if he dies under twenty-one, as well upon other grounds, as upon the principle that until that age he cannot gain the absolute property in the land. (3/) Where a creditor forgives or bequeaths a debt due to him by a legatee, as one of two or more joint debtors, as, for instance, where the obligee bequeathes the sum due to him by one of two joint obligors, of a bond it is not a release to the other of the two obligors, but is only a per- sonal legacy to him whose debt is so forgiven, and will lapse by the death of the legatee in the testator's lifetime, so that his personal re- presentatives will still be liable [z\ *Section II. [*361] 0/ Assets, and the Administration thereof. I. Legal and Equitable Assets. Assets, that is, property available for the payment of debts of a de- ceased person, are divided into legal and equitable. Legal assets are (r) Watts T. Symes, 16 Sim. 640. (s) 9 Jarm. & Byth. by Sweet, 795, 796 ; 2 Spence's Eq. Jar. 296. {t) 9 Jarm. & Byth. by Sweet, 796. («) 2 Spence'a Bq. Jur. 296 ; 2 Eop. Leg. by White, 1070. (a;) Davis v. Barrett, 14 Beav. 542 ; Coote, Mortg. 3rd edit. 395. (y) Coote, Mortg. 3rd edit. 397. (s) 2 Rop. Leg. by White, 1069. 260 SMITH ON KEAL AND PERSONAL PROPERTY. property which the law vests or would have vested in the executor or administrator, as such, for the payment of debts generally,(ffl) whether the aid of a Court of equity is necessary to reach the property, or not. Property which would not have vested in the executor or administrator by law, but vests in him for payment of debts generally, simply by virtue of an express disposition of the property which must be carried into effect by a Court of Equity, is termed equitable assets. (6) But equitable assets also include real property which the deceased had by will charged with payment of his debts, although liable for payment of them by Act of Parliament, (c) Before the Statute of Frauds, all trust estates were equitable assets. By that statute a trust estate of inheritance became legal assets, and yet an equity of redemption is equitable assets, (c?) Courts of equity follow the same rules in regard to legal assets, which are adopted by courts of law, and give the same priority to different classes of creditors which is enjoyed at law. And equity recognises and eaforces all antecedent liens, claims, and charges in rem, according to their priority, whether those charges are of a legal or an equitable r*qf>9-| nature, and whether the assets are legal or *equitable.(e) But L J equitable assets, with the exception above mentioned, are dis- tributed pari passu among all the creditors, without regard to the prio- rity or dignity of the debts ; and, after they are satisfied, among all the legatees or distributees. But if the fund is insufBcient to pay all the debts, all the creditors must abate in proportion. And so if the fund, after payment of debts, is insufficient to pay all the legacies, they must all abate in proportion, unless some priority is specifically given by the testator to some legacies over others. (A And charitable legacies now abate, as well as legacies of another kind.(^) But as between specific and pecuniary legatees, the loss falls wholly on the latter. (7i) II. The Order of Administration of different Properties. Assets are now generally applied in the payment of debts in the fol- lowing order : First, the general personal estate is applied, except under the circumstances presently mentioned. Secondly, any estate particu- larly devised simply for the payment of debts. Thirdly, estates descend- ed. Fourthly, estates devised to particular devisees, but charged with the payment of debts. (t) Fifthly, lands comprised in a residuary devise. Sixthly, specific legacies and lands specificially devised. (/) Seventhly, freehold estates over which a testator has a general power of appoint- ment, and which he appoints by his will.(^) A legacy or annuity given generally is payable out of personal ei-ta'e {a) 2 Bl. Com. 244; Burton, § 734; Story's Eq. Jur. § 551. (i) See Story's Eq. Jur. § 551, 552 ; 2 Spence's Eq. Jur. 314, 315. (c) Story's Eq. Jur. | 552, a. {d) Coote, Mortg. 3rd edit. 32. {e) Story's Eq. Jur. \ 553. (/) Story's Eq. Jur. § 554-557; 2 Spence's Eq. Jur. 314; Coote, Mortg. 3rd edit. 31. {g) Story's Eq. Jur. § 1180. (h) 2 Spence's Eq. Jur. 343. (i) Story's Eq. Jur. ? 577 ; 2 Spence's Eq. Jur. 817, 822-824; Coote, Mortg. 3rd edit. 472-4. [j) Coote, Mortg. 3rd edit. 474. [k) Fleming v. Buchanan, 3 D. M. & G. 976. OF ASSETS. 261 only. But even when a legacy or annuity is given out of the real and personal estate, or where debts are payable out of real as well as out of personal estate, the personal estate constitutes the primary and natural fund* for payment of debts and legacies(^), and will first be ap- (-^opq-i plied, except in thefe cases : L J 1. When there are express words or a plain intention of 'the testator to exonerate his personal estate. And, to constitute such a plain inten tion, directions and expressions which do not necessarily imply more than that the real estate shall make good the deficiency, are not enough : there must appear upon the whole testamentary disposition, taken toge- ther, an intention so expressed as to convince a judicial mind that it was meant not merely to charge the real estate, but so to charge it as to exempt the personal estate. (m) And (1.) If the real estate is directed to be sold for payment of debts, and the personal estate is expressly bequeathed to legatees, then the personal estate will be exonerated by necessary implication. But neither of these circumstances, apart from the other and from circumstances affording similar implication of inten- tion, is a sufficient indication of an intention to exonerate the personal estate. For it is most probable that a direction to sell real estate for the payment of debts, where no disposition is made of the personal estate, was intended to be followed only in the event of the personal estate proving insufficient for the purpose of paying the debts. And, on the other hand, it is most probable that a bequest of personal estate, ( not by way of specific legacy, where no provision is made for payment of debts out of the real estate, was made subject to the payment of debts out of such personal property. (re) (2.) Where the testator gives his personal estate as a whole, and not as a residue, by way of specific legacy to one who is not executor, and another fund is supplied for pay- ment of debts, legacies, and funeral and testamentary expenses, the personal estate is exonerated. (o) (3.) Where *a testator creates (-^orj^t a mixed fund of the produce of his real and personal estate, and L J appropriates that fund for the payment of debts, &c., and there is no conversion out and out, the two estates comprised in that fund are appli- cable pro rats,, and the surplus will result as real and personal estate. If a portion only of the personal estate is comprised in the fund, the residue will be chargeable only when that fund fails. (p) (4.) So where a devise is made, subject to a condition of paying off the incumbrances affecting the estate ; or where only the residue of the proceeds of real estate, after payment of debts, is devised. (g) But where real estate is devised to a person upon condition of his paying debts and legacies generally, or charged with them generally, or is given to trustees for those purposes, and the personal estate is disposed of by a general resi- duary bequest, these circumstances will not prevent the personal fund being applied in the first instance to the satisfaction of those demands. (r) (I) 2 Spence's Eq. Jur. 334, 818; 1 Rop. Leg. by White, 671, 695. (m) 2 Spence's Eq. Jur. 336-341, 824; Coote, Mortg. 3rd edit. 454; 1 Rop. Leg. by White, 703, 710; Plenty r. West, 16 Beay. 180. W 2 Spence's Eq. Jur. 818, 823. (o) 2 Spence's Eq. Jur. 341. (p) Coote, Mortg. 3rd edit. 470; 2 Spence's Eq. Jur. 818. (?) 2 Spence's Eq. Jur. 334, 342. (r) 1 Rop. Seg. by White, 695. 262 SMITH ON REAL AND PERSONAL PEOPEETY. And if a testator expressly charges his personal estate with debts of a particular description, namely, with those by simple contract, and then bequeaths that fund, it will not be discharged from debts, &c., gene- rally. (s) And as a general rule, no extrinsic evidence can be admitted to ascertain the intention to exonerate : so that the circumstances of the testator, and the amount of his personal estate and of the debts, cannot be taken into consideration. (<) If the personal estate is exonerated from debts and legacies in favour of A., and he died before the testator, by which event the disposition lapsed, the executors or next of kin of the testator who accidentally become entitled to the fund will take it with its primary and natural obli- gation to discharge the debts and legacies.(M) pjuq„,-. *2. Where the charge or incumbrance is, in its own nature, <- -I real ; as in the case of a jointure, or of pecuniary portions to be raised out of lands by the execution of a power; or of pecuniary portions to be raised in favour of daughters, under a marrirge settlement, out of lands vested in trustees for the purpose ; or of a devise of lands to a person, charged with, or with a direction to pay, particular sums of money, or to trustees in trust to raise and pay particular sums, as dis- tinguished from a charge or trust for satisfaction of debts or legacies generally, (a;) And although there may be also a personal covenant to raise the jointure, portions, or sums, such covenant will only be regarded as an additional security, not as the primary one. If there is no such personal covenant for the payment of portions, but only a covenant to settle lands, and to raise a term of years out of the lands for securing the portions ; in such a case, even though there be a bond to perform the covenant, the portions are not in any event payable out of the per- sonal estate. A mortgage debt (except in such cases as are mentioned in the next two paragraphs) whether the lands in mortgage devolve upon the heir-at-law, or upon a general devisee, or upon a particular devisee, is not considered as in its own nature real, but is primarily payable out of the general personal estate of the testator, where it is not made payable by a devisee. Where the mortgaged estate is devised cum onere, it is payable by the devisee. But the expression " subject to the mortgage." in the devise of a mortgaged estate, may sometimes be only descriptive of the estate, and not expressive of an intent that the devise is made cum bnere.(y) r*^f!f;n *^' ^^^^^ ^^^ ^^^^ '^^^ '^o' contracted by the person ■- -■ who died last seised or entitled, but by some other person from whom he took it by descent or devise, or by some other person from whom he purchased it, or from whom his vendor derived it. Thus, where a mortgage is created by an ancestor, and the mortgaged estate descends upon the heir, there, although the heir should enter into a (s) 1 Rop. Leg. by White, V06. (0 2 Spence's Eq. Jur. 337 ; 1 Rop. Leg. by White, 724. (u) 1 Rop. Leg. by White, Hi. (x) 1 Rop. Leg. by White, 671. (y) 2 Spence's Eq. Jur. 819 ; 1 Rop. Leg. by White, 731-2 ; 11 Jarm. & Byth. by Sweet, 797, u. [a) ; Coote, Mortg. 3rd edit. 350, 452. On this subject, see Jen- kinson v. Harcourt, Kay, 688. OF ASSETS. 263 collateral contract or covenant, or give security for payment of the mort- gage, yet his personal estate would not be liable to to be charged, in favour of any person who should derive title by descent under him to the mortgaged premises, subject to the mortgage. But it is different if the heir or devisee or purchaser has done anything which raises a new and independent contract between him and the mortgagee, unless it be simply for the purpose of paying off the debts or legacies of the original mortgagor, as such, or has in any other way made Ihe debt his own.(«) 4. By the stat. 17 Vict. c. 113, it is enacted, that, " when any person shall, after the 31st day of December, 1854, die seised of or entitled to any estate or interest in any land or other hereditaments which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, and such person shall not, by his will or deed or other document, have signified any contrary or other intention, the heir or devisee to whom such land or hereditaments shall descend or be devised, shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of such per- son, but the land or hereditaments so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment all mortgage debts with which the same shall be charged, *every part thereof, according to its value, rji^oa-r-i bearing a proportionate part of the mortgage debts charged on L J the whole thereof: Provided always, that nothing herein contained shall affect or diminish any right of the mortgagee on such lands or heredi- taments to obtain full payment or satisfaction of his mortgage debt, either out of the personal estate of the person so dying as aforesaid or otherwise : Provided also, that nothing herein contained shall affect the rights of any person claiming under or by virtue of any will, deed, or document already made or to be made before the 1st of January, 1855." III. The Order of Satisfaction of different Claims. In the order of satisfaction, if the personal estate of the deceased is not sufficient for all purposes, creditors are preferred to legatees ; because it is to be presumed that a testator means to be just, by desiring his debts to be paid, before he is generous ; and the personal estate, as we have seen, is the natural fund for the payment of debts. Again, specific legatees are preferred to the heir or the devisee of real estate charged with specialties or with the payment of debts ; because the heir, instead of being ostensibly an object of the testator's regard, like the specific legatee, only takes by act of law ; and the devisee of the real estate so charged standing on no higher ground than the specific legatee, there can be no pretence for making the specific legatee exonerate the devisee. Specific legatees are also preferred to residuary devisees of real estate. But general pecuniary legatees are not preferred to residuary devisees of real estate. Nor are specific devisees of lands, not charged with special- (s) See Story's Eq. Jur. | STl-STe, 1003; 2 Spence's Eq. Jur. 334-336, 393, 394, 819, 824 ; Coote, Mortg. 3rd edit. 453, 478, 479, 481 ; 1 Rop. Leg. by White, 735, 739, 742. 264 SMITH ON REAL AND PERSONAL PROPERTT. ties or with the payment of debts, preferred to specific legatees ; but upon failure of the general personal estate, the specific devisees and spe- cific legatees shall each, according to the proportionate value of the bene- r*^r8T ^'^ *conferred on each, contribute to the payment of specialty ■- J debts. If a particular portion of the personal estate is bequeathed, subject to the payment of debts and legacies, there, as between the lega- tees, the residuary personal estate is exonerated, if there is a residuary bequest, but not where there is no gift of the residue. (z) As between a devisee of a mortgaged fee simple estate and a specific legatee of per- sonalty, the devisee shall not have his mortgage paid by the specific legatee, but shall take the mortgaged estate cum onere. A fortiori, a specific legatee of a mortgaged leasehold shall not have the mortgage wholly or partly paid off by specific legatees of other leaseholds, (a) Subject to the stat. 17 Vict. c. 113,(6) the devisee of mortgaged premises is preferred to the heir at law of descended estates ; because the devisee is evidently an object of the testator's bounty, whereas the heir at law is not. And, a fortiori, the devisee of premises not mortgaged is pre- ferred to the heir at law. In case unincumbered lands and mortgaged lands are both specifically devised, but expressly after payment of all the debts, they are to contribute proportionably in discharge of the mortgage. Where the equities of the legatees and devisees are equal, the Court remains neuter, and suffers the law to prevail.(c) But, subject to the stat. 17 Vict. c. 113, where the personal assets are sufficient to pay all the debts and legacies and other charges, there the heir at law or the devisee, who has been compelled to pay any debt or incumbrance of his ancestor or testator, binding on him, is entitled (unless there is some other equity which repels the claim) to have the r*RfiQT ^^^^ P^^'^ °^*' °^ ^^^ personal assets, in preference to *the resi- L -I duary legatees or distributees,(d) because such charges are pri- marily payable out of personal estate. Lands devised for or subject to the payment of debts are also liable to discharge a mortgage, in favour of the heir or devisee to whom the mortgaged lands may belong, unless the mortgaged lands are really devised cum onere. (e) IV. Marshalling of Assets. There are many cases in which parties, whose right at law is confined to one fund, would fail to obtain satisfaction of their just claims, if left to the course of law, but are enabled to obtain full satisfaction thereof by means of a particular adjustment effected by courts of equity, termed the marshalling of assets. This may be defined to be, such an arrangement of the different funds of the same person as may satisfy every claim, so far as, without injustice, such assets can be applied in satisfaction thereof, {z) 2 Spence's Eq. Jur. 343 ; Coote, Mortg. 3rd edit. 474-5. (a) 2 Speace'a Eq. Jur. 838. (b) Supra, p. 366. (c) See Story's Eq. Jur. 5 571 ; 2 Spence's Eq. Jur. 822, 832, 839 ; Coote, Mortg. 3rd edit. 472. {d) Story's Eq. Jur. ^ 571. (e) Story's Eq. Jur. ? 571 ; 2 Spence's Eq. Jur. 822 ; Coote, Mortg. 3rd edit. 471, and see p. 224, supra. OF ASSETS. 265 notwithstanding the claims of particular individuals to prior satisfaction out of some one or more of those funds.(/) So that if there are two or more different kinds of funds of the same person, and at law one claimant can have recourse to either of those funds, while another is confined to one of them, the former shall either be compelled to seek satisfaction out of that fund to which the latter cannot resort, so far as it will extend, or the latter shall receive compensation out of that fund, in proportion to the amount which the former has unnecessarily taken from that which formed the only source of payment for the latter.(5') This plan is adopted with regard to mortgagees and other creditors of the superior kind, in favour of creditors of an *inferior rank, or 1-5,070-1 of legatees, (except residuary legatees, where the residue is not L J exonerated, and legatees whose legacies are given out of a residue,) or of portionists, or of the heir at law, or of a devisee, and with regard to simple contract creditors, in favour of legatees. (7i) Thus, legatees, with the above exceptions, are permitted to stand in the place of specialty creditors, against the real assets descended, or a mortgagee who has ex- hausted the personal estate, whether the mortgage lands have descended to the heir at law, or have been devised to a devisee who is to take sub- ject to the mortgage. But their equity will not generally prevail against a devisee of the real estate not mortgaged, whether he is a specific or a residuary devisee ; for, between persons eqiially taking by the bounty of the testator, equity will not interfere, unless the testator has clearly indi- cated some ground of preference or priority of the one to or over the other.(i) And residuary legatees, where the residue is not exonerated, and legatees whose legacies are given out of a residue, have no such equity, for a residue of personal estate implies what remains after satis- fying the charges upon i-t.(y) Upon the principle above mentioned, in consequence of the stat. 3 & 4 Will. 4, c. 104, which makes real estate liable to simple contract debts, though subject to a priority in favour of specialty debts, legatees are permitted to stand, in regard to land de- scended, in the place of simple contract creditors who have exhausted the personal estate so as to prevent a satisfaction of the legacies, as they were permitted before that statute, where lands were subjected by the testator to the payment of all debts.(A:) Where one party has a charge on freehold and *copyhold _..-. estate, and another party a charge on the freehold only, the latter -1 is entitled to require that the former should be satisfied out of the copy- hold estate, so far as it will extend. (?) The same marshalling of assets takes place as between legacies charged on land and legacies not so charged. (m) But assets will not be mar- shalled in favour of the legatees, unless the legacies are given to private (/) See Story's Bq. Jur. J 558, 560, 561 ; 2 Spence's Eq. Jur. 827. (g) See Story's Eq. Jur. § 558, 560, 562, 563 ; 2 Spence's Eq. Jur. 827, 828. (A) See Story's Eq. Jur. § 562-566, 570 ; 2 Spence's Eq. Jur. 410, 819, 820, 827, 829, 833. (i) Story's Eq. Jur. ? 565 ; 2 Spence's Eq. Jur. 820, 829, 830-832. . (j) 2 Spence's Eq. Jur. 820. (k) Story's Eq. Jur. § 566 ; 2 Spence's Eq. Jur. 830. \l) Tidd T. Lister, 10 Hare, 157. (m) Story's Eq. Jur. I 566. 266 SMITH ON EEAL AND PERSONAL PEOPERTT. individuals for their own benefit. For, since the stat. 9 Geo. 2, o. 36, legacies or bequests to charitable uses, payable out of real estate, or charged on real estate, or to arise from the sale of real estate, are utterly void.(?i) And equity has in some modern cases refused to marshal the assets in favour of any charitable bequests, when given, either directly or by way of trust, out of a mixed fund of real and personal estate, by directing the debts and the other legacies to be paid out of the real estate, and reserving the personalty to fulfil the charitable bequests. The charity legacies have been considered as intended to be charged on the personal estate and the proceeds of real estate proportionately, like other legacies, as if no legal objection existed to applying the proceeds of the real estate to the charitable bequests; and as charity legacies cannot legally be charged on the proceeds of real estate, they have been held to fail as to that proportion which would have to come out of the proceeds of the real estate. (o) In this instance, not only has the prin- ciple of favour to charities been discarded, but the courts have, very im- properly (as the writer humbly submits), acted upon a diametrically opposite principle. A testator has the power of directing the charity legacies to be paid out of the pure personalty, and the debts and private r*^79l ■'sgaoies out of the mixed personalty. (p) And where *a testator L -I expressly directs charity legacies to be paid exclusively out of his pure personalty, and the personalty savouring of realty is sufficient for the payment of legacies to individuals, and though the will does not throw the legacies to individuals upon the personalty savouring of realty, yet it does not purport to make those legacies payable at all out of the pure personalty, but gives them without reference to any particular fund, and the pure personalty is not sufficient or only sufficient for the payment of the charity legacies; the legacies to individuals are to be paid out of the personalty savouring of realty, so as to leave the pure personalty for the payment of the charity legacies. (g) But even in the absence of such an express adjustment, the writer conceives that the courts ought to have imputed to testators an intention that the charity legacies should be paid out of that fund alone out of which they Ip-wfuUy might be paid.M (n) Story's Eq. Jur. § 569. (o) See Story's Eq. Jur. § 569, 1180; 2 Spence's Eq. Jur. 233, 235. (p) See Lord Langdale's judgment in The Philanthropic Society t. Kemp, 4 Beav. 581, and Robinson t. Geldart, 3 Mac. & Gord. T35. (g) Robinson v. Geldart, 3 Mac. & Gord, '735, '747. (r) As regards personal estate, nothing, in the humble opinion of the writer, can be a more lamentable mistake, than for a legislator or a judge to imagine it to be his duty to thirart or defeat the designs of testators in regard to those reli- gious and charitable institutions which are the glory of this Christian land. In this country, at the present day at least, few are so ignorant as to suppose that they could further their eternal interests, in the smallest degree, even by the largest disposition which they could possibly make, in favour of such institutions, of that wealth which they themselves can no longer enjoy; and even if such were their motive, that would not render their bequests the less useful in the removal or mitigation of those spiritual, moral, and physical evils under which vast num- bers of their fellow-creatures are labouring. And extremely rare are the cases in which testators have, to an improper or unreasonable extent, sought to increase the funds of religious and charitable institutions, at the expense of their issue or OF ASSETS. 267 Marshalling of assets takes place as between simple contract creditors and a vendor of real estate, in respect of his lien for his unpaid purchase money. (s) And as against an *heir, but not as against a devisee 1-^070-1 taking an estate purchased, legatees are entitled to have the L J assets marshalled so as to give them the benefit of the vendor's lien.(<) On analogous grounds, if a specific legacy has been pledged or incum- bered with mortgages or other charges by the testator, the specific lega- tee is entitled to have his legacy redeemed or exonerated ; and if the executor fails to perform that duty, the specific legatee is entitled to compensation out of the general assets. (m) V. The Mode of Distribution of the Personal Estate of an Intestate among his or her Family or Relatives, hy the General Law. Where an intestate was domiciled abroad, the distribution is accord- ing to the law of the country where he or she was domiciled, (j)) But where he or she was domiciled in this country, the mode of distribution, by the general law, is this : — I. On the death of the wife, her effects shall go to the husband, ac- cording to the common law. (a;) II. On the death of the husband, the surplus, after payment of funeral and testamentary expenses, shall, after the expiration of one year from the intestate's death, be distributed according to the statute 22 & 23 Car. 2, c. 10, explained by 29 Car. 2, 0. 31, s. 25, in the following manner : — 1. If there is no widow, the whole shall go to the descendants, whe- ther children or more remote issue, and whether born in the father's lifetime or not, without any distinction as to sex or the half blood, or, if but one descendant, to that one. And if all the descendants are related to the intestate in the same degree, they shall take *per capita :(?/) r-iiq7i-| but if they are related to him in different degrees, they shall take L -I per stirpes :(«) so that if the intestate has left no surviving descendants but grandchildren, whether by one child or several, all such grandchil- dren will take equal shares : but if any of his children are living, all the grandchildren by the same parent deceased shall take together, and divide equally, among themselves, that share only which would have fallen to their parent if living. 2. If there is a widow, and her claim is not barred by a settlement before marriage, one third shall go to her, and two thirds to the de- scendants or sole descendant in the manner above mentioned. (a) 3. If there is a widow, whose claim is not barred by settlement before near relatiyes who were deserving of, and had a natural claim upon, their re- gard. («) Story's Eq. Jur. ? 564, a. (() 2 Spence's Eq. Jur. 833. (m) Story's Eq. Jur. J 566, a; 2 Spence's Eq. Jur. 774. {v) Wms. Exors. 4th edit. 1301. (x) 2 Bl. Com. 515 ; Wms. Exors. 4th edit. 12T6. \y) Wms. Exors. 4th edit. 1284. But see Burton, | 1402-3. (z) Wms. Exors. 4th edit. 1284-5 ; Burton, I 1402. (a) 2 Bl. Com. 515 ; Wms. Exors. 4th edit. 127Y-8. 268 SMITH ON REAL AND PERSONAL PROPERTY. marriage, but there are no descendants, one moiety shall go to the widow, and the other moiety to all the next of kin per capita.(6) 4. If there is a widow, but there are no descendants and no next of kin, one moiety shall go to her, and the other moiety to the Crown. (c) 5. If there is no widow, and there are no descendants, the whole shall go to the next of kin per capita, (c?) 6. If there is no widow, and there are no descendants and no next of kin, the whole shall go to the Crown. For the purpose of ascertaining who is nearest of kin or of blood with reference to personal estate exclusively, the civil law mode of com- puting the degrees of relationship is adopted.(e) And there is no pre- ference between those on the side of the father and those on the side of (-^qYT-i the mother, *or between the whole blood and the half; all in L -I equal degree taken together, (/) As regards the next of kin, there are three exceptions : (1.) If the father is dead, but the mother is living, though she is the next of kin, yet each of the intestate's brothers and sisters or their chil- dren, but not remoter issue, shall take an equal share with her under the statute 1 Jac. 2, c. 17. (^) (2.) When there are surviving brothers and sisters of the intestate who are the only next of kin, they shall not take the entirety, or, in case there is a widow, the whole of the moiety, to the exclusion of the child or children of any deceased brother or sister; but such child or children shall take the share which would have fallen to his, her, or their parent, if living. But the right of representation among collaterals does not extend to any other case.TA) (3.) Grandfathers and grandmothers, though they are in the second degree, as well as brothers and sisters, shall be excluded by'a brother or sister. (i) And with regard to the shares of the children, it must be observed that no child of the intestate for whom he has in his lifetime made any pro- vision in lands except his heir at law, and no child for whom he has made any pecuniary provision, shall have any part in the residue, if such pro- vision was equal to the distributive shares of the other children; but if such provision was not equivalent thereto, then the child for whom it was made, or the representatives of such child, shall receive as much of the residue as will make it equivalent thereto. (/c) l-^q7f>-i *VI. The Mode of Distrihution of the Personal Estate of an In- L J testate among his or her Family or Relatives, hy the Customs of London and York. If an intestate, who is a freeman of the city of London, or an inhabi- {h) 2 BI. Com. 515; Wms. Exors. 4th edit. 127V-8. (c) Care v. Roberts, 8 Sim. 214 ; Wma. Exors. 4tli edit. 1278. (d) 2 Bl. Com. 515; Wms. Exors. 4th edit. 1292. (e) Cooper t. Denison, 13 Sim. 290; 2 Bl. Com. 515; Wms. Exors. 4th edit. 345 ; Burton, § 1409. (/) Wms. Exors. 4th edit. 348, 1292' 1297. {g) 2 Bl. Com. 516; Wms. Exors. 4th edit. 1293-5 ; Burton, J 1409. (A) 2 Bl. Com. 515 ; Wms. Exors. 1299 ; Burton, I 1411, u. (i) Wms. Exors. 4th edit. 1296; see Burton, | 1410. [k] Burton, I 1404-1407 ; Wms. Exors. 4th edit. 1285-1292. OF DISTRIBUTION. 269 tant of the province of York (except the diocese of Chester,) or of some parts of Wales, leaves a widow and children, one third of his personalty belongs to the widow, one third to the children, and one third to the ad- ministrator. If he leaves a widow but no children, or children but no widow, the widow in the first case, and the children in the second, shall take one moiety, and the administrator the other moiety. If he leaves neither widow nor children, the whole shall go the administrator. The part which goes to the administrator, and which is called " the dead man's part," might formerly be applied by him to his own use, but since the stat. 1 Jac. 2, c. 17, it is distributable in the same manner as intestates' effects by the general law. As to the wife's customary part, a settlement of personalty on her before marriage will ordinarily be presumed to be and will operate as a bar of such customary part ; and of course a jointure of land before marriage, in bar of her customary part, would have the same effect. But in both cases, though the customary distribution shall be made in the same manner as if there were no widow, yet she shall have her share of the administrator's part under the statute, unless barred by special agree- ment. And before any division is made according to the custom, a de- duction is to be made of the widow's apparel, and of the furniture of her bedchamber (which in London is called the widow's chamber,) or 50^. in lieu of it, if her husband's estate exceeds in value 2000Z. There is the same rule for equalization of the shares of the children, in the case of pecuniary advancements, as in corresponding cases under the general law. But in *London an advancement out of real ^^^^^-. estate is not taken into account ; while in the province of York, L J the heir at common law who inherits any land in fee or in tail, however inconsiderable, in possession or reversion, is excluded from any filial por- tion or reasonable part. (A The custom of London adheres to the person, though resident in the country, or though his property be situate in the country. But the custom of York is confined to persons whose fixed and principal residence is within the province at the time of their decease. By the custom of London, the grandchildren or more remote issue take none of the customary part. And where there is more than one child, the orphanage part of the children is not fully vested in them till twenty- one ; for, if they die before that age, their orphanage part survives to the other children. By the custom of London, terms for years attendant on the inheritance are not assets within the custom. And, ordinarily, leases are not assets within the custom of the province of York ; though they are so by the special custom of some places within the province. (m) {I) See 2 Bl. Com. 518-520; Wms. Exors. 4th edit. 1309-1328. (m) Wms. Exors. 4th edit. 1329. 270 SMITH ON REAL AND PERSONAL PROPERTY. [*378] *TITLE II. OP ESCHEAT. Escheat is an accidental determination of the tenure and reverting of the land to the original grantor or lord of the fee, by the death of a legal tenant in fee, without heirs inheritable to the estate or any devisee or alienee to claim it, or by an attainder for treason or murder, (a) Where a person who has only an equitable estate dies without heirs, the estate does not escheat ; for neither the crown nor the lord can enter or seize where there is a legal tenant in possession ; the right to the service of the tenant in possession being all that the crown or lord can properly require. And hence where a mortgage in fee is made, and the mort- gagor dies intestate and without heirs, the equity of redemption does not escheat, but belongs to the mortgagee, subject to the debts.(6) By the stat. 13 & 14 Vict. c. 60, (which repeals the stat. 11 Greo. 4 & 1 Will. 4 c. 60 ; 4 & 5 Will. 4, c. 23, s. 2 ; and 1 & 2 Vict. o. 69, whereby similar provisions were made,) the Court of Chancery is em- powered to make an order vesting lands in such person or persons, in such manner, and for such estate as it shall direct, where a trustee thereof shall have died intestate, and without an heir, or shall have died, and it shall not be known who is his heir or devisee,(c) and in certain cases r*R7C)n ''^^^'^s ^ mortgagee *has died without an heir, or shall have died, L -I and it shall not be known who is his heir or devisee.(c?) By s. 46 of the same statute, " no lands, stock, or "chose in action vested in any person upon any trust or by way of mortgage, or any pro- fits thereof, shall escheat or be forfeited to her majesty, her heirs or suc- cessors, or to any corporation, lord or lady of a manor, or other person, by reason of the attainder or conviction for any oflFence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his or her co-trustee, or descend or vest in his or her representative, as if no such attainder or conviction had taken place.'Ye) And even where an escheat has actually taken place, the crown is empowered by various statutes to waive the right. (y) (a) Before the stat. 54 Geo. 3, c. 145, escheat was caused by attainder in many cases of felony. See 1 Steph. Com. 3rd edit. 423, 42'?; 2 Bl. Com. 246; 1 Steph. Com. 3rd edit. 415, 427. (b) Beale v. Symonds, 16 Beav. 406. (c) Sect. 15. (d) Sect. 19. See the interpretation clause, sect. 2, stated infra, on trustees. (e) See the interpretation clause, sect. 2, stated infra, on trustees. (/) See 39 & 40 Geo. 3, c. 88, s. 12 ; 47 Geo. 3, sess. 2, c. 24 ; 59 Geo. 3, i;. 94 ; 6 Geo. 4, c. 17 ; Stamps Index to the Statute Law, tit. " Trustees." OF OCCUPANCY. 271 *TITLE III. [*380] OP OCCUPANCT. Occupancy is the taking possession of a thing which has no owner. In the case of a limitation of an estate in corporeal hereditaments to a man and his heirs, or to him and the heirs of his body, for the life of another, on the death of the grantee in the lifetime of the cestui que vie, the heir of the grantee has always been entitled to the estate for the rest of the life of the cestui que vie. In this case he succeeds as a spe- cial occupant, as having a special exclusive right by the terms of the grant to occupy this hsereditas jacens, and not by descent. ( '^^ right of entry, distress, or action of a person L J entitled, subject to a tenancy at will, shall be deemed to have first accrued either at the determination of such tenancy, or at the expi- ration of one year next after the commencement thereof: — " When any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress or bring an action to recover such land or rent, shall be deemed to have first accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined : Provided always, that no mortgagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee." By s. 8, the right of entry, distress, or action of a person entitled, subject to a tenancy from year to year or for some other period without OF THE STATUTE OF LIMITATIONS. 283 any lease in writing, shall be deemed to have first accrued at the deter- mination of the first of such years or other period, or on the last pay- ment of rent : — ■" When any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant from year to year or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress or to bring an action to recover such land or rent, shall be deenjed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy shall have been received (which shall last happen.") By s. 9, " when any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent, by virtue of a lease in writing, by which a rent amounting *to the yearly sum of twenty ^^..^^-. shillings or upwards shall be reserved, and the rent reserved by L "J such lease shall have been received by some person wrongfully claiming to be entitled to such land or rent in reversion immediately expectant on the determination of such lease, and no payment in respect of the rent reserved by such lease shall afterwards have been made to the person rightfully entitled thereto, the right of the person entitled to such land or rent, subject to such lease, or of the person through whom he claims, to make an entry or distress or to bring an action after the determina- tion of such lease shall be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person wrongfully claiming as aforesaid ; and no such right shall be deemed to have first accrued upon the determination of such lease to the person rightfully entitled." By s. 10, " no person shall be deemed to have been in possession of any land within the meaning of this act merely by reason of having made an entry thereon." By s. 11, " no continual or other claim upon or near any land shall preserve any right of making an entry or distress or of bringing an action." By s. 12, the possession of one coparcener, joint tenant, or tenant in common, is not to be deemed the possession of the other or others : — "When any one or more of several persons entitled to any land or rent as coparceners, joint tenants, or tenants in common, shall have been in possession or receipt of the entirety, or more than his or their un- divided share or shares of such land or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of by such last mentioned person or persons or any of them." *By s. 13, the possession of a younger brother or other r^^jAn-i relation is not to be deemed the possession of the heir : — " When L J a younger brother or other relation of the person entitled as heir to the possession or receipt of the profits of any land, or to the receipt of any rent, shall enter into the possession or receipt thereof, such possession 284 SMITH ONEBAL AND PEESONAL PROPEETT. or receipt shall not be deemed to be the possession or receipt of or by the person entitled as heir." By s. 14, an acknowledgment in writing given to the person entitled or his agent is to be equivalent to possession or receipt : — " When any acknowledgment of the title of the person entitled to any land or rent shall have been given to him or his agent in writing, signed by the per- son in possession or in receipt of the profits of such land, or ia receipt of such rent, then such possession or receipt of or by the person by whom such acknowledgment shall have been given shall be deemed, according to the meaning of this act, to have been the possession or receipt of or by the person to whom or to whose agent such acknow- ledgment shall have been given at the time of giving the same, and the right of such last-mentioned person, or any person claiming through him, to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first accrued at and not before the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given." By s. 15, where possession is not adverse at the time of passing the act, the right shall not be barred till the end of five years afterwards, notwithstanding the period of twenty years limited by the act may have expired: — "When no such acknowledgment as aforesaid shall have been given before the passing of this act, and the possession or receipt of the profits of the land, or the receipt of the rent, shall not at the time of the passing of this act have been adverse to the right or title of the per- son claiming to be entitled thereto, then such person, or the person r*404n *ola'iming through him, may, notwithstanding the period of '- -I twenty years hereinbefore limited shall have expired, make an entry or distress or bring an action to recover such land or interest at any time within five years next after the passing of this act." By s. 16, if a person be under disability of infancy, coverture, unsoundness of mind, or absence beyond the seas at the time the right first accrued to him, he and those claiming through him shall have ten years from the termination of such disability or his death, notwithstand- ing the expiration of the twenty years. But by s. 17, no entry, distress, or action shall be made or brought but within forty years from the first accruer of the right. And by s. 18, where a person shall have died under disability, no additional time shall be allowed on account of the disability of any other person. And by s. 19, Ireland and the adjacent islands are not to be deemed beyond the seas : — " If at the time at which the right of any person to make an entry or distress or bring an action to recover any land or rent shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter mentioned, (that is to say,) infancy, coverture, idiotcy, lunacy, unsound- ness of mind, or absence beyond seas, then such person, or the person claiming through him, may, notwithstanding the period of twenty years hereinbefore limited shall have expired, make an entry or distress or bring an action to recover such land or rent at any time within ten years next after the time at which the person to whom such right shall first have accrued as aforesaid shall have ceased to be under any such dis- OP THE STATUTE OF LIMITATIONS. 285 ability, or shall have died (which shall have first happened") (a. 16.) But " no entry, distress, or action shall be made or brought by any person who, at the time at which his right to make an entry or distress or to bring an action to recover any land or rent shall have first accrued, shall be under any of *the disabilities hereinbefore mentioned, r^jrvr-i or by any person claiming through him, but within forty years L J next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or pore of such disabilities during the whole of such forty years, or although the term of ten years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired" (s. 17.) And " when any person shall be under any of the disabilities hereinbefore mentioned at the time at which his right to make an entry or distress or to bring an action to recover any land or rent shall have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or distress or to bring an action to recover such land or rent beyond the said period of twenty years next after the right of such person to make an entry or distress or to bring an action to recover such land or rent shall have first accrued, or the said period of ten years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person" (s. 18.) And "no part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, or Sark, nor any island adjacent to any of them (being part of the dominions of his majesty,) shall be deemed to be beyond seas within the meaning of this act" (s. 19.) By s. 20, when the right of a person to an estate in possession is barred, his right to any other estate, interest, right, or possibility in the same land or rent is also barred, unless in the meantime such land or rent shall have been recovered by some person entitled to an estate, interest, or right which shall have been limited or taken eflfeet after or in defeasance of such estate or interest in possession : — " When the right of any person to make an entry or distress or bring an action to recover any land or rent to which he *may have been entitled r^Ann-, for an estate or interest in possession shall have been barred by L J the determination of the period hereinbefore limited, which shall be applicable in such case, and such person shall at any time during the said period have been entitled to any other estate, interest, right, or possibility, in reversion, remainder, or otherwise, in or to the same land or rent, no entry, distress, or action shall be made or brought by such person, or any person claiming through him, to recover such land or rent, in respect of such other estate, interest, right, or possibility, unless in the meantime such land or rent shall have been recovered by some person entitled to an estate, interest, or right which shall have been limited or taken effect after or in defeasance of such estate or interest in possession." By s. 21, when a tenant in tail is barred, no person whom he might have barred shall recover : — " When the right of a tenant in tail of any land or rent to make an entry or distress or to bring an action to recover 286 SMITH ON REAL AND PERSONAL PROPERTY. the same shall have been harred by reason of the same not having been made or brought within the period hereinbefore limited, which shall be applicable in such case, no such entry, distress, or action shall be made or brought by any person claiming any estate, interest, or right which such tenant in tail might lawfully have barred." By s. 22, when a tenant in tail dies before the expiration of the period limited for recovering land or rent, no person whom he might have barred shall recover it but within the period during which the tenant in tail himself might have recovered it, if he had continuec^ to live : — " When a tenant in tail of any land or rent, entitled to recover the same, shall have died before the expiration of the period hereinbefore limited, which shall be applicable in such case, for making an entry or distress or bringing an action to recover such land or rent, no person claiming any estate, interest, or right which such tenant in tail might r*d.n7T ^^''ff'illy have barred, *shall make an entry or distress or bring L J an action to recover such land or rent but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress or brought such action." By s. 23, where there shall have been in possession or receipt under an assurance by a tenant in tail, which shall not bar an estate or estates to take eifect after or in defeasance of his estate tail, such estate or estates shall be barred after such possession or receipt shall have continued for twenty years from the time when the assurance if then executed would have barred such estate or estates : — " When a tenant in tail of any land or rent shall have made an assurance thereof, which shall not operate to bar an estate or estates to take eifect after or in defeasance of his estate tail, and any person shall by virtue of such assurance, at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in the receipt of such rent, and the same person, or any other person whatsoever (other than some person entitled to such possession or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail), shall continue or be in such possession or receipt for the period of twenty years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail or the person who would have been enti- tled to his estate tail if such assurance had not been executed, would, without the consent of any other person, ha;ve operated to bar such estate or estates as aforesaid, then at the expiration of such period of twenty years such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right to take effect after or in defeasance of such estate tail." By s. 24, " after the 31st day of December, 1833, no person claiming |- .„Q-| any land or rent in equity shall bring any suit *to recover the L J same but within the period during which by virtue of the provi- sions hereinbefore contained he might have made an entry or distress or brought an action to recover the same respectively if he had been enti- tled at law to such estate, interest, or right in or to the same as he shall claim therein in equity." By s. 25, " when any land or rent shall be vested in a trustee upon OF THE STATUTE OF LIMITATIONS. 287 any express trust, the right of the cestui que trust, or any person claiming through him, to bring a suit against the trustee, or any person claiming through him, to recover such land or rent, shall be deemed to have first accrued, according to the meaning of this act, at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him." Where a sum of money is bequeathed to an executor, upon trust to be laid out in certain trusts, as soon as it is severed from the bulk of the estate, it ceases to be a mere legacy, and the bar of the Statute of Limitations does not apply : for it is then a case of express trust, which is specially kcoepted.(&) But when this relation of trustee and cestui que trust is no longer admitted to exist, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties or other circumstances give rise to presumptions unfavourable to its continuance, a court of equity will refuse relief, upon the ground of lapse of time and its inability to do complete justice. (c) And a direction in a will for the payment of debts is inoperative so far as the personal estate is concerned ; and therefore such a direction does not create a trust to pay debts so as to stop the running of the Statute of Limitations. ((?) *By s. 26, in cases of concealed fraud, the right shall be r-ji^Aq-i deemed to have accrued when the fraud shall or might with L J reasonable diligence have been first discovered : — " In every case of a concealed fraud the right of any person to bring a suit in equity for the recovery of any land or rent of which he, or any person through whom he claims, may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which such fraud shall or with reasonable diligence might have been first known or discovered; provided that nothing in this clause contained shall enable any owner of lands or rents to have a suit in equity for the recovery of such lands or rents, or for the setting aside any conveyance of such lands or rents on account of fraud, against any bon^ fide purchaser for valuable considera- tion who has not assisted in the commission of such fraud, and who at the time that he made the purchase did not know and had no reason to believe that any such fraud had been committed." By s. 27, " nothing in this act contained shall be deemed to interfere with any rule or jurisdiction of courts of equity in refusing relief on the ground of acquiescence or otherwise to any person whose right to bring a suit may not be barred by virtue of this act." By s. 28, a mortgagor is to be barred at the end of twenty years from the time when the mortgagee took possession, or from the last written acknowledgement : — " When any mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent, comprised in his mortgage, the mortgagor or any person claiming through him shall not bring a suit to redeem the mortgage but within twenty years next after the time at which the mortgagee obtained such posses- sion or receipt, unless in the meantime an acknowledgment of the title of (6) 2 Spence's Eq. Jur. 62. (c) Story's Eq. Jur. J 1520, a. {d) Freake v. Cranefeldt, 3 My. & Cr. 499. 288 SMITH ON REAL AND PERSONAL PKOPERTT. the mortgagor or of his right of redemption shall have been given to the mortgagor, or some person claiming his estate, or to the agent of such r*4101 ™°^'g^goi' or person, in writing *signed by the mortgagee or L -' the person claiming through him ; and in such case no such suit shall be brought but within twenty years next after the time at which such acknowledgment, or the last of such acknowledgments if more than one, was given ; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons ; but where there shall be more than one mortgagee, or more than one person claiming-the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rentj and where such of the mortgagees or persons aforesaid as shall have given such acknowledgment shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgaged money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage." P^.w,-, By s. 20, no lands or rent shall be recovered by any *ecclesi- L J astical or eleemosynary corporation sole after two incumbencies and six years, or such further time as will make up sixty years from the accruer of the right : — " It shall be lawful for any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital, or other spiritual or eleemosynary corporation sole, to make an entry or distress or to bring an action or suit to recover any land or rent within such period as here- inafter is mentioned next after the time at which the right of such cor- poration sole, or of his predecessor, to make such entry or distress, or bring such action or suit shall first have accrued; (that is to say,) the period during which two persons in succession shall have held the office or benefice in respect whereof such land or rent shall be claimed, and six years after a third person shall have been appointed thereto, if the times of such two incumbencies and such term of six years taken together shall amount to the full period of sixty years ; and if such times taken together shall not amount to the full period of sixty years, then during such further number of years in addition to such six years as will with the time of the holding of such two persons and such six years make up OF THE STATUTE OF LIMITATIONS. 289 the full period of sixty years ; and after the said 31st day of December, 1833, no such entry, distress, action, or suit shall be made or brought at any time beyond the determination of such period." (s. 29.) The statute does not operate to prevent the tithe owner from recover- ing tithes as chattels from the occupier, though none have been set out for twenty years ; but it is confined to cases where there are two parties, each claiming an adverse estate in the tithes. (e) By s. 30, no benefice shall be recovered after three adverse incum- bencies or such further period as will make *up sixty years. ffA-in-i But, by s. 31, an incumbency, after promotion to a bishopric, is L J to be deemed a continuation of the incumbency of the clerk who was made a bishop. But by s. 33, no benefice is to be recovered after 100 years adverse possession : — " After the said 31st day of December, 1833, no person shall bring any quare impedit or other action or any suit to enforce a right to present to or bestow any church, vicarage, or other ecclesiastical benefice, as the patron thereof, after the expiration of such period as hereinafter is mentioned; (that is to say,) the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely, to the right of presentation or gift of such person, or of some person through whom he claims, if the times of such incumbencies taken together shall amount to the full period of sixty years j and if the times of such incumbencies shall not together amount to the full period of sixty years, then after the expiration of such further time as with the times of such incumbencies will make up the full period of sixty years." (a. 30.) " When on the avoidance, after a clerk shall have obtained possession of an ecclesiastical benefice adversely to the right of presentation or gift of the patron thereof, a clerk shall be presented or collated thereto by his Majesty or the ordinary by reason of a lapse, such last mentioned clerk shall be deemed to have obtained pos- session adversely to the right of presentation or gift of such patron as aforesaid; but when a clerk shall have been presented by his Majesty upon the avoidance of a benefice in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of this act, be deemed a continuation of the incumbency of the clerk so made bishop" (s. 31.) <' In the construction of this act every person claiming a right to present to or bestow any ecclesiastical bene- fice, as patron *thereof, by virtue of any estate, interest, or right [-^x-io-i which the owner of an estate 'tail in the advowson__ might have L J barred shall be deemed to be a person claiming through the person en- titled to such estate tail, and the right to bring any quare impedit, action, or suit shall be limited accordingly" (s. 32.) And, " after the said 31st day of December, 1833, no person shall bring any quare impe- dit or other action or any suit to enforce a right to present to or bestow any ecclesiastical benefice as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained possession of such benefice adversely to the right of presentation or gift of such person, or of some person through whom he claims, or of soma (e) Dean and Chapter of Ely v. Cash, 15 M. & W. 617. Februaey, 1856. — 19 290 SMITH ON KBAL AND PERSONAL PEOPBRTY. person entitled to some preceding estate or interest, or undivided share, or alternate right of presentation or gift, held or derived under the same title, unless a clerk shall subsequently have obtained possession of such benefice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in re- spect of an estate, share, or right held or derived under the same title." (s. 33.) By s. 34, " at the determination of the period limited by this act to any person for making an entry or distress, or bringing any v?rit of quare impedit or other action or suit, the right and title of such person to the land, rent, or advowson for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, shall be extinguished." By s. 35, "the receipt of the rent payable by any tenant from year to year, or other lessee, shall, as against such lessee or any person claiming under him (but subject to the lease,) be deemed to be the receipt of the profits of the land for the purposes of this act." By s. 36, real and mixed actions are abolished, except for dower, quare impedit, and ejectment. (-„,-, ,-, *By s. 39, " no descent cast, discontinuance, or warranty which L J may happen or be made after the said 31st day of December, 1833, shall toll or defeat any right of entry or action for the recovery of land." ' By s. 40, " no action or suit or other proceeding shall be brought, to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be pay- able, or his agent, to the person entitled thereto or his agent; and in such case no such action or suit or proceeding shall be brought but with- in twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments if more than one, was given."(/) [*415] *TITLE VTI. OF FORFEITURE. Forfeiture is a loss of real or personal property, as a punishment for some illegal act or negligence in the owner thereof. (/) As to arrears of dower, see supra, p. 140 ; and as to arrears of rent, or inte- rest, or damages in respect of such arrears, see supra, p. 18. OF FORFEITURE. 291 Keal and personal estate may be forfeited by various means : I. By crime. II. By wrongful conduct as regards tenure. III. By alienation contrary to law. IV. By non-representation to a benefice, in which case the forfeiture is denominated a lapse. V. By simony. VI. By non-performance of conditions. VII. By breach of copyhold customs. (a) I. By attainder in high treason, a man forfeits for ever, to the Crown, all his lands and tenements of freehold tenure, in fee simple, and all his rights of entry on lands and tenements of the same tenure, which he had at the time of the offence committed, or at any time afterwards. And he also forfeits to the Crown the profits of all land and tenements of the same tenure, which he had in his own right, for life or years, so long as such interest shall subsist.(6) In consequence of the stat. 26 Hen. 8, o. 13, and 33 Hen. 8, c. 20, if tenant in tail in possession, or having a right of *entry, is rucA-ia-] attainted of high treason, the estate tail is barred, and the L J lands are forfeited to, and immediately vest in the King, who thereby acquires a base fee, as long as the tenant in tail lives, or there are heirs of the person attainted, who would have been capable of inheriting the estate tail ; but upon failure of such heirs, the remainderman or rever- sioner becomes entitled, (c) He who is attainted of felony, forfeits his chattel interests absolutely, and, by attainder for murder, the benefit of all freehold estates during life 5 and after his death, all his freehold lands and tenements in fee simple, but not those in tail, go to the Crown for a year and a day, during which the Crown may commit any manner of waste, but this year, day, and waste, as it is termed, is now usually compounded for. After the expiration of the year and a day, the property goes to the lord by escheat, (li) By attainder for felony, estates tail are only for- feited during the life of the tenant in tail.(e) Forfeiture of lands only arises on attainder, and attainder is caused by a sentence of death, or judgment of outlawry on a capital crime, pro- nounced for absconding or fleeing from justice. (/) But the forfeiture relates back to the time of the offence, so as to avoid all intermediate charges and conveyances. (^) Forfeiture of the profits of lands for life is incident to misprision of treason, and striking in Westminster Hall, or drawing a weapon upon a judge therein, while the court is sitting. (M (a) 2 Bl. Com. 267. (6) 2 Bl. Com. 290 : 4 Bl. Com. 374 ; 4 Steph. Com. 495-6 ; 4 Cruise T. 32, c. 2, ? 36 ; Burton, § 189. (c) 1 Cruise T. 2, c. 2, ? 36-41. {d) 4 Bl. Com. 378-9 ; 2 Bl. Com. 252 ; 4 Stepli. Com. 499. (e) 1 Cruise T. 2, c. 2, ? 42. (/) 4 Bl. Com. 374 ; 4 Steph. Com. 495. {g) 4 Bl. Com. 375 ; 4 Steph. Com. 496, 500. (A) 4 Bl. Com. 379 ; 4 Steph. Com. 501. 292 SMITH ON REAL AND PERSONAL PROPERTY. Other felonies besides high treason and murder, since the stat. 54 r*417n ^^°' ^' °' ^'^^> ®®®™ *'° leave the offenders the *power of dis- L J posing of their estates to be enjoyed after their deaths. (t) Copyhold estates, in case of treason or felony, are forfeited to the lord of the manor, and not to the Crown, except otherwise provided by Act of Parliament. (A;) When a man commits felony, and then purchases land, and after- wards is attainted, the lord of the fee shall have it by escheat ; for he had capacity to purchase, but not to hold it. If a man is attainted of felony, he has capacity to purchase to him and his heirs, yet he cannot hold it; but in that case, the Queen shall have it by her prerogative, and not the lord of the fee; because a man attainted, being civiliter mortuus, has only a capacity to purchase for the benefit of the Crown. (?) The forfeiture of chattels accrues on conviction in the higher kinds of offences, — in high treason, misprision of treason, felonies of all sorts, self- murder or felony de se, and striking or drawing a weapon upon a Judge in Westminster Hall.(m) Forfeiture of chattels has no relation back- ward ; so that those only which a man has at the time of conviction are forfeited. But if chattels are only collusively and coloiirably, not bon& fide, parted with between the offence and the conviction, in such a way that the party, if acquitted, could recover them, as not parted with for a good consideration, they will belong to the Crown. (ra) By the stat. 13 & 14 Vict. c. 60, s. 46, re-enacting s. 3 of the stat. 4 & 5 Will. 4, c. 23, it is enacted, "That no lands, stock, or chose in action vested in any person upon any trust or by way of mortgage, or any profits thereof, shall escheat or be forfeited to her Majesty, her heirs or succes- r*4.1 SI ^°^^> "^ ^° ^°y corporation, lord or lady of a manor, or other *per- L -I son, by reason of the attainder or conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his or her co-trustee, or descend or vest in his or her repre- sentative, as if no such attainder or conviction had taken place." II. If tenant for life, in a Court of record, disclaims to hold of his lord, or affirms or impliedly admits the reversion to be in a stranger, it is a forfeiture ;(o) and so if in a Court of record a tenant for life claims any greater estate than was granted to him, it is a forfeiture. Hence, although a fine of things lying in grant has no greater effect as to the interest which it passes than a grant, yet a fine by tenant for life of such tenement, without any expressions restricting its operation to such an estate as he may lawfully pass, causes a forfeiture. So, if a tenant for life accepts such an unqualified fine from a stranger, he (the conusel) in- curs a forfeiture. (p) III. Lands and tenements may be forfeited by an alienation of them (i) Burton, ? 191. [k) 4 Steph. Com. 495, n; 1 Cruise T. 10, c. 5, § 2. (I) 4 Cruise T. 32, ^. 2, ^ 39 ; 2 Bl. Com. 290 ; 2 Pres. Sbep. T. 285 ; Sugd. Con- cise View, 541. (m) 4 Bl. Com. 379, 380; 4 Steph. Com. 501, 502. (n) 4 Bl. Com. 380-1 ; 4 Steph. Com. 502. (o) 1 Cruise T. 3, t. 1, § 38 ; 2 Bl. Com. 276. (p) Burton, § 745. OF FORFEITURE. 293 contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants. (j) 1. Alienation in mortmain (in mortua manu) is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or tem- poral, (r) Any such corporation may purchase lands, yet, unless they have a license to hold in mortmain, they cannot retain such purchase, but it shall be forfeited to the lord of the fee.(s) It is provided by the stat. 7 & 8 Will. 3, c. 37, that the Crown may grant licences to alien or take in mortmain. (<) And, by various statutes, exemptions have been created in favour of the church and of certain charities, &o.(u\ 2. *Alienation to an alien was, and in general still is, a cause |-^..„, of forfeiture to the crown of the lands so alienated. (a;") L J 3. Alienations by persons not having an estate of inheritance, when they are greater than the law entitles them to make, are in certain cases forfeitures to him whose right is attacked thereby. (^z) Thus, if a tenant in tail after possibility of issue extinot,(2:) or a tenant for life made a feoffment in fee to a stranger, or levied a fine without proper words of restriction, or suffered a recovery, it was a forfeiture, unless the person in remainder or reversion was a party to the assurance, or confirmed the estate, (a) If baron and feme, tenants for life, made a feoffment, this was a forfeiture during the coverture, but not against the wife after her husband's death. (6) But, as a grant, lease for years, bargain and sale, or lease and release, only pass what lawfully may pass, by these no forfeiture eould be incurred. (c) If there are two joint tenants for life, and one grants away his part for the life of his companion, it is a for- feiture. The Statute of G-loucester (6 Edw. 1, o. 7) provides, that, upon alienation, in fee or for life, of a tenant in dower, she shall forfeit her estate. (c?) If a tenant by the curtesy aliens in fee or in- tail, or for the life of the grantee, it is a forfeiture of his estate, (e) And if a tenant for years attempted to create a greater interest than he lawfully could, by a mode of conveyance which divested the estate in remainder or reversion, it would operate as a forfeiture of his estate, (/) unless the remainderman or reversioner was a party to the conveyance. (g') In case of forfeitures by particular tenants, all estates *and r;(: inri-i charges lawfully created by them before the forfeitures are L J good. (A) IV. Lapse is a species of forfeiture, whereby the right of presen- (q) 2 Bl. Com. 26T. (r) 2 Bl. Com. 268. ■ (s) 2 Bl. Com. 290-1. (i) 2 Bl. Com. 373 ; 1 Cruise T. 1, § 31. [u) See Stamp's Index to the Statute Law, tit. " Mortmain." And as to the statute called "The Mortmain Act," see supra, p. 216. (x) 2 Pres. Shep. T. 232, n. 12. On aliens, see infra, Part 4. (y) 2 Bl. Com. 274 ; 1 Steph. Com. 443-445. (2) 1 Cruise T. 4, J 9. (a) 1 Cruise T. 3, 0. 1, 5 33-37; Burton, ? 740, n, 741, 744, 746. (b) 1 Cruise T. 3, c. 1, | 35. (c) Burton, § 740. (d) 1 Cruise T. 6, >;. 2, | 28. (c) 1 Cruise T. 5, c. 2, § 31. (/) 1 Cruise T. 8, c. 2, J 46. {/) I Cruise T. B, c. 2, § 49. (A) 2 Bl. Com. 275 ; Burton, § 739, u. 294 SMITH ON EEAL AND PERSONAL PROPERTY. tation to a church accrues to the ordinary by the neglect of the patron to present ; to the metropolitan, by the neglect of the ordinary ; and to the King, by the neglect of the metropolitan. (i) The term in which the title to present by lapse accrues from the one to the other successively in six calendar months from the time of avoidance, exclusive of the day of the avoidance, or from the time when the patron had notice of the avoidance. But as the patron has the permanent right and interest in the advowson, and the presentation is only given to the other persons on account of his negligence, if he presents before the bishop or archbishop has filled up the benefice, though after the six months are elapsed, his presentation is good. But the patron cannot present when the presen- tation has lapsed to the crown : for nullum tempus occurrit regi.f/i;) In the case of an advowson donative, no lapse occurs by the non-presenta- tion of the patron within six months ; but the ordinary may compel the patron to present, by means of ecclesiastical censure.(Z) V. By simony(m) the right of presentation to a living is forfeited, and vested pro h&o vice in the crown. VI. Where an estate is subject to a condition subsequent, if such condition is not performed, the estate becomes forfeited and returns to the grantor. Where, however, a lessor accepts rent after a breach of a condition against alienation, it is a waiver of the forfeiture, and a confirmation of the lease, provided he had notice of the breach, but not otherwise, (w) r*d.9n *VII. Copyhold estates are not only liable to the same for- L J feitures as those which are held in socage, but also to peculiar forfeitures annexed to this species of tenure. (o) Alienations made by the tenants of particular estates in customary property, as they do not divest the estates of the persons in remainder or reversion, so they have not the effect of forfeiture for their benefit. (p) But every alienation which is contrary to the nature of the customary tenure is a ground of forfeiture of the estate to the lord.(g') But a deed of bargain and sale by a copyholder amounts only to the creation of a trust, and not to any attempt to dispose of the customary estate. (■/•) And a mere covenant or agreement for a lease will not operate as a forfeiture. (s) And so a cove- nant, which, if it related to freehold lands, would have the effect of an immediate lease, may be construed as an undertaking only for a future lease of copyholds. But by a lease without license for more than one year (unless the custom authorises the creation of a longer term) a like forfeiture is incurred as by any other conveyance. (<) Every species of waste, whether voluntary or permissive, not war- (i) 2 Bl. Com. 216. h) 2 Bl. Com. 216-1; 3 Cruise T. 21, u. 2, J 10, 12, 16. (l) 3 Cruise, T. 21, c. 2, § 17. (m) See infra, on void and voidable deeds and contracts. (n) 4 Cruise T. 31, o. 5, § 81-83. (o) 2 Bl. Com. 282. (p) Burton, § 1330. (q) Burton, § 1331 ; 1 Cruise T. 10, c. 5, ? 5. (r) Burton, ^ 1333. (s) 1 Cruise T. 10, c. 5, § 13-16. (t) Burton, ^ 1334 ; 1 Cruise T. 10, i>. 5, J 8. OP FORFEITURE. 295 ranted by the custom of the manor, will operate as a forfeiture of a copyhold.(M) If a copyholder disclaims tenure, or if he refuses to perform the ser- vices, after particular warning to himself or general warning within the parish, he thereby forfeits his copyhold, unless he is prevented from attending by sickness, or fear of being arrested as a bankrupt.(a;) Refusal to pay a fine certain on admittance, or a fine uncertain with- in a convenient time appointed by the lord, is a forfeiture, unless in the case of an uncertain fine, *payment is refused on the ground ^,(^09-1 that more is demanded than is warranted, and such is the L J fact.(y) Refusal to pay rent due by the custom is a forfeiture, if made on the ground that the lord is not entitled to the rent.^z) Where copyholds are descendible, the heir is bound, on the death of his ancestor, to come to the lord's court and require to be admitted. If he neglects to appear within the time prescribed by the custom, a proclama- tion is made for him to come in and be admitted. If he does not then appear, further proclamations are made at the two or three next courts, according to the custom. And if he does not appear immediately after the last proclamation, the lord may seize the copyhold as forfeited. (a) If, however, the heir of a copyholder is beyond sea at the time of his ances- tor's death, or within age, or non compos mentis, or in prison, his non- appearance at the lord's court to be admitted will not amount to a for- feiture. (6) And there must be a particular custom to warrant the abso- lute forfeiture of a copyhold by the mere non-appearance of the heir to be admitted. By the general custom, the lord is only authorised to seize the land until the tenant comes in to be admitted. (c) The non-appearance of a devisee to be admitted operates in general as a forfeiture of the copyhold. (rf) An infant at the age of fourteen may forfeit his copyhold, not by ofiences proceeding from negligence or ignorance, but by such as proceed from contempt.M If a copyholder makes a feoffment of one acre of his copyhold, all his estate is not forfeited, but only that acre. But if a copyholder cuts down a tree which grows upon an acre of land parcel of the copyhold, this is a forfeiture of all the *copyhold, because the trees are to be em- pt^oQi ployed in building and reparation of the houses. (/) L J The lord pro tempore, even though he may be only a lessee for years, may take advantage of a forfeiture. (5') Forfeitures may be dispensed with by any subsequent act of the lord acknowledging the person to be his tenant, provided the lord cannot well be supposed to be ignorant of the act amounting to the forfeiture. (A) (u) 1 Cruise, T. 10, i;. 5, ? 11. (x) 1 Cruise T. 10, c. 5, ? 19, 20, 23. (!/) 1 Cruise T. 10, c. 5, J 25-6. (?) 1 Cruise T. 10, c. 5, | 27. (a) 1 Cruise T. 10, c. 5, | 30 ; c. 4, ? 2. (b) 1 Cruise T. 10, >;. 5, | 31. (c) 1 Cruise T. 10, c. 5, ^ 33. {d) 1 Cruise T. 10, c. 5, | 39. (e) 1 Cruise T. 10, u. 5, ? 41. (/) 1 Cruise T. 10, c. 5, § 47. [ff) 2 Cruise T. 10, c. 5, § 56, 57. (A) 1 Cruise T. 10, c. 5, § 50. 296 SMITH ON KEAL AND PERSONAL PROPBKTY. And where there are equitable circumstances, the Court of Chancery will sometimes relieve against unreasonable forfeitures. (i) [*424J *TITLE VIII. OP BANKUPTCY TJNDEB, THE NEW LAW.(a) By s. 142 of Stat. 12 & 13 Vict. c. 106, " when any person shall Lave been adjudged a bankrupt, all lands, tenements, and hereditaments, except copy or customaryhold, in England, Scotland, Ireland, or in any of the dominions, plantations, or colonies belonging to her majesty, to which any bankrupt is entitled, and all interest to which such bankrupt is entitled in any of such lands, tenements, or hereditaments, and of which he might, according to the laws of the several countries, dominions, plantations, or colonies, have disposed, and all such lands, tenements, and hereditaments as he shall purchase, or shall descend, be devised, revert to, or come to such bankrupt before be shall have obtained his certificate, and all deeds, papers, and writings, respecting the same, shall become absolutely vested in the assignees for the time being, for the benefit of the creditors of the bankrupt, by virtue of their appoint- ment, without any deed of conveyance for that purpose." By s. 209 of the same statute, " the court shall have power to sell, and, by deed indented and enrolled in the courts of the manor or manors whereof the lands respectively may be holden, to convey, for the benefit of the creditors, any copyhold or customaryhold lands, or any interest to r*4.9^1 ^^'^^^ ^°y bankrupt is entitled therein, and thereby to entitle or L J *authorize any person or persons on behalf the Court of Bank- ruptcy to surrender the same, for the purpose of any purchaser being admitted thereto." Assignees of a bankrupt are not bound to take property of the bank- rupt, which, so far from being valuable, would be a charge to the credi- tors; but they may make their election. If, however, they do elect to take the property, they cannot afterwards renounce it because it turns out to be a bad bargain. (i) By s. 145 of the stat. 12 & 13 Vict. c. 106, " if the assignees of the estate and effects of any bankrupt having or being entitled to any land, either under a conveyance to him in fee, or under an agreement for any such conveyance, subject to any perpetual yearly rent reserved by such conveyance or agreement, or having or being entitled to any lease or agreement for a lease, shall elect to take such land, or the benefit of such conveyance or agreement, or such lease or agreement for a lease, as the case may be, the bankrupt shall not be liable to pay any rent (»■) 1 Cruise T. 10, c. 5, § 59, 63. (a) By the stat. 12 & 13 Vict. c. 106, the former Acts on the subject are con- solidated. As to these, as well as the subsequent statutes, see Stamp's Index to the Statute Law, tit. "Bankrupt." And see stat 17 & 18 Vict. c. 119. (i) Sagd. Concise View, 46. OF BANKRUPTCY UNDEE THE NEW LAW. 297 accruing after the issuing of the fiat or filing of the petition for adjudi- cation of bankruptcy against him, or to be sued in respect of any subse- quent non-observance or non-performance of the conditions, covenants, or agreements, in any such conveyance or agreement, or lease or agree- ment for a lease; and if the assignees shall decline to take such land, or the benefit of such conveyance or agreement, or lease or agreement for lease, the bankrupt shall not be liable, if, within fourteen days after he shall have had notice that the assignees have declined, he shall deliver up such conveyance or agreement, or lease or agreement for lease, to the person then entitled to the rent, or having so agreed to convey or lease, as the case may be ; and if the assignees shall not (upon being thereto required) elect whether they will accept or decline such land or convey- ance or agreement for conveyance, or *suoh lease or agreement r^j^fj-i for a lease, any person entitled to such rent, or having so con- L -• veyed or agreed to convey, or leased or agreed to lease, or any person claiming under him, shall be entitled to apply to the court, and the court may order them to elect and deliver up such conveyance or agreement for conveyance, or lease or agreement for lease, in case they shall decline the same, and the possession of the premises, or may make such other order therein as it shall think fit." By s. 146, " if any bankrupt shall have entered into any agreement for the purchase of any estate or interest in land, the vendor thereof, or any person claiming under him, if the assignees shall not (upon being thereto required) elect whether they will abide by and execute such agreement or abandon the same, may apply to the court, and the court may thereupon order them to deliver up the agreement and the possession of the premises to the vendor or person claiming under him, or make such other order therein as such court shall think fit." By s. 149, it is enacted, "that if any bankrupt shall have granted, conveyed, assured, or pledged any real or personal estate or deposited any deeds, such grant, conveyance, assurance, pledge, or deposit being upon condition or power of redemption at a future day by payment of money or otherwise, the assignees may, before the time of the perfor- mance of such condition, make tender or payment of money or other performance, according to such condition, as fully as the bankrupt might have done ; and after such tender, payment, or performance, such real or personal estate may be sold and disposed of for the benefit of the creditors." By s. 141, " when any person shall have been adjudged a bankrupt, all his personal estate and efi'ects, present and future, wheresoever the same may be found or known, and all property which he may purchase, or which may revert, ^descend be devised or bequeathed or r^Ann-i come to him before he shall have obtained his certificate, and L J all debts due or to be due to him, wheresoever the same" may be found or known, and the property, right, and interest in such debts, shall become absolutely vested in the assignees for the time being, for the benefit of the creditors of the bankrupt, by virtue of their appointment." By s. 147, " all powers vested in any bankrupt which he might legally execute for his own benefit (except the right of nomination to any vacant 298 SMITH ON REAL AND PERSONAL PROPERTY. ecclesiastical benefice) may be executed by the assignees for the benefit of the creditors, in such manner as the bankrupt might have executed the same." By s. 125, " if any bankrupt, at the time he becomes bankrupt, shall, by the consent and permission of the true owner thereof, have in his pos- session, order, or disposition, any goods or chattels whereof he was re- puted owner, or whereof he had taken upon him the sale, alteration, or dis- position as owner, the court shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy." The bankrupt's earnings by his personal labour after the bankruptcy, property belonging to him as trustee for the others, any office he holds which cannot legally be sold, his right of nomination to a vacant eccle- siastical benefice, his military pay under the crown, and his military pension under the East India Company, are not at all afiected by his bankruptcy. (c) The title of the assignees commences from the period when the trader committed an act of bankruptcy. And therefore, though nothing passes out of the bankrupt until the transfer is actually made by an appoint- ment of assignees under the bankruptcy, yet that transfer, when made, [*428] operates by relation from the act of bankruptcy, so as to include *in general all property belonging to the bankrupt at that time, or at any intermediate time down to the time of transfer, and consequently to overreach and annul, subject to the qualifications presently mentioned, all intervening alienations and executions. (rf) And by s. 126 of the stat. 12 & 13 Vict. c. 106, " if any bankrupt, being at the time insolvent, shall (except upon the marriage of any of his children or for some valu- able consideration) have conveyed, assigned, or transferred to any of his children, or to any other person, any hereditaments, offices, fees, annui- ties, leases, goods or chattels, or have delivered or made over to any such person any bills, bonds, notes, or other securities, or have transferred his debts to any other person or into any other person's name, the court shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy." But, 1. The transfer does not operate retrospectively, as to the legal estate in the bankrupt's freeholds.(e) 2. The crown is not afifected by this relation : for if, after the act of bankruptcy committed and before the assignment of the effects, an extent issues for the debt of the Crown, the goods are bound thereby. (/) 3. By s. 133 of stat. 12 & 13 Vict. c. 106, " all payments really and bona fide made by any bankrupt, or by any person on his behalf, before the date of the fiat or the filing of a petition for adjudication of bank- ruptcy, to any creditor of such bankrupt, and all payments really and bonS, fide made to any bankrupt before the date of the fiat or the filing of such petition, and all conveyances by any bankrupt bona fide made and executed before the date of the fiat or the filing of such petition, and all contracts, dealings, and transactions by and with any bankrupt (c) 2 Steph. Com. 158. (d) 2 Steph. Com. 159, 160. (e) 2 Steph. Com. 160, n. (z). (/) 2 Steph. Com. 161. OP BANKRUPTCY UNDER THE NEW LAW. 299 really and bona fide made and entered into before the date of the fiat or the *filing of such petition, and all executions and attachments r^inqi against the lands and tenements of any bankrupt bona fide exe- L J cuted by seizure, and all executions and attachments against the goods and chattels of any bankrupt bona fide executed and levied by seizure and sale before the date of the fiat or the filing of such petition, shall be deemed to be valid, notwithstanding any prior act of bankruptcy by such bankrupt committed, provided the person so dealing with or paying to or being paid by such bankrupt, or at whose suit or on whose account such execution or attachment shall have issued, had not at the time of such payment, conveyance, contract, dealing, or transaction, or at the time of so executing or levying such execution or attachment, or at the time of making any sale thereunder, notice of any prior act of bankruptcy by him committed : Provided also, that nothing herein contained shall be deemed or taken to give validity to any payment, or to any delivery or transfer of any goods or chattels made by any bankrupt, being a fraudu- lent preference of any creditor of such bankrupt, or to any conveyance or equitable mortgage made or given by any bankrupt by way of fraudu- lent preference of any creditor of such bankrupt, or to any execution founded on a judgment on a warrant of attorney or cognovit actionem or judge's order obtained by consent given by any bankrupt by way of fraudulent preference." 4. By s. 134 of the same statute, " no purchase from any bankrupt bona fide and for valuable consideration, where the purchaser had notice at the time of such purchase of an act of bankruptcy by such bankrupt committed, shall be impeached by reason thereof, unless a fiat or petition for adjudication of bankruptcy shall have been sued out or filed within twelve months after such act of bankruptcy." The title of the assignees will prevail against all alienations voluntarily made by the trader, though he has committed no act of bankruptcy, if made in contemplation of *bankrnptcy, and with an intention to r.^^on-i give a preference to some particular creditor or creditors. ((/) L J By s. 131 of the same statute, " no title to any real or personal estate sold under any bankruptcy shall be impeached by the bankrupt, or any person claiming under him, in respect of any defect in the fiat or petition for adjudication, or in any of the proceedings under the same, unless the bankrupt shall within the time allowed by this act have commenced pro- ceedings to dispute, dismiss, or annul the fiat, petition, or adjudication, and duly prosecuted the same." By s. 148, it is enacted, " that it shall be lawful for the court, upon the application of the assignees, or of any purchaser from them of any part of the bankrupt's estate, if such bankrupt shall not try the validity of the adjudication, or if there shall have been a verdict at law estab- lishing its validity, to order the bankrupt to join in any conveyance of such estate or any part thereof; and if he shall not execute such con- veyance within the time directed by the order, such bankrupt, and all persons claiming under him shall be stopped from objecting to the (g) 2 Steph. Com. 161. 300 SMITH ON REAL AND PERSONAL PROPERTY. validity of such conveyance ; and all estate, right, or title wbich such bankrupt had therein shall be effectually barred by such order as if such conveyance had been executed by him." By s. 143, it is enacted, " that, where according to law any convey- ance or assignment of any real or personal property of a bankrupt would require to be registered, enrolled, or recorded in any registry office in England, Wales, or Ireland, or in any registry office, court, or other place in Scotland, or in any of the dominions, plantations, or colonies be- longing to her Majesty, then in every such case the certificate of the appointment of assignees of the estate and effects of the bankrupt shall r»4.^n ^^ registered in the registry *office, court, or place wherein such L J conveyance or assignment would require to be registered, en- rolled, or recorded, and such registry shall have the like effect to all in- tents and purposes as the registry, enrolment, or recording of such con- veyance or assignment would have had ; and the title of any purchaser of any such property for valuable consideration, without notice of the bankruptcy, who shall have duly registered, enrolled or recorded his pur- chase deed previous to the registry hereby directed, shall not be invali- dated by reason of such appointment of assignees, or of the vesting of such property in them consequent thereupon, unless the certificate of such appointment shall be registered as aforesaid within the times fol- lowing ; (that is to say,) as regards the United Kingdom of Great Britain and Ireland, within two months from the date of such appointment, and as regards all other places, within twelve months from the date thereof." The policy of the law does not permit property to be so limited, that it shall continue in the enjoyment of the bankrupt notwithstanding his bankruptcy. (A.) Hence, an annuity or other life interest cannot be pre- served from assignees on bankruptcy, insolvency, or alienation, in any other way than by a limitation or proviso for its cesser, or a gift over to some other person. (z) So that an annuity will pass on the annuitant's bankruptcy to his assignees, though there is a direction that it shall not be liable to his debts, but that it shall be paid into his hands only, and that his receipts only shall be a good discharge. (7') And if there is no gift over on bankruptcy, the assignees will be entitled even to property of which trustees have the absolute discretion given them to pay or not to pay the income to the party who afterwards becomes bankrupt, so that he should not have any right thereto other than the trustees should rtAon-i *think proper, and so as no creditor should have any claim L -I thereon. (A) But Vhere the trust is, that the trustees shall receiye the income, and, pay and apply the same to and for the main- tenance and support of a person, his wife, and children, if any, or otherwise as they shall think proper, on the bankruptcy of such person, the assignees will take so much only of the income as shall not be required for the proper maintenance of the wife and children. (A (A) Graveg v. Dolphin, 1 Sim. 66. (i) 2 Speace's Eq. Jar. 89, 90. (y) Graves v. Dolphin, 1 Sim. 66. (k) Snowdon v. Dales, 6 Sim. 524. (l) 2 Spence's Eq. Jur. 90. OF INSOLVENCY. 301 *TITLE IX. [*433J OP INSOLTENCY. I. Under the Stat. 1 cfc 2 Vict. c. 110. By s. 37 of Stat. 1 & 2 Vict. c. 110, it is enacted, that it shall be lawful for the Court for the Relief of Insolvent Debtors to " order that all the real and personal estate and eflFects of such prisoner, both within this realm and abroad, except the wearing apparel, bedding, and other such necessaries of such person and his family, and the working tools and implements of such prisoner, not exceeding in the whole the value of twenty pounds, and all the future estate, right, title, interest, and trust of such prisoner in or to any real and personal estate and effects within this realm or abroad, which such prisoner may purchase, or which may revert, descend, be devised or bequeathed or come to him, before he shall become entitled to his final discharge in pursuance of this act, according to the adjudication made in that behalf; or in case such prisoner shall obtain his full discharge from custody without any adjudi- cation being made by the said court, then before such prisoner shall be so fully discharged from custody; and all debts due or growing due to siich prisoner, or to be due to him or her before such discharge as afore- said, shall be vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England, and such order shall be entered of record in the same court, and such notice thereof shall be published as the said court shall direct; and such order when so made shall, without any conveyance or assignment, *vest all the real r^^q^-i and personal estate and effects of such prisoner, and all such <- J future real and personal estate and effects as aforesaid, of every nature and kind whatsoever, and all such debts as aforesaid, in the said provi- sional assignee : Provided always, that, in case the petition of any such prisoner shall be dismissed by the said court, such vesting order made in pursuance of such petition shall, from and after such dismission, be null and void to all intents and purposes : Provided also, that in case any such vesting order as aforesaid shall become null and void by the dismission of the prisoner's petition, all the acts theretofore done by the said provisional assignee^ or any person or persons acting under his authority, according to the provisions of this act, shall be good_ and valid;" &c. By s. 45 of the same statute, it is enacted, " that it shall be lawful for the said Court for the Relief of Insolvent Debtors, at any time after the making any such vesting order as aforesaid, as to the same court shall seem expedient, to appoint a proper person or persons to be assignee or assignees of the estate and effects of such prisoner for the purposes of this act; and when such assignee or assignees shall have signified to the said court his or their acceptance of the said appointment, the estate, effects, rights, and powers of such prisoner vested in such provisional 802 SMITH ON REAL AND PERSONAL PROPERTY. assignee as aforesaid shall immediately, by virtue of such appointment, and without any conveyance or assignment, vest in the said assignee or assignees, in trust for the benefit of the creditors of such prisoner," &c. By s. 49, it is enacted, " that all powers vested in any such prisoner whose estate shall by an order under this act have been vested in the provisional assignee, which such prisoner might legally execute for his own benefit (except the right of nomination to any vacant ecclesiastical benefice,) shall be and are hereby vested in the assignee or assignees of (-^,or-| the real and personal estate of such prisoner *by virtue of this L J act, to be by such assignee or assignees executed for the benefit of all and every the creditors of such prisoner under this act, in such manner as such prisoner might have executed the same." By s. 57, " if any such prisoner shall, at the time of his arrest, or other commencement of his imprisonment, by the consent and permission of the true owner thereof, have in his possession, order, or disposition, any goods or chattels whereof such prisoner was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the same shall be deemed to be the property of such prisoner, so as to become vested in the provisional assignee of the said court by the order made in pursuance of this act ;" &c. By s. 50, " in all cases in which any such prisoner shall be entitled to any lease or agreement for a lease, and his assignee or assignees shall accept the same, and the benefit thereof, as part of such prisoner's estate and effects, the said prisoner shall not be or be deemed to be liable to pay any subsequent rent to which his discharge, adjudicated according to this act, may not apply, nor be in any manner sued after such accept- ance in respect or by reason of any subsequent non-observance or non-per- formance of the conditions, covenants, or agreements therein contained : Provided that in all such oases as aforesaid it shall be lawful for the lessor, or person agreeing to make such lease, his heirs, executors, administrators, or assigns, if the said assignee or assignees shall decline, upon his or their being required so to do, to determine whether he or they will or will not accept such lease or agreement for a lease, to apply to the said court, praying that he or they may either so accept the same, or deliver up such lease or agreement for a lease, and the possession of the premises demised or intended to be demised ; and the said court shall thereupon _^ .„„-. make such order as in all the circumstances of the case *shall L -1 seem meet and just, and such order shall be binding on all par- ties." By s. 59, " if any such prisoner shall, before or after his or her im- prisonment, being in insolvent circumstances, voluntarily convey, assign, transfer, charge, deliver, or make over any estate, real or personal, secu- rity for money, bond, bill, note, money, property, goods, or effects what- soever, to any creditor or creditors, or to any person or persons in trust for, or to or for the use, benefit, or advantage of any creditor or creditors, every such conveyance, assignment, transfer, charge, delivery, and making over, shall be deemed and is hereby declared to be fraudulent and void as against the provisional or other assignee or assignees of such prisoner appointed under this act : Provided always, that no such con- OF INSOLVENCY. 303 veyance, assignment, transfer, charge, delivery, or making over stall be so deemed fraudulent and void, unless made within three months before the commencement of such imprisonment, or with the view or intention, by the party so conveying, assigning, transferring, charging, delivering, or making over, of petitioning the said court for his discharge from cus- tody under this act." And a conveyance made by an insolvent within three months before his imprisonment, is void under the same statute, although it be made for the benefit of all his creditors, unless it was obtained by pressure of the creditors, or for some new valuable consider- ation, (a) If the insolvent is a beneficed clergyman or a curate, the title of the assignees does not extend to the income of his benefice or curacy, but they can apply for a sequestration of the benefice of the former. Assignees do not take the pay, half-pay, or pension which an insolvent holds from her Majesty or the East India Company, though a certain portion of it may, by order of the *Court and consent of the r^Ao^-. proper official department, be applied to the payment of his L J debts. (6) The assignee in insolvency represents the insolvent; he 'stands in his place, and takes only such interest as he can give, and is subject to all equities by which the insolvent is bound. And an assignee for value of an equitable interest of an insolvent will prevail against the assignee in insolvency, where the assignee for value was ignorant of the insolvency at the time of the assignment, and where he gave notice of the assign- ment to the trustees, and the assignee in insolvency gave no notice of the insolvency to them.(c) And although a person may be in insolvent circumstances at the time of entering into marriage articles, and shortly after marriage may take the benefit of the act for the relief of insolvent debtors, yet an agreement by those articles to settle any after-acquired property will be valid as against the assignee. (c?) By a discharge of his person under the act, the future property of the insolvent is not discharged, (e) By s. 46 of Stat. 1 & 2 Vict. c. 110, it is enacted, " that where, according to any laws now in force, any conveyance or assignment of any real or personal property of an insolvent debtor would be required to be registered, enrolled, or recorded in any registry ofiioe in England, Wales, or Ireland, or in any registry office, court, or other place in Scotland, or any of the dominions, plantations, or colonies belonging to her Majesty, then and in every such case such certified copy as hereinbefore is de- scribed of such order under this act, vesting the estate and efi"ects of any prisoner in the provisional assignee of the said insolvent debtors court and a like certified copy of the appointment of an assignee or assignees under this act (if any such appointment shall *have been made), |-;|.^qc-j shall be registered in the registry office, court, or place wherein L -" such conveyance or assignment as last aforesaid would require to be (a) Jackson v. Thompson, 2 A. & E., N. S. 887. \b) 2 Steph. Com. 173 ; Coote, Mortg. 3rd edit. 207. (c) Re Atkinson, 2 D. M. & G. 140. {d) Hardey t. Green, 12 Bear. 182. («) See 2 Steph. Com. 177-179. 304 SMITH ON REAL AND PERSONAL PROPERTY. registered, enrolled, or recorded; and the registry hereby directed shall have the like effect, to all intents and purposes, as the registry, enrol- ment, or recording of such conveyance or assignment as last aforesaid would have had ; and the title of any purchaser of any such property as last aforesaid for valuable consideration, without notice of any such order or appointment as aforesaid, who shall have duly registered, enrolled, or recorded his purchase deed previously to the registry hereby directed, shall not be invalidated by reason of such order as aforesaid, or the appointment of an assignee or assignees as aforesaid, or the vesting of such property in him or them consequent thereupon respectively, unless a certified copy of such orders and a certified copy of such appointment, if any, shall be registered as aforesaid within the times following ; (that is to say), as regards the United Kingdom of Great Britain and Ireland, within two months after the date of such order and appointment respect- ively, and as regards all other places within twelve months from the date thereof respectively." II. Under the Statutes 5 (fc 6 Vict. c. 116, and 7 & 8 Vict. c. 96. By s. 1 of stat. 5 & 6 Vict. c. 116, for protection from process upon the petition to the Court of Bankruptcy of any person, not being a trader, or being a trader owing less than 300?., all his estate and effects shall become vested in the official assignee. And by s. 4, under the circumstances therein mentioned, the Court may make a final order for the vesting of his estate and effects in an official assignee together with a creditor's assignee. And by s. 7 of the same act, it is enacted, " that rt,AOQ-[ fr°™ ^'^'i ^f's"" ^^^ passing *of the final order, the whole estate, L J present and future, as well real as personal, and as well in the colonies, dominions, and plantations belonging to her Majesty, as in the United Kingdom of Great Britain and Ireland, all the effects and all the credits of the petitioner, shall become absolutely vested in the official assignee and assignee chosen by the creditors, without any deed or convey- ance," &c. And by s. 9 of the same statute, it is enacted, " that the said assignees shall be entitled to claim and demand from the said petitioner, at any time after the said final order, any estate and effects acquired by him at any time after such order shall have been made ; and all such estate and effects, of what kind soever and wheresoever situate, shall be absolutely vested in such assignees upon their filing a copy of their claim, served upon the petitioner personally, or by leaving it at the place of residence mentioned in his notice of petition," &c. The Stat. 5 & 6 Vict. c. 116 was amended by the stat. 7 & 8 Vict, c. 96. By s. 4 of this act, it is enacted, " that the property of the petitioner shall, for the purposes of the said recited act and of this act, vest in the assignee or assignees for the time being, by virtue of the appointment of such assignee or assignees; and every such assignee shall be deemed to be an officer of the court in which the petition shall be filed, and shall be liable as such to the control thereof: Provided always, that the pro- perty of the petitioner shall in every case be possessed and received by OF INSOLVENCY. 305 the official assignee alone, save where it shall be otherwise directed by the Commissioner : Provided also, that it shall be lawful for the Lord Chancellor, or the Judges and Commissioners of the Court of Bank- ruptcy in London, or the majority of them, if ( authorised so to do by the Lord Chancellor, from time to time to make such orders, rules, and *regulations for the security of the property of the petitioner as r-^^AAn-i he or they may judge reasonable" and proper." L -I By s. 8 of Stat. 5 & 6 Vict. c. 116, it is enacted, " that where accord- ing to any laws now in force any conveyance or assignment of any real or personal property of a petitioner would require to be registered, inrolled, or recorded in any registry office in England, Wales, or Ireland, or in any registry office, court, or other place in Scotland, or any of the domi- nions, plantations, or colonies belonging to her Majesty, then in every such case such certificate of the appointment of an assignee or assignees as is described in an act passed in the first and second year of the reign of his late Majesty King William the Fourth, intituled ' An Act to es- tablish a Court in Bankruptcy,' shall be registered in the registry office, court, or place wherein such conveyance or assignment as last aforesaid would require to be registered, inrolled, or recorded ; and the registry hereby directed shall have the like effect, to all intents and pur- poses, as the registry, inrolment, or recording of such conveyance or as- signment as last aforesaid would have had j and the title of any purchaser of any such property as last aforesaid for valuable consideration, who shall have duly registered, inrolled, or recorded his purchase deed pre- vious to the registry hereby directed, shall not be invalidated by reason of such appointment of an assignee or assignees as aforesaid, or the vest- ing of such property in him or them consequent thereupon, unless the certificate of such appointment shall be registered as aforesaid within the times following, (that is to say,) as regards the United Kingdom of Great Britain and Ireland, within two months from the date of such ap- pointment, and as regards all other places, within twelve months from the date thereof." By s. 11 of the stat. 7 & 8 Vict. c. 96, it is euElcted, " that all powers vested in any petitioner for protection from *process, whose r^^^t-i-, estate shall, under the provisions of the said recited act, and L J of this act, or of either of them, have been vested in an assignee or assignees, which such petitioner might legally execute for his own bene- fit, (except the right of nomination to any vacant ecclesiastical benefice,) shall be hereby vested in such assignee or assignees, to be by such assignee or assignees executed for the benefit of the creditors of such petitioner under this act, in such manner as such petitioner might have executed the same." By s. 12 of the same statute, it is enacted, " that in all cases in which any such petitioner shall be entitled to any lease or agreement for a lease, and his assignee or assignees shall accept the same, and the benefit thereof, as part of such petitioner's property, the said petitioner shall not be liable to pay any rent accruing after the filing of his petition, nor be in any manner sued after such acceptance, in respect of any subsequent non-observance or non-performance of the conditions, cove- February, 1856.— 20 306 SMITH ON KEAL AND PERSONAL PROPERTY. nants, or agreements therein contained : Provided tliat in all such cases as aforesaid it shall be lawful for the lessor or person agreeing to make such lease, his heirs, executors, administrators, or assigns, if the said assignee or assignees shall decline, upon his or their being required so to do, to determine whether he or they will or will not accept such lease or agreement for a lease, to apply to the Commissioner, praying that he or they may either so accept the same, or deliver up such lease or agree- ment for a lease, and the possession of the premises demised or intended to be demised; and the Commissioner shall thereupon make siloh order as in all the circumstances of the case shall seem meet and just, and such order shall be binding on all parties." By s. 17, it is enacted, " that if any petitioner for protection from process shall, at the time of filing his petition, by the consent and per- r*4.4.91 ^'^^io"! °f '^^ ^^^^ owner thereof, *have in his possession, L -" order, or disposition any goods or chattels whereof such peti- tioner was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the same shall be deemed to be the property of such petitioner, so as to become vested in the assignee or assignees for the time being of the estate and effects of such peti- tioner," &c. By s. 19, it is enacted, " that if the petitioner shall, before or after the filing of his petition, in contemplation of his becoming insolvent, or being in insolvent circumstances, voluntarily, convey, assign, transfer, charge, deliver, or make over any estate, real or personal, security for money, bond, bill, note, money, goods, or effects whatsoever, to any creditor or creditors, or to any person or persons in trust for, or to or for the use, benefit, or advantage of any creditor or creditors, or to any person who is or may be liable as surety for such petitioner, every such conveyance, assignment, transfer, charge, delivery, and making over shall be deemed fraudulent and void as against any assignee or assig- nees of the estate and effects of such petitioner appointed under the pro- visions of the said recited act and of this act, or of either of them : Provided always, thafno such conveyance, assignment, transfer, charge, delivery, or making over shall be so deemed fraudulent and void if made at any time prior to three months before the filing of the petition, and not with the view or intention, by the party so conveying, assigning, transferring, charging, delivering, or making over, of petitioning the court for protection from process. By the stat. 10 & 11 Vict. c. 102, the jurisdiction in these cases under the stat. 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, is transferred to the Court for the Relief of Insolvent debtors, where the debtor has resided for six months previously to the filing of his petition within r*4.4.m *twenty miles of London, and to the County Courts where he L J has resided elsewhere. (/) III. Under the Statute 7*8 Vict. c. 70. By the stat. 7 & 8 Vict. c. 70, a Commissioner of the Court of Bank- (/) 2 Steph. Com. 181. OF ALIENATION. v 307 ruptcy, upon the petition of a person who is not a trader within the Bankrupt Acts, is empowered to order that a resolution or agreement by a certain proportion of his creditors as to an arrangement proposed by him for the payment of his debts, shall be filed. And by s. 8, it is enacted, " that, from and after the date of the filing of such resolution and agreement as aforesaid, all the estate and effects of such petitioning debtor shall vest in the trustee (if any such shall be appointed) by virtue of such resolutions, and without any deed, as fully as if such trustee were an assignee under the statutes relating to bankrupts ;" &e. IV. Under the Statute 12 & 13 Vict. c. 106. By the stat. 12 & 13 Vict. c. 106, s. 211 et seq., the Court of Bank- ruptcy, upon the petition of a trader, is empowered to confirm a resolu- tion or agreement by a certain proportion of his creditors as to an arrangement proposed by him for the payment of his debts. And by s. 218, it is enacted, " that, from and after the date of the approval and confirmation of such resolution or agreement, all the estate and effects of such petitioning trader shall vest in the ofiScial assignee (if such shall be required by virtue of such resolution, and either alone or jointly with any person or persons, as may be expressed in such resolution) as fully as if such oilcial assignee were an assignee under any bankruptcy ;" &c. *By s. 224 of the same statute, a deed or memorandum of j-^aa^-, arrangement between a trader and his creditors, signed by six "- J sevenths in number and value of those creditors whose debts amount to lOZ. and upwards, is to be binding upon all. But, by s. 225, " no such deed or memorandum of arrangement shall be effectual or obligatory upon any creditor who shall not have signed the same, until after the expiration of three months from the time at which such creditor shall have had notice from such trader of his suspension of payment, and of such deed or memorandum of arrangement, unless such trader shall within such time obtain from the court an order or certificate of the said court, declaring or certifying that such deed or memorandum of arrange- ment has been duly signed" &c. *TITLE X. [*445] OF ALIENATION ; AND FIRST OF ALIENATION GENERALLY. CHAPTER I. GENERAL OBSBEVATIONS ON ALIENATION. In former times, many conveyances were made by parol or word of mouth only, without writing ; but as this occasioned a variety of frauds, it was enacted by the stat. 29 Car. 2, c. 3, that no lease, estate, or 308 SMITH ON REALAND PERSONAL PROPERTY. interest in lands, tenements, or hereditaments, made by livery of seisin or by parol only, excepting leases not exceeding three years from the making, and whereon the reserved rent is at least two thirds of the real value, shall be of greater force than an estate at will ; nor shall any assignment, grant, or surrender of any interest in any freehold heredi- taments be valid, unless in both cases the same be put in writing, and signed by the party granting or his agent lawfully authorized in writ- ing.(a) And by a. 3 & 4 of the stat. 7 & 8 Vict. o. 76, and s. 4 of the Stat. 8 & 9 Vict. c. 106, (by which the stat. 7 & 8 Vict c. 76, was repealed as from the 1st of October, 1845,1 feoffments, partitions, exchange, leases, assignments, and surrenders (subject to certain excep- tions) are required to be by deed. At the common law, on the grant of a seignory, rent, remainder, or reversion, an attornment or consent to the grant was necessary on the part of the tenant of the particular estate, in tail, for life, or for years. r*AAR'\ ^^^ attornment *is rendered unnecessary by the statute 4 & 5 L **°J Anne, c. 16, s. 9, 10.(c) A person cannot derogate from his own grant; and hence he cannot, by parting with his estate, prejudice those in whose favour he has created estates, interests, or charges out of that estate. (tZ) The rule, cessante statu primitive cessat et derivativus, applies only when the original estate determines by limitation or is defeated by a condition. It does not apply when the owner of the estate does any act which amounts to an alienation to transfer, even though such an alienation or transfer pro- duces an extinguishment of the original estate. (e) Therefore, if one who has a lease for life or years of the manor to which an advowson is appendant, grants the next avoidance that shall happen during the lease, or grants a rent out of the manor, and then surrenders the manor, so that his estate is gone, the grant of the next avoidance and of the rent continue good, and the grantee shall enjoy it according to the grant as long as the estate that is surrendered would have had continuance if not surrendei'ed.(/) So, if a lessee for years of an advowson grants the next avoidance if it shall happen to become void during the term, and afterwards surrenders the estate to the person who has the inheritance, the grantee shall have the next avoidance, if it happen before the term would have expired in regular course, (^r) So, if a lessee for years grants a rentcharge to a stranger, and afterwards surrenders his term to the lessor, still the rent continues as long as the term would have lasted if not surrendered. (A) So if a lessor makes an underlease reserving rent, and afterwards surrenders the original lease, the underlease shall con- r*d.d.7l ^^^^^ ^^ force; but by the old law, prior to *the stat. 7 & 8 L J Vict. c. 76, s. 12, and 8 & 9 Vict. c. 106, s. 9, the reversion is gone with the remedies incident to it.(i) A feme covert may be (a) 2 Bl. Com. 297. (c) 1 Steph. Com. 448, 450 ; 3 Jarm. & Byth. by Sweet, 36; 2 Pres. Shep. T. 297; Burton, J 41. (d) See 2 Pres. Shep. T. 285-6. (e) 2 Pres. Shep. T. 285. (/) 2 Pres. Shep. T. 285. {g) 2 Pres. Shep. T. 286. (A) 2 Pres. Shep. T. 286. (i) 2 Pres. Shep. T. 285 ; see infra, on Leases. OF A VENDOR'S TITLE. 309 restrained from alienation without any clause of cesser, but a person not under coverture cannot. (^) *CHAPTEE II. [*448] OP A vendor's title. (a) Section I. Of the Requisite Length of Title. Before the stat. 3 & 4 Will. 4, c. 27, a purchaser had a right to re- quire a title commencing at least sixty years previously to the time of his purchase, because the old Statute of Limitations could not in a shorter period confer a title. (5) And the new statute does not in effect intro- duce any new rule on the subject : for although the new Statute of Limi- tations confers a title in forty years in ordinary cases instead of sixty years, yet in many instances a forty years title would be quite insuflB- cient; for adverse possession against a tenant for life during his whole life would not affect a remainderman or reversioner, (c) Indeed, a title for a shorter period than sixty years is not marketable. (c?) And in the case of an advowson, a hundred years title at the least is necessary. (e) And in other cases, even sixty years is sometimes insufficient. For instance, if it may reasonably be presumed from the contents of the abstract that estates tail are subsisting, the purchaser may demand the production of the prior title. (/) *In every case where the statement in the abstract, or its r^< jq-i silence, leads to a fair inference that the prior title may disclose L J an existing defect, the purchaser may require it to be produced; although, where it is not in the seller's power, he cannot object to the title upon mere suspicion. (^/f) If nothing appears on the face of the deeds com- prised within the period through which a purchaser is entitled to inves- tigate the title, which throws a reasonable doubt or suspicion on the anterior title, the want of the prior instruments, though referred to or recited in the abstracted deeds, is not material. (gf) But where an assur- [k) 11 Jarm. & Byth. by Sweet, 473 ; see supra, p. 62-66. (a) On this subject the reader is referred generally to Lord St. Leonards' " Con- cise and Practical View of the Law of Vendors and Purchasers," (an invaluable mass of law and practice, in the smallest possible compass). The present Chap- ter chiefly consists of short extracts of a few leading points from that work. (b) Sugd. Concise View, 265, and V. & P. c. 10, s. 1, § 1, edit. 10. (c) See Sugd. V. & P. c. 10, s. 1, § 9-11, and Concise View, 265 ; 1 Jarm. & Byth. by Sweet, 59-61 ; 9 Jarm. & Byth. by Sweet, 28. (d) 1 Jarm. & Byth. by Sweet, 60, n. («) (e) Sugd. Concise View, 26V. (/) Sugd. Concise View, 265 ; 1 Jarm. & Byth. by Sweet, 60, n. [i). Iff) Sugd. Concise View, 266. (g) 1 Jarm. & Byth. by Sweet, 62. 310 SMITH ON REAL AND PERSONAL PROPERTY. ance depends for its validity upon something which had been previously done, the whole transaction should be stated upon the abstract, although the abstract may thereby be carried beyond sixty years. Thus, an ap- pointment should not be abstracted without previously shewing the crea- tion of the power, and the ceremonies requisite to the valid exercise of it ; nor a post-nuptial settlement executed in pursuance of articles ante- cedent to the marriage, without first abstracting the articles at length, that it may be seen whether or not the settlement is in conformity with them. (A] Section II. Of the Kind of Title which is requisite. In contracts for the sale of real estate, an agreement to make a title is always implied, unless the liability is expressly excluded. And an agreement generally to sell, not expressing the interest in the subject, includes all the vendor's interest.(i) r*4fini "^ purchaser cannot be compelled to take a doubtful *title; but L J still he will not be permitted to object to a title on account of a bare possibility or suspicion. (A:) A purchaser is not bound to accept, nor a vendor to give, a title with an indemnity.(?) Nor will a purchaser be obliged to take an equitable title, (m) But he will be compelled to take a title depending upon the destruction of contingent remainders or upon the Statute of Limitations. (ji) It is no objection, that, at the time of the agreement, matters remained to be done to complete the title, which in their nature were capable of being eifeoted before the completion of the purchase. (o) Some objec- tions properly constitute subjects of compensation, while others do not. Thus, small rents may be subjects of compensation, although larger ones cannot.(^) But there are some rights (such as a right of sporting) which, although in themselves of small value, are incapable of compen- sation, and therefore, if undisclosed, vitiate the contract. (g') Unless there is a stipulation to the contrary, there is, in every contract for the sale of a lease, an implied undertaking, at law and in equity, to make out the lessor's title to demise, as well as that of the vendor to the lease itself, even though there is a very short residue of the term, and the value of the property is very small, and no premium is taken for the lease, (r) But a purchaser of a lease held under a bishop cannot call for the lessor's title. (s) Lands allotted under Inclosure Acts become liable to the uses of the estates in respect of which they were allotted; and, therefore, upon the (70 1 Jarm. & Byth. by Sweet, 67. (i) Sugd. Concise View, 13. (k) Sugd. Concise View, 280, 283-4. (l) Sugd. Concise View, 219, 211. (m) Sugd. Concise View, 280. (n) Sugd. Concise View, 283. (o) Sugd. Concise View, 184, 186. (p) Sugd. Concise View, 276. (j) Sugd. Concise View, 218. (r) Sugd. Concise View, 268 ; 1 Jarm. & Byth. bv Sweet, 170, 551 ; Souter t. Dralie, 5 B. & Aid. 992. (s) Sugd. Concise View, 268 ; 1 Jarm. & Byth. by Sweet, 70. OF DEFECTS IN THE TITLE. 311 1 sale of such lands, it is necessary to investigate the title to the original estates. (A *Under Inclosure Acts, the allotments taken in exchange are rj,^Ki-i usually impressed with the title of the property given in lieu of L J them, and discharged from their original uses.(M) But if the property has been derived under a common law exchange or an exchange by mu- tual conveyances with eviction clauses, the title to the estate given in ex- change, as well as of the estate taken in exchange, must be shown from the usual period down to the date of the exchange, unless, in the case of a common law exchange, it can be proved that the lands given in ex- change have been aliened by the other party. (x) If the estate was copyhold, and has been enfranchised, the lord's title to the freehold will be required, as well as the copyholder's title before its extinguishment, (y) Reversions and remainders in the Crown were not destructible by re- covery, nor can they now be barred by an inrolled assurance; and it is therefore necessary, in deducing a title under a grant from the Crown, to set forth the original grant, in order that it may be seen whether any interest remains in the crown or not, or whether any rent, condition, or service has been reserved. (2) The foundation of a title to tithes as an existing lay property, must be a grant from the Crown after the dissolution of the monasteries. But it is not necessary to deduce the title from that period. The title fol- lowing the grant may commence at the same period as the title to the estate out of which they issue would have done. (a) *Section III. [*452] Of Defects in the Title. If the purchaser accepts an abstract as showing a satisfactory title, yet he is not precluded from showing by other evidence that the title is a bad one. (6) Unless a vendor or his agent suppresses an incumbrance or a defect in the title, a purchaser cannot obtain relief against a vendor for any in- cumbrance or defect in the title which is altogether overlooked, and to which his covenants do not extend. (c) And although the vendor has fraudulently concealed an incumbrance, yet the purchaser has no lien on the purchase money after it is appropriated by the vendor. (c?) A decision even by the House of Lords in favour of the validity of a title, if in a suit between a vendor and purchaser only, would be no more than a precedent for a decision in favour of the title if it should be attacked by a third party. (e) (0 Sugd. Concise View, 271. (m) 4 Jarm. & Byth. by Sweet, 6, 1 ; see also Sugd. Concise View, 271. {x) 1 Jarm. & Bytti. by Sweet, 75 ; Sugd. Concise View, 271 ; 4 Jarm. & Byth. by Sweet, 3, 5. (j/) Sugd. Concise View, 270 ; 1 Jarm. k Byth. by Sweet, 83. (z) 1 Jarm. & Byth. by Sweet, 68. (a) Sugd. Concise View, 267. (6) Sugd. Concise View, 315. (c) Sugd. Concise View, 6, 406-411. {d) Sugd. Concise View, 411. (e) Sugd. Concise View, 281. 312 SMITH ON REAL AND PERSONAL PROPEETT. A purchaser, by entering into possession, is generally held by that act to have waived those objections to the title of which he had distinct in- formation. But if possession is authorised by the contract to be taken before a title is made, the fact of taking possession cannot by itself amount to a waiver of objections. Nor will acts of ownership after an authorised possession, or the preparation of a conveyance. (/) And with the vendor's concurrence, a purchaser, without waiving objections thereby, may safely take possession of the estate at the lime the con- r^AM-i tract is entered *into, as he cannot be held to have waived ob- ■- J jeotions of which he was not aware. (^) A purchaser without notice of any incumbrances may protect himself from them, by means of an assignment of a statute, recognisance, or judgment.(A) [*454] *CHAPTEE III. OF CONDITIONS OP SALE. It is now a very general practice for vendors to take the precaution of having their title investigated before they attempt to sell, in order that they may know upon what conditions to offer the property for sale.(a) A prudent vendor invariably resorts to special conditions wherever the circumstances of his title render it probable that he may be unable to enforce a contract entered into without such protection, or may be put to great expense by unreasonable or unnecessary requisitions on the part of the purchaser.(J) Hence, special conditions are frequently resorted to in order to guard against the liability to produce titles upon ex- changes, inclosnres, renewable leaseholds, or the like, and to provide for apportionment of rents, so as to be binding on purchasers, or to make the purchaser take subject to unusual liabilities ; such as a liabiltty to an original rent and the covenants in the original lease, where only part of the property is sold.(c) But unusual conditions should be avoided, even where property is sold by one who is absolutely entitled to it, unless such conditions are neces- sary ; because they generally alarm and disgust purchasers and their so- licitors, (d) And where property is sold by trustees, mortgagees, or as- signees, this caution is particularly needful ; for if they unnecessarily P^, -r-, *impose any unusual conditions which may cause the property L -"to fetch a less price than it otherwise would, they may render themselves liable for a breach of trust. (e) Yet at the same time there may be cases where they may render themselves equally liable, if they (/) Sugd. Concise View, 244-6. (ff) Sugd. Concise View, 1. (A) 2 Cruise T. 14, § 107. (a) 9 Jarm. & Byth. by Sweet, 48 ; 1 Jarm. & Byth. by Sweet, 505. (ii 9 Jarm. & Bytli. by Sweet, 48. (cj Sugd. Concise View, 28. (d) Sugd. Concise View, 28. (e) See Sugd. Concise View, 45 ; 9 Jarm. & Byth. by Sweet, 48. OF CONDITIONS OF SALE. 313 omit the protection of special conditions where tbey are clearly neces- sary.(/) Special conditions should be very clearly and precisely expressed. For, if a vendor sells property under stipulations which are against common right, but uses ambiguous words, the purchaser may generally construe them in the manner most advantageous to himself.(gr^ A condition that all objections to the title must be delivered within a given time or shall be deemed waived, is binding. (A) But a condition stipulating that the time appointed, after the delivery of an abstract, for the taking of objections, shall be of the essence of the contract, means after the delivery of a perfect abstract, (i) And the purchaser is not precluded from taking objections which arise out of evidence called for before the time limited. (A A purchaser is frequently precluded by a condition from calling for a title antecedent to a certain period, and sometimes a very recent period, as the vendor's conveyance or a late inclosure act, &o.(Jc) But this does not preclude the purchaser from showing that such anterior title is de- fective. (?) Where,therefore, such anterior title is defective, the vendor should further stipulate that he shall not be considered as answerable for any defects of title which may be discovered, (m) It is a common practice to restrain a purchaser from *oalling r^ifin.-, for evidence of extrinsic facts : as heirship, intestacy, death, L J &o., which are recited or taken notice of in deeds of a certain antiquity, as, for instance, in deeds thirty years old, unless the circumstances of the title require that a more recent period should be fixed upon.(n) If a condition of sale, as a ground for excluding the purchaser from evidence of title to which he would otherwise be entitled of common right, makes an assertion of a fact, such assertion must be proved. Thus, if a condition states, that, as certain lands were allotted in respect of a manor, and that the manor, with the allotments, was purchased by the vendor's testator, the title of the vendors to the manor shall be con- clusive evidence of their title to the lands; the purchaser is entitled to proof of the two assertions on which this condition is grounded, (oj Where it is a condition of sale that no further evidence of the identity of the parcels shall be required than what is afforded by the abstract, or by the deeds, instruments, or other documents therein abstracted, and the descriptions in the different documents differ among themselves and from the description in the particulars of sale, the purchaser is entitled to have some proof of the identity aliunde. For, in the case supposed, the deeds themselves do not afford evidence of the identity, but constitute the subject of the doubt as to the identity. (/;) Where it is stipulated (/) See 9 Jarm. & Byth. by Sweet, 48. Iff) Sugd. Concise View, 242. (A) Sugd. Concise View, 15. (i) Sugd. Concise View, 194. (/) Sugd. Concise View, 15-16. (k) 1 Jarm. & Bytla. by Sweet, 505. (l) 9 Jarm. & Bytb. by Sweet, 3. See also Sugd. Concise View, 14. (m) 9 Jarna. & Byth. by Sweet, 3. (n) 1 Jarm. & Byth. by Sweet, 120, 121, 505. (o) Symons T. James, 1 Y. & C. 48. {p) Flower v. Hartopp, 6 Beav. 476. 314 SMITH ON KBAL AND PERSONAL PROPERTY. that the vendor shall deduce a good title, and that he shall deliver up to the purchaser of the greater part in value of the estate all the title deeds and documents in his custody, but shall not be bound or required to pro- duce any original deed or other documents than those in his possession and set forth in the abstract, the word " produce" means " deliver up." (-^.r„. The stipulation *does not exempt the vendor from producing the '- J deeds themselves for the purpose of verifying the abstract. For otherwise the vendor might have furnished an abstract of a good title, and yet he might not have one deed, or only some immaterial deeds, cor- responding with the abstract, so that the abstract might be wholly unve- rified, and the purchaser might have no title at all.(j) A condition that misdescriptions and errors shall not annul the sale, but that a compensation shall be given for the difference in value, does not extendto fraudulent errors or substantial misdescriptions. (r) Where a defect is a latent one, and the purchaser cannot by the greatest attention discover it, if the vendor is aware of it and does not acquaint the purchaser with the fact, the contract is not binding at law 'or in equity, although he bought the estate with all faults. (s) There must be express conditions where the seller intends to throw upon the purchaser the expense of searches, or the expense of travelling to a distant place to examine the abstract with the deeds, or the like.(?) Where the title deeds cannot be delivered up, it should be provided that the expense of attested copies thereof, and of covenants to produce them, shall be borne by the purchaser, as otherwise the expense will fall on the vendor ; and if the property is sold in several lots, and the deeds are numerous, a large proportion of the purchase money may be thereby ab- sorbed. (m) A condition for payment of interest, if, by reason of any "unavoidable P^i rn-i obstacle," the contract cannot be completed *by a day named, L J does not apply to a delay occasioned by the state of the title. (x) If it is simply stipulated that the purchaser shall pay for timber, he must even pay for trees which are not strictly timber, but yet are con- sidered such according to the custom of the country. (y) In the absence of any stipulation or indication to the contrary, com- mon fixtures which would descend to the heir pass to the purchaser under the common conveyance. And therefore, where it is intended that the purchaser shall pay for fixtures, this should always be ex- pressed. ^a) If the estate is leasehold, and the vendor cannot procure an abstract of the lessor's title, this fact should be stated in the conditions, in order to preclude the purchaser from insisting upon the production of the lessor's title. (a) But a condition that the seller should not be liable to produce the lessor's title, does not exclude the purchaser from shewing (g) Southby v. Hutt, 2 My. & Or. 207. (r) Sugd. Concise View, 20-1. (s) Sugd. Concise View, 238. (t) Sugd. Concise View, 24. (w) Sugd. Concise View, 24; 9 Jarm. & Byth. by Sweet, 8. {x) Sugd. Concise View, 495. {y) Sugd. Concise View, 22-33. (z) Sugd. Concise View, 23 ; 9 Jarm. & Byth. by Sweet, 35. (a) Sugd. Concise View, 25, 268. APPLICATION OF PUECHASB MONEY. 315 aliunde that the title is bad. (5) Where a lease is sold, although the reference to the lease binds the purchaser, yet unusual covenants should be stated in the conditions.(c) As surrendered leases are given up to the lessor, if the premises are held under a renewed lease expressly granted in consideration of the surrender of a former lease, there should be a condition that the purchaser " shall not require the production of, or the deduction of the title to, any surrendered lease which is referred to in the subsisting lease. "(c^) A proviso in a contract for sale, that, if either party break the agree- ment, he shall pay a sum of money to the other, *does not give r:)-4^f:q-| either party an option to break the agreement, but it is in the L J nature of a penalty ; and consequently a specific performance will be de- creed, just as if no such proviso had been inserted. (e) *CHAPTEK IV. [*460] SOME MISCELLANEOUS POINTS IN THE LAW OP VENDORS AND PURCHASERS. (a) Where real property is devised or conveyed to be sold for, or is charged with, the payment of definite and ascertained sums only, and such payment is to take place at the time when the required amount is to be raised, the purchaser of such property is bound to see that the purchase money is applied in the fulfilment of the trust, unless expressly exempted by a provision by the author of the trust, although the estate be sold under the decree of a court of equity. But where the property sold constitutes the natural and primary fund for the payment of debts generally, or is expressly charged with, or conveyed or devised for, the payment of debts generally, and therefore, in order to ascertain the sums to the payment of which the property is liable, it would be necessary for the purchaser to take proceedings in Chancery ; or where the purchaser, if bound to see to the application of the money, would be involved in a trust of long continuance ; there, the purchaser, unless he has notice that there are no debts or notice of fraud, is not bound to see to the appli- cation of the purchase money. (6) In illustration of these rules, it may be observed, that, as the personal estate, whether consisting of chattels personal or of chattels real, is liable at the common law, and constitutes the natural and primary fund for the payment of the debts of the testator generally, the purchaser of the whole or of any part of it, without notice that there are no debts, *or r*4^f.i-| that the sale was not made for payment of debts, is not bound L J (i) Sugd. Concise View, 14, 268 ; 9 Jarm. & Byth. by Sweet, 13. (c) Sugd. Concise View, 19. (d) 9 Jarm. & Byth. by Sweet, 13. (e) Sugd. Concise View, 158. (o) See also next title. (b) See Story's Eq. Jur. ? 1126-1128, 1130-1134; Sugd. Concise View, 51T, 518, 520. 316 SMITH ON REAL AND PERSONAL PROPERTY. to see that the purchase money is applied by the executors iu the dis- charge of the debts, (c) even if the testator has directed his real estate to be sold for payment of debts, whether specified or not, and has made a specific be:[uest of a part of his personal estate for a particular purpose or to a particular person, although such specific bequest is known to the purchaser, if he has no reason to suspect any fraudulent or unauthorized purpose; for, otherwise, before a person could become a purchaser of personal estate specifically bequeathed, it would be indispensable for him to come into a court of equity to hare an account taken of the assets of the testator, and of the debts due for him, so as to ascertain whether it was necessary for the executor to sell.(cZ) The same rule, for the same reason, applies to real estate devised for or charged with the payment of debts generally ^(e) even though the trust is only to sell, or is a charge for, so much as the personal estate is deficient to pay the debts, and even though a specific part of the real estate is devised for a particular purpose or trust, if the whole real estate is charged with the payment of debts generally by the will. If, however, the trustee has only a power to sell, and not an estate devised to him, then, unless the personal estate is deficient, the power to sell does not arise. (/) Where, in cases of real estate, the trust is for the payment of legacies or annuities only, or of specified or scheduled debts alone, or of both, r*4fi9l ^^^ ^°^ ''^ debts generally, *the rule is different ; for they are L J ascertained, and the purchaser may see that the money is applied in discharge of them. But where the devise is for payment of debts generally, and also for the payment of legacies or annuities or specified debts, the purchaser is not bound to see to the application of the purchase money ; because, to hold him liable to see the legacies or annuities or specified debts paid, would in fact involve him in the necessity of taking an account of all the debts and assets, (gr) And the purchaser is not bound to see to the application of the pur- chase money where the specific objects of the trust are not pointed out.(A) But if there is collusion between the purchaser and the trustees, who are guilty of a misapplication, or if there is notice that the sale or mortgage is made for the purpose of a breach of trust, the estate will be liable. (t) In determining as to the liability of the purchaser, the court will look to the deed or will alone, and not to subsequent events : so that where a testator makes a charge for payment of debts generally, and legacies, and the debts are paid after the death of the testator, and the legacies (c) Story's Bq. Jur. ? 1126, 1128; 2 Spence's Eq. Jur, 372, 311. {d) Story's Bq. Jur. § 1129; 2 Spence's Eq. Jur. 375-377 ; Sugd. Concise View, 526. (e) Sugd. Concise View, 518; Story's Eq. Jur. ? 1130 ; 2 Spence's Eq. Jur. 380, 382. (/) Story's Eq. Jur. § 1131; 1 Spence's Eq. Jur. 382; Sugd. Concise View, 521. (ff) Story's Eq. Jur. § 1132 ; 2 Spence's Eq. Jur. 379, 382, 386, 389 ; Sugd. Con- cise View, 518, 520; Robinson v. Lowater, 17 Beav. 592. (A) 2 Spence's Eq. Jur. 381. (i) 2 Spence's Eq. Jur. 384 ; Sugd. Concise View, 520. APPLICATION OF PURCHASE MONEY. 317 only are left as a charge, tliat circumstances alone does not prevent the application of the rule.(A;) Where the time appointed by the will for a sale of real estate is arrived, and the persons entitled to the money are infants or unborn, there the purchaser is not bound to see to the application of the purchase money : because that might involve him in a trust of long continuance. But if an estate is charged with a sum of money payable to an infant at his majority, the purchaser is bound to see the *money duly paid at r.^A(-o-\ that time ; for the estate will remain chargeable with it in his L J hands. (Z) Where the money is to be applied by the trustee to certain purposes which require, on their part, time, delay, and discretion, it seems the purchaser is not bound to see to the application of the purchase money. (m) A general power to give a receipt in all these cases was provided by the Stat. 7 & 8 Vict. c. 76. But it was repealed as from the 1st of October, 1845, so that the power to trustees to give receipts under the act extends only from the 1st of January to the 1st of October, 1845.(m) If the names of the trustees are inserted in the usual clause, that the receipts of the trustees shall be discharges, every trustee who has ac- cepted the trust must join in the receipt for the purchase money, although he may have subsequently released the estate to the other trustees. But a trustee who never acted in or accepted the trust, but has renounced or released, need not join in any receipts.(o) Where a vendor delivers possession of an estate to a purchaser, with- out receiving the purchase money, whether the estate be or be not conveyed, equity gives the vendor a lien on the land for the purchase money, that is, a hold upon it for the satisfaction of the money ; and, to the extent of the lien, the purchaser becomes a trustee for the ven- dor, (p) And the burden of proof is on the purchaser, to establish that in the particular case it has been intentionally displaced or waived by the consent of the party.(2) If, on the face of the conveyance, the consideration is expressed to be paid, and even if a receipt for it is indorsed *on the back of it, and yet the money has not actually r^j^f. j-i been paid, the vendor has a lien.(r) And if a security has been L J taken for the money, the burden of proof has been adjudged to lie on the purchaser, to show that the vendor agreed to rest on the security and to discharge the land, or, at most, the taking of a security has been deemed to be no more than a presumption, under some circumstances, of an intentional waiver of the lien, and not as conclusive of the waiver.(s) {!c) 2 Spence'3 Eq, Jur. 383. (I) Sugd. Concise View, 519; Storj's Eq. Jur. J 1133; 2 Spence's Eq. J\ir. 387. (m) Sugd. Concise View, 519; Story's Eq. Jur. | 1134; 2 Spence's Eq. Jur. 387. (n) Sugd. Concise View, 521. (o) Sugd. Concise View, 524. (p) See Sugd. Concise View, 528 ; Story's Eq. Jur. § 1215, 1217-1220. (?) Story's Eq. Jur. | 1224. ' Sugd. Concise View, 537 ; Story's Eq. Jur. J 1225. Story's Eq. Jur. ? 1226. s 318 SMITH ON REAL AND PERSONAL PROPERTY. When the vendor has a lien against the vendee, it continues, not- withstanding any devolution or transfer of the estate, except where it is extinguished by the countervailing equity of a bonS, fide purchaser for valuable consideration without notice, when clothed with the legal title. Hence it exists against the vendee and his heir, and against volun- teers claiming under him; against purchasers under him, with notice that he had not paid the purchase money ; against purchasers having an equitable title only ; against assignees claiming by a general assignment under the bankrupt and insolvent laws; against assigneees claiming under a general assignment made by a failing debtor for the benefit of creditors; and against a judgment creditor of the vendee, at least be- fore an actual conveyance of the estate has been made to him.(<) For, in each of these cases, (except that of the bona fide purchaser for valu- able consideration without notice, who has only an equitable title,) the party in possession* has obviously no more equity against the lien of the vendor, then the vendee himself had, but clearly stands in the same situ- ation and subject to the same equity. And although the bona fide pur- chaser without notice, who has only an equitable title, has an equity quite r*4R'"i •^is'''^''*' from that of his vendor, the first vendee, yet *the equity L J of such purchaser to retain what he has paid for, is only equal to that of the first vendor to be paid for that which he has parted with ; and when the equities are equal, and neither of the parties has the support of the legal title, the maxim applies, qui prior est in tempore potior est in jure. But the lien will not prevail against a bona fide purchaser for valuable consideration from the vendee, where such purchaser has paid his pur- chase money, and taken a conveyance of the legal estate, and had no notice, at the time of paying his money, that such vendee had not paid the purchase money ;(w) because, having given a valuable consideration for the estate, without notice, he has as much equity to retain what he has so paid for, as the original vendor has to be paid for that which he has parted with ; and having this equal equity, the court will not take from him the legal title with which he has clothed himself, but will act upon the maxim, that, where the equities are equal, the law shall pre- vail ; so that, in this case, the vendor's lien is virtually extinguished by the countervailing equity of the purchaser from the vendee. But where a vendee has sold the estate to a bona fide purchaser without notice, if the second purchase money has not been paid, the original vendor may proceed against the estate for his lien, or against the purchase money in the hands of such sub-purchaser for satisfaction. (cc) Where the vendee has sold only a part of it, the part retained by him is primarily chargeable with the lien. Where he has sold different parts to different persons, the lien is to be borne rateably between them.(y) r*J.fifin Where an estate is sold for an annuity, it must be *seoured L -I not only upon the estate, but also by the bond of the purchaser and a judgment to be entered up against him. (2) («) See Story's Eq. Jur. § 1228 ; Sugd. Concise View, 536-8. («) Story's Eq. Jur. § 1228, 1229. {x) Story's Bq. Jur. § 1232. (V) Story's Eq. Jur. | 1233, a. (z) Sugd. Concise View, 137. OF VENDOES AND PURCHASEES GENERALLY. 319 In the absence of a restriction in any particular case, by deed, will, or otherwise, a sale by trustees or persons not being owners may be made by private contract or by public auction. The real estate of an insol- vent, however, is directed to be sold by public auction, with the sanc- tion of the creditors. But if the scheme of selling by auction has been tried and failed, the assignees are justified in selling by private con- traot.((x) But a sale by private contract by an agent authorised to sell by auction, is not valid, although the price be greater than was re- quired. (J) A tenant for life, with a power of sale and exchange in himself, or to the execution of which his consent is required, may buy the estate him- self, or take it in exchange for an estate of his own.(c) A purchaser of an estate subject to incumbrances must indemnify the vendor against them. This applies to the purchase of a leasehold estate, and to the purchase of an equity of redemption. And if a pur- chaser who has not obtained a conveyance sells to another, the second purchaser is bound to indemnify him against any costs incurred in pro ceedings for his benefit.(d) Although an agreement be to sell and convey to two, their heirs, &c., some or one of them, yet the seller will not be warranted in con- veying the estate to one of the purchasers only.(e) If an estate is sold under the authority of the Court of Chancery, and the purchaser resells at a profit behind the back of the court before his purchase is confirmed, the ^second purchaser is considered r^Anij-, a substituted purchaser, and must pay the additional sum into L ' court for the benefit of the estate. (/) A person who has authorised an agent to sell, may revoke the autho- rity of the agent at any time before an agreement is executed according to the statute, although the agent has previously agreed verbally to sell the property. And an intended purchaser may in like manner revoke his authority to his agent to purchase. (^) The " goodwill" of a business is a thing which is not recognized by the law; and therefore a mere sale of "the goodwill of a business" is a nullity : but it may be accompanied with stipulations for giving effect to such a transaction which the Court of Chancery will enforce, or for the breach of which a Court of law will give damages. Thus, the mere sale of the goodwill of a business will not prevent the vendor from set- ting up next door to the purchaser, or soliciting the custom of his former customers. But if he has engaged to abtain from doing so, he will then be bound. So the mere sale does not oblige him to introduce the pur- chaser to the customers, or to recommend him to them, or to do any one act for the purpose of giving effect to the sale. But if the vendor has expressly engaged to do any such specific act, he will be compellable to do it, or may be made to give damages for the breach of his agree- ment. (A) (a) Sugd. Concise View, 42. (b) Sugd. Concise View, 43. (c) 2 Sugd. Pow. 492. (d) Sugd. Concise View, 137 (e) Sugd. Concise View, 554. (/) Sugd. Concise View, 53-4. (V) Sugd. Concise View, 95. (h) 9 Jarm & Bytti. by Sweet, 653-4. 320 SMITH ON REAL AND PERSONAL PROPERTY. The purchaser of a life interest in stock in the public funds, is entitled to the dividends accruing between the date of the contract and its com- pletion, in the absence of a stipulation to the contrary j this advantage being given him in consideration of the precarious nature of the property, [*468] *which may determine in five minutes after the contract is entered into.(i) [*469] *TITLE XL OF ALIENATION BY MERE WRITTEN AGEEeWeNT. CHAPTER I. OP ALIENATION AT LAW BY MEKE WRITTEN AGREEMENT. Corporations regularly cannot grant lands, goods, or chattels, except by deed. But all natural persons may grant or give any thing which lies in livery for any estate without deed. (a) But, in consequence of the Statute of Frauds, 29 Car. 2, c. 3, there must be a writing, duly signed, if any estate beyond three years, or even an estate for less than three years at a less rent than two third parts of the value, be designed to pass. (J) By s. 1, it is enacted, "that all leases, estates, interests of freehold, or terms for years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only or by parol, and not put in writing and signed by the parties so making or creating the same or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases and estates at will only, and shall not, either in law or in equity, be deemed or taken to have any other or greater force or effect." By the 2nd section, leases for three years, whereupon the rent reserved amounts to two thirds of the full improved value, are . _ , excepted. And by the 3rd section it is enacted, " that *no leases, I- J estates, or interests, either of freehold or terms for years or any uncertain interest not being copyhold or customary interest, of, in, to, or out of any messuages, &c., shall be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorised by writing, or by act or operation of law.'' And by the 4th section, it is enacted, " That no action shall be brought whereby to (i) 9 Jarm. & Byth. by Sweet, 67. The writer has deemed it advisable not to enter upon the subject of evidence, as it embraces a wide tield, which has been fully traversed in the works on evi- dence ; and it involves points of practice which are foreign to the nature of this work as a book-on the law of property. For many of the most useful points, the reader is referred to Sugd. Concise Yiew, Chap. 10; Burton's Compendium, Chap. 1, sect. 1 ; and 1 Jarm. & Byth. by Sweet, 98-186. {a) 2 Pres. Shep. T. 229. (i) 2 Pres. Shep. T. 228. ALIENATION IN EQUITY, ETC. 321 charge any person upon any agreement made upon consideration of mar- riage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making there- of, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." The 1st section appears to relate to cases where an estate or interest is created de novo, and actually passes to the grantee or lessee; the 3rd section to cases where an estate or interest previously existing is trans- ferred ; and the 4th to cases where a right of action only is created by an agreement or where an agreement is made respecting the future crea- tion or transfer of an estate or interest. In cases within the 1st and 3rd sections the statute requires the agent to be authorised in writing, but not in cases within the 4th section. (c) , A letter accurately embodying or referring to a writing which embodies the essential terms of a concluded agreement, will be suflSeient, when stamped. (cZ) An auctioneer is the agent of both parties upon a sale of lands or goods, so as to be enabled to bind them both under *the statute. (e) 1-^4^1711 And if he puts down the purchaser's name as the buyer, and the <■ J amount of the bidding opposite to the lot, in the particulars and condi- tions of sale, or makes an entry in his books of all the requisite particu- lars, the purchaser will be bound. And, on the other hand, the auc- tioneer's receipt for the deposit may amount to an agreement binding upon the seller, if it contains the names of the seller and purchaser, the description of the estate sold, and the price, and refers to the conditions, so as to enable the court to read them.(/^ In some cases effect is given by the Court of Chancery to verbal agree- ments; but this belongs more properly to the subject of equity jurispru- dence, and is fully discussed by the writers on that subject. (g') *CHAPTEE II. [*472] OF ALIENATION IN EQUITY BY MERE CONTRACT FOE SALE. At law, contracts and covenants to sell, convey, or transfer land or other property, are considered simply as personal and executory contracts and covenants, and not as attaching to the property in any manner as a present or future charge or otherwise, (a) But it is a maxim of equity that things agreed to be done shall be regarded as if actually performed (c) See Sugd. Concise View, 72, 13, 94. (d) See Sugd. Concise View, 80-84, 88. (e) Sugd. Concise View, 96. (/) Sugd. Concise View, 28-9 (g) See Story's Eq. Jur. § 754, et seq. ; and see Sugd. Concise View, Chap. 3. (a) See Story's Eq. >Iur. | Y14, 790. February, 1856 21 322 SMITH ON REAL AND PERSONAL PROPERTY. in respect to the consequences. And therefore, in equity, from the time of a contract for the sale of land, the vendor and his heirs, even though he did not covenant for them, and any person or persons claiming under him as a subsequent purchaser or as assignees in bankruptcy or insolvency become, as to the land, trustees for the purchaser and his heirs, devisees, or vendees j and the purchaser and his personal representatives or assig- nees in bankruptcy or insolvency become, as to the money, trustees for the vendor and his personal representatives.(&) And hence the purchaser is entitled to the profits of the estate from the time fixed upon for com- pleting the contract, whether he does or does not take possession of the estate ; and the vendor, to interest for the purchase money if it is not paid at the day, unless there is a material objection to the title and it remains to be cleared up, or the delay is occasioned by the vendor, and he has notice from the purchaser or knows aliunde that the purchase r-ifAno-i money is lying idle, or the interest is greater in amount than the L J *rents and profits j in which case the vendor will not be entitled to interest, but will have the interim rents and profits. This right to interest exists even in the case of a sale of a reversion ; because the wearing out of the lives is equivalent to taking the profits. If no time is limited for the performance of the agreement, the purchaser must pay interest on 'the purchase money from the time of taking possession. (cj Where a good title is not shown until a given period, the purchaser will pay interest only from that period, and he will of course take the rents from the same time.(rf) And interest on the purchase money of timber to be taken at a valuation will only commence from the valuation ; because the increase in the value of the timber by growth is an equivalent for the interest, (e) If a vendor cannot make a good title, and the purchaser's money has been lying reAdy without interest being made by it, the vendor must pay interest to the purchaser. (/) The purchaser being considered as the owner of the property from the time of entering into the contract, he from that time bears the risk of accidents, (gf) In accordance with the maxim of equity above mentioned, if trustees under a power of sale make a legal contract for sale of the estate, the contract binds the estate ; and though by the deaths of parties the power should be extinguished, yet the contract must be executed by those who have got an interest by the extinguishment of the power.TA) It follows from the same maxim, that a purchaser, or, if he dies before the conveyance is executed, his heir may devise, sell, or charge the estate before the conveyance is executed, and that a judgment will bind his equitable interest.(i) r*4.74.n *'^^ * further consequence of the same maxim of equity, L J where the purchaser dies intestate before the conveyance, or (J) Id. 5 788-790 ; Sugd. Concise View, 121-123, 143. (cj Sugd. Concise View, 488-491, 494. (d) Sugd. Concise View, 494. («) Sugd. Concise View, 491, 492. (/) Sugd. Concise View, 499. (ff) 9 Jarm. & Byth. by Sweet, 13. (A) Sugd. Concise View, 148, 149. (i) Sugd. Concise View, 125, 133. OF DEEDS GENERALLY. 323 where an estate contracted for after the will doea not pass by it, the heir at law will be entitled to have the estate purchased for his own benefit out of the personal estate of his ancestor.(&) Upon the same principle, if the consideration is an annuity for the life of the vendor, though the vendor dies before the conveyance is executed, by which event the annuity ceases, yet the purchaser will be entitled to a specific peformance of his contract. (?) On the same ground, the consideration must be paid, although the estate or thing itself be destroyed or cease (as in the case of the pur- chase of an annuity when the annuitant dies) between the agreement and the conveyance. And, on the other hand, the purchaser will be entitled to any benefit which may accrue to the estate in the interim. (m) *TITLE XII. [*475] OP ALIENATION BY DEED. CHAPTER I. OF DEEDS GENERALLY, AND THEIR PARTS. Section I. Of Deeds generally. A DEED is a writing on parchment, vellum, or paper, sealed and deli- vered, to prove and testify the agreement of the parties whose deed it is, to the things therein contained, (a) A deed must be written or printed on parchment, vellum, or paper, because therejs nothing else which is at once so durable and so little liable to alteration. (6) Deeds, when considered with reference to the parties to them, are of two kinds : Indentures, and Deeds Poll. And indenture is a deed containing mutual stipulations by two or more persons, (c) Formerly, when deeds were more concise than they are at present, if they were made between two or more parties, it was usual to write both parts of which they were composed on the same skin of parchment, with some words or letters of the alphabet ruft^o-, *written between them, through which the parchment was cut L ' -I in acute angles, instar dentium, (from which they acquired the name of (it) Sugd. Concise View, 133 ; Greenwood v. Penny, 12 Beav. 406. (l) Sugd. Concise View, 209. (m) Sugd. Concise View, 205-6, 209. (o) 4 Cruise T. 32, c. 1, ? 16 ; 2 Bl. Com. 295 ; 1 Pres. Shep. T. 50, 51, 54 ; Co. Litt. 35, b, IVl, b. (5) 2 Bl. Com. 297 ; 1 Pres. Shep. T. 54 ; Co. Litt. 35, b, 229, a. («) 4 Cruise T. 32, c. 1, ? 20; 2 Bl. Com. 296; Burton, I 140 ; Co. Litt. 229, a. 324 SMITH ON REAL AND PBESONAL PEOPERTT. indentures or deeds indented,) in such a manner as to leave half the word or letters on one part and half on the other.(cZ) Afterwards, indenting in an undulating line came into use, without cutting through any words or letters at all.(e) And the practice has long been to out in this manner the first skin of parchment on which a deed containing mutual stipulations in written. (/) In its origin, indenting was in all probability a mode of identification, by a comparison of the parts at the point of indenting, and thus a guard against forgery or fraudulent substitution. (^) As practised in modern times, however, it can be of no utility. And hence it was enacted by the stat. 7 & 8 Vict. c. 76, s. 11, that it should " not be necessary in any case to have a deed indented." And though that act is repealed by the stat. 8 & 9 Vict. c. 106, yet by s. 5 of the latter act, "a deed executed after the 1st of October, 1845, purporting to be an indenture, shall have the efi'ect of an indenture, although not actually indented." In the case of an indenture, there ought regularly to be as many copies of it as there are parties ; and when the several parts are inter- changeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts; but all of them, in law, make but one entire deed. It is most usual, however, for all parties to execute every part, which renders them all originals. (A) A deed poll (which is so called because not indented, but cut in a straight line) is not strictly speaking an agreement between two persons, r*d.'771 ^"^ ^ declaration of some one person *respecting an agreement L J made by him with some other person. (i) A deed takes eifect from its execution, and not from the date of it.(^) And in the absence of special circumstances creating an equity to the contrary, where there are several deeds, they operate according to the priority of times of delivery, it being a maxim of common law, qui prior est tempore, potior est in jure.(?) Bad English will not vitiate a deed, when it does not render the deed unintelligible. (??i) Section II. The several Parts of Deeds enumerated. It is not necessary to the validity of a deed that it be framed in any particular mode whatever. The only thing absolutely essential is, that {d) 4 Cruise T. 32, c. 1, § 20. (e) 2 Bl. Com. 296. See also Co. Litt. 229, a, n. 1. (/) 4 Cruise T. 32, u. 1, ? 22. {g) 1 Pres. Shep. T. 50. (h) 2 BI. Com. 296 ; 4 Cruise T. 32, c. 1, § 23 | 1 Pres. Shep. T. 51. [i) 4 Cruise T. 32, c. 1, ? 19 ; Co. Litt. 229, a. (k) 2 Sugd. Pow. 363. (I) 4 Cruise T. 32, c. 20, J 5. [m) The Queen t. The Inhabitants of Wooldale, 6 Ad. & B. 649. OF THE DATE. 325 words be used which are sufficient to specify the agreement and bind the parties. But there are certain formal and technical parts in all deeds prepared by professional draftsmen, because these have been well con- sidered and settled by the wisdom of successive ages, as the forms best calculated to express the meaning and accomplish the objects of the parties, (ra) These are : 1. The Date. 2. The Parties. 3. The Recitals. 4. The Operative Part. 5. The Parcels. 6. The Habendum. 7. The Delara- tionofUses. 8. The Declaration of Trusts. 9. The Reddendum. 10. The Conditions. 11. The Provisoes, Declarations, or Special Stipula- tions appropriate to the particular transaction. 12. The Covenants. 13. The Testimonium or Conclusion. (o) 14. The *Seals and r#Ano-\ Signatures. 15. The Attestation. 16. The Receipt for the L J Consideration indorsed, if there is any pecuniary consideration. The last two are only parts of the deed in a qualified sense, as regularly oc- curring in the case of formal agreements under seal, but a deed is com- plete in itself without them. And even when they are made, they are not regarded as themselves under seal.(p) Some of the parts above mentioned always occur in all formal deeds. Such are, 1. The Date. 2. The Parties. 8. The Operative Part. 4. The Testimonium. 5. The Seals and Signatures. 6. The Attesta- tion. Recitals are also usually required and inserted in indentures. The other parts are peculiar to certain deeds. The date, the parties, the recitals, the operative part, and the parcels are all included in the term " the premises. "(j) But this word, when used in a deed, sometimes refers to the parcels or property comprised in the deed, and at other times it is used in reference to facts and transac- tions which occur in a former part of the deed, as things praemissa or preceding.(r) Section III. 0/ the Bate. In expressing the date of a deed, that is, the time of the making thereof, it was the usual practice to mention the year of the reign of the Sovereign as well as the year of our Lord, but the modern practice is only to mention the year of our Lord. *The date may be placed either at the beginning or at the end. r* i ^91 In deeds indented, it is now usually placed at the beginning, and L J in deeds poll at the end.(s) A deed is good, though it mention no date, or though it has a false (n) 2 Bl. Com. 398 ; Co. Litt. 7, a. (o) 2 Bl. Com. 298-304. See Burton, § 513. (p) See Sugd. Concise View, 537 ; 1 Jarm. & Byth. by Sweet, 90 ; 1 Pres. Shep. T. 55. (q) 2 Bl. Com. 298; Co. Litt. 6, a; Burton, ? 516; 1 Pres. Shep. T. 52, 74. (r) 1 Pres. Shep. T. 74. {s) i Cruise T. 32, c. 20, | 2. 326 SMITH ON REAL AND PERSONAL PROPERTY. date, i. e. a date which is not the date of its delivery, or an impossible date, as the 30th of February; provided the real day of its being dated or delivered can be proved. (A In such a case, it will take effect from the time of its delivery. (m) The date mentioned in the deed is not conclusive, even against the parties, unless perhaps it be made so by inrolment.(ii) A deed is pre- sumed to have been executed at the date expressed in it, unless the con- trary be shown. (x) Section IV. Of the Parlies. With respect to the parties to a deed, they are either active or passive. Those who do the act which is to accomplish the object of the deed are the active parties : those in whose favour the act is done are the passive parties. The former are distinguished by the termination or in their designations, the latter by the termination ee. Thus, parties who grant, lease, or release, are the active parties, and are called the grantors, lessors, and releasors ; and those to whom lands are granted, leased, or released, are the passive parties, and are called the grantees, lessees, or releasees. (») All those who have any estate, right, title, or interest whatever, either r*d8m ^' ^^^ *"^ ™ equity, in that which is the *subject matter of a L -J deed, must necessarily be parties to it, if they are to be bound by it.(6) Even under the old law, a person may take an estate in remainder by a deed to which he is not a party, and when the person to whom the re- mainder is limited enters on the land, he then becomes bound to perform the conditions contained in the deed.(c) A power of attorney may also be given by indenture to a person who is not named as a party.((i) And, even under the old law, if no person is named in the premises, one who is named for the first time in the habendum may take an immediate es- tate ; but if any other person is named in the premises as grantee, no new grantee could be added in the habendum in an indenture, unless in correction of an evident clerical mistake, or except by way of remainder or by way of use.(e) But by the stat. 7 & 8 Vict. c. 76, s. 11, it was enacted, "that any person, not being a party to any deed, may take an immediate benefit under it in the same manner as he might under a deed poll." And by the stat. 8 & 9 Vict. c. 106, s. 5, " under an indenture, executed after the 1st day of October, 1845, an immediate estate or interest, in any (i) 2 Bl. Com. 304. (u) 2 Bl. Com. 304 ; 4 Cruise T. 32, c. 20, ? 4 ; 1 Pres. Shep. T. 55. \v) Burton, J 525. (x) Burton, I 449. {z\ See 4 Cruise T. 32, c. 20, § 1. (b) i Cruise T. 32, c. 2, J 3. (e) 4 Cruise T. 32, v;. 2, | 3 ; Co. Litt. 231, a ; Burton, J 442. (d) Burton, § 442, n. (e) 9 Jarm. & Byth. by Sweet, 87 ; 4 Cruise T. 32, c. 2, s. 3 ; and o. 20, J 67, 69, 71 ; Burton, J 4*2 ; 1 Pres. Shep. T. 7. or THE PAKTIES. 327 tenements or hereditaments, and the benefit of a condition or covenant, respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture." With respect to the arrangement of the parties, the active parties should be named before the passive parties ; the legal owner before the equitable owner j the freeholder before the termor; those who have es- tates before those who have mere rights ; the vendor after all the other active parties; the purchaser before the parties on his behalf. *For r^jo-i-i the sake of perspicuity, if the same persons are made parties in L J different characters (e. g. both as beneficial owners and as trustees), they should be named as parties of as many different parts as they sustain different characters ; and the same rule is to be observed if any of the parties are to take estates or to receive benefits under different characters or in different modes.(/) But the rule of law does not require this or any other arrangement of the parties. Though two persons are parties only in one clause, they may be grantors or grantees, covenantors or covenantees, either jointly or severally ; and although they are named jointly, and the grant be to one of them severally, or the nomination of the latter be a mere dead letter, still the deed will not in any manner be invalidated. (^r) The parties to a deed ought to be described by their proper christian and surnames, their rank, profession, and place of residence. But if the description, however imperfect, is sufScient to distinguish the person described from all others, it will be good. Nihil facit error nominis cum de corpore constat. (A) And where a party to a deed is named by diffe- rent christian names in different parts of the deed, parol evidence is admissible to show by whom the deed was executed. (t) If several join in a deed, and some are able to make such a deed, and some are not able, the deed is deemed to be the deed of the former alone. (A:) If there are two grantees, and one of them only is capable, the person who is capable will take the whole exclusively, if they were to be joint tenants, because joint tenants take per mie et per tout; but only an aliquot part, if they were to be tenants in common, because tenants in common take per mie only. But *in a gift to persons, r^AQn-\ as a class, as tenants in common, those who are capable shall <- J take the entirety. (A All persons that may be grantors may be grantees. And some, who cannot grant or give, may yet take or receive. (m) A person born deaf and dumb is not thereby incapacitated to exepute a deed or will, if he has sufficient understanding to give evidence of his assent, either by his own signs, or by signs with the assistance of an interpreter. And he might have acknowledged a fine or suffered a reco- (/) Martin's Conveyancer's Recital Book, 25 ; 9 Jarm. & Byth. by Sweet, 204. (g) 2 Pres. Shep. T. 419. (h)A Cruise T. 32, c. 20, § 10; Burton, § 529. (a The Queen v. The Inhabitants of Wooldale, 6 Ad. & E. 549. (k) 1 Pres. Shep. T. 81-2 ; 4 Cruise T. 32, c. 20, | 8. (I) 1 Pres. Shep. T. 71, 81-2, 23T. (m) 2 Pres. Shep. T. 235. 328 SMITH ON REAL AND PERSONAL PROPERTY. very. (re) But persona who are born blind as well as deaf and dumb, as ihey have always wanted the common inlets of understanding, are incapable of making a gift, lease, grant, or will.(o) If a gift or grant of goods is made to the churchwardens or to the parishioners of Dale, by those words, it seems this gift is good, and the churchwardens shall take to the use of the parish. (p) But if a grant of land is made to the churchwardens or to the parishioners or to the inhabitants of Dale, or to the commoners of such a waste, or to the lord and his tenants, these are not good grants : for, although these persons are capable, yet they are not capable by these names. (g) When a person has authority as attorney to do any act, as to enter into au agreement, he must do it in the name of the person who gives the authority, and not in his own name, or as his own act.(r) And if an attorney covenants in his own name, for himself, his heirs, &c., it will be his personal covenant, although he be described in the instru- ment as covenanting for and on the part of his principal. (s) [*483] *Section V. Of the Recitals. Recitals are statements made in a deed, with the view of showing what are the interests of the parties, the characters in which they are made parties, and the objects to be effected; as well as for the purpose of rendering the deed a constituent part of the evidences of ownership, by stating the facts on which its own validity depends, and referring to preceding deeds which afford information respecting the title, and narrat- ing all such circumstances as have taken place since the execution of the last instrument, so as to furnish, on the documents themselves, a con- tinuous history and explanation of the title. (<) The recital of a deed is a key to the construction, where the operative part is expressed in language that admits of doubt.(M) And hence, where there is a particular recital in a deed, and general words of release are afterwards inserted, the generality of the words will be qualified by by the recital.(cc) Recitals are never evidence as against persons who are not parties to the deed.(y) Where a fact is recited (as a marriage) which proves to be false, though the intention of the parties may be founded on the mistake, the convey- ance stands good.(2) A misrecital of a former grant will not invalidate a deed; neither will a misrecital of the estate of the grantor in the land, (n) 3 Jarm. & Byth. by Sweet, 22. (o) 3 Jarm. & Byth. by Sweet, 23. (p) 2 Prea. Shep. T. 237. (q) 1 Pres. Shep. T. 237. (r) 1 Jarm. & Byth. by Sweet, 428. («) 1 Jarm. & Byth. by Sweet, 428 ; 4 Id. 256-7. (() See Martin's OonTeyancer's Recital Book, Introduction, and Appendix; 9 Jarm. & Byth. by Sweet, 245 ; 4 Cruise T. 32, c. 20, g 22. [u) Bailey v. Lloyd, 5 Russ. 330. {x) 4 Cruise T. 32, c. 19, I 15 ; Burton, J 530 ; 9 Jarm. & Byth. by Sweet, 817. (y) 1 Jarm. & Byth. by Sweet, 121. (s) Burton, J 538. OP THE PARCELS OR SUBJECT. 329 or of the date of the deed by which he acquired the *land, r:|.jo4^-T rebder the deed invalid. (a) An exception or qualification occurs, L J however, in the ease of an assignment of the parcels comprised in a recited lease, where the lease is recited as bearing date " on" a certain day (and not " on or about" a certain day,) and the date is misrecited; for in such a case, although in equity the mistake might be corrected,^ in certain cases at least, yet at law there would be no valid assignment, because, there being no such lease in existence, it would be an assign- ment of that which did not exist.(6) Section VI. Of the Operative Part. After the recitals, if any, or after the commencement, if there are no recitals, comes the witnessing or operative part. It is called the witnessing part, because it begins, in case there are no recitals, with the word " witnesseth," or, if there are recitals, with the words " Now this indenture witnesseth," or, in the case of a deed poll, with the words " Now know ye, and these presents witness," or, " Now these presents witness." It is also called the operative part, because it states what is done or intended to be done by the deed, and for what consideration, by whom, and to or in favour of whom ; and, if the consideration is a pecu- niary one, the payment of it is mentioned in this part. Until of late years it was the practice to use operative words of the past tense, as well as of the present : as " Hath granted, and Doth grant." But the past tense is now usually omitted. The practice of using it originated with charters of feoffment, which were a mere record of the livery *by which the estate had passed. Its adoption in other cases was generally inaccurate, as well as useless. (> c [*485] Section VII. Of the Parcels or Subject. I. The Parcels or Subject, generally. The civil division of the kingdom was originally into counties, hun- dreds, and vills, tithings, or townships ; for parishes were divisions only in reference to ecclesiastical affairs, of which the common law took no notice. But in process of time parishes became divisions in reference to civil matters,^) and it is now the constant practice to describe property as situate in a certain parish and county. Old general or vague descriptions, particularly those of copyholds, (a) 4 Cruise T. 32, c. 20, | 2.3. h) See 2 Jarm. & Byth. by Sweet, 288-9. (c) See 4 Jarm. & Byth. by Sweet, 38 ; 9 Jarm. & Bytli. by Sweet, 638. \d) 4 Cruise T. 32, c. 20, I 32. 330 SMITH ON REAL AND PERSONAL PROPERTY. will, in most cases, pass the lands which have been regularly held under them.(e) Where land has been described in preceding deeds as of a, certain estimated quantity, that estimated quantity should be stated for the purpose of identifying the land with the land which is the subject of those deeds ; but when the estimated quantity and the actual quantity differ, the latter should also be stated. (/) In conveyances, after describing the thing conveyed, it is usual to add the general words, as they are termed, that is, an enumeration of the incidents, accessories, and appurtenances thereto. Formerly at least, it was also the general practice to add " all the reversion and reversions, remainder and remainders," &c. But this clause is unnecessary, and r*d.8fiT *where there is no particular estate it is obviously inapplicable; L -I and therefore by many practitioners it is always omitted. (d) After this clause, where inserted, or after the general words, where the reversion clause is omitted, follow the words « all the estate, right, title," &c., and sometimes "all deeds, papers, and writings." (ee) When anything is granted, all the means to attain it, and all its fruits and effects, incidents, and accessories, are granted also, and will pass in- clusively, by force of the grant of the thing itself, without the word appurtenances or any similar words. Cuincunque aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse potuit.(_;{y) Thus by the grant of a piece of ground is granted a way to it, i. e., all usual ways; and if there is no usual way then a way of necessity will pass. By the grant of trees, is granted the power to cut them down and take them away, unless the right of cutting is restrained, so as to preserve them for ornament or for other purposes. By the grant of mines, is granted the power to dig them ; and by the grant of fish in a pond, is granted power to come upon the banks and fish for them.(gr) By the grant of arable land, the common appendant thereunto will pass. And 60 by the grant of a house, the estovers appendant thereto will pass. (A) And it has been held, that a garden usually occupied with a house will pass by a conveyance of the house " with the appurtenances thereunto belonging," though in the conditions of sale it was expressly excepted. (i) That which is parcel or of the essence of a thing, and is still belonging to the same, passes by the grant of the thing itself, although at the time r*a.S7T °^ *'^® grant it be *actually severed from it.(^) Those things •- J that are inseparably incident to others are not grantable without the things to which they are so incident. And therefore a court baron, which is always incident to a manor, is not grantable without the manor itself; common appendant to land is not grantable without the land itself; and common of estovers appendant to a house is not grantable (e) Sugd. Concise View, 231. (/) 6 Jarm. & Byth. by Sweet, 19. (d) 9 Jarm. & Byth. by Sweet, 13, 435. (ee) As to which, see 9 Jarm. & Byth. by Sweet, 88. (/) 1 Pres. Shep. T. 89; 4 Cruise T. 32, c. 20, J 30. (g) 1 Pres. Shep. T. 89. (A) 1 Pres. Shep. T. 89. (?) Doe d. Norton v. Webster, 12 Ad. & B. 442. (A) 1 Pres. Shep. T. 90. OF THE PARCELS OR SUBJECT. 33] without the house itself j nor is common appurtenant which is measured by levaney and couchancy or any other terms applicable to the farm. But common appurtenant for a certain number of sheep, &c., is sever- able.(Z) A grant is void for uncertainty, if the subject matter of it is neither certain in the first instance, nor can be rendered certain. Certainty in the first instance is not necessary; for the maxim is, "id certum est, quod certum reddi potest." Hence a grant of so many trees as may be reasonably spared is void. But a grant of so many trees as A. shall think fit is good; for it maybe rendered certain by his determination. (m) So if a grant is made of several different things in the disjunctive, this grant may be made certain and complete by the election of the grantee, or by the act of the grantor in performing the grant.(«.) So if a person having the reversion of four acres of land grant the reversion of two acres, this is a good grant, to be rendered certain and complete by elec- tion. But election must be made in the lifetime of the grantor and of the grantee. (o) Where the first and principal words of description, or the words of original designation, are erroneous, the thing misdescribed will not pass.(jo) But with respect to words of description superadded to words of original designation, *they may either be words of qualifica- r;(;4^Qo-| tion or words of demonstration. And where the superadded L -^ words are completely incorporated with the preceding words of original designation, so as naturally and almost necessarily to form a restriction, they are words of qualification, and, if erroneous, vitiate the description and the grant itself. But if there are any parcels to satisfy the terms of restriction, they shall have efi"ect in restraining the operation of the grant within the extent of the terms of restriction. If the superadded words are not so incorporated with the preceding words, but appear to constitute an additional, independent, particular description of that which is with sufficient certainty described by the preceding words, they are words of demonstration, and, if erroneous, will be rejected. (5) Thus, if a person grants " all his lands which he had by the grant of J. S. in D.," the grant will not pass any other lands in D. than those which he had of the grant of J. S. But if a person grants all his lands in D., which lands he had by the grant of J. S. all his lands in D. will pass, though he had them not by the grant of J. S. And so if he grants all his lands in D. called N., which was the estate of J. S., there the lands called N. pass, though they never were the estate of J. S. So if the grant is in this manner " all that my house in the occupation of J. S., in St. Andrew's parish," whereas in truth, it is in the parish of K., but in the occupation of J. S., it seems this grant is good to pass the bouse. But if it be thus : " all that my house in St. Andrew's (I) 2 Pres. Shep. T. 240. (m) 2 Pres. Shep. T. 250. (n) 2 Pres. Shep. T. 251. (0) 2 Pres. Shep. T. 250. (p) Burton, § 562 ; 4 Cruise T. 32, c. 20, § 59. (g) See 4 Cruise T. 32, c. 20, § 56, 60-62 ; Burton, g 560, 563, 564 ; 2 Pres. Shep. T. 247. 332 SMITH ON REAL AND PERSONAL PROPERTY. parish, in Holborn, in the occupation of J. S.," and in truth it is in another parish, but in his occupation, this grant is not good to pass the house; because the first terra of the description is false. (r) So the words which come after a "videlicet" or " that is to say" can neither r*48Qn ^'^l^^'S^ '^0'" restrain the ^preceding description, tbough they will L J explain it, if ambiguous. (s) Where general words are preceded by a specification or enumeration of particulars, the general words will not, without the help of other words, be construed to signify anything of a higher order or more im- portance than what is before expressed, (;!) but will be held to denote only things ejusdem generis, upon the principle of the maxim, noscitur a sociis.(!«) II. Particular Subjects of Property, and the Words hy which they pass in a Deed. Land, in the legal signification of the term, comprehends the surface and substance of the earth under all circumstances, and everything per- manently fixed to it, so as to include every kind of ground, soil or earth whatever ; as meadows, pastures, woods, moors, waters, marshes, furzes, heaths, and all castles, houses, and other buildings thereon. (v) And it comprises land in reversion or remainder, as well as land in possession. (x) A grant of all a person's lands or goods passes not only what he is sole seised or possessed of, but also what he is jointly seised or possessed of, as far as respects his share : for verba generaliter dicta generaliter inter- pretanda. Qui omne dioit, nihil excipit. And so e converse, if two persons join in a grant of all their lands or all their goods, this will pass their several as well as their joint property.(y) By the conveyance of a farm will pass a messuage or principal dwell- ing house, and all arable land, meadow, pasture, wood, &o., thereto be- longing or therewith occupied. (a) r*4.Qfn *The word messuage is synonymous with dwelling house ; and L -I a grant of a messuage or house with the appurtenances will not only pass a house, but all buildings attached or adjoining to it ; as also its curtilage, garden, and orchard, together with the close in which the house is built, or pleasure grounds adjoining and belonging to it. But if a greater quantity of land has been usually occupied with the house, it will not pass. (a) By the grant of a cottage, a small house with its curtilage passes. And the term may also comprise a garden. (6) If a person grants his manor, and does not say in what parishes it lies, this is a good grant of all the manor. But if it lies in diff'erent parishes, . J 2 Pres. Shep. T. 24V-8. s) Burton, § 565. ' (() Burton, J 55T-8. (u) Burton, ^ 558. \v) i Cruise T. ,32, c. 20, J 42 ; Burton, § 42. (x) Burton, ? 551. (y) 1 Pres. Shep. T. 90. (a) 4 Cruise T. 32, i:. 20, § 41 ; Burton, ? 545 ; 1 Pres. Shep. T. 93. (a) 4 Cruise T. 32, c. 20, | 40 ; Burton, | 546 ; 1 Pres. Shep. T. 94. (4) 1 Pres. Shep. T. 94. OF THE PARCELS OR SUBJECT. 333 and some are mentioned, but others are omitted, no part of the manor lying in the parishes not mentioned will pass.(c) — The word manor has a very extensive signification ; for, even without the word appurtenances, it will pass, 1. All the demesnes, that is, all the lands whereof the lord is seised within the manor ; and also the freehold of all the lands held by copyholders or other customary tenants, together with all the wastes. 2. All the services; such as fealty, suit of court, rents, &c. 3. All courts baron, courts leet, with the fines and perquisites annexed thereto ; and all other franchises that are parcel of, or appendant to, the manor at the time of the conveyance. 4. Advowsons appendant.^) — Lands held in fee simple of a manor are not considered as parcel of the manor, although the rents and services issuing out of such lands are parcel of the manor.(e) — Al- though many manors have been destroyed, yet they still continue to be called manors, though in fact they are only reputed ^manors ; r^^QiT and a reputed manor will pass in a deed by the word manor. (/) L J By the grant of a rectory, will pass the house, the glebe, the tithes and offerings belonging to it. And by the grant of a vicarage, will pass as much as belongs to it; as the vicarage house, &o.(^) A toft is the site of a house which has been pulled down.(^) A grant of the " profits" of land carries the land itself.(i) Trees, grass, and corn, growing upon the ground, fruit upon the trees, and wool upon the sheep's back, may be granted as distinct interests from the things on which they grow.(/i;) But a lessor for life or years cannot, as against his lessee for life or years, give or grant the trees growing on the ground comprised in the lease, without the license of his lessee, unless they are first cut down by the lessee or some other person, or unless they are excepted out of the lease. (?J Mines, if actually opened, are corporeal hereditaments, and may be made the subjects of conveyance by livery. And an interest in mines unopened may exist independently of any estate in the surface of the land.(m) But the land itself will pass by the name of a " mine," in a conveyance adequate for that purpose, (m) By a grant of water, the land which is covered by the water will not pass, but only the right of fishing in that water. A piece of water should be granted by the name of so many acres of land covered with water. But the word stagnum or pool will pass both the water and the land.(o) *A reversion may be granted by the name of a remainder ; or a remainder by the name of a reversion. (j?) By the grant of an [*492] grant of an acre of land, or of any other thing by the name whereby it (c) 2 Pres. Shep. T. 248 ; 1 Pres. Shep. T. 99. (d) 4 Cruise T. 32, c. 20, § 34, 37 ; 1 Pres. Shep. T. 92. («) 4 Cruise T. 32, c. 20, § 35. (/) 4 Cruise T. 32, i;. 20, g. 38. (ff) 1 Pres. Shep. T. 94. (h) Burton, ? 546. [i) Burton, § 547. (k) 1 Pres. Shep. T. 95 ; 2 Pres. Shep. T. 241; Burton, § 1162. (l) 2 Pres. Shep. T. 244. (m) Burton, § 1164; 1 Pres. Shep. T. 90, 96. (n) Burton, § 548. (o) 4 Cruise T. 32, c. 20, li9; 2 BI. Com. 18, 19; Burton, J 550. Ip) 2 Pres. Shep. T. 249. 334 SMITH ON REAL AND PERSONAL PROPERTY. is called, the reversion thereof will pass, if the grantor have no more than a reversion. (j) The word share, even in a deed, may embrace accruing as well as original shares.(r) A grant of common for all beasts is not a grant of common for goats, pigs, and such other beasts and cattle as are not commonable. But it is otherwise if the grant is of common for all manner of beasts.(s) A conveyance of the estate itself in respect of which an allotment is subsequently awarded, includes the right to the allotment.(<) III. Uxceptions. Of course an exception cannot be of the whole thing granted, nor of a part of a thing which is not granted. And if it is of part of a thing granted, or of a thing connected with a thing granted, it must be of such a part or thing as is severable from the thing granted, and not an inseparable interest or incident. It must also be of a thing of that nature that it may be held by itself, and that he who excepts may retain it. (it) Hence, if a manor is granted excepting the court baron, or if land is granted excepting the common appendant thereto, these exceptions are void : for no lord ex- cept the lord of the manor can hold the court, and no one except the owner of the land can have right to this species of common. (a;) P .QO-. *An exception must not be such as is repugnant to the grant. L J Hence, it must not be such as would utterly subvert the grant, by taking away all the benefit of it : as if a manor or land were granted, excepting the profits thereof Nor, upon the same principle, may it be such as would be an exception of that which is in terms specifically granted ; but, subject to these qualifications, it may be of one thing out of another thing granted, or of a particular thing out of a class of things or aggregate granted. (y) Thus, if a person grants all his horses except his white horse, this is a good exception of the white horse, if he has three horses and one of them is white ; but, if he has only two horses, this exception is repugnant to the terms of the grant, and void. So if a person grants his house, chambers, and shops, excepting his shops, this is a void exception. So if twenty houses or twenty manors are granted, excepting one of them, this exception is repugnant to the grant, since the exception negatives the right to one of those things which are specifically comprehended in the grant.(2) An exception may be made out of an exception, or a saving out of a saving.(a) (?) 2 Pres. Shep. T. 245. (r) Doe d. Clift t. Birkenhead, 4 Exch. 110. (s) 1 Pres. Shep. T. 96. (i) 1 Jarm. & Byth. by Sweet, '79, 80. As to the force and meaning of many other terms besides those noticed in this work, which are used to describe parcels, especially in old deeds, see Co. Litt. 4, b, 6, a; 1 Pres. Shep. T. 93-97. (u) 4 Cruise T. 32, c. 20, 2 66 ; 1 Prea. Shep. T. TS, 79. (x) 1 Pres. Shep. T. 79 ; 4 Cruise T. 32, c. 20, § 36. (y) See 1 Pres. Shep. T. 78, 79. (z) 1 Pres. Shep. T. 78, 79. (o) 1 Pres. Shep. T. 78, u. (68). of the habendum. 335 Section VIII. Of the Habendum. The office of the habendum is to point out what estate or interest is granted. But this is frequently and now usually done in the premises as well as in the habendum. (6) And where the estate or interest is pointed out in the premises, the habendum is not essential, and in the ^majority of deeds is useless ;{c\ and in a surrender or a release |-„-q^ -, of right, it is inappropriate. (y-, the covenants contained in the original lease. (^) L J The benefit even of an express covenant, if it is made to run with the reversion, is confined to the owner of that reversion for the time being, and may be extinguished with it.fm) VII. Construction of certain Covenants. The widow of the covenantor claiming dower is a person claiming under him, within the meaning of the covenants for title. (n) Although covenants are to be construed according to the intent of the parties, yet where a person covenants to do and perform all such acts, matters, and things as may be requisite for continuing and keeping on foot a policy of insurance on his life, it was held that this covenant could not be read negatively, as if he had covenanted to do no act whereby it would become void; and that therefore the covenant is not broken by his suicide, whereby the policy becomes forfeited. (o) It has been held, that a charge for repair of a bridge is not a parlia- mentary tax, within the meaning of a covenant to pay rent clear of " all taxes and deductions whatsoever, parliamentary or parochial," where it arises from a liability by reason of tenure, and does not originate in an Act of Parliament, though an Act of Parliament supplies a more con- venient mode of raising the necessary funds to meet ii.[p) Where a house is sold subject to a covenant not to carry on any trade, business, or calling whatever, in or upon it, or otherwise use, or sufi'er the same to be used, to the *annoyance, nuisance, or injury of r«K/)o-i any of the houses on the estate, the carrying on a girls school is L -■ a breach of the covenant. (g) VIII. Discharge or Satisfaction of Covenants, and Relief against them. Where a person has expressly and absolutely contracted or covenanted to do a particular thing, it is no ground for the interference of a court of equity that he has been prevented by accident or unforeseen circum- stances from fulfilling his engagement, or from deriving the full benefit of the contract on his side. For he might have prevented any injury (h) 9 Jarm. & Byth. by Sweet, 363. (I) 4 Cruise T. 32, c. 25, J 35. (m) Burton, § 1088. (n) See 4 Cruise T. 32, c. 25, § T8. (o) Dormay t. Borrodaile, 10 Beav. 335. (p) Baker v. GreenhiU, 3 Ad. & E. N. S. 148. (q) Kemp V. Sober, 1 Sim. N. S. 517. 344 SMITH ON KEAL AND PERSONAL PROPBETT. to himself from accident, by making proper exceptions ; but since he omitted doing so, the law will presume an intentional general liability. (r) So that if a lessee covenants to keep the demised premises in repair, he will be bound to do so, notwithstanding any unavoidable accident by which they are destroyed or injured. (s) And where there is a covenant to pay rent during the term, without any proper exceptions, it must he> paid, notwithstanding the premises are aocidently burnt down during the term.0 And where a person covenants to raise and work a certain number of tons of coal in the year, and pay for the same a certain rate per ton, or pay a fixed rent whether the coals should be wrought or not ; the whole amount of rent may be claimed, although the mine is so exhausted that the lessee could not raise the number of tons in the year. In such a case it is considered that the court cannot import into the covenant a condition that there should be coals to that extent : if r^fiOQI ^^°^ ^^^ ^^^ intention *of the parties, they should have so L -> expressed it.(a;) But where a covenant is become impossible to be done, by the act of God, (as where a person who covenants to serve another for seven years, dies before the seven years are expired,) the covenant is discharged. (y) If a covenant is very injurious and oppressive, a Court of equity will not enforce it, nor grant an injunction to prevent a breach of it.(z) Where the deed itself, wherein the covenants are contained, or the estate on which the covenants depend is at an end, there, regularly, the covenants are also determined, except in cases provided against by the Stat. 7 & 8 Vict. c. 76, s. 12, and 8 & 9 Vict. c. 106, s. 9, (as to which see infra on leases.) "And, therefore, if a lease for life or years is sur- rendered (except in the cases above mentioned,) or if a deed becomes void by erasure or the like, and there are covenants contained in the deed, by these means the covenants are also extinguished. But a sur- render does not discharge a breach of covenant antecedent to such sur- render, (a) Where, on a purchase by the lessee, a conveyance of the inheritance is made by the lessor to the lessee, that puts an end to the covenants in the lease. (6) In the case of a covenant, that, on the death of the covenantor, a wife or relative shall receive a gross sum, his or her distributive share, in the case of an intestacy, if equal to or greater than the sum cove- nanted to be paid, is to be considered as a performance ; if less, as a part performance. But where the covenant is, that an annuity shall be paid or secured on the death of the covenantor, the distributive share is not a performance or part performance, (c) And, where the covenant r*Fiini '^^^^ arises in the lifetime of the *covenantor, (as where he cove- L J nants within two years after marriage to pay a certain sum, and he outlives the two years,) a distributive share will not be a performance M See Story's Eq. Jur. § 101-104. (s) Story's Eq. Jur. § 101. (t) Story's Eq. Jur. J 102. (x) Marquis of Bute v. Thompson, 13 M. & W. 487. (y) 1 Pres. Shep. T. 180. (2) Talbot v. Ford, 13 Sim. 1'73. la) 1 Pres. Shep. T. 180. (i) Sugd. Concise View, 124. (c) 2 Spence's Eq. Jur. 609. OF COMMON LAW CONVEYANCES. 345 or a satisfaction of the covenant. Nor is an orphanage part, for it is not in the father's power, (d) Where a father, on the marriage of his daughter, covenants that he will, by deed or will, give, leave, and bequeath unto her an equal share with his other children of all the real and personal estate of which he should die seised or possessed, and the daughter dies in her father's life- time, and he devises and bequeaths his property to his surviving chil- dren, it has been held that this is no breach of the covenant. (e) Section XI. Of the Indorsed Receipt. It is the usual practice to acknowledge payment of the consideration money in the operative part. And sometimes there is a distinct recital of the payment of the same. In addition to either or both of these, it is usual, in the case of a purchase or mortgage, where the consideration money is paid or advanced at the time of the execution, to indorse upon the deed a receipt for it, signed by the party who receives the money. But when the payment of the money is recited as an antecedent trans- action, it is not usual to place a receipt on the back of the deed. At law, either the recital or the acknowledgment, if sufficiently precise, will bind the parties by estoppel ; but the indorsed receipt is not conclusive, because not under seal. But in equity, none of these are of any avail if non-payment is proved, as it may be.(/) *In equity, payment p^j,...-. will be presumed after a great length of time.(^) The indorsed L J receipt, or, it seems, a distinct circumstantial recital of the payment in the body of the deed, is, under ordinary circumstances, sufficient to ex- cuse parties subsequently dealing with the purchaser, from inquiring whether the money has been actually paid. (A) And, on the other hand, the absence of any receipt for the consideration is notice to a purchaser that it has not been paid.(?) *CHAPTEE, II. [*512] OF THE DiriERENT KINDS OF DEEDS : AND FIRST, OF THE DIFFERENT KINDS OF COMMON LAW CONVEYANCES. Those deeds which are termed conveyances, in the wide sense of the word, and which serve to create, divide, transfer, discharge, strengthen, defeat, or renounce estates or interests, may be arranged into two great classes : — {d) 2 Spence's Eq. Jur. 609. (e) Jones v. How, T Hare, 267. (/} Sugd. Concise View, 537 ; Burton, | 535 ; 1 Jarm. & Byth. Sweet, 90 ; 5 Id. 652; 9 Id. 78; 4 Cruise T. 32, c. 20, § 27. [g] Sugd. Concise View, 537. (A) 9 Jarm. & Byth. by Sweet, 78. (j) 1 Jarm. & Bytli. by Sweet, 93. 346 SMITH ON REAL AND PERSONAL PROPERTY. I. Conveyances at the Common Law. II. Statutory Conveyances, that is, deeds which derive their efficacy from the operation of an Act of Parliament. I. Of Common Law Conveyances there are about thirteen kinds : — 1. Feoflfments. 2. Grifts. 3. Grants. 4. Bargains and Sales. 5. Leases. 6. Exchanges. 7. Partitions. 8. Eeleases. 9. Confirmations 10. Surrenders. 11. Assignments. 12. Defeasances. 13. Disclaimers. Defeasances and disclaimers operate in effect as conveyances, by causing property to return. Feoffments, leases, exchanges, and parti- tions exclusively relate to real estate. Grifts, grants, bargains and sales, releases, confirmations, surrenders, assignments, defeasances, and dis- claimers may relate either to real or personal estate. II. Not reckoning those deeds which existed at common law, and when made to uses operate under the Statute of Uses, such as feoffments and bargains and sales to uses, there are about ten kinds of statutory deeds : — 1. Covenants to stand seised. 2, Deeds of Lease and Release. 3. Statutory Releases. 4. Statutory Grants, that is, Grants to uses under the statute of uses and the statute 8 & 9 Vict. c. 106, s. 2. 5. P^Kiq-, Deeds to lead and declare the uses of other *asBurances. 6. L J Deeds of Revocation of uses. 7. Deeds of appointment under powers. 8. Leases under powers. 9. Bargains and sales under the act for the abolition of Fines and Recoveries. 10. Concise convey- ances and leases under the statutes 8 & 9 Vict. c. 119 and c. 124. Deeds under the Statute of Uses are said to operate either without transmutation of possession, as in the case of a bargain and sale, or a covenant to stand seised ; or by transmutation of possession, as in the case of deeds to lead or declare the uses of feoffments, fines, or recoveries : for, in the former case, the alteration of the legal seisin is effected by the mere operation of the statute, the use alone being transferred by the conveyance itself; while in the latter case, the legal seisin is first trans- ferred by a common law assurance before the statute operates. (a) III. There are some other deeds which affect or concern real or per. sonal estate, but are not properly termed conveyances. Such are, 1. Deeds of covenant of agreement respecting real estate. 2. Bonds. 8. Declarations of trust of real estate. 4. Deeds of appointment of trustees, receivers, stewards, guardians, attorneys, and others standing in a confi- dential relation. IV. Some of these various deeds serve as purchase deeds, others as mortgage deeds, others as marriage settlements, others as deeds of ar- rangement, others as deeds of indemnity, others as composition or cre- ditors deeds, others as apportionments of rents, others as partnership deeds, and others are used for certain other purposes which will appear from the definitions given of them in the following pages. (a) 1 Cruise T. 11, u. 4, § 12-14; 2 Pres. Shep. T. 510. OF A FEOFFMENT. 347 ♦Section I. [*514] Of a Feoffment. A feoffment properly signifies a conveyance of corporeal hereditaments for an estate in fee simple, or for a determinable fee other than an estate tail, by livery of seisin evidenced by a deed in writing. Sometimes, how- ever, a feoffment signifies a conveyance of corporeal hereditaments by livery, evidenced by deed, though only in tail or for life. But a feoff- ment in tail is more properly termed a gift, and a feoffment for life, a lease. (&) A feofi'ment consists of two distinct acts : first livery of seisin, or delivery of possession, which was all that the common law required. And, secondly, a written explanation signed by the feoffor, which is re- quired by the Statute of Frauds. (c) By the stat. 8 & 9 Vic. c. 106, this must be by deed : for it is enacted by s. 3 of that act, "that a feoffment made after the 1st of October, 1845, other than a feoffment made under a custom by an infant, shall be void at law unless evidenced by deed." Livery of a seisin is of two kinds : livery in deed and livery in law. The first is an actual delivery of some symbol of possession on the land, with apt words. The second is a verbal delivery within sight of it.{d) Livery in law does not transfer the freehold till an actual entry is made by the feoffee. Therefore, if either the feoffor or feoffee dies before an entry is made under the livery thus given, it becomes void.(e) If the feoffee dared not enter through fear of his life or bodily harm, then his continual *claim made yearly in due form of law as near as pos- p^ri r-i sible to the lands, formerly sufficed without an entry. (/) But, L J by the stat. 8 & 4 Will. 4, c. 27, s. 11, " no continual or other claim upon or near any land shall preserve any right of making an entry or distress or of bringing an action." In cases not within the stat. 7 & 8 Vict. c. 76, s. 2, or 8 & 9 Vict. c. 106, s. 2, which will be presently noticed, livery of seisin is necessary in all cases on the creation or transfer of any estate of freehold in posses- sion in corporeal hereditaments, except by matter of record, as by the king's letters patents, fine or recovery, or by deed indented and inrolled, or by way of covenant and raising of use, or by way of surrender, devise, release, or confirmation, or by way of increase. But it is not requisite, nor indeed could it be made, on the creation or transfer of incorporeal hereditaments alone. Neither is it requisite upon the creation or trans- fer of a lease for years or rather chattel interests. (17) As livery of seisin is the delivery of the actual possession, it follows that no person can give livery in deed who has not himself at the mo- ment the actual possession; (A) and therefore it is requisite that all (J) 1 Pres. Shep. T. 203, 204; Co. Litt. 9, a, 211, b, n. 1. (c) Barton, J 20; 4 Cruise T. 32, c. 1, ? 18 ; 4 Cruise T. 32, c. 4, J 4; 1 Pres. Shep. T. 203. {d) See 4 Cruise T. 32, c. 4, J 8, 11 ; Co. Litt. 48, a, 1 Pres. Shep. T. 215, 216. (e) 4 Cruise T. 32, c. 4, J 12. (/J 2 Bl. Com. 316. (g) 1 Pres. Shep. T. 210, 211; 2 Bl. Com. 314. (A) 4 Cruise T. 32, c. 4, ? 10. 348 SMITH ON REAL AND PERSONAL PROPERTY. persons that have any lawful estate and possession in the thing whereof livery is to be made, such as lessees for life or years, join in the making thereof, or be removed thence. (i) A feoflfment can only be made of corporeal hereditaments of which the actual possession may be delivered to the feoffee except that incorporeal hereditaments, appendant, incident, or accessory to corporeal heredita- ments, may pass with the corporeal hereditaments, as the principal, by means of a feoffment. (/c) p^r 1 a-i *Livery of seisin must be made in the lifetime of the parties.(Z) L J A distinction, however, occurs between the case of joint tenants and that of tenants in common. Where the feoffors are joint tenents, if one of them dies before livery, as his share survives to the others, the entirety of the parcels may pass from the survivors. But where they are tenants in common, the part of the person dying devolves to his heirs, and the feoff- ment of the survivors will not pass his share, as it is not in them ; but it will be good as to their own shares. So, where the feoffees are to be joint tenants, notwithstanding the death of one of them before livery, the entirety of the parcels will pass to the survivors. But where they are to be tenants in common, the livery will be void as to persons dying before livery is made, and as to the shares intended for them ; but it will be good as to the survivors and the shares intended for them.(m) Livery in deed may be given and received by attorney. But, 1. He must be authorised by deed, i. e. either by the feoffment itself or by some other deed ; whence it follows, that an infant or a married woman can- not give or receive livery by attorney. 2. The attorney must pursue his authority, in substance and effect at least. 3. He must do it in terms or in substance in the name of the person who gives the authority. 4. Livery must be given in the lifetime of the parties ; so that the seisin may pass out of the feoffor in his lifetime into the feoffee in his lifetime. But livery in law may not be made by attorney, (n) If an estate is made of divers pieces of land in divers villages in the same county, livery of seisin of and in any part thereof in the name of all the rest, or according to the deed, suffices for all, provided all the r*Ki 71 pieces are in the *grantor's possession and out of lease. But if L J the pieces of land lie in divers counties, unless they are com- prised within the same manor, or if they are in the same county and they are in lease under different leases, or out of the possession of the feoffor, it is requisite that livery of seisin be made upon some of the lands in both or all the counties, and upon every parcel of land that is out of possession or in the occupation of a distinct occupier, or at least in some parcel of the land in the occupation of every several tenant. (o) A memorandum that livery of seisin was given is usually indorsed on all ancient feoffments. But Courts of law and equity will presume livery of seisin to have been given, though not indorsed on the deed, (i) 1 Pres. Shep. T. 206, 213. (k) 4 Cruise T. 32, c. 4, § 26 ; 1 Pres. Shep. T. 206, 214 ; Burton, ? 40, 42. (1) 1 Pros. Shep. T. 212. (m) 1 Pres. Shep. T. 212. (n) 1 Pres. Shep. T. 217, 218 ; 4 Cruise T. 32, c. 4, J 14, 15 ; 2 BI. Com. 315, 316. (o) 1 Pres. Shep. T. 212; 4 Cruise T. 32, c. 4, § 7; 2 BI. Com. 315. OF A FBOEFMENT. 349 where the possession has gone according to the feoffment for a length of time.(p) A Court of equity will supply the want of livery of seisin, where a feoffment appears to have been made for valuable consideration. (g) The land passes by the livery, and not by the deed of feoffment, which, without being perfected by livery, confers only an estate at will.M No particular words are essential. But in modern times the word "enfeoff" has been usually employed as an operative verb, in conjunc- tion with some other or others, such as " give," " grant," " alien," and " confirm."(s) The effect of a feoffment was always to confer some estate of freehold in prsesenti, that is, either in actual possession or subject only to a chat- tel interest. It naturally imported the gift of an immediate estate, and its operation could not be suspended or deferred, so as to give only an estate *in future, because the law was anxious that it should pj^p, n-i always be matter of notoriety who was the owner of the land, L J that the lord might be certain on whom he was to call for the services due for the estate ; and that, if the rightful claimant were excluded, he might know against whom to bring his action, which could only be against the tenant of the freehold for the time being.(i) In cases not within the stat. 7 & 8 Vict. c. 76, s. 7, or 8 & 9 Vict. c. 106, s. 4, the operation of a feoffment is in some respects stronger than that of any other conveyance. Thus, by reason of the entry and livery of seisin, it clears all disseisins, abatements, intrusions, and other wrongful or defeasible estates, where the entry of the feoffor is lawful — an effect which is not produced even by a fine, recovery, or bargain and sale by deed indented and inrolled. And it not only passes the present estate of the feoffor, but bars him of all present and future right and possibility of right to the thing which is so conveyed ; insomuch, that, if he has divers estates, all of them pass by his feoffment; and if he has any interest, rent, common, condition, power, contingent use or benefit in, to, or out of the land, it is extinguished by the feoffment. And it also destroys all contingent remainders in strangers, if supported only by an estate of freehold or of inheritance in the feoffer.(tt) And, by the old law, a feoffment operated upon the possession, without any regard to the estate or interest of the feoffor; so that even if the feoffor had only a particular estate of freehold, or a chattel interest, or no interest at all, the feoffment would pass an estate in fee simple, though such estate might be defeated by the remainderman or reversioner, whose estate was thereby converted into a mere right, or by the *right- r:|triq-i ful proprietor. (x) And a feoffment by a tenant in tail, who was L -I (p) 4 Cruise T. 32, c. 4, ? 16. (?) 4 Cruise T. 32, o. 4, ^ 17. (r) 4 Jarm. & Byth. by Sweet, 38 ; 1 Pres. Shep. T. 203 ; Co. Litt. 56, b. Is) 4 Cruise T. 32, c. 4, § 4 ; 4 Jarm. & Byth. by Sweet, 59, 62. (t) Burton, ? 22 ; 1 Pres. Shep. T. 212 ; 4 Cruise T. 32, c. 4, § 5, 6 ; 2 Bl. Com. 314. (u) 4 Cruise T. 32, c. 4, ? 28 ; 1 Pres. Shep. T. 204; Co. Litt. 9, a. (x) 4 Cruise T. 32, c. 4, | 29; Co. Litt. 271, b, u. 1, 330, b, and u. 1 ; 1 Pres. Shep. T. 205 ; Burton, § 71-2. 350 SMITH ON REAL AND PERSONAL PROPERTY. actually seised by force of the entail, created a discontinuance of the es- tate tail, by transferring to the feoffee, not only the possession, but also the apparent right of possession, so as to take away the entry of the issue in tail, as also of the persons in remainder, and of the reversioner, and to drive them to their real action.(y) By the Stat 7 & 8 Vict. c. 76, s. 7, it was enacted, "that no convey- ance shall be voidable only when made by feoffment or other assu- rance, where the same would be absolutely void if made by release or grant; and that no assurance shall create any estate by wrong, or have any other effect than the same would have if it were to take effect as a release, surrender, grant, lease, bargain and sale, or covenant to stand seised (as the case may be)." This was repealed by the stat 8 & 9 Vict. c. 106; but by s. 4, of that act, it is enacted, " that a feoffment made after the 1st day of October, 1845, shall not have any tortious opera- tion." By the stat. 7 & 8 Vict. c. 76, s. 2, it was also enacted, "That every person may convey by any deed, without livery of seisin, or in- rolment, or a prior lease, all such freehold land as he might before the passing of this act have conveyed by lease and release ; and every such conveyance shall take effect as if it had been made by lease and release." This was repealed by the stat. 8 & 9 Vict. c. 106 ; but by s. 2, of that act, "after the said 1st day of October, 1845, all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery." [*520] *Section II. Of a Gift. A gift of real estate is properly applied to the creation of an estate tail, as a feoffment is to that of an estate in fee simple. It differs in nothing from a feoffment, except in the nature of the estate that passes by it ; so that livery of seisin must be given to the donee to render it effectual. The operative word is " give ;" but any other word or words that show the intention of the parties will have the same effect.f^) A gift of personal estate is a gratuitous transfer of such property from one person to another.(a) A gift of personal chattels, to be valid and binding, must either be accompanied by a deed or by actual delivery of the possession. (J) And hence a mere verbal gift of a chattel to a person in whose pos- session it is, does not pass any property to the donee. (c) (y) 4 Cruise T. 32, c. 4, § 30. \z) 4 Cruise T. 32, c. 4, g 32 ; 2 BI. Com. 316. (a) 1 Pres. Shep. T. 227 ; 2 Bl. Com. 440. (6) 2 Steph. Com. 44. (c) Shower v. Pilck, 4 Bxch. 478. OP A GEANT. 351 Section III. Of a Grant. A grant at common law, specifically so called, is a conveyance of a an incorporeal hereditament. (d) As livery of seisin was the regular mode of conveying corporeal hereditaments at the common law, so a deed of grant was the, proper mode of transferring incorporeal hereditaments, or creating any estate out of them J and *hence as we have seen corporeal heredita- pj^p,n,_ ments were said to lie in livery, and incorporeal hereditaments to L -i lie in grant, (e) But here it must be observed, that, although livery of seisin was the regular way of conveying corporeal hereditaments, yet an actually existing remainder or reversion in corporeal hereditaments, being itself an incorporeal hereditament, could not be conveyed by livery, nor could any estate or interest be created out of it by livery, but it might be by grant. And, on the other hand, although a grant was the regular way of transferring incorporeal hereditaments, including remainders and reversions, or creating any estate or interest out of them ; yet a freehold remainder could not be created de novo out of corporeal hereditaments in possession, without livery, and by mere grant, because that was in fact a conveyance of a corporeal hereditament to a person, though in remainder, and not the conveyance of a previously subsisting remainder in the estate created out of a remainder, that is, of an incorporeal here- ditament. And when a particular estate for years or of freehold and a freehold remainder are created together de novo out of a corporeal here- ditament in possession, livery is given to the tenant of the particular estate in possession, and it then enures to the remainderman. (/) When an estate is created afterwards, expectant on a lease then in being, the livery must not be made to the lessee for years ; for, if it were, it would operate nothing, nam quod semel meum est, amplius meum esse non potest; but it must be made to the remainderman himself, by consent of the lessee for years. (gr) *The proper words of a grant are "give and grant;" but any r^rooi other words that show the intention of the parties will have the ^ J same effect. (^) A grant only operates on the estate or interest of the grantor, and will pass no more that when he is by law enabled to convey, (i) A per- son cannot grant or charge that which he has not at the time of the grant, though he acquire it afterwards. (A) {d\ 2 Prea. Shep. T. 228. (e) 4 Cruise T. 32, c. 4, § 26, 33 ; Co. Litt. 272, b, n. 1 ; 2 Bl. Com. SIT ; 3 Jarm. & Byth. by Sweet, 259. See supra, p. 5. (/) See 2 Bl. Com. 166, 16Y, 314 ; 3 Jarm. & Byth. by Sweet, 259. \g) 2 Bl. Com. 314. (A) 4 Cruise T. 32, c. 4, § 36 ; 2 Bl. Com. 317. (i) 4 Cruise T. 32, c. 4, g 40. {K) 4 Cruise T. 32, c. 4, J 37. 352 SMITH ON REAL AND PBESONAL PROPERTY. Section IV. Of a Bargain and Sale. A bargain and sale is a contract whereby the bargainor, for money or money's worth given or expressed to be given, bargains and sells pro- perty to the bargainee. Bargains and sales are of two kinds : first, common law bargains and and sales under a common law authority, or under an authority given by an Act of Parliament; secondly, bargains and sales under the Statute of Uses.(Z) A bargain and sale cannot be good except in consideration of money or money's worth, given or expressed to be given ; but the amount or value is not material. (»i) The consideration of long acquaintance, or of frieijdship, or of natural love and affection, or of marriage, or that the bargainee is bound in a recognisance for the bargainor, cannot create a Pj|,p-_-. use upon a bargain and sale.(?i) Nor is the payment *of the L -I grantor's or bargainor's debts out of his lands a sufficient consi- deration to support a deed as a bargain and sale ; for, in fact, there is no consideration except the trouble, (o) But a rent reserved on a bargain and sale, even though it be only of a peppercorn, is a sufficient consi- deration, (p) If there is a valuable consideration given, although it be not expressed, the bargainee may aver it, and, if proved, the bargain and sale is good. On the other hand, if a valuable consideration is expressed, though not paid, yet the deed is good as a bargain and sale. (2) And if it purports to be made " for a certain sum of money," or " for a certain competent sum of money," that will be sufficient.^?-) And a bargain and sale may be made to a person who does not pay any consi- deration, so long as it is made for a valuable consideration given by another person, (s) All private persons having an estate of freehold in possession, vested remainder, or reversion, may convey by bargain and sale, in fee, for life or years. (A But a person having only a chattel interest in lands cannot convey it by bargain and sale, because he has no seisin out of which a use can arise. (m) Not only corporeal hereditaments, but also incorporeal hereditaments in actual existence, may be conveyed by bargain and sale.(x) But things not in esse, such as a right of common or way not before created, or estovers, cannot be so conveyed. (y) A bargain and sale may be [I) 1 Pres. Shep. T. 227 ; 3 Jarm. & Byth. by Sweet, 238-9 ; 9 Jarm. & Byth. by Sweet, 425-6. (m) 4 Cruise T. 32, c. 9, § 19, 20, 22 ; Burton, ? 144 ; 3 Jarm. & Byth. by Sweet, 248. (n) 3 Jarm. & Bytb. by Sweet, 248. (0) See 4 Cruise T. 32, c. 9, | 25, 26. (p) 4 Cruise T. 32, u. 9, § 27. [q) 1 Pres. Shep. T. 223 ; Burton, I 144. (r) 1 Pres. Shep. T. 223 ; 4 Cruise T. 32, c. 9, I 20, 22. (s) 3 Jarm. & Byth. by Sweet, 239. (t) 4 Cruise T. 32, c. 9, ? 4. Hj 15. (m) 4 Cruise T. 32, c. 9, § 18. \x) 4 Cruise T. 32, c. 9, { 16. [y) 4 Cruise T. 32, c. 9, | 17 ; 1 Pres. Shep. T. 222. OF A BARGAIN AND SALE. 353 made of goods and chattels, or of an use for a term of years by a per- son having an estate of freehold ; and this may be by deed poll, as well as by an indenture, and without any *inrolment at all, or any j-^enA-i delivery of any part of the things sold.(z) L J A bargain and sale, if inroUed within the proper time, binds the land in point of title from the execution thereof; so that, if the bargainor attempt to dispose of or charge the estate between the delivery of the deed and the inrolment thereof, such an intervening disposition or charge would be void. (a) And the death of the bargainor or of the bargainee before inrolment, is not material. Where the bargainee dies before inrolment of the deed, if it is afterwards duly inrolled, his heir will be in by descent. (&) And an assurance made by the bargainee before inrolment is valid, if the bargain and sale is afterwards duly inrolled. (c) Bargains and sales of real estate under the Statute of Uses are now little . used as assurances from vendor to vendee, because they do not admit of the limitations usual in purchase deeds, namely, the limitations to prevent dower, including the power of appointment. (tZ) By the statute 25 Geo. 3, c. 35, the lands of debtors to the crown which have been extended, may, by order of the court of Exchequer, be sold and conveyed by bargain and sale inrolled. (e) A bargain and sale under a common law authority does not require inrolment. (/) But to the validity of a bargain and sale under the Statute of Uses, inrolment was rendered necessary by the Statute of Inrolments. By the common law, the transfer of property in land was made a matter of publicity by a formal giving and taking possession ; and the secret nature of uses is mentioned in the preamble to the p^_„p.-. *Statute of Uses as one of the principal inducements to their L -I abolition. Yet, as the effect of the construction put upon that statute was, that such property might be transferred by a secret transaction ; in order to remedy this, the stat. 27 Hen. 8, c. 16, was passed,(5') whereby it was enacted, that no '^ manors, lords, tenements, or other hereditaments shall pass, alter, or change from one to another, whereby any estate of inheritance or freehold shall be made or take effect in any person or persons, or any use thereof to be made, by reason only of any bargain and sale thereof, except the same bargain and sale be made by writing indented, sealed and inrolled in one of the king's courts of record at Westminster, or else within the same county or counties where the same manors, lands, or tenements, so bargained and sold, lie or be, before the custos rotulorum and two justices of the peace, and the clerk of the peace of the same county or counties, or two of them at the least, whereof the clerk of the peace to be one ; and the same inrolment to be had and made within six months next after the date of the same writings (z) 1 Pres. Shep. T. 224. See 4 Cruise T. 32, c. 9, ? 4> '8. (a) 1 Pres. Shep. T. 226-'? ; 2 Pres. Shep. T. 511 ; 4 Cruise T. 32, c. 9, § 34; 3 Jarm. & Byth. by Sweet, 238 ; Burton, § 142. (b) 4 Cruise T. 32, c. 9, § 35. (c) 3 Jarm. & Byth. by Sweet, 238. (d) 9 Jarm. & Byth. by Sweet, 281, 425-6. (e) 2 Cruise T. 14, § 106. (/) 3 Jarm, & Byth. by Sweet, 238 ; 9 Jarm. & Byth. by Sweet, 425-6. (g) Burton, § 139 ; 2 Bl. Com. 338: Co. Litt. 48, a, n. 3. March, 1856.— 23 354 SMITH ON REAL AND PBESONAL PKOPERTT. indented." But by s. 2 it is provided, that this enactment shall not " extend to any manor, lands, tenements, or hereditaments lying or being within any city, borough, or town corporate within this realm, wherein the mayors, recorders, chamberlains, bailiffs or other officer or officers have authority, or have lawfully used to inrol any evidences, deeds, or other writings within their precinct or limits ; anything in this act con- tained to the contrary notwithstanding." In consequence of this exemption, lands and tenements in cities and boroughs having the privilege of inrolment are not within the act; and though the intention of the statute was only to exempt them from inrol- ment in the courts at Westminster, yet it is worded in such a manner that they are discharged from any inrolment whatever.(^) rtP-na-i *The deed must be an indenture, and the inrolment must be L J on parchment.fi) The computation of the time for inrolment is by lunar months, except in the case of a disentailing assurance, and from and exclusive of the day of the date of the deed, or, if it bears no date or an impossible one, from and exclusive of the day of delivery. (/c) The inrolment may be made after the death of either party. (7«) The bargain and sale, as such, cannot, after the end of six months, or even during the six months, be given in evidence or pleaded, unless it has been inroUed within the six months. (?) By the statute 5 Eliz. c. 25, bargains and sales of lands lying in the counties palatine of Lancaster, and Chester, and the bishopric of Durham, are required to be inrolled in the respective courts of those counties. And by the statute 5 Ann. c. 18, 6 Ann. c. 85, and 8 Geo. 2, c. 6, bar- gains and sales of lands lying within the west, east, and north ridings of the county of York, may be inrolled before the registers of those ridings, (m) By the statute 7 & 8 Vict. c. 76, s. 2, it was enacted, "that every per- son may convey by any deed, without livery of seisin, or inrolment, or a prior lease, all such freehold land as he might before the passing of the act have conveyed by lease and release." But this enactment was re- pealed by the stat. 8 & 9 Vict. c. 106, s. 1, as from the 1st day of Oc- tober, 1845. [*527] ^Section V. 0/ Leases and Underleases.{n\ A lease is properly a conveyance of any lands or tenements, usually in consideration of rent or other annual recompense, made for life, for years, or at will, but always for a less time than the lessor has in the (h) 4 Cruise T. 32, c. 9, § 32. (i) 1 Pres. Shep. T. 221, 223. \k) 3 Jam. & Byth. by Sweet, 238 | Burton, ? Ul ! 1 P^s. Shep. T. 223. (I) 1 Pres. Shep. T. 222. (m) 4 Cruise T. 32, c. 9, § 30. (n) As to leases by the Crown, ecclesiastical persons, colleges, and corporations, see 2 Bl. Com. 318-322 ; Stamp's Index to the Statute Law ; and the treatises on the subject of leases. OF LEASES AND UNDERLEASES. 355 premises. For, if it is for the whole interest, it is more properly an assignment than a lease. (o) While, on the other hand, if any portion of his estate at the end thereof is reserved by a tenant for years, the instru- ment will operate as an underlease. (p) With reference to cases where it may appear difficult to determine whether a deed is a lease or only an agreement for one, if there are words and an apparent intent of present demise, and yet allusion is made to a lease to be executed at some future time, such instrument is construed to be an actual lease, with an agreement for further assurance. But where there appears no intent, though there are words, of present demise, and the instrument seems only preparatory, or relative to one to be after- wards made, it is only considered as an agreement for a lease, (g) The leaning of the courts appears to be to construe an agreement as to letting as a present demise, and not a mere agreement for a future lease. (r) And hence the words " agree to let" constitute a present de- mise, commencing at the date of the agreement, although no time is named for the commencement of the tenancy, and although " a lease is to be drawn upon the usual terms," and the tenant " agrees" to take it upon the said terms. (s) *Where, therefore, it is not intended that an agreement should p^rno-, have the effect of a present demise, care must be taken to restrict <- J its operation to that of a mere agreement for a future lease. All natural persons who are capable of alienating their property or of entering into contracts respecting it, may make leases, which will endure as long as their interest in the thing leased. (i) A tenant for life (except under a power,) cannot make a lease to con- tinue longer than the period for which his own estate is limited ; but, on the expiration of that period, a lease granted by him becomes abso- lutely void against the remainderman or reversioner, so as to be incapa- ble of confirmation. And if A., lessee for the life of B., makes a lease for years by an indenture, and afterwards purchases the reversion in fee, and B. dies, A shall avoid his own lease, (m) When the person in remainder or reversion joins with the tenant for life in making a lease, it is considered, during the life of the tenant for life, as his lease, and as the confirmation of the remainderman or rever- sioner. After the death of the tenant for life, it is considered as the lease of the remainderman or reversioner, and as the confirmation of the tenant for life. (a;) By the common law, tenants in tail could make no leases which could bind the issue in tail or the remainderman or reversioner. Nor could a husband seised jure uxoris make a valid lease for any longer term than the joint lives of himself and his wife, even though she joined in the lease. But, by the stat. 32 Hen. 8, c. 28, a tenant in tail may make (o) 2 Bl. Com. 31T ; 2 Pres. Shep. T. 266. (p) 2 Pres. Shep. T. 266. (?) See 4 Cruise T. 34, c. 5, g 2-11 ; Burton, § 845. (r) 2 Pres. Shep. T. 271. (s) Doe d. Philip t. Benjamin, 9 Ad. & E. 644. (t) 4 Cruise T 32, c. 5, g 25. i (m) 4 Cruise T. 32, c. 5, § 55, 56, n, 57, 73 ; 2 Pres. Shep. T. 268, 284. (x) 4 Cruise T. 32, c. 5, | 56. 356 SMITH ON REAL AND PERSONAL PROPERTY. leases to bind his issue in tail, but not those in remainder or reversion. r*'i9Qn ^^^ ^ husband seised in right of *his wife in fee simple or fee L J tail, provided the wife joins in such lease, may bind her and her heirs thereby. But, 1. The lease must be by indenture ; and not by deed poll, or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time. 3. If there be any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty-one years or three lives, and not for both. 5. It must not exceed the term of three lives, or twenty-one years, but may be for a shorter term. 6. It must be of cor- poreal hereditaments, for no rent can be reserved out of incorporeal here- ditaments by the common law, as the lessor cannot resort to them to dis- train. 7. It must be of lands and tenements most commonly let for twenty years past ; so that if they had been let for above half the time (or eleven years out of the twenty,) for life, for years, or at will, it is sufficient. 8. The most usual and customary rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste.(y) The statute 32 Hen. 8, c. 28, does not extend to copyhold estates. (z) All leases by tenants in tail, not warranted by the statute 32 Hen. 8, are good against the tenant in tail himself, but are voidable by the issue in tail, unless barred. But if the issue in tail accepts of rent or fealty after the death of his ancestor, or brings an action for the rent, these acts will operate as a confirmation of the lease. (a) And each issue in succes- sion may, while the lease continues, affirm the lease for his time. But r*^^m ^ Is^'Se avoided by the *issue in any line of the succession, is L ' -I avoided for ever. (6) Leases made by tenants in tail are abso- lutely void as against the persons in remainder and reversion, and ipso facto determine on the death of the tenant in tail and failure of the issue in tail, according to the maxim, cessante statu primitive, cessat et deri- vativus : so that no acceptance for rent by them will operate as a con- firmation. (c) Leases by tenant in tail might, however, become indefeasi- ble, as against the issue, by means of a fine with proclamations or a re- covery duly suffered, and might become absolute and binding on the en- tire fee simple when the estate tail is by a common recovery enlarged into a fee simple. (c?) Leases made by husband and wife of the wife's land, though not con- formable to the statute 32 Hen. 8, are only voidable, and not void ; and ' therefore acceptance of rent by the wife after her husband's death, will operate as a confirmation. (e) An agreement for a lease by a husband and wife seised in right of the wife, would not be binding on the wife or (y) 2 Bl. Com. 319, 320 ; Co. Litt. 44, a, b ; Pres. Sliep. T. 278-9. (z) 1 Jarm. & Byth. by Sweet, 433, n. (a). (o) 4 Cruise T. 32, c. 5, § 70; 2 Pres. Shep. T. 268, 275, 284, 289 ; Burton, J 714. (b) 2 Pres. Shep. T. 289. (c) i Cruise T. 32, c. 5, ^ 71 ; 2 Pres. Shep. T. 268. (d) 2 Pres. Shep. T. 284. (e) 4 Cruise T. 32, u. 5, g 72. 01" LEASES AND UNDEELEASBS. 357 her heirs, or her issue in tail, because the statute 32 Hen. 8, c. 28, only authorises "leases."(/) If tenant in fee simple takes a wife, and then makes a lease for years, and dies, and the wife is endowed, the lease is void as against her, but will be good as against the heirs, &c., of the husband. (gi) Joint tenants, tenants in common, and parceners may make leases for life or years of their own shares, and these leases will bind their com- panions ; and one co-parcener or tenant in common may make a lease of his or her part to *to the other. (M If joint tenants join in a rsfKo-i-i lease, this shall be but one lease ; for they have but one freehold. L -I But if tenants in common join in a lease, it shall be several leases of their several interests, (i) The words "grant," "demise," and " to farm let," are the most proper operative words in a lease for years ; but any words which show the in- tent of the parties that the one shall divest himself of the possession, and the other come into it for a determinate time, are in general sufficient for the purpose. (/<;) There are some kinds of incorporeal hereditaments which may be leased. Thus an advowson appendant may be leased with the manor to which it is annexed, or separate from it ; and an advowson in gross may also be leased. ^A And tithes, whether in the hands of ecclesiastics or lay impropriators, may be leased. (m) A lease for years may be made to begin either at a precise day or time, or on some particular event, whether certain or uncertain; but it must be made so as to expire at the furthest at a time certain, so that its utmost duration may be capable of being computed, although it may be made previously determinable, by means either of a condition or of a lim- itation, on some contingent event. («,) Hence, if a lease is made for twenty-one years, if J. S. shall live so long, or if the coverture between J. S. and D. S. shall so long continue, or if J. S. shall continue to be parson of Dale so long ; these are good leases for years : for they cannot endure beyond the number of years specified, although they may deter- mine before the effluction of those years, in the events *fixed for p^p.„_, the collateral determination of the term. But if a lease is made L J for so many years as A. and B. or either of them shall live, not naming any certain number of years ; or if the parson of Dale makes a lease of his glebe for so long as he shall be parson ; this is not a good lease for years. But if the instrument may operate by reason of livery of seisin, or may take effect as a grant of a remainder or reversion, it may pass an estate of freehold, and by so many years will be understood so much time.(o) If a lease is made to one for years, or for years determinable upon lives, and afterwards a lease is made to another of the same thing from the end of the former lease, the commencement is sufficiently cer- (/) 1 Jarm. & Byth. by Sweet, 427. {g) 2 Pres. Shep. T. 275. (h) 2 Pres. Shep. T. 268. {i) 2 Pres. Shep. T. 268, n. (8). (k) Burton, § 838 ; 2 Bl. Com. 317 ; 4 Cruise T. 32, c. 5, § 2 ; Co. Litt. 45, b. {I) 4 Cruise T. 32, c. 5, § 22. (m) 4 Cruise T. 32, c. 5, | 23. [n) See 4 Cruise T. 32, c. 5, | 12-18, 21 ; 2 Pres. Shep. T. 272, 275; Co. Litt. 45, b. (o) 2 Pres. Shep. T. 275 ; Co. Litt. 45, b. 358 SMITH ON REAL AND PERSONAL PROPERTY. taia. And if there be not any such lease, or the lease to which reference is made is void, the second lease will take effect immediately.(p) The duration of a term may be left to be fixed by a third person. Thus, a lease for so many years as J. S. shall name, is valid ; for though uncertain at first, yet when J. S. has named the years, it is then reduced to a certainty.(g) Again, a lease may be made for two or more definite periods, as for seven, fourteen, or twenty-one years, at either of which periods the lessee may determine the lease. (r) So, a lease may be made " for one year, and so on from year to year," or " not only for one year, but from year to year," and this creates a tenancy for at least two years. (s) So, a lease may be made for one year, and so for two or three years, or any further term of years, as the lessor and lessee shall think fit and agree after the expiration of one year, and this will be a good lease for two years; and after every subsequent year is begun, the lease is not determinable P^f-oq-i *till that year be ended.(<) So a lease may be made from day to L J day, or from week to week, for four years; and this will be a good lease for four years, (m) The estate from year to year consists in the first instance, of a certain term for one year only, but, if, at the end of the first half-year, either ^party fails to give half a year's notice to quit, expiring on the quarter day on which the first year will end, another year is added to the term ; and in like manner a fresh year will be added to the term as often as default be made, in giving a similar half-year's notice to quit, expiring on the quarter day on which each entire year will end.(«) A tenancy from year to year (unless there is an express agreement between the parties to another effect) is always implied, where a tenement is occupied under a rent payable yearly, half-yearly, or quarterly, (a;) If a man is possessed of a term of years, although it be one hundred years or upwards, and grants to another all the residue of this term of years that shall be to come at the time of his death, this grant is void ; because terms for years being anciently very short, the common law will not presume that any part of the term will exist at the death of the grantor, (y) A lease for life of anything whatsoever, whether it lie in livery or grant, if it is in esse before, cannot begin at a day to come, unless it lies in livery, and livery is not made till that day;(z) or unless it is by way of remainder, or by way of grant of the reversion, or of a part of the reversion immediately expectant upon some other estate of freehold, or unless it is a lease under the Statute of Uses, and not at the common law. i-^^„ . In a demise it is usual, but not necessary, to add *" executors L J and administrators," as analogous to " heirs" in the case of a fee simple. (a) (p) 2 Pres. Shep. T. 252, 273. (?) 4 Cruise T. 32, c. 5, § 18 ; Co. Litt. 45, b. (r) 4 Cruise T. 32, c. 5, | 19, 20. («) Burton, ? 84T, n. (t) 2 Pres. Shep. T. 270, n. (13). («) 2 Pres. Shep. T. 270. (w) See Burton, § 865. (x) Burton, § 864. (y) 2 Pres. Shep. T. 251. (z) 2 Pres. Shep. T. 272. (a) Burton, J 849. OF LEASES AND UNDERLEASES. 359 In the case of leases for lives, the timber is included, unless ex- cepted, so that the lessor must not fell them, because the lessee has by his lease a particular interest in the trees, such as the mast and fruit of them, and shade and shelter for his cattle, and may lop them, if they be not thereby injured. (&) Where the trees are excepted in the lease, as they usually are, the lessee has no interest whatever in them. The lessor also has power, as incident to the exception, to enter upon the land, in order to fell and take away the trees ; though this power, for greater caution, is often expressly reserved. (c) A lessee is not estopped by the description of the lands contained in his lease ; for this is not the essence of the deed. And he may there- fore show that what is there called meadow has been sometimes ploughed. (cZj Whether any rent(e) is reserved upon a lease for life, years, or at will, or not, is not material, except only in the case of leases made by tenant in tail, so as to bind the issue under the statute of 32 Hen. 8, c. 28 ; or by husband and wife, so as to bind the wife and her heirs ; or by ecclesiastical persons ; or by persons leasing under powers requiring a reservation of rent.(/) If a lease is made reserving rent, payable quarterly, this shall be intended quarterly from the date of the lease, and not at the usual feasts. (§') Any person inay disagree to a term for years. (A) In leases for years at the common law, an actual entry is necessary to vest the estate in the lessee; for the bare lease *does not give ncnn-, him an estate, but only a right to enter, which is called his L J interest in the term, or interessi termini, (i) And as the lessee has no estate till entry, so until entry the lessor's estate is not converted into a reversion. (/?;) But where a term for years is created by way of use, the interest is made an estate by the statute without the pre-requisite of an actual entry. (A An interessi termini may be assigned, or an underlease may be made, by the person entitled to it.fjre) Where a lessee covenanted not to alien or transfer his lease, and after- wards acknowledged a judgment, on which the lease was taken in execu- tion and sold, it was held that this sale was not a forfeiture of the lease. (ra) But where a warrant of attorney to confess a judgment is given by collusion for the purpose of enabling a creditor to take a lease in execution, it will be deemed a breach of a covenant not to alien, (o) If an agreement for a lease contain no stipulation as to covenants, the party agreeing to take the lease has a right to a lease containing only (b) 1 Cruise T. 3, c. 2, § 3. (c) 1 Cruise T. 3, c. 2, ^ 4. [d) i Cruise T. 32, i;. 19, § 61. (e) See supra, pp. 10, et seq. ; 497-9. (/) 2 Pres. Shep. T. 268. (g) 3 Cruise T. 28, o. 1, ? 50. (h) 4 Cruise T. 32, c. 26, | 9. (i) 2 Bl. Com. 314; Burton, § 61. (A) Burton, ^ 61. h) Burton, J 131. (m) 2 Pres. Shep. T. 244, 269; Burton, J 61. (n) 2 Cruise T. 13, c. 1, | 46. (o) 2 Cruise T. 13, c. 1, ? 48. 360 SMITH ON EEAL AND PERSONAL PROPERTY. usual covenants. A restriction against particular trades is not a usual covenant. (^) The assignee of a lease cannot, by assigning over, get rid of his liabi lities for breaches of covenant committed during the period of his own occupation. And hence, if the assignee of a lease devises the leasehold, although the devisee may take it subject to the liability to do repairs which were wanted at the death of such assignee, yet the executors of the assignee are still liable, as between themselves and the lessor ; and r-,cqf>-i they are entitled to have an *indemnity in respect of such liabi- L -I lity before the devisee is let into possession. (g') But, as we have seen, the obligation of the lessee's covenants, though it will pass to an assignee of the whole term, is not communicated to an underlessee.(r) By the statute 4 Geo. 2, c. 28, s. 6, reciting that leases for lives or years could not be renewed without a surrender of all the underleases derived out of the same, it is enacted that all future renewals of leases for lives or years shall be valid without the surrender of any derivative leases, (s) By the stat. 1 Will. 4, e. 65, s. 18, if persons bound to renew are out of the jurisdiction of the court, renewals are directed to be made by a person appointed by the Court of Chancery in the name of the person who ought to have renewed. When a renewable leasehold estate is devised to trustees in trust for one person for life, remainder in trust for another for life, remainder in trust for a third person, with a direction to renew, and pay the fine out of the rents and profits, it seems to be the duty of the trustees in such a case to provide an accumulating fund out of the rents and profits during the enjoyment of the first tenant for life, to answer the renewals to be made in his time, and to pursue the same conduct during the life of the second tenant for life. (A Where a testator gives his leaseholds to trustees for legatees in suc- cession, and upon trust that, " if the trustees shall think it proper or advantageous, as to those which are customarily or may be renewed, they shall, or lawfully may endeavor to effect renewals upon such terms as they shall think proper ;" this does not make it compulsory on the r*f;Q7i trustees to renew, if they can by possibility obtain a renewal *for L J then they would be compelled to pay any sum, however un- reasonable, which might be demanded by the lessor. Yet, on the other hand, it does not give them a discretion to refrain from exercising the power of renewal at their arbitrary will and pleasure. But it imposes on them the duty of endeavoring to effect a renewal, if they can do so on reasonable terms. (m) If a person having a limited interest in lease- hold property renews the term on his own account, he will be held to be a trustee for all the persons interested in the old lease, (x) The (p) Propert v. Parker, 1 My. & K. 280. (q) Hickliag T. Boyer, 3 Mac. & G. 635. This was inadvertently omitted, supra, p. 505. (r) Burton, § 855, n. (s) 4 Cruise T. 32, c. 5, § 59. (t) 1 Rop. Leg. by Wliite, 319. («) Mortimer v. Watts, 14 BeaT. 616. (x) 1 Spence's Eq. Jur. 512; 2 Id. 299, 302, 303; 1 Eop. Leg. by White, 317, 318. OP LEASES AND UNDERLEASES. 361 right of renewal may be forfeited by the laches of the tenant in not ap- plying for a renewal within the time mentioned in the lease. (y) Covenants for renewal are frequently inserted in leases, and are of two kinds : corenants for granting another lease of the thing demised ; and covenants for renewal, not only on the expiration or surrender of the original lease, but also on the expiration or surrender of all future leases made under such a covenant, which is usually called a covenant for perpetual renewal. (z) A covenant for renewing a lease under the same covenants means only a second lease under the same covenants as the former, with the exception of the covenant for renewal. (a) And where a person grants a lease, with a covenant for perpetual renewal, and an agreement that the new lease and leases should contain the same rents, covenants, &c., as were contained in the lease so granted by him, and his trustees grant a new lease, they are not required to introduce a covenant by themselves for renewal, but the proper form is for thom to recite the original covenant for perpetual renewal, and to declare the new lease to be granted in pursuance of it.(i) *If a lessee for life or years takes a new lease of the same r:(;rqoT land, and one term is incompatible with the other, as embracing L J part of the same period, this is a surrender in law of the first lease. And this rule applies although the second lease be for years, where the first was for life ; or although the second lease be for a less number of years than the first; and although the second lease be voidable as being made upon condition; and although the second lease be to the lessee and a stranger, or to the lessee and his wife ; and although the second lease be by word only, and the first lease be by deed, so far as such second lease by word may be valid ; and although the second lease be in another right (as if the husband have a lease for years in right of his wife, and then take a new lease to himself in his own name) ; and although the first lease was to begin presently and the second lease be to begin at a day to come, or e converso.(c) But if the second lease is not to begin until the first lease end, the taking of the second lease is no sur- render of the first lease. (c?) And in the case of a surrender implied by law from the acceptance of a new lease, a condition ought also to be un- derstood as implied by law, making void the surrender in case the new lease should be made void.(e) And in the case of an express surrender, so worded as to show the intention of the parties to make the surrender only in consideration of the grant, such surrender is also conditional to be void in case the grant should be made void.(/) A lease of charity property for ninety-nine years, at a fixed p^cqqn *rent, not being a building lease, and containing no contract to L J repair or lay out money thereon, is invalid. (A) And a building lease of {y) 4 Cruise T. 32, c. 25, § HI. (z) 4 Cruise T. 32, o. 25, I 98. (a) 4 ^ruise T. 32, c. 25, | 103. (b) The Copper MiniDg Company v. Beach, 13 BeaT. 478 ; decided by Sir J. Leach. (c) 2 Pres. Shep. T. 301. {d) 2 Pres. Shep. T. 302. (e) Doe d. Earl of Egremont T. Courtenay, 11 Ad. & EII. (N. S.) 712. (/) Doe d. Earl of Egremont v. Courtenay, 11 Ad. & EU. (N. S.) 112. (h) Attorney-General v. Foord, 6 Beav. 290 ; Attorney-General t. Hotham, 3 Russ..415. 362 SMITH ON REAL AND PERSONAL PROPERTY. charity property for more than ninety-nine years cannot stand, unless there is some special ground on which it can be protected. (i) It is the duty of a person contracting for an underlease to inform him- self of the covenants contained in the original lease; and if he takes possession of the property, he will be bound to take an underlease sub- ject to those covenants. (/i;) A right of entry in a lease cannot be reserved to a stranger; and therefore if it appears upon the face of the lease that the legal estate is in the mortgagee or a trustee for him, and the right of entry is reserved to the mortgagor, it will be void.(?) By the general custom of all manors, every copyholder may make a lease for any term of years, if he can obtain a license from the lord ; and even without such license, he may demise his tenement for one year ; and the interest thus created is not of a customary nature, but a legal estate for years. (to) The lord of a manor cannot authorize an equitable tenant of a copyhold to demise ; because there is no privity of estate between them.(?i) The lord can only grant a license to lease during the continuation of his own estate in the manor. Therefore a lease for years made by license of a lord who is only tenant for life, will cease at his death. (o) In the case of a lease by license of the lord, the lessee may assign it, or make an underlease for years without any new r*t^d.C\l li'^s'^ss; for the lord's interest is discharged *for so many years. L J And if the copyholder should die without heirs, still the lease shall stand against the lord, by reason of his license, which amounts to a confirmation. (ju) A lease made contrary to the custom of a manor is good against all but the lord; and even as against him it is not void, but only a ground of forfeiture, which he may waive. (j) By the stat. 7 & 8 Vict. c. 76, s. 4, it is enacted, " that no lease in writing of any freehold, copyhold, or leasehold land, shall be valid as a lease unless the same shall be made by deed; but any agreement in writing to let any such land shall be valid and take effect as an agree- ment to execute a lease ; and the person who shall be in the possession of the land in pursuance of any agreement to let may, from payment of rent or other circumstances, be construed to be a tenant from year to year." This was repealed as from the 1st of October, 1845, by the stat. 8 & 9 Vict. c. 106. But by s. 3 of that act, it is enacted, that " a lease required by law to be in writing of any tenements or hereditaments, made after the 1st of October, 1845, shall be void at law, unless made by deed." By the stat. 7 & 8 Vict. c. 76, s. 12, it is enacted, " that where the reversion of any land, expectant on a lease, shall be merged in any re- mainder or other reversion or estate, the person entitled to the estate into which such reversion shall have merged, his heirs, executors, ad- («■) Lord Langdale in Attorney-General r. Foord, 6 Beav. 290. (k) Cesser v. CoUinge, 3 My. & K. 283. [l) Coote, Mortg. 3rd edit. 338. (m) Burton, § 1313; 1 Cruise T. 10, c. 3, J 18. (re) 1 Jarm. & Byth. by Sweet, 433, n. (a). (o) 1 Cruise T. 10, o. 3, ^ 20. (p) 1 Cruise T. 10, c. 3, J 19. {q) Doe d. Robinson t. Bousfield, 6 Ad. & E. (N. S.) 492. OE AN EXCHANGE. 363 ministrators, successors, and assigns, shall have and enjoy the like advantage, remedy, and benefit against the lessee, his heirs, successors, executors, administrators, and assigns, for nonpayment of the rent, or for doing of waste or other forfeiture, or for not performing conditions, covenants, or agreements *contained and expressed in his lease, r=(tE4i-i demise, or grant, against the lessee, farmer, or grantee, his heirs, L J successors, executors, administrators, and assigns, as the person who would for the time being have been entitled to the mesne reversion which shall have merged would or might have had and enjoyed if such reversion had not been merged." This was repealed as from the 1st of October, 1845, by the stat. 8 & 9 Vict. c. 106. But by s. 9 of that act, il is enacted, " that when the reversion expectant on a lease, made either before or after the passing of this act, of any tenements or herditaments, of any tenure, shall, after the said first day of October, 1845, be surrendered or merge, the estate which shall for the time being confer as against the tenant under the same lease the next vested right to the same tenements or hereditaments, shall, to the extent and fijr the purpose of preserving such incidents to, and obligations on, the same reversion, as, but for the surrender or merger thereof, would have subsisted, be deemed the rever- sion expectant on the same lease." Section VI. Of an Exchange.fr) An exchange is a transaction between two persons, or between two classes of persons by each of which property is held in community, that each person or class shall divest himself, herself, or themselves of his, her, or their own property in favour of the other, and in lieu thereof shall take the property of the other. To the validity of exchanges at common law, five things *are (-» c joi requisite : 1. That the two subjects be of the same general nature. L J Thus, real estate cannot be exchanged for personal estate : but real estate of one kind may be exchanged for real estate of another kind ; so that corporeal hereditaments may be exchanged for incorporeal heredita- ments. (s) 2. That the parties take estates of the same general denomi- nation as regards the quantity of interest. Thus, an estate in fee simple cannot be exchanged for an estate tail, or either of them for an estate for life. But an estate in fee simple may be exchanged for a base fee. And if a tenant in tail grants lands in fee, so as to give a base fee in exchange with a tenant in fee, this is a good exchange until avoided by the issue. And an estate tail after possibility of issue extinct may be exchanged for an ordinary estate for life, as both are of the same dura- (r) Powers of Exchange are conferred by various statutes, as to which see Stamp's Index to the Statute Law, tit. " Exchange ;" Burton, § 240. (s) 4 Jarm. & Byth. by Sweet, 1 Co. Litt. 50, b ; 4 Cruise T. 32, c. 6, § 4 ; 2 Pres. Shep. T. 293-4. 364 SMITH ON REAL AND PERSONAL PROPBETY. tion.(<) 3. The word "exchange" must be used.(tt) 4. Entry (but not livery of seisin) is also requisite to give effect to an exchange ; and there- fore if either party die before entry, his heir may avoid the exchange. («) 5. An exchange, since the Statute of Frauds, 29 Car. 2, c. 3, must be in writing, and, even before the statute 7 & 8 Vict. c. 76, if the here- ditaments whereof the exchange was made consisted of reversions, rents, or other incorporeal hereditaments, or if they lay in several counties, it must have been by deed.^x) And by the stat. 7 & 8 Viet. c. 76, s. 3, it was enacted, that " no exchange of any freehold or leasehold land shall be valid at law, unless the same shall be made by deed." And r%F.Ao-i although this enactment was repealed by the stat. 8 & 9 *Viot. L J c. 106, yet by s. 3 of that statute, it is enacted, " that an exchange of any tenements or hereditaments, not being copyhold, made after the 1st day of October, 1845, shall be void at law, unless made by deed." It is not necessary that both estates be in possession; for an estate in possession may be exchanged for an estate in reversion. Neither is it necessary that there be |in equality in the value or quantity of the lands. For if the land of one party be worth 1001., and the land of the other but 101., or if the land of one of the parties be 100 acres and the land of the other but ten acres, the exchange is good. Neither is equality in the quality or manner of the estate requisite. For an estate in joint tenancy may be exchanged for an estate in severalty or in com- mon. And if A., tenant for life, and B., the owner of the remainder or reversion in fee, exchange with tenant in fee, and grant to him in fee, while he grants to them, to hold to A., the tenant for life, with remainder to B. in fee, the exchange is good. And if the land of one of the par- ties is of a defeasible title, and the land of the other of an indefeasible title, this exchange is good till it be avoided, (y) Nor is it necessary that the things exchanged should be in esse at the time of exchange. For a man may grant a rent de novo out of his land in exchange for a manor. But a mere hope or chance of succession cannot be exchanged for an estate. (z) An exchange in the strict legal sense of the word cannot be between three; the principles of it not being appliaable to more than two distinct contracting parties, for want of the mutuality and reciprocity on which its operation so entirely depends. (a) P_j_ , .-, By the old law, in every deed of exchange in which the L J *word " exchange" was used, there was an implied warranty arising from that word. (6) So that if an exchange was made, and before or after the parties entered, all or part of the land given to either party was recovered from him either absolutely or for a particular estate (() 4 Jarm. & Byth. by Sweet, 1, 2 ; 2 Pres. Shep. T. 295 ; 4 Cruise T. 32, c. 6, § 3, 4 ; 1 Cruise T. 4, | 9 ; Burton, § 63 ; 2 Bl. Com. 126, 323. (u) Co. Litt. 51, b ; 4 Jarm. & Byth. by Sweet, 2 ; Burton, ? 63. (v) Co. Litt. 50, b, 51, b ; 2 Pres. Shep. T. 297 ; 4 Jarm. & Byth. by Sweet, 2 ; 4 Cruise, T. 32, c. 6, § 6; Burton, § 63 ; 2 BI. Com. 323. (x) 4 Jarm. & Byth. by Sweet, 1, 2 ; Co. Litt. 50, a, 51, b. (y) 2 Pres. Shep. T. 296 ; 4 Cruise T. 32, c. 6, § 3, 4 ; Co. Litt. 51, a. (z) 2 Pres. Shep. T. 293. (a) Co. Litt. 50, b, n. 1, 51, a,, n. 1. (b) 4 Cruise T. 32, o. 6, ? 8. OF AN EXCHANGE. 365 only, Tipon an elder title, that party might enter again upon his own land which he gave in exchange, and either avoid the whole exchange, or recover an equivalent portion thereof.(c) But the benefit of this implied warranty under the old law was confined to the parties them- selves and their heirs, and did not extend to alienees, except for their defence as against the heir of the person against whom the warranty was implied. If therefore either party aliens, either by deed or will, the remedy is gone from that party, but only as to him ; for the other party who has not aliened or his heirs may still, in case of eviction from his lands, enter upon the alienee, notwithstanding the want of a reciprocal remedy. (cZ) A mere defect of title, however, without an eviction, will not defeat an exchange. (e) The modern practice has been to effect an exchange of real estate by lease and release, statutory release, or statutory grant, containing mutual conveyances to the parties ; in which case the estates are vested in the parties by the operation of a statute, without any entry ; and yet if the word " exchange" was used, the incidents annexed to an exchange at common law were preserved. (/) By the statute 7 & 8 Vict. e. 76, s. 6, it was enacted, that the word exchange should not have the effect of creating any warranty or right of re-entry, nor any covenant by implication. And although this was repealed by the statute 8 & 9 Vict. c. 106, as from the 1st of October, 1845, yet by s. 4 *of that statute it is enacted, that an exchange j-j^cipr-, of any tenements or hereditaments, made by deed executed after L J the 1st of October, 1845, shall not imply any condition in law. Where an exchange is made under a power of sale and exchange, although the power is silent as to paying money for owelty of exchange, yet the donees of the power may make such payment; nor will the death of one of the parties to such an exchange before the transaction is com- pleted, invalidate a legal execution of the power. (^) When an exchange is made by a tenant in. tail, the issue in tail, after the death of his ancestor, may avoid it. And the persons in reversion or remainder may treat the exchange as void, and avail themselves of their title. (A) But if the issue occupies the lands taken in exchange by his ancestor, the exchange is thereby made good for the lifetime or owner- ship of the issue in tail. And each successive generation of issue may affirm the exchange for his, her, or their time.(t) (c) 2 Pres. Shep. T. 290, 298 ; 4 Jarm. & Byth. by Sweet, 3. (d) 2 Pres. Shep. T. 291 , 4 Jarm. & Byth. by Sweet, 3. (e) 2 Prcs. Shep. T. 298. (/) 4 Cruise T. 32, c. 6, § T ; 4 Jarm. & Byth. by Sweet, 6. (g) 2 Sugd. Pow. 482. (A) 2 Pres. Shep. T. 299. («■) 2 Pres. Shep. T. 299. 366 SMITH ON REAL AND PEESONAL PROPERTY. Sbction VII. Of a Partition. {!{.') A partition is a deed by which two or more joint tenants, coparceners, tenants in common, or heirs in gavelkind, divide the property, so as to give to each a distinct part, to be held in severalty. Where all the joint owners of an estate are desirous to make a parti- lion, and are personally competent to bind their interests, they have only to agree on the allotments to be made to the respective parties, and to execute the requisite conveyance or conveyances. (A r*^4fin *^^ ^'^y °^ '^^ joint owners, whether joint tenants, tenants in L J common, coparceners, or heirs in gavelkind, are unwilling to concur with the rest in making partition, or, by reason of minority or mental imbecility, are incapable of concurring, or for any other cause, cannot come to an amicable arragement for dividing the estate, any one or more of them may, by proceedings in Chancery, procure a partition to be made.(m) And this power of the court is expressly extended to lands of copyhold or customary tenure by the statute 4 & 5 Vict. c. 35, s. 85. The mode in which relief is administered in equity is, by first ascertaining the rights of the several parties interested, and then issuing a commission to make the partition ; and, on the return of the commis- sion and confirmation of the return by the court, the partition is finally completed by mutual conveyances of the lots made to the several parties. («) And the same conveyances are necessary as if the parties had agreed to a private partition. (o) If the conveyances cannot be executed on account of infancy, or on account of an executory interest, the decree can only put the parties in possession, and secure them in the enjoyment of the parts allotted to them until effectual conveyances can be made.(p) The court will decree a partition even in a suit by or against persons who are only tenants for life or years; and the decree will be binding on all whom they virtually represent, but not on other persons. Thus, a de- cree in a suit by or against a tenant for life will be binding on the re- mainderman who is not in esse at the time, on the ground of virtual representation, if the court is of opinion that it will be for the benefit of such remainderman that the agreement should be carried into effect, v*f^i.T\ cither as it stands, or with such variations *as the court may think L J proper. (§) But a tenant for years or for life cannot insist, as against the owners of the other shares, upon a partition to endure be- yond his own estate. M A partition of estates of freehold or inheritance is effected either by all (k) Powers of partition are conferred by rarious statutes. See Stamp's Indez to the Statute Law. (I) 6 Jarm. & Byth. by Sweet, 586. (m) 6 Jarm. & Byth. by Sweet, 587, 600, 603. {n) Story's Eq. Jur. | 652 ; 6 Jarm. & Byth. by Sweet, 600. (o) 6 Jarm. & Byth. by Sweet, 609. (p) Story's Eq. Jur. ? 652 ; 6 Jarm. & Byth. by Sweet, 609. (q) Story's Eq. Jur. J 656, 656, a. (V) 6 Jarm. & Byth. by Sweet, 603. OF A PARTITION. 367 the joint tenants, tenants in common, coparceners, or heirs in gavelkind conveying the particular allotments by separate deeds to releasees or grantees to the use of the particular persons to whom they are respec- tively allotted ;(s) or by all of them conveying the entirety by one con- veyance to a releasee or grantee to uses, and then limiting, by the same deed, the particular allotments to the use of the particular persons to whom they are respectively allotted. (/) A partition of leasehold property is effected either by an assignment of the entirety by all the part owners to a third person, upon trust to assign to them respectively the parts to be taken by them in severalty, or by an assignment by each joint owner to the others of his undivided share in the parts to be so taken by them in severalty. (m) Every distinct part of the property need not be divided; nor need the property be equally divided. One part or subject of ownership (as a house) may be allotted to one, and another part or subject of ownership may be allotted to another ; and any inequality in value may be com- pensated by a sum of money or rent for owelty or equality of partition. (a;) Coparceners were compellable to make partition by the common law. And hence, if an equal partition is made by an infant, or by a tenant in tail, or by husband and wife seised in right of the wife, even by an ordi- nary assurance, *it is binding on the infant, the issue in tail, and r»f-^Q-i the wife and her heirs ; though, if unequal, it is voidable. But L J still, in order to prevent the question of the equality of the partition from arising, it is better, in the case of a partition by a tenant in tail or by husband and wife, to have recourse to the statutory mode of barring the issue in tail and the wife.Ty) Joint tenants and tenants in common were not compellable to make partition by the common law. And, hence, if even an equal partition is made by an infant, or tenant in tail, or hus- band and wife seised in her right, holding in joint tenancy, the deed of partition is governed by the same rules as conveyances or other acts done by them. So that, in order to bind the issue in tail and the wife and her heirs, an enrolled or acknowledged assurance under the Fines and Recoveries Abolition Act is necessary. (z) For the same reasons, a co- parcener and her husband may grant a rent in fee for equality of parti- tion out of her part, if the partition will then be equal; but a joint ten- ant and her husband cannot grant such a rent, (a) There was a condition annexed to every partition between coparceners, that, if either the whole, or any share, or an estate for life or in tail thereout, be evicted, the coparcener so evicted, but not the alienee of such coparcener, may enter on the part or parts allotted to the other or others, and avoid the partition against the other coparcener or co- parceners, or his, her, or their alienee or alienees. (6) No such condi- («) 6 Jarm. & Byth. by Sweet, 595. («) 6 Jarm. & Byth. by Sweet, 596. (u) 6 Jarm. & Byth. by Sweet, 618. (x) See 6 Jarm. & Byth. by Sweet, 602 ; Co. Litt. 169, a, b. (y) See 6 Jarm. & Byth. by Sweet, 590, 591. (s) See 6 Jarm. & Byth. by Sweet, 591. (o) 6 Jarm. & Byth. by Sweet, 591. (b) 2 Cruise T. 19, ? 30 ; Burton, § 319 ; Co. Litt. ITS, b, 174, a. 368 SMITH ON REAL AND PERSONAL PROPERTY. tion existed in the case of joint tenants or tenants in common. (c) The reason would seem to be, that, as coparceners were compellable to make partition by the common law, that law took care that they should not be r*5491 P''®J"'^'°S'^ thereby. However, it is enacted by the statute 8 & 9 L J *yict. c. 106, s. 4, that " a partition of any tenements or here- ditaments made by deed executed after the 1st October, 1845, shall not imply any condition in law." ' It was enacted by the statute 7 & 8 Vict. c. 76, s. 3, " that no parti- tion of any freehold or leasehold land shall be valid at law, unless the same shall be made by deed." And although this act was repealed by the statute 8 & 9 Vict. c. 106; yet by s. 3 of that statute, it is enacted, that " a partition of any tenements or hereditaments not being copyhold made after the 1st October, 1845, shall be void at law unless made by deed." Section VIII. Of a Release and of an Acquittance. A release is a deed by which a right is extinguished, or by which an estate or interest in things real or personal is conveyed to a person who has already some estate or interest in possession in the same.((i) An acquittance is a discharge in writing of a sum of money or other duty which ought to be paid or done : as, if one be bound to pay money on an obligation or rent reserved upon a lease, and the party to whom the money or the duty should be paid or done, upon the receipt thereof, or upon some other agreement between them, makes a writing under his hand, witnessing that he is paid or otherwise satisfied, and therefore acquits and discharges him of the same.(e) I. Tlie different Kinds of Releases and their Operation. Releases may enure in four ways : 1. By way of mitter Testate. 2. r*F;f;m ^^ ^^^ °^ mitter le droit. 3. By way of *extinguishment. 4. L -"By way of creation or enlargement of an estate. (/) When two or more persons become seised of the same estate by a joint title, either by contract or descent, as joint tenants or coparceners, and one of them releases his right to the other, such release is said to enure by way of mitter Testate. (gi) In releases that enure by way of mitter Testate, a, fee will pass by such a release without any words of limitation, where the parties were seised in fee by a joint title in fee; because the release, by simply discharging the claims of one of them to the other, causes the latter to have the whole in fee. (A) Eeleases are said to enure by way of mitter le droit, i. e. transferring (c) 4 Cruise T. 32, c. 6, § 16. [d) See 2 Pres. Shep. T. 320, and dififerent kinds of releases, infra, 550-1. (c) 2 Pres. Shep. T. 347. (/) Co. Litt. 193, b, and 267, a, n. 1 ; 2 Bl. Com. 324-5. [g] 4 Cruise T. 32, c. 6, s. 22 ; Burton, § 50 ; 2 Pres. Shep. T. 327. (A) 4 Cruise T. 32, >;. 6, § 24 ; 2 Pres. Shep. T. 327, 346 ; Co. Litt. 273, b. EELBASES AND THEIR OPERATION. 369 the right, where a person who has been disseised releases to the disseisor or to his heir or feoffee. (r) If a release of right is made for one day or one hour, and the right has once gone by such release, without any con- dition, &c., it is gone for ever.(A:) Hence, this kind of release is good without any words of limitation, whether the releasee has a particular estate or the fee simple, and whether he has a freehold in possession or only in remainder or reversion ; but he must have an estate of freehold in possession, remainder, or reversion. (?) A release enures by way of extinguishment, where it operates to take a right from the releasor, but the right is such that it cannot be vested in the releasee, and can only be extinguished in his favour. Thus, if a lord releases his seigniory to the tenant, or if a person having a rent or common releases it is to the terre-tenant, these releases are *said j-^.^i-i to operate by way of extinguishment j because the tenant cannot L J have services or rent to receive of himself, nor can he take common in his own land. (to) A release to one of two or more joint tenants by way of extinguishment enures to the benefit of both or all; but it is other- wise when it operates by way of conveyance. (w) Releases enure by way of enlargement of estate, when he who has the reversion and inheritance releases all his right and interest in the lands to the person who has the particular estate. (o) To render this kind of release good, it is necessary that there should be a privity of estate be- tween the releasor and the releasee, and also that the releasee should have a vested interest in the lands intended to be released.(^) With respect to privity, if a lessee for years in possession makes an underlease, and the reversioner releases to the lessee for years, this is a good release to enlarge the estate ; because the immediate privity still continues between them. But as there is no privity between the under- lessee and the tenant of the reversion in fee, the underlessee's estate cannot be enlarged by a grant to him by the reversioner in fee.(2) If a lessse for years, instead of making an underlease assigns over all the term, the privity is gone, and a release made to him afterwards is void ; but a release made to the assignee of the term is good, to enlarge the estate. (r) In order to take a release, operating by enlargement, from a lessor, a lessee fot years, under a common law demise, must have entered on the lands before the execution of the release ; for, till entry, he has only an interessee termini, which is not capable of being enlarged. (s) *A release to a person having an estate by statute merchant, _^p. .._ statute staple, or elegit, or to a tenant at will, operates to enlarge <- J their estates. (A (i) 4 Cruise T. 32, c. 6, § 26. (k) 9 Jarm. & Byth. by Sweet, 810. (l) 2 Pres. Shep. T. 331 ; 4 Cruise T. 32, c. 6, 8. 24, 27 ; Co. Litt. 274, a. (m) 4 Cruise T. 32, c. 6, s. 35. (ra) 2 Pres. Sliep. T. 308. (o) 5 Cruise, T. 32, c. 6, 2 28. (p) Co. Litt. 272, b, n. 1 ; 4 Cruise T. 32, c. 6, ? 28 ; Burton, § 53. (g) 2 Pres. Sliep. T. 324, 326. (r) 2 Pres. Shep. T. 326. (s) 4 Cruise T. 32, c. 6, § 29 ; Co. Litt. 270, a, and n. 2. (t) 4 Cruise T. 32, c. 6, ? 31. Maroh, 1856.— 24 370 SMITH ON EBAL AND PERSONAL PROPERTY. It seems to be a general rule, that, whenever an estate may merge in the remainder or reversion, that estate may be enlarged by the release of the remainderman or reversioner.(M) A release to operate by way of enlargement may be made to a vested remainderman for life even before entry, because he has an estate of free- hold in law. (a;) But if a man is disseised and has only a right, or if he has a possession only and no estate, or if he has neither estate nor pos- session, a release made to such a one will not avail to enlarge his estate.(;y) If a tenant for life leases for years, and the reversioner and the tenant for life join in a release to the lessee for years, this is a good release to enlarge the estate ; operating first as the release of the estate for life, and secondly as an enlargement of the estate for life into a fee simple. (z) The particular tenant cannot release to the reversioner, but his estate must be extinguished by the surrender or merger. On the other hand, the estate of the reversioner cannot be merged in the particular estate ; or be surrendered to the tenant of that estate ; but it may be released to him by way of enlargement, so as to produce a merger of the particular estate, (a) Besides express releases, which are sometimes called releases in deed, there are also releases in law. (6) J- r rq-i A covcnant never to sue amounts in construction of law *to L J an absolute release of the covenantee. But a covenant not to sue for a definite period is no release. (c) The general words of a release may be restrained by the recitals. (<£) And therefore, in preparing releases which are intended to be general, care should be taken to avoid any recitals which by possibility might have the eflFect of narrowing the operation of the instrument(e.) A release, whether in deed or by operation of law, to one of several co-debtors, discharges all of them, as well in equity as at law, though they are severally as well as jointly bound; and a proviso that the co-debtor shall not take advantage of the release would be repugnant and void.(/) So in equity, whatever act is a discharge of the principal will be a discharge of the surety, though the surety be not released at law.(^\ And the like rule applies to joint and several covenants. (7i) But this rule is confined to a release properly and teohnioally so called ; for a perpetual covenant not to sue, which operates as an absolute re- lease of the covenantee, will not discharge a co-debtor, though the debt of the covenantee and the third person is joint only, and not joint and several, (i) If one has several causes of action against two, and makes a joint (m) 2 Pres. Shep. T. 324. (x) 2 Prea. Shep. T. 325. (y) 2 Pres. Shep. T. 325. (z) 2 Pres. Shep. T. 326. (a) 2 Pres. Shep. T. 324. (6) Co. Litt. 264, b. (c) 9 Jarm. & Bjth. by Sweet, 79r. (d) 9 Jarm. k Byth. by Sweet, 811. (e) 9 Jarm. & Byth. by Sweet, 884, (A). {/) 9 Jarm. & Byth. by Sweet, 811 ; 1 Pres. Shep. T. 71 ; 2 Id. 337. Iff) 1 Pres. Shep. T. 71. (A) 2 Pres. Shep. T. 337. (!) 9 Jarm. k Byth. by Sweet, 81], 812 ; 2 Pres. Shep. T. 253. WHAT MAY BE RELEASED. 371 release to them, this shall be taken to be a release of all joint and several causes of action.(A) A release of breaches of trust to one trustee will generally enure to the benefit of his co-trustee. (Z) A release of the right to land, if made to a tenant in tail or for life, will avail and enure to a person who has a reversion or remainder. And so, e con verso, a release of *right made to a person who has a r-^^rrjp remainder or reversion will avail and enure to the benefit of a L J person who has a prior estate in tail, or for life, or for years. (to) In- deed, such a release will operate for the benefit of all persons who are entitled to the property by the same mean3.(K) If a tenant in tail makes a lease for years, and afterwards releases all his right to the lessee for years in possession, to hold to him and his heirs for ever, this will pass a determinable fee, subject to be avoided by the issue until they are barred.(o) A right of action cannot be released for a time only, but if once re- leased, it will be so for ever. And therefore, if a release of right is made to any one who has an estate of inheritance by wrong, or a par- ticular estate of freehold, though but for one hour, this is a good release for ever. But it is otherwise with a release operating by way of en- largement. Thus, if a lessor releases to his lessee for years all his right which he has in the land, without using any other words in the deed, or releases to him for his life, he has an estate for his life only by way of enlargement of estate. (p) As a rent charge is against common right, a release of any part of the lands will operate as a release of the rent-charge issuing out of the whole.(5) In general, a release made between certain parties cannot be set up against the claims of the releasor by a third person who is no party, though it professes to discharge him from those claims. M *II. What may he released. [*555] A covenant to do an act may be released before it is broken,, by a re- lease of the covenant eo nomine, or by words to that efi'ect.(s) Also debts, legacies, and other duties may be released and discharged before or after they should be paid or performed. («) If a lease for years is made to two, to begin at a day to come, a release by one of them to the other is good. And a person who has an interesse termini may release it to the lessor.(M) If a person grants an estate to B. on condition, he may, before con- dition broken, release all his right in the land, or release the condition to the grantee; and this will make the estate absolute.(a;) (A) 2 Pres. Shep. T. 344. (?) 9 Jarm. & Byth. by Sweet,. 812. (m) 2 Pres. Shep. T. 335 ; Co. Litt. 267, b. (n) Burton, § 49. (o) 2 Pres. Shep. T. 347. (p) 2 Pres. Shep. T. 345-6. (?) 2 Pres. Shep. T. 345; 9 Jarm. & Byth. by Sweet, 815. (r) 9 Jarm. & Byth. by Sweet, 809. (s) 2 Pres. Shep. T. 322. (t) 2 Pres. Shep. T. 323, 333. (u) 2 Pres. Shep. T. 32T. (x) 2 Pres. Shep. T. 332. 372 SMITH ON REAL AND PERSONAL PROPERTY. Tenures, services, rents, commons, and other profits arising out of or annexed to lands may be extinguished by release to the owner of the The mere hope or chance of succession of an heir apparent, or a con- tingent interest, where the person is unascertained, or a mere possibility, as distinguished from a contingent interest in a person who is ascer- tained, cannot be released, (ij) And though executory interests in real estate in a pferson who is ascertained may be released, yet they are only releasable to the terre-tenant or owner of the land, and not to a stra'nger.(a) If the conusee of a statute, &c., releases to the conusor all his right in the land, this is void, and he may sue out execution afterwards ; because r-^r ro-i he has not any estate or *interest in the latid, but merely a right L J to sue out execution against the land. A mere authority or a power without any interest cannot be released. And therefore, if a person devises that his executors shall sell his land, and the executors release all their right and title in the land to the heir, this is void. But a power coupled with an interest may be re- leased. (6) Although rights and titles of entry cannot be granted by act of the party, nor may any action be granted from one man to another by act of law or the party, yet all these may be released to the terre-tenant and his heirs, in respect of realty, or his executors and administrators in re- spect of personalty.(c) They may be released to any person who has a vested estate in the tenement, whether in possession, reversion, or re- mainder, with this qualification only, that the right to an estate of free- hold can only be released to a person whose estate is of that degree, (c?) A man may release a sum of money owing to his wife while sole. And one of several partners in trade may release a debt owing to the firm ; the power of release being incidental to the power to receive, which is possessed by the husband and partner.(e) If two have the grant of the next advowson or avoidance of a church, one of them may release to the other, before it is void, but not after- wards. (/) One of several joint obligees may release the obligation. So, gene- rally, one of several co-plaintifi^a may release the cause of action, though the plaintiffs be trustees ; but if this power is exercised fraudu- lently, the court will set aside the release. (^) (y) 2 Pre3. Shep. T. 322, 333 ; 4 Cruise T. 32, c. 6, g 38. (z) 2 Pres. Shep. T. 322, 328; Burton, § it, 48. (a) 2 Pres. Shep. T. 284. (b) 2 Pres. Shep. T. 328, 332 ; 4 Cruise T. 32, c. 6, § 39. h) 2 Pres. Shep. T. 321 ; 4 Cruise T. 32, c. 6, J 38, 39; Burton, § 48. (d) Barton, § 48. (e) 9 Jarm. & Byth. by Sweet, 802. (/) 2 Pres. Shep. T. 332 (g) 9 Jarm. & Byth. by Sweet, 803. CONSTRUCTION OF RELEASES. 373 *III. Oonstruction of Releases. r*557] By a release of rent, the rent is extinct and discharged, whether the day of payment be come or not.fA). By a release of all covenants, all covenants then in being, which are then broken, or may afterwards be broken, are discharged. (i) By a release of all promises or assumpsits, a man may bar himself of the fruit or effect of the promises, or damages for the breach of them, when they could not be released by other words. (A) By a release of all debts, are discharged all debts then owing from the releasee to the releasor.(?) By a release of all quarrels, or all controversies, or all debates, all actions real and personal, and all causes of such actions are discharged, except causes of suit that were not existing at the time of the release, as the future breach of a covenant, whether existing at the time of the re- lease or afterwards entered into.(m} A release of all actions will not discharge executions, or bar a man of taking out execution, except it be where it must be done by scire facias ; neither will it discharge or bar a man of suits by audita querela, unless de- pending, or by writ of error to reverse an erroneous judgment ; neither will it discharge covenants before they are broken ; nor will it discharge any- thing for which the releasor had not cause of action at the time of the release made.(m) A release to A. and B. of all actions which the re- leasor has against them, extends to actions against the releasees severally as well as jointly ; for it shall be taken most beneficially for him to whom the release is made, and most strongly against him who makes it.(o) *The word "suits" is of a somewhat more large extent than r.fcro-i " actions ;" for, by a release of all suits, are discharged, not only "-^ J all actions, but also all executions in the case of a subject. (j)) By a release of all a man's right in any lands or tenements, all man- ner of rights of action and entry of the releasor in or against the land, are discharged. But this release of right will not bar a man of a possi- bility of a right that he has at the time of the release, or of a right that shall descend to him afterwards. And therefore, if the conusee of a statute before execution releases all his right in the land to the terre- tenant, or the heir of a disseisee in the lifetime of his father releases to the disseisor all his right, these releases do not bar them.(2) A release of all title has the same operation as a release of all right, (r) A release of all demands is the best release of all. By a release of all demands, are released all rights and titles to land, warranties and ih) 2 Pres. Shep. T. 334, 343. (t) 2 Pres. Shep. 342. \k) 2 Pres. Shep. T. 334, 343. 11) 2 Pres. Shep. T. 341. (m) 2 Pres. Shep. T. 342. (n) 2 Pres. Shep. T. 338. (o) 9 Jarm. & Byth. by Sweet, 810, 811. (p) 2 Pres. Shep. T. 342. (g) 2 Pres. Shep. T. 339. (r) 2 Pres. Shep. T. 340. 374 SMITH ON REAL AND PERSONAL PROPERTY. conditions annexed to estates, whether broken or not, all statutes, obli- gations, contracts, recognisances, covenants, rents, commons, and the like ; and all manner of actions, real and personal, appeals, debts, debts, and duties ; and all manner of judgments and executions ; and all annui- ties and arrears of annuities and rents. And if a man has a rent ser- vice, rent charge, estovers, or other profit to be taken out of the land, by sueh a release to the tenant of the land it is discharged and extinct. And a release of all claims is much of the same nature. (s) But a re- lease of all demands or all claims has not the effect of releasing anything which cannot be specifically released ; as a mere possibility not coupled with any present interest, or the like.(t) And a release of all demands |.^. -Q-. is in general ^confined to demands existing at the time of the re- L J lease ; and therefore does not extend to a covenant not then in being or then unbroken ; nor to a legacy payable at a future day.(M) In a release of the principal, the accessory is included. And there- fore a release of all debts or duties will operate as a discharge of all actions, judgments, executions, and obligations. By releasing a debt, the security for the debt is released. And a release of judgments will extend to an execution. (x) IV. Releases generally. The operative words of a release are " remise, release, and for ever quit claim." But other words of the like import will suffice. (y) A release must be under seal.^z) A release is an act favoured and strenuously supported by the law, as it induces peace and promotes good order.fos) A release by way of mitter 1' estate may be made upon condition, either precedent or subsequent. And a release by way of mitter le droit or extinguishment may be made upon a condition precedent ; but it cannot be made subject to a condition subsequent. If such a thing is attempted, the release is good, and the condition subsequent is void; because a right released for an instant is released for ever.^S) A release of all actions may be made upon a time past, as until the 1st of May last, or until the day of the date of the release. But a re- lease cannot be made of a right or action for a part of an estate, nor, as we have seen, for a time only ; as for one year, or until a future time. And yet a man may release his right in a part of the land.(c) r*firm *^^ * ^^^ '® bound to perform two things, the covenantee may L -I discharge one of them ; but an entire thing cannot be released in part.((^) A debt may be released even before the day of payment, by apt words. (e) («) 2 Pres. Shep. T. 343-4. (t) 2 Pres. Shep. T. 344. (u) 9 Jarm. & Byth. by Sweet, 815-816. (x) 9 Jarm. & Byth. by Sweet, 814. \y) Co. Litt. 264, b ; 2 Bl. Com. 324; 2 Prea. Shep. T. 320, 327; 4 Cruise T. 32, c. 6, J 20. (z) 9 Jarm. & Byth. by Sweet, 801. (a) 2 Pres. Shep. T. 244. (J) 2 Pres. ahep. T. 307, 323. (c) 2 Pres. Shep. T. 323. {d) See 2 Pres. Shep. T. 334. (e) 9 Jarm. & Byth. by Sweet, 814. OF A CONFIRMATION. 375 Keleases will be set aside by the Court of Chancery, where they have been extorted by fraud, or extended to matters not contemplated by the releasor, or have been obtained from persons who at the time were not conusant of their rights. (/) And the Court will not permit a release to stand which has been obtained without a full and honest disclosure to the releasor of all the circumstances in the releasee's knowledge affect- ing his (the releasor's) actual situation. But, unless such a disclosure has been withheld, the Court will not disturb an arrangement intended as a compromise of doubtful rights, especially between the members of a family, because the parties entertained mistaken notions of those rights. (5') Section IX, Of a Confirmation. A confirmation is a deed whereby a conditional or voidable estate is made absolute and unavoidable by the confirmor, so far as he is able, or whereby a particular estate is increased. (A) The usual operative words of a confirmation are "give *grant, ^^^^.^ ratify, approve, and confirm."(/i;) But a confirmation may be L J made by other words. There must be a precedent rightful or wrongful estate in the person to whom the confirmation is made, in his own or in another's right, or, at least, he must have the possession of the thing whereof the confirma- tion is made, as a foundation for the confirmation to work upon.(Z) To give validity to a confirmation of a voidable conveyance, the party confirming must not be ignorant of his rights, and must be informed of the consequences in point of law, and must be a free agent.(m) To enlarge a particular estate by confirmation, there must be words of limitation, (ra) A confirmation sometimes serves to make sure a voidable contract, conveyance, or estate, by adding the right to the possession or defeasible seisin ; and sometimes to make a conditional estate absolute, by discharg- ing the condition; and sometimes to enlarge an estate. But it will not make a contract, conveyance, or estate good, which is absolutely void ; for quod ab initio non valet, in tractu temporis non convalesoit. Nor will it add to an estate a descendible quality, nor make a man capable who is incapable of himself, (o) A confirmation of the estate of one joint tenant enures to the other joint tenant or tenants; because they have one joint seisin. But it is (/) 9 Jarm. k Byth. by Sweet, 805 ; Story's Eq. Jur. \ 145. {g) 9 Jarm. & Byth. by Sweet, 806. (A) Co. Litt. 295, b ; 2 Bl. Com. 325. (A) Co. Litt. 295, b, 301, b ; 2 Bl. Com. 325 ; 3 Jarm. & Byth. by Sweet, 591 ; 2 Pres. Shep. T. 314. (J) 2 Pres. Shep. T. 312. (m) Sugd. Concise View, 181. \n) 2 Pres. Shep. T. 315. (o) 2 Pres. Shep. T. 311, 315; Story's Eq. Jur. I 306; 4 Cruise T. 32, c. 6, J 47 ; Co. Litt. 295, b, and n. 1. 376 SMITH ON REAL AND PERSONAL PROPERTY. Otherwise in the case of tenants in common j because they have several freeholds and several seisins. But if the confirmation is of the land, to have and to hold the land to one joint tenant, it may enure to him alone. fp) r*^fi21 *'^ confirmation by a disseisee, of a particular estate, will '- J not enure to the remainder or reversion. But a confirmation by him of a remainder or reversion will operate as a confirmation of the particular estate. (j) In the case of a lease for years a confirmation may be made for part of the time. But, in order to accomplish this, the confirmation must be of the land, to hold for part of the term. For if the confirmation is of the estate or the term for one hour, this is a good confirmation for the whole time.(r) A con'firmation cannot be made of part of an estate of freehold ; because an estate of freehold is entire and indivisible, (s) A confirmation may be made of part of the land or other subjeot.(<) If there is nothing more than a confirmation of title, there cannot be any uses or trusts, because no seisin passes. (m) Section X. Of a Surrender. A surrender, sursum redditio, or rendering up, is of a nature directly opposed to a release operating by way of enlargement. It is a yielding up of an estate for life or years to him who has a higher or equal estate in immediate reversion or remainder, wherein the particular estate may merge or drown. (a;) r*'Sfi^T ^■^ surrender is of two kinds : — 1. Express, or in deed, that L -I is, by the express agreement of the parties that a surrender should be made. 2. Implied, or in law, that is, by operation of law.(^) If a lessee for life accepts a valid lease in writing from the lessor, though it be only for years, it will be a surrender in law of the lease for life. (a) Where an estate incompatible with the existing estate is accepted, or where the particular estate is actually transferred to the person having the immediate reversion or remainder, with a view that it should abide in him, the law construes it to be a surrender.(a) The term " surrender in law" applies to cases where the owner of a particular (p) 2 Pres. Shep. T. 319 ; Co. Litt. 297, b. (j) 2 Pres. Shep. T. 313, 319; Co. Litt. 297, a, 298, a. (t) 2 Pres. Shep. T. 317 ; 3 Jarm. & Byth. by Sweet, 592 ; Co. Litt. 297, a, and n. 1. (s) 2 Pres. Shep. T. 317 ; 3 Jarm. & Byth. by Sweet, 691 ; Co. Litt. 296, b, 297, a, n. 1. {t) 2 Pres. Shep. T. 317 ; 3 Jarm. & Byth. by Sweet, 591-2. (u) 3 Jarm. & Byth. by Sweet, 592. [x) Co. Litt. 337, b, and n. 1 ; 2 Bl. Com. 326 ; 2 Pres. Shep. T. 300. (y) 2 Pres. Shep. T. 300 ; Co. Litt. 338, a. (z) 3 Jarm. & Byth. by Sweet, 259, n. (a). (a) 2 Prea. Shep.T. 300. OF A SURRENDER. 377 estate has been a party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate continued to exist. Such a surrender is the act of the law, and takes place independently of, and even contrary to, the intention of the parties.(i) The usual operative words are — " surrender, give or grant, and yield up." But any other words that denote that the remainderman or rever- sioner is to have the particular estate will sufiBce.(c) Subject to the following qualifications, a surrender may be made of any kind of estate for life ; (as by dower, by curtesy, or by tenancy in tail after possibility of issue extinct ;) or of any estate for years, or for years determinable upon lives, in any kind of property that is grant- able. (rf) N In order that a surrender in deed may be good — 1. The surrenderor must have a vested estate. And therefore rights and titles only cannot be surrendered. fe) *Thus, if a lessee for r^r\aAn life is ousted by a stranger, and afterwards surrenders to his L J lessor, the surrender is void ; because he had but a right at the time of the surrender. So if a woman has a title to dower, and surrenders to the person against whom she ought to have dower, it is void for the same reason. And a lease for years, to commence at a future day, can- not be surrendered J because the lessee has no vested interest, but only an interesse termini before the commencement of the lease, and the lessor has no reversion before that time.(/) 2. The estate of the surrenderor must be one that may merge in the estate of the surrenderee. And therefore an estate tail cannot be surrendered, even to a person who has the reversion in fee.(^) For this reason, 3. The estate of the surrenderor must be of a lower denomination than the estate of the surrenderee, or of the same, and not of a higher denomination. And therefore an estate in fee simple cannot be surren- dered J nor can an estate for life be surrendered to a person who has only an estate for years. (^) For the same reason, 4. The estate of the surrenderee must be the next estate in remainder or reversion, so that there be no intervening estate to prevent a merger.(i) Thus, if a lease is made for years, remainder for life, remainder in fee, the lessee for years may surrender to the lessee for life, and so may the tenant for life to the person in remainder or reversion in fee. But if a lease is made for life, remainder for life, remainder in fee, the first tenant for life cannot surrender to the person in remainder in fee, on account of the intermediate estate. (A;) (b) Lyon v. Reed, 13 M. & W. 285. (c) 2 Bl. Com. 326 ; 2 Pres. Shep. T. 306. (d) 2 Prea. Shep. T. 303, 306. («) 2 Pres. Shep. T. 306. (/) 4 Cruise T. 32, c. T, § 10. Iff) 2 Pres. Shep. T. 306; Burton, § 751. (A) 2 Bl. Com. 326 ; 2 Pres. Shep. T. 303, 306. (i) 2 Pres. Shep. T. 303 ; Co. Litt. 337, b. n. 1. {k) 2 Pres. Shep. T. 304. 378 SMITH ON REAL AND PERSONAL PROPERTY. |-^K(,r-| 5. There must be a privity of estate between the surrenderor L J *and the surrenderee. Hence, if lessee for twenty years makes a lease for five years, and the lessee for five years enters, and afterwards the lessee for twenty years surrenders to the person in reversion or remainder, this is a good surrender.^ So also if the two lessees join in the surrender, it is good ; for, by construction of law, there is first a surrender by the tenant for twenty years to the reversioner, and secondly, a surrender by the termor for five years to the same person. So also if the first lessee surrenders first, and the lessee for five years surrenders afterwards, the surrender is good. But if the lessee for five years sur- renders to the person in reversion or remainder, i. e., the first lessor, before the surrender of the lessee for twenty years, this cannot take effect as a surrender, for two reasons : first, because there is a remnant of the term as an intervenient estate to hinder the drowning of the term ; and, secondly, because, while the interposed reversion continues, there wants a privity between the lessee for five years and the remainderman or reversioner. 6. The surrender must not be of part of an estate. Thus, if a per- son has a lease for ten years, he cannot surrender the last seven years, and keep to himself the three years. (m) 7. By the Statute of Frauds, 29 Car. 2, c. 3, s. 3, no surrender is valid unless it is by deed or note in writing duly signed, or by act and operation of law.(ra) So that a term for years or for life cannot be ex- tinguished by cancelling the instrument of demise, or otherwise than by writing, or accepting another lease incompatible with the former lease. (o) And such things as commons, rents, advowsons, reversions, remainders, and other incorporeal hereditaments that cannot be granted without r*'iRn ^^^^J could not be *surrendered without deed.( p) But an estate L J of freehold of lands in possession might be surrendered to the immediate reversioner or remainderman, by deed or note in writing, without livery of seisin or anything tantamount to it.(j) It was enacted, however, by the stat. 7 & 8 Vict. e. 76, s. 4, " that no surrender in writing of any freehold or leasehold land shall be valid as a surrender unless the same should be made by deed ; but any agreement in writing to surren- der any such land shall be valid and take effect as an agreement to exe- cute a surrender." This was repealed by the stat. 8 & 9 Vict. c. 106 ; but by s. 3 of that statute, " a surrender in writing of an interest in any tenements or hereditaments, not being a copyhold interest, and not being an interest which might by law have been created without writing, made after the 1st October, 1845, shall be void at law, unless made by deed." A surrender may be made upon a condition precedent or subse- quent.(r) An interesse termini cannot be surrendered in deed ; but it will be (I) 2 Pres. Shep. T. 303, 305 ; 4 Cruise T. 32, c. 7, § 11. (m) 2 Pres. Shep. T. 306. (n) See supra, p. 470 ; 4 Cruise T. 32, u. 7, J 6 ; Burton, § 751. (o) 2 Pres. Sliep. T. 306. (p) 2 Pres. Sliep. T. 307; Co. Litt. 338, a. (j) 3 Jarm. & Byth. by Sweet, 259 ; Burton, J 751. (r) 2 Pres. Sliep. T. 307. OF AN ASSIGNMENT. 379 surrendered in law by accepting a lease for an estate which is incompati- ble with it, A surrender to one of two or more joint tenants shall be construed to enure to both or all. But if tenant for life or years grants his estate to one joint tenant in reversion, this will not enure as a surrender to the other or others, but as a grant to him alone. (s) Section XI. Of an Assignment. An assignment is that kind of total alienation by deed or writing, other than testamentary, of a chattel interest in real *property, |-;|;rp»-i which is not essentially destructive of such interest, or an aliena- <- J tion by deed or writing, other than testamentary, of chattels personal. Some assignments are called gifts; others, bills of sale. (A A gratui- tous transfer of personalty is specifically called a gift. And a transfer of personalty for valuable consideration is termed a bill of sale, whether the transaction be a purchase or a mortgage.(M) * An assignment of a term differs from a lease or underlease in this cir- cumstance, that, by such a lease or underlease, the lessor conveys an interest less than his own, reserving to himself a reversion ; whereas, in an assignment, the assignor parts with his whole interest in the thing assigned, and puts the assignee in his place. (a;) Most chattels real and personal may be given and granted without deed.(y) It is enacted by the 3d section of the Statute of Frauds, that all assignments of leases or terms for years shall be by deed or note in writing, signed by the party assigning or his agent thereunto lawfully authorized by writing.^a) And by the 9th section of the Statute of Frauds, it is enacted, « that all grants and assignments of any trust shall be in writing, signed by the party granting or assigning the same, or else shall be utterly void and of none effect." (a) And it was enacted by the statute 7 & 8 Vict. c. 76, s. 3, that no assignment of any free- hold or leasehold land should be valid at law unless the same should be made by deed. This was repealed by the statute 8 & 9 Vict. c. 106 ; but by section 3 of that statute, " an assignment of a chattel interest, not being copyhold, in any lands or tenements, made after the 1st Octo- ber, 1845, shall be void at law, unless made by deed." ^Anything written, said, or done, to place a chose in action or r:|.coo-i fund out of the control of the owner, and appropriate it in favour L J of another person, amounts to an equitable assignment. (6) But where personal property is assigned, though it be by deed, delivery is neces- 1: '«) 2 Pres. Shep. T. 308 ; Co. Litt. 183, a, u. 2, 192, a. [t) Burton, ? 889. (u) 2 Bl. Com. 440 ; 2 Steph. Com. 43, 45. \x) 4 Cruise T. 32, c. 7, J 14 ; 2 Bl. Com. 326. (y) 2 Pres. Shep. T. 231 ; 2 Bl. Com. 441 ; Burton, g 889. (a) 4 Cruise T. 32, c. 1, § 19. (a) 1 Cruise T. 12, c. 2, I 6. \h) 2 Spence's Eq. Jur. 855, 860-861, 907 ; Coote, Mortg. 3rd edit. 234. 380 SMITH ON REAL AND PERSONAL PROPERTY. sary to complete the transaction, or at least that which is tantamount to or is the nearest approximation to delivery of which the property is sus- ceptible. Where the assignment is for valuable consideration, it is not indeed necessary, at least in equity, as between the vendor and vendee, or mortgagor and mortgagee, but as to third persons, in order that they may not be deceived by apparent possession and ownership remaining in a person who, in fact, is not the owner. Where the assignment is wilun- tary, it is necessary even between the parties themselves ; because equity will not enforce an imperfect voluntary assignment. Hence in the case of chattels in possession, delivery of possession is necessary. In the case of a bond debt, delivery of the bond and notice to the debtor are requi- site. • And in the case of a trust fund, notice to the trustee, as the legal depository, which makes him a trustee for the assignee, ought to be given. So that if a prior assignee neglects to give notice to the trustee, and a subsequent assignee, after inquiry of the trustee, and at the time of his assignment, is unaware of the prior assignment, and gives notice to the trustee of his own assignment, he thereby gains priority over the first assignee. (c) It is immaterial, however, whether the notice was given before or after the assignment, provided it was given previously to notice by any other claimant. (cZ) r*'SfiQn "Neither a voluntary assignment by deed of a mortgage L -I *debt, accompanied by a grant, not specifying the particular estate, but of all estates held in mortgage, and by a covenant for further assurance, without delivery of the mortgage deed or notice to the mort- gagor, nor the voluntary assignment of a policy of assurance retained in the hands of the assignor, and without notice given to the grantor, though accompanied by a covenant for further assurance, can be con- sidered as a complete and effectual assignment, to be acted upon and en- forced by the assignee, without any further or other act to be done by the assignor."(e) An assignment of a term, or of the residue of a term, to hold from the death of the assignor, is void.(/) Terms for years being anciently very short, the law regarded the continuance of a term after the death of the termor as a mere possibility, which could not be assigned. And it would seem that an assignment cannot be made of a term from any future time ; because an assignment of a term is an alienation of the whole term. But there would seem to be no reason why the residue of a term from a future time should not be assigned. {^) And if a termor, instead of assigning, carves out of his term a new term of years which must end before the expiration the original term, such a demise or underlease, which leaves a reversion in the original termor, may, like any other lease for years, be made to take effect at a future time,(^) except such future time be the death of the original termor; for then there is the same (c) Dearie v. Hall, Loveridgs v. Cooper, 3 Eu3S. 1 ; Meek y. Kettlewell, 1 Hare, 464 ; 1 Phil. 342 ; Story's Bq. Jur. ? 1047 ; 2 Spence's Eq. Jur. 855-857 ; 2 Bl. Com. 441-2 ; Coote, 3rd edit., 232 ; and see infra, on Void and Voidable Deeds. (d) Sugd. Concise View, 276. (e) Ward T. Audland, 8 Beav. 212. (/) 1 Pres. Shep. T. 79 ; 2 Id. 251. (ff) But see 1 Pres. Shep. T. 79, • Burton, g 893. (A) Burton, J 894. OF A DEFEAZANCE. 381 reason why such an underlease should be void, as for the invalidity of an assignment of the residue of a term after the death of the assignor. A deed of assignment by a person of all his personal estate and effects whatever, to trustees, for the benefit of *oreditors, passes a deed r^iiC^A-i of assignment of leasehold premises made to him by way of mort- L J gage, with power of sale.(i) A contingent reversionary interest will not pass by an assignment, which, after enumerating things of the property whereof the assignor has the control, purports to assign other things by the general descrip- tion of " all other the estate and effects whatsoever and wheresoever of or to which the assignor is now possessed or entitled."(7i;) Generally speaking, assignees of a chose in action, other than a bill of exchange or a note, and assignees of equitable titles, whether such assig- nees be particular assignees, or general assignees in bankruptcy or in- solvency, take them subject to all the equities to which they were liable in the hand of the assignors. (Z) Assignees under general assignments, such as assignees in cases of bankruptcy and insolvency, take only such rights as the assignor or debtor had at the time of the general assign- ment; and consequently a prior special assignee will hold against them, without giving notice of his assignment. ^m) On the other hand, a purchaser of a ehose in action, or of any equita- ble title, will be entitled to all the remedies of the seller, (m) And in the case of assignments of debts, where the assignor has collateral secu- rities for the debt, the assignee will be entitled to the full benefit of such securities, unless it is otherwise agreed between the parties. Thus, the assignee of a debt secured by a mortgage will, in equity, be held entitled to the benefit of the mortgage. (o) *Section XII. [*571] Of a Defeazance. A defeazance is a collateral deed, containing certain conditions upon which an interest created or transferred by another deed may be defeated. In the case of things executed, such as an estate of freehold in land, the defeazance must be made at the same time with the deed creating or transferring the estate. But terms for years, and other chattels, and things executory, such as trusts and uses while they are executory, rents, annuities, bonds, warranties, statutes, recognisances, judgments, conditi- tions, and covenants, may be defeated by defeazances made subsequent to the time of their creation by all those who are interested. (p) (t) West v. Steward, 14 M. & W. 47. (k) Pope T. Whitcomb, 3 Eu33. 124. (I) 4 Cruise T. 32, c. 8, § 26 ; Sugd. Concise View, 275-6 ; Morris v. Livie, 1 T. & C. C. C. 380 ; Ord v. White, 3 Beav. 365 ; Smith t. Parker, 16 Bear. 119 ; Mangles v. Dixon, 3 H. L. Cas. 702 ; In re Atkinson, 3 D. M. & G. 140. (m) Story's Eq. Jur. § 1038. [n] Sugd. Concise View, 275-6. (o) Story's Eq. Jur. g 1047, a. (p) 2 Bl. Com. 327 ; Co. Litt. 236, b, 237, a; 3 Jarm. & Byth. by Sweet, 681- 382 SMITH ON REAL AND PERSONAL PROPERTY. A defeazance is of the same import and efficacy as a proper condition subsequent. The only diiFerenoe is, that a condition is inserted in the same deed as that which creates or transfers the interest to be defeated ; whereas a defeazance is contained in a distinct deed.(2') Section XIII. Of a Disclaimer. A disclaimer is a deed of renunciation of a grant, devise, or bequest. When an estate is conveyed or devised to any person or persons, he or they may by deed disclaim the conveyance or devise, provided no act has been done to show an assent. M r*'i721 * Where two or more persons are grantees or devisees in joint •- -' tenancy, the estate will entirely vest in the person or persons who has or have not disclaimed. But if all the grantees or devisees dis- claim, then, as well as when a single grantee or devisee disclaims, the estate will descend to or vest in the heir of the grantor or devisor. And in case there are trusts created by the grant or devise, the Court of Chan- cery will enforce the execution of the trust. (s) [*573 ] *CHAPTEK III. OF THE DIFFERENT KINDS OF STATUTORY CONVEYANCES. Not reckoning those deeds which existed at common law, and when made to uses operate under the Statute of Uses, such as feoffments and bargains and sales to uses,(a) there are as (already observed) about ten kinds of statutory deeds : — 1. Covenants to stand seised. ^ 2. Deeds of Lease and Eelease. 3. Statutory Releases. 4. Statutory G-rants, that is Grants to Uses under the Statute of Uses, and the statute of 8 & 9 Vict. c. 106, s. 2. 5. Deeds to Lead and Declare the Uses of other assurances. 6. Deeds of Revocation of Uses. 7. Deeds of Appointment under Powers. 8. Leases under Powers. 9. Bargains and Sales under the act for the Abolition of Fines and Recoveries. 683, 685 ; 2 Rop. Leg. by White, 323 ; 1 Pres. Shep. T. 126 ; 2 Pres. Shep. T. 396; 4 Cruise T. 33, c. 8, g 27. (q) 4 Cruise T. 32, c. 7, § 24 ; 2 Pres. Shep. T. 396. (r) 3 Jarm. & Byth. by Sweet, 698 ; Begbie r. Crook, 2 Bing. N. C. 70. (s) 3 Jarm. & Byth. by Sweet, 698. (a) The points connected with these deeds will he found supra, p. 514-519, 522-526, and in other parts of this work. OF A COVENANT TO STAND SEISED. 383 10. Concise Conveyances and Leases under the statutes 8 & 9 Vict. 0. 119 and c. 124. Section I. Of a Covenant to stand seised. A covenant to stand seised to uses is a conveyance by *vphich rj^K-rj-i a person seise<^ of lands covenants that he will stand seised of the L J same to the use of his present or intended wife, or his parent or legiti- mate child, kinsman or kinswoman. The proper words of a covenant to stand seised are, " covenant to stand seised to the use of A." &c. But any other words will suffice, which import an intent to raise a use; insomuch that the words "bar- gain and sell," or " give, grant, and confirm to the use of A." have been held sufficient. But a mere covenant that at a future time lands shall descend, remain or be to or with A., has been held not to be a cov- enant to stand seised. (6) Every person who is capable of being seised to the use of another may convey by this assurance. (c) The covenantor should have a vested estate of freehold, in possession, reversion, or remainder, in the lands or here- ditaments, at the time of the execution of the covenant to stand seised. ((^) A person cannot covenant to stand seised of lands which he may after- wards acquire. (e) And a joint tenant in fee cannot covenant that he will stand seised of his companion's moiety. (/) As uses of estates for years are not executed by the Statute of Uses, such an estate cannot be trans- ferred by a covenant to stand seised. But as the statute does execute uses for years of freehold estates, an estate for years may be created out of a freehold estate by a covenant to stand seised. (.9) The consideration in a covenant to stand seised must be either lawful blood or marriage. The consideration of blood extends to a parent or legitimate child, kinsman or kinswoman. The consideration of marriage extends to a *marriage had or intended with the covenantor or any rtur.'rK-i of his blood.(A) L ^'^-1 It is the difference in the consideration rather than in the operative words which constitutes the essential distinction between a bargain and sale and a covenant to stand seised. So that if a person for a pecuniary consideration covenants to stand seised to the use of the purchaser, it is a bargain and sale, and if inroUed, is valid and effectual, as a bargain and sale under the Statute of Uses, to convey the estate to the purchaser. And, on the other hand, if a person for natural love and affection bar- gains and sells his lands to the use of his wife, it is a covenant to stand seised, and as such, without inrolment, vests the estate in the wife.(i) (i) See 4 Cruise T. 32, c. 10, ? 2, 5, 6. (c) 4 Cruise T. 32, u. 11, ? 7. (d) 3 Jarm. & Byth. by Sweet, 670. («) 4 Cruise T. 32, c. 10, | 10. (/) Id. J 11. (g) 3 Jarm. & Byth. by Sweet, 670. (A) 3 Jarm. & Bytli. by Sweet, 671-673 ; Co. Litt. 123, a, n. 8 ; 4 Cruise T. 32, c. 10,1 12, 15, 18. (i) Co. Lltt. 271, b, n. 1, VI., 1. 384 SMITH ON REAL AND PERSONAL PROPERTY. A use will not arise on a covenant to stand seised to the use of a son- in-law, an uncle-in-law, or a brother-in-law. (A) Where a deed is made simply in consideration of a sum of money, though in favour of a son, it will not operate as a covenant to stand seised. (?) We have seen that a man may covenant to stand seised to the use of his wife. But if he covenants with his wife herself, this is void at law ; because husband and wife are consideerd as one person, and no man can covenant with himself He must covenant with another person to stand seised to the use of his wife.(m) A deed may operate as a covenant to stand seised, though the use is not to arise till after the death of the covenantor. In such a case the estate continues in the covenantor till a lawful use arises. («) rii-r-jf'-i In consequence of the 4th and 5th sections of the Statute *of L J Uses, a rent may be created by a covenant to stand seised. (o) Covenants to stand seised are now wholly disused. (jj) Section II. Of a Lease and Release. A conveyance by lease and release consists of two distinct deeds : first, a lease, or rather a bargain and sale, under the Statute of Uses, for some nominal pecuniary consideration, for one year, which, without any inrol- ment, vests in the lessee or bargainee the use of the term for a year, and which the Statute of Uses converts into a vested estate, serving as a foundation for a release to work upon ; and secondly, a common law release of the freehold and reversion to the lessee or bargainee, dated on the day following the day of the date of the lease, and operating by way of enlargement of the estate for a year so created by the bargain and sale.(g') Even before the stat. 4 Vict. c. 21, the recital of the lease for a year in the release was sufficient of itself for establishing the conveyance against the releasor and all who claimed under him. But if the rights of a stranger could be effected, the loss of the deed of lease must, as against him, have been proved, (r) But by s. 2 of the stat. 4 Vict. c. 21, " where, in or by any deed or instrument of release of freehold estates executed before the 15th day of May, 1841, any deed or instrument of bargain and sale or lease for a year for giving efifect to such deed or in- P^r_„., strument of release *shall be recited, or by any mention thereof '- J in such deed or instrument of release appear to have been made or executed, such recital or mention thereof shall be deemed and taken to be conclusive evidence of the deed or instrument of bargain and sale (k) 3 Jarm. & Byth. by Sweet, 674. {1} 4 Cruise T. 32, u. 10, J 23, 24. (m) 3 Jarm. & Byth. by Sweet, 6T2. (n) 4 Jarm. & Byth. by Sweet, 111 ; 4 Cruise T. 32, c. 10, § 29. (o) 4 Cruise T. 32, c. 10, J 30. (p) 3 Jarm. & Byth. by Sweet, 677 ; 1 Sugd. Pow. Introd. p. xi. (?) See 2 Bl. Com. 339 ; Co. Litt. 48, a, n. 2, 207, a, n. 3, 270, a, n. 3, 271, b, n. 1, vi., 2 ; Burton, J 148 ; 4 Cruise T. 32, c. 11, g 1. (r) Burton, J 481. OF A STATUTORY EBLBASB. 385 or lease for a year so recited or mentioned having been made and exe- cuted ; and such deed or instrument of release shall also have the like effect as if the same had been executed after the 15th day of May, 1841, whether such deed or instrument of bargain and sale or lease for a year shall or shall not have been lost or mislaid, or may or may not be pro- duced." As the deed of release operates as a common law conveyance, there is no necessity for any consideration in it.(s) The person or persons to be the releasee in the release should be the bargainee or bargainees in the lease for a year.(A In the case of a lease and release to uses, the seisin is in the releasee without any agreement or assent on his part, and will serve the uses de- clared on the release. Nor will a subsequent disagreement by the re- leasee defeat the uses declared in the release, (w) Hereditaments corporeal and incorporeal, in possession, remainder, or reversion, might be conveyed by lease and release, (a;) And although a remainder or reversion might be conveyed by a mere grant, yet it was usually conveyed by lease and release, in order to save the necessity of proving the existence of the particular estate. And the same mode of conveyance was frequently adopted, rather than a mere release of right, or a confirmation or other deed, where parties had only a right, title, or collateral charge. (y) *And it was the uniform practice to make i-j-kydt persons who had only equitable estates convey by lease and re- L J lease ; though any instrument which expresses an intention to transfer the beneficial ownership is sufficient in equity, and though a conveyance by lease and release of an equitable estate could have no effect at law.(z) This course was taken in order to guard against the chance of the assur- ance being otherwise ineffectual, by reason of the possibility of the par- ties having the legal estate. A conveyance by lease and release did not divest any estate, or create a discontinuance or forfeiture, (a) but only passed what lawfully might Section III. Of a Statutory Release. By the stat. 4 Vict. c. 21, s. 1, it is enacted " that every deed or in- strument of release of a freehold estate, or deed or instrument purport- ing or intended to be a deed or instrument of release of a freehold estate, which shall be executed on or after the 15th day of May, 1841, and shall be expressed to be made in pursuance of this act, shall be as effectual for the purposes therein expressed, and shall take effect as a conveyance to uses or otherwise, and shall operate in all respects both at law and («) 4 Cruise T. 32, t. 11, ? 13. [i] 3 Jarm. & Byth. by Sweet, 247, 248. {u) 4 Cruise T. 32, c. 12, | 45. (x) 4 Cruise T. 32, c. 11, § 8, 11 ; Co. Litt. 270, a, n. 3. (y) 3 Jarm. & Byth. by Sweet, 247. (2) 3 Jarm. & Byth. by Sweet, 247. {a) 4 Cruise T. 32, t. 11, § 15. March, 1856.— 25 386 SMITH ON REAL AND PERSONAL PROPERTY. equity as if the releasing party or parties who shall have executed the same had also executed in due forna a deed or instrument of bargain and sale or lease for a year for giving effect to such release, although no such deed or instrument of bargain and sale or lease for a year shall be exe- cuted J provided that every such deed or instrument so taking effect under [-^f-»q-| this act shall be chargeable with the same amount of stamp *duty L J as any bargain and sale or lease for a year would have been chargeable with (except progressive duty) if executed to give effect to such deed or instrument, in addition to the stamp duties which such deed or instrument shall be chargeable with as a release or otherwise under any act or acts relating to stamp duties." By the stat. 7 & 8 Vict. c. 76, s. 2, it was enacted as follows : " that every person may convey by any deed, without livery of seisin or inrol- ment, or a prior lease, all such freehold land as he might before the passing of this act have conveyed by lease and release ; and every such conveyance shall take effect as if it had been made by lease and release : Provided always, that every such deed shall be chargeable with the same stamp duty as would have been chargeable if such conveyance had been made by lease and release." This was repealed by the stat. 8 and 9 Vict. c. 106 ; but by s. 2 of that statute, it was enacted " that, after the said 1st day of October, 1845, all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery; and that every deed which, by force only of this enactment, shall be effectual as a grant, shall be chargeable with the stamp duty with which the same deed would have been chargeable in case the same had been a release, founded on a lease or bargain and sale for a year, and also with the same stamp duty (exclu- sive of progressive duty) with which such lease or bargain and sale for a year would have been chargeable." By the stat. 13 & 14 Viet. c. 97, s. 6, the duty payable in respect of a lease for a year under the last of these acts is repealed, as regards deeds bearing date after the 10th of October, 1850. [*580] *Section IV. Of a Statutory Grant. This is a conveyance by virtue of the stat. 8 & 9 Vict. c. 106, s. 2, whereby it is enacted " that all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery." Section V. Of a Deed to lead or declare Uses, and of a Deed of Revocation of Uses. I, As a fine sur cognizance de droit come ceo, &o., and a recovery. OF A DEED TO LEAD, ETC. 387 conveyed a clear fee simple to the cognizee or recoveror, these assurances could not have been made to answer the purposes of family settlements, unless their operation had been subjected to the direction of deeds wherein uses were particularly expressed. A deed thus expressing the uses of a fine or recovery, if it preceded the fine or recovery, is termed a deed to lead the uses ; if it followed the fine or recovery, it is called a deed to declare the uses. (6) By the stat. 4 Ann. o. 16, s. 15, reciting that it had been doubted, whether, since the Statute of Frauds, the declarations or creations of uses, trusts, or confidences of any fines or recoveries, manifested by deed made after the levying or feufiering of such fines or recoveries, were good, it is thereby declared, that all declarations or creations of any uses, trusts, or confidences of any fines or common recoveries of any lands, &c., manifested and proved by any deed then made *or |-j|,.„.-, thereafter to be made by the party who was by law enabled to •- -J declare such uses or trusts, after the levying or suffering any such fines or recoveries, were and should be as good and effectual in the law as if the Statute of Frauds had not been made.(c) Whether a fine or recovery is in every respect in accordance with the deed to lead the uses thereof, or not, no averment is admissible to prove, that, after the making of such deed, and before the assurance, it was agreed that the assurance should be to other uses than those expressed in such deed.(d) But if another agreement was made by a second deed or writing, executed previously to the fine or recovery by all who were parties to the first deed and were concerned in interest, the fine or reco- very was to the uses of such second deed.(e) If a deed intended to declare the uses varied from the fine or recovery, it did not operate as a declaration of the uses thereof. (/) The right of declaring the uses of a fine or recovery was precisely co-extensive with the quantity and nature of the estate or interest which each of the parties had in the lands. If therefore a tenant for life and the person entitled to the remainder or reversion joined in levying a fine or suffering a recovery, they might declare the uses according to their respective estates in the land.(^) II. Deeds of revocation of uses are deeds revoking uses declared by a former deed, by virtue of a power of revocation contained in such former deed. (A) (b) 2 Bl. Com. 363 ; 4 Cruise T. 32, c. 12, ? 10. (c) 4 Cruise T. 32, c. 12, ? 22. (d) 4 Cruise T. 32, c. 12, | 11, 12 ; 2 Pres. Shep. T. 520. (e) 4 Cruise T. 32, ^. 12, | 11, 12, 15 ; 2 Pres. Shep. T. 520. (/) 4 Cruise T. 32, c. 12, g 18. (g) 4 Cruise T. 32, o. 12, J 40. (A) See 2 Bl. Com. 339. 388 SMITH ON KEAL AND PEKSONAL PROPERTY. [*582] *Seotion VI. Of a Deed of Appointment under a Power. (i\ I. The Mode of executing Powers. Except in cases within the 10th section of the stat. 1 Vict. c. 26, the forms which are required by a power must be strictly observed. (/<;) This rule is the same even in the case of a power of revocation of a voluntary settlement reserved to the original owner of the estate ; for he may feel conscious of such infirmity of mind as to require that all future dispositions to be made by him should be attended with such solemnities as may effectually prevent surprise and impositions. (?) A liberal construction, however, is usually put on the words of a power, (m) It is generally necessary that every prescribed formality, even though it be external to the appointment (such as inrolment) should be perfected in the lifetime of the donee of the power.(K) Where the mode of execution is not defined, a power may be exercised either by deed or will, or even by a simple unattested note in writing, (o) Where a power, whether it be a common-law authority given by will, or a power operating under the Statute of Uses, may be executed by deed, it may be executed by feoffment, bargain and sale, covenant to stand seised, statutory grant, or, whilst that mode of assurance remained, it might have been exercised by lease and release with or without a fine. But these assurances, so far as they may be, or may have been, employed P^rno-, for the purpose of exercising *powers of appointment, do not L J operate as feoffments, bargains and sales, covenants to stand seised, statutory grants, leases and releases, or fines, but as declarations of the uses under the power. And hence, if a power limited by way of use is executed by any of these assurances, upon which uses are declared, the feoffee, &e., as the appointee of the first use, will be invested with the legal estate by force of the Statute of Uses, and the real objects of the deed, contrary to the usual intention, will take mere trust estates. (p) Under the combined operation of the 24th and 27th sections of the stat. 1 Vict. c. 26, a will may be a good execution of a power, though made before the power was created. (g) A power may be executed by any words indicating an intention to exercise it. (r) But such technical expressions as are necessary in a deed at common law are equally necessary in a deed or other act inter vivos (i) On Powers, as distinguished from appointments under them, see supra, p. 252 ; and on Leases under Powers, see next section. (k) 1 Sugd. Pow. 250, 252 ; Co. Litt. 271, b, n. 1, VII., 2. (I) 4 Cruise T. 32, c. 16, § 2 ; 2 Sugd. Pow. 99. (m) 1 Sugd. Pow. 255. (n) 1 Sugd. Pow. 314. (o) 1 Sugd. Pow. 247. (p) Sugd. Pow. 247-8 ; 2 Id. 9, 10 ; Co. Litt. 271, b, n. 1, Tii., 1, 2. See supra, p. 197-8. (g) Stillman v. Weedon, 16 Sim. 26. (r) 1 Sugd. Pow. 244. OF A DEED OF APPOINTMENT, ETC. 389 in execution of a power. And the construction of a deed executing a power is the same as that of a deed at common law. So that, if an estate is appointed to a person indefinitely, he will take an estate for life only.(s) That which may be a complete exercise and exhaustion of a power at law may amount to a partial execution only in equity. Thus, if a man, having a general power of appointment, appoints the fee by way of mortgage, the power is wholly executed at law ; but as equity considers a mortgage merely a security for the debt, it operates in equity as a partial execution only.(i) Powers of appointment and revocation may be executed at different times over different parts of the property, or over the whole property, but not to the full extent of the power. So that where a man has a general power of ^appointment, he may appoint an estate for life r:i,roA-\ at one time, and the fee at another time.(tt) •- J There ought to be no trifling distinctions between a power of appoint- in fee and an estate in fee, upon merely technical grounds. The power must not be exceeded, nor its directions evaded ; but where there is no prohibition, everything which is legal and within the limits of the authority should be supported ; so that a power to appoint a fee, with no prohibition against giving a less estate, ought to be held to authorize any legal limitations within the scope of the power which could be served out of a commensurate estate, that is, an estate in fee. Hence, where a person had a power of appointing to one or more of his children in fee, and he, in exercise of his power, whether referring to it or not, devised the lands to his wife for life, to maintain and educate his children, and to provide portions for them, with remainder to his eldest son in fee, it was held by Sir E. Sugden, when Lord-Chancellor of Ireland, that the gift of the life estate to the wife was void, as she was not an object of the power, but that the devise to the son was a good appointment, though in remainder; and that the direction for main- tenance and education of the children, and the legacies to them, were pro tanto a good execution of the power.(a;) Where a fund is to be paid to all and every or any child or children of a certain person, and to the exclusion of any one or more of them, in such shares and at such times as such person shall appoint, and, in default of appointment, to be equally divided between them, it has been held by the same most learned judge, that the power authorizes an appointment to take effect upon the happening of a contingency.(y) *A donee of a power may suspend an appointment or revoca- _^__...^ tion upon a contingency.(2;) L J Where a power is given to appoint an estate generally by deed or will, without expressing in what manner it is to be executed, the deed or will must be executed like any other deed or will. So that, if the («) 1 Sugd. Pow. 532-3. (i;) 1 Sugd. Pow. 343 ; 4 Cruise T. 33, c. 16, ? 42. (u) 1 Sugd. Pow. 341-2; 4 Cruise T. 32, c. 16, J 38, 41. (x) Crozier t. Crozier, 3 Dru. & War. 353. (y) Caulfield v. Maguire, 2 J. & L. ITO. (z) 1 Sugd. Pow. 439, 440. 390 SMITH ON REAL AND PERSONAL PROPERTY. instrument was to be a will, or " a writing of the nature of a will," and the subject of the power was personal estate, it might, before the stat. 1 Vict. c. 26, have been executed by a mere writing, without signature or attestation; while, if the property was real estate, the will must have been executed with the solemnities required by the Statute of Frauds. (a) But by s. 9 and 10 of the stat. 1 Vict. c. 26, one uniform mode of executing a will is prescribed, whether the will is an appointment or not. Two witnesses, although not sufiSoient to a devise of an interest in land, were sufficient to an exercise of a power by will, attested by that number of witnesses. It has, however, been held, that where a power is given of appointing by any deed under hand and seal, executed in the presence of and attested by witnesses, a deed, though in fact signed as well as sealed and delivered in the presence of two witnesses, is not a good exercise of the power, if the attestation clause does not express that the deed was signed as well as sealed and delivered. (6) This over- sight having frequently been committed, the stat. 54 Geo. 3, c. 168, was passed to remedy it by a retrospective operation, but without ex- tending to future transaotions.(c) The word " witness," however, will be a sufficient form of attestation, if all the ceremonies are previously stated in the body of the instrument or at the conclusion of it.(d) r*fiSRT W^®''^ witnesses *are required, but nothing is said about the L J witnesses attesting the execution, the power will be duly execu- ted, although the witnesses do not subscribe the indorsed attestation, or some of them do and others do not.(e) A deed executing a power should state accurately the compliance with every formality required to be observed. (/) II. Relief against the Defective Execution of Powers. Relief against a defective execution of a power can only be had in a Court of equity, and only where there is either a valuable consideration in the person applying for such relief (as in the case of a person claiming as a purchaser under the donee of the power — the term purchaser in- cluding a mortgagee and a lessee — or of an intended husband, or of a creditor of the donee of the power,) or where the applicant is a wife or a legitimate child of such donee, even when not claiming as a purchaser for valuable consideration, because they are in some degree considered as creditor's by nature.(^) The like relief is extended to a charity. (A) Indeed an appointment to a charity, by any writing, however informal, is valid, as the Statute of Charitable Uses supplies all defects of assu- rance which the donor was capable of making.(i) But this equity is not extended to a mere volunteer, or even to a husband (except in the (a) 1 Sugd. Pow. 280-1 ; 4 Cruise T. 32, c. 16, ^ 19, 21. (b) Waterman v. Smith, 9 Sim. 629. (c) Burton, | 450 ; 1 Sugd. Pow. 307-8. (d) 1 Sugd. Pow. 300. (e) 1 Sugd. Pow. 312-13. (/) 1 Sngd. Pow. 324. {ff) 2 Sugd. Pow. 91-94, 97-8 I 1 Story's Eq. Jur. J 95, 169, 170; 4 Cruise T. 32, c. 17, § 9, 15-17, 19, 20. (A) 2 Sugd. Pow. 94 ; 1 Story's Eq. Jur. g 95. (i) 1 Sugd. Pow. 254 ; Innes t. Sayer, 3 Mac. & G. 606. OP A DEED OP APPOINTMENT, ETC. 891 case of an intended husband, who is regarded as a purchaser for valu- able consideration,) or to a natural child, or to a grandchild, or to a father, or mother, or brother, or sister.(A) But cases of fraud consti- tute an exce|^tion to this, as where the person interested in the non- execution *of the power has the deed creating the power in his r^roir-i custody, and refuses to allow the donee of the power an oppor- L J tunity of inspecting it to enable him to execute it aright.(Z) Belief is granted where there is a defect in the mode of execution : as, 1. Where the power ought to be executed by deed, but is executed by will. 2. Where, according to the old law, the power was required to be exercised by a testamentary instrument executed and attested in a particular form, but such instrument is wanting wholly in the forms of signature and attestation. (m) This was no derogation from the Statute of Frauds as regarded real estate, because an appointment under a power did not take effect under that statute. But all appointments by will, made on or after the 1st of June, 1838, (ra) must be executed like other wills ; for, by the stat. 1 Vict. c. 26, s. 10, it is enacted, that " no ap- pointment made by will in exercise of any power shall be valid, unless the same be executed in manner hereinbefore required." (o) By the same section it is enacted, as regards wills made on or after the 1st of January, 1838, that " every will executed in manner hereinbefore re- quired shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstand- ing it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity." But in West v. E,ay,(j5) it was held, contrary to Bucknell v. Blenkorn,(2') that, where a power of appointment is to be exercised by " any deed or writing," under the hand and seal of the donee, it cannot be exercised by a will executed with only the forma- lities required by 1 Vict. *c. 26, notwithstanding the 10th sec- r*roo-| tion of that act, the power not being in terms a power to appoint L J by will, but only by any deed or writing. Eelief is granted even where there is only an intention to execute the power, if it is clearly manifested in writing. (r) Equity cannot dispense with the regulations prescribed, where the power is created by statute, at least where they constitute the apparent policy and object of the statute; or with the consent of persons whose consent is required. Nor will the regulations prescribed be dispensed with, where such dispensation would wholly or partially defeat the object of the donor of the power; as where, in the case of a lease under a power, the best rent is required to be reserved, and it is not reserved. Nor will an execution by an absolute deed, or a surrender of copyholds, (k) 2 Sugd. Pow. 94-5; 1 Story's Eq. Jur. § 95. {I) 2 Sugd. Pow. 140; 1 Story's Eq. Jur. § 94, 199 ; 4 Cruise T. 32, c. 17, § 22-3. (m) 2 Sugd. Pow. 125-6 ; 1 Story's Eq. Jur. J 97, 173-4; 4 Cruise T. 32, c. 17, ? 1- % (n) 2 Sugd. Pow. 125-6; 1 Story's Eq. Jur. J 174. (o) 2 Sugd. Pow. 125-6. {p) 1 Kay, 385. [q) 5 Hare, 131. (r) 2 Sugd. Pow. 115-6. 392 SMITH ON REAL AND PERSONAL PROPERTY. instead of by will, be supported; as that would be repugnant to the power, since it would not be revocable like a will.(s) Nor will a defec- tive execution be supported where the donee of the power afterwards executes it in due form in favour of a bona fide purchaser/or mortgagee without notice of such defective execution, it being a maxim, that where the equities are equal, the law shall prevail.(<) Putting aside cases of fraud and election, equity will not interpose in the case of the non-execution of a mere power ; for that would be depriving the donee of the right of discretion in regard to the exercise of the power. But where a power is coupled with a trust, that is, where a man is invested with a trust to be eflFectuated by the execution of a power, it is his duty to exercise the power; and if he does not execute it, equity will carry the trust into execution, even though the person in whose favour it is to be executed is a mere volunteer. An P^rnq-i instance of this kind *oocurs where trustees are empowered to L -I sell an estate, and apply the proceeds upon certain trusts.(M) III. Excessive Execution of Powers. Where there is a complete but excessive execution, the excess alone is void, if it is of such a nature as to be capable of being exactly distin- guished and severed from that which would constitute a complete and proper appointment : as where a man, having a power to lease for twenty- one years, leases for forty ; or where a person having power to charge a particular sum charges a larger sum;(y) or, in most cases, where an appointment is made to persons, some of whom are not objects of the power ■Ax\ or where a distinct unauthorised limitation, trust, or condition, is superadded. (y) Where a testator after appointing personal property in terms which, per se, would give the appointee the absolute interest, proceeds to direct, that, after the death of the appointee, the property shall be held upon trust for other persons, who are incapable of taking, the first appointee takes the absolute interest, unafi"ected by the subsequent trusts. (z) Under a power to charge an estate with a certain sum for the portions of daughters, the donee may limit to the separate use of a daughter, with a restraint on anticipation. (a) r*590"| *IV. Fraudulent and Illusory Appointments. The donee of a power must exercise it bon& fide for the end designed : otherwise it is considered as a fraud upon the power. Hence, where a person has a power of appointing to all or any of his children, and he (a) 1 Story's Eq. Jur. g SS-T, 173 ; 2 Sugd. Pow. 128, 138. (t] 2 Sugd. Pow. 103-4. (u) 2 Sugd. Pow. 157-160; 1 Story's Bq. Jur. § 98, 169, 170; 4 Cruise T. 32, c. 17, I 1, 25. [v) See 2 Sugd. Pow. 75, 78. {x) 2 SUgd. Pow. 62, 66-7. (y) 2 Sugd. Pow. 73, 76, 84; 4 Cruise T. 32, c. 16, J 49. {z) Harvey v. Stracey, 1 Drewry, 137-140. * [a] Dickinson t. Mort, 8 Hare, 178. OF A DEED OF APPOINTMENT, ETC. 393 exercises it in favour of one child, merely in order to remove an objec- tion to the title of an estate, the appointment is void. (6) If a person, having a particular power to be exercised for the benefit of others, makes an appointment upon the terms of securing some benefit to himself or some other persons who are not objects of the power, such an appointment is fraudulent, and will be set aside in equity :(c) as where the donee of a power appoints a fund to one of the objects of the power, under an understanding that the latter is to lend the fund to the former though on good security. (rfj Upon the same principle, a parent cannot appoint an immediate por- tion to an infant who is not in want of it with a view to becoming entitled to it himself, as the personal representative of the infant, in the event of the death of such infant.(e) Where a person exercises a general power of appointment in favour of a stranger, it will be deemed a fraud upon his creditors, who will in equity become entitled to the money in the hands of the appointee. (/) Where a person had a power of appointing an estate or a sum of money unto and among his children or any other class of persons, in such shares and proportions as he *should think proper,(5r) there, prior to the |-^_q,-. 16th of July, 1830, each of the class must in equity have had L J such a fair and reasonable share as was not illusory : otherwise an appoint- ment to them prior to that date was void in equity. (^) But by the stat. 1 Will. 4, c. 46, s. 1, illusory appointments made after the 16th of July, 1830, are valid in equity as well as at law. The act is in these words : " Whereas, by deeds, wills, and other instruments, powers are frequently given to appoint real and personal property amongst several objects, in such manner that none of the objects can be excluded by the donee of the power from a share of such property ; and whereas appointments in exercise of such powers whereby an unsubstantial, illusory, or nominal share of the property affected thereby is appointed to or left unappointed to devolve upon any one or more of the objects thereof, are invalid in equity, although the like appointments are good and binding in law : and whereas considerable inconvenience hath arisen from the rule of equity relative to such appointments, and it is expedient that such appointments should be as valid in equity as at law; be it therefore enacted, that no appointment which, from and after the[passing of this act shall be made in exercise of any power or authority to appoint any pro- perty, real or personal, amongst several objects, shall be invalid or im- peached in equity, on the ground that an unsubstantial, illusory, or nominal share only shall be thereby appointed to or left unappointed to devolve upon any one or more of the objects of such power; but that every such appointment shall be valid and effectual in equity as well as at law, notwithstanding that any one or more of the objects shall not (b) Weir t. Charnley, 1 Ir. Eq. Rep. (N. S.) 295. (c) See 2 Sugd. Pow. 181, 184, 191-194; Arnold v. Hardwick, 7 Sim. 343 ; Askham v. Barker, 12 Beav. 499 ; Harrison t. Eandall, 9 Hare, 397. (d) Arnold T. Hardwick, 7 Sim. 343. (e) 2 Sugd. Pow. 194. (/) 2 Sugd. Pow. 102, 158-9; 1 Story's Eq. Jur. § 169. (g) i Cruise T. 32, c. 16, J 58. (A) 4 Cruise T. 3, c. 16, J 58. 394 SMITH ON REAL AND PERSONAL PROPERTY. thereunder, or in default of such appointment, take more take an unsuh- stantial, illusory, or nominal share of the property subjected to such r*5921 P°^^^-" (s- !■) "Provided *always, and be it further enacted, -I that nothing in this act contained shall prejudice or affect any provision in any deed, will, or other instrument creating any such power as aforesaid, which shall declare the amount of the share or shares from which no object of the power shall be excluded." (s. 2.) " Provided also, and be it further enacted and declared, that nothing in this act con- tained shall be construed, deemed, or taken, at law or in equity, to give any other validity, force, or effect, to any appointment, than such appoint- ment, would have had if a substantial share of the property affected by the power had been thereby appointed to or left unappointed to devolve upon any object of such power." (s. 3.) V. The Question whether an Instrument is intended to operate as an Appointment. A power may be executed without being in any manner referred to, provided, in cases not within the Wills Act, the intention to execute it sufficiently appears. (i) Where, however, a man has both a power and an interest, and does an act generally without reference to his power, the land shall, if it can, pass by virtue of his ownership. (A:) But where a person has both a power and an interest (as where he has a general power of appointment, ■\rith a limitation to himself in fee,) and he makes a disposition which is not adapted to pass his interest and would be ab- solutely void if it did not enure as an execution of the power, it will take effect as an appointment, if it is of the nature and executed in the manner prescribed by the power, however general it may be.(?) And where a man has both a power and an interest, and he creates an estate which would rnKQo-i not or might not endure *for the period assigned to it by the terms L -1 of its creation, if it were fed out of his interest, it shall take effect by force of the power, (to) Even prior to the Wills Act, where a man had a power of appoint- ment over certain property, but no power to convey, devise, or bequeath it, if he executed an instrument purporting to convey, devise, or be- queath the property, and the forms requisite to an execution of the power were observed, the conveyance, devise, or bequest enured as an appointment, because otherwise it would have been void.(n) And where an act can operate only as an exercise of a power of revocation, and all the circumstances requisite to an execution of the power are observed, the act shall be deemed an execution of the power, although no reference whatever is made to it, or to an intent to revoke. (o) In cases under the old law, where there is no general reference to powers, and no reference to the particular power, the property comprised in it must be mentioned, or in some other way there must be an inten- (t) 1 Sugd. Pow. 356; 4 Cruise T. 32, c. 16, § 27, 31; Co. Litt. 271, b, n. 1, vii., 2. (k) 1 Sugd. Pow. 412 ; 4 Cruise T. 32, c. 16, | 70 ; Burton, § 610. (I) 1 Sugd. Pow. 417 ; Co. Litt. 271, b, n. 1, rii., 2. (m) 1 Sugd. Pow. 418. (n) 1 Sugd. Pow. 357, 377, 380. (o) 1 Sugd. Pow. 357-8. OE A DEED OF APPOINTMENT, ETC. 395 tion apparent on the face of the will to operate on it.(ji) But in the case of wills made on or after the 1st of January, J838, a general gift will include real and personal property over which the testator has a general power of appointment, unless a contrary intention appears by the will. For, by the stat. 1 Vict. c. 26, a. 27, it is enacted " that a general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be con- strued to include any real estate, or any real estate to which such de- scription shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an *execution of such power, unless a contrary intention shall ap- _^,_ ._ pear by the will; and in like manner a bequest of the personal L J estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a con- trary intention shall appear by the will." Where a gift is primS, facie specific, evidence may be received as to the state of the property at the date of the will, or at the time of the testator's death, for the purpose of identifying the subject-matter of the gift, so as to ascertain whether the testator meant to refer to his own property or to property over which he had only a power of appoint- ment, (j) The court will not infer an intention to execute a power from the mere fact of the instrument being executed in the manner required by the power, nor from any other slight circumstances of conformity, nor from the fact that otherwise there would not be sufiScient to answer the purposes of the will.(>') VI. Appointments generally. Every person who is capable of disposing of property of which he is the owner, may exercise a power. (<) In the absence of any indication of a contrary intent, a donee of a power may execute it at any time during his life.(M) It is the duty of a trustee who executes a power, to show that he has complied with the exigencies required by it.(a;) As a power limited by way of use is a mere right to *appoint |-^(Cqe-i a use, the immediate appointee takes the first use, which the L J statute executes, and any use engrafted on that appointment is a second use, which the statute does not execute, and which is consequently a mere trust. It is therefore necessary to appoint immediately to the person intended to take, and not to some other person to his use, unless it is desired that he should not have the legal estate. (j/) But in the [p) 1 Sugd. Pow. 367-369 ; 4 Cruise T. 32, c. 16, g 34. (q) Innes v. Sayer, 3 Mao. & 6. 606. (r) 1 Sugd. Pow. 370-1, 387 ; Davies v. Thorn, 3 De G. & S. 347. (() 1 Sugd. Pow. 181. (u) 1 Sugd. Pow. 330-1. (x) Sir J. Romilly, M. R., in Morris v. Wright, 14 Beav. 303. [y] 1 Sugd. Pow. 229, 238-9, 242; Co. Litt. 271, b, u. 1, vii., 1. 396 SMITH ON HEAL AND PERSONAL PEOPBKTT. case of a mere common-law authority, as in the ease of a power given by will without the intervention of uses, an appointment by virtue of such a power to a persoi} to certain uses would not of itself vest the legal estate in him, but the legal estate would vest either in the immediate appointee or in the person to whose use the appointment was made, as would best effectuate the intention of the parties. («) Where a deed of appointment is required by a court of equity, or, as it would seem, by the instrument creating the power, to be executed within a limited time, an irrevocable appointment must be made within that time : an appointment with power of revocation is not a proper com- pliance with the requisition. (a) The effect of an appointment of personalty to the executors and ad- ministrators of the settlor is simply to add it to his general personal estate, so as to subject it to any disposition which he may make of it in his lifetime or by his will, or to any liability incident to his general per- sonal estate (as to the claims of assignees in bankruptcy or insolvency), or to the Statutes of Distribution, as the case may be. And this rule applies even to money payable at the settlor's death under a policy of life assurance, because the settlor or his issue may sell the policies at once. (6) r*fiQfil ■^^ appointment in pursuance of a power under the Statute of L -I *Uses operates under that statute, not as a conveyance of the land, but as a substitution of a new use in the place of a former one.(c) Although estates arising from the execution of powers owe their com- mencement to the deed of appointment, yet the appointee under the power does not derive his title from the appointor, or out of the estate whereof the appointor is seised, but comes in directly under the convey- ance by which the power was created ; and the uses created by the ap- pointment precede the uses limited by the original conveyance, just as if the estate created by the appointment had been actually limited in such original conveyance. (cZ) But the rule does not apply so as to make the interests appointed vest by relation from the time of the limitation of the power.(e) Nor does the rule apply so as to render an interest ap- pointed void, like a remainder, because the particular estate determined before the power arose. (/) Section VII. 0/ Leases under Powers. As all leases created by tenants for life out of their own interest de- termine by their death, powers are usually inserted in modern settle- ments enablitg the tenants for life to grant leases, to be valid against the persons in remainder and reversion. (z) See 1 Sugd. Pow. 238-9, 242. (a) Piper v. Piper, 3 Jly. & K. 159. (6) Mackenzie v. Mackenzie, 3 Mac. & G. 659. (c) 4 Cruise T. 32, c. 16, ? 78 ; Co. Litt. 271, b, n. 1, vii., 1. (d) 4 Cruise T. 32, c. 16, g 76 ; 2 Sugd. Pow. 22; Co. Litt. 271, b, u. 1, vii., 2. (e) 2 Sugd. Pow. 23 f Co. Litt. 271, b, u. 1, vii., 2. (/) 2 Sugd. Pow. 26. OF LEASES UNDEE POWERS, 397 But, lest the teiiants for life should exert these powers to the preju- dice of the persons in remainder or reversion, they are in general re- strained by the words of the power from making leases, except on cer- tain conditions, by which *mean3 they are forced to secure the i-jitKq^-i same advantages to those who may succeed to the estate as to ^ -■ themselves. It has therefore been long settled, that the restrictive parts of these powers shall be construed strictly against the tenant ior life, and in favour of the remainderman and reversioner ; because the conditions on which powers of this kind are given are inserted with a view to their interest.(^) The instruments by which leasing powers are executed are construed more strictly than other deeds of appointment. For, it being expressly required that tenants for life should execute their powers of leasing in a particular manner, that becomes a condition pre- cedent ; and if all the circumstances required by the power are not strictly followed, the power is held to be totally unexecuted. So that, if a usual covenant is omitted, or if an unusual or improper covenant is inserted in a lease under a power, the lease is thereby void in its crea- tion, and not the covenant only ; and, prior to the stat. 12 & 13 Viet. c. 26, s. 3, and 13 Vict. c. 17, s. 2, no acceptance of rent or other act by the person in remainder or reversion would operate as a confirmation of it.{h) A power in a bargain and sale, to lease to any man indefinitely, al- though for a valuable consideration, and not to a person from whom a valuable consideration moved at the time of the execution of the deed, is void.' And so, a power in a covenant to stand seised, to lease to any one indefinitely, and not to a person named in the deed and also within the consideration of blood or marriage, is void.(i) A power of leasing may be exercised toties quoties.(A) I. Usual Restrictions. The restrictions which are usually annexed to leasing powers relate to, 1. The instrument by which the power is *to be executed. 2. p^_Qj,-. The lands to be let. 3. The time when the lease is to commence. L J 4. Its duration. 5. The reservation. 6. The clauses and covenants re- quired to be inserted in such leases. (?) 1. Instrument hy which the Power is to he executed. A leasing power is generally required to be executed by deed, sealed and delivered in the presence of and attested by two or more witnesses. It is also usually required that the tenant should execute a counterpart of such indenture. (m) A power to make leases for life or years cannot be exercised by letter of attorney ; for delegatus non potest delegare. (m) {g) 4 Cruise T. 32, c. 15, § 1, 2. (A) 4 Cruise T. 32, c. 15, | 3, 61, 65; infra, p. 602, 604. (i) 1 Sugd. Pow. 158-9 ; 3 Jarm. & Byth. by Sweet, 676. (k) 2 Sugd. Pow. 312. (l) 4 Cruise T. 32, c. 15, § 4. (m) 4 Cruise T. 32, c. 15, § 5. (n) 1 Jarm. & Byth. by Sweet, 429 ; 1 Sugd. Pow. 213. 398 SMITH ON KBAL AND PERSONAL PROPERTY. 2. Lands to he let. In many cases, powers of leasing are restrained to lands which have been usually demised to farmers, in order to prevent the tenant for life from leasing the mansion-house, gardens, pleasure grounds, park, or other parts of the land usually occupied by the proprietors of the estate, and deemed necessary to the dignity of the family.(o) Where a power extends to lands that have been usually let, lands which have been twice or thrice let are within the power ; and so are lands which have been in lease for a very long term, say ninety-nine years, though it has recently expired. (^) With this exception, lands which have been only once let do not fall within the description of lands usually let ; for usus fit ex iteratis aetibus. And lands not demised for the space of twenty-one years previous to the making of a lease under a power, are not consider- ed as lands usually let.(g) _^.Q. *Where there is a power of leasing any part of premises L -1 usually so leased, reserving the ancient and accustomed rents, two tenements which had previously been leased separately may be leased together under a single demise, if the rents reserved are in proper pro- portion, (r) Lands comprised in a power may be, and frequently are, demised in the same lease with lands not comprised in the power. But in such a case there should be several demises with distinct reservations. (s) Joining at an entire rent, even though it be a proportionately larger rent, premises within a power of leasing at the accustomed rent, with other premises not within the power, is fatal to the lease. (<) 3. Commencement of the Lease. Where a power is to grant leases in possession, a lease in futuro is void at law and in equity, even though it commences only a day after the date of the deed creating it.(u\ In one sense, as opposed to a lease in possession, that is said to be a lease in reversion which commences at a future day. But the usual construction of the term lease in reversion in powers, as opposed to a lease in possession, is a lease to commence after the end of a present interest in being, (x) Even though a power to lease be general, without expressing that the leases shall be in possession, leases in possession only are authorized. (y) Under a power to make leases in reversion as well as in possession, the donee cannot make a lease in possession and another (o) 4 Cruise T. 32, o. 15, § 7. (p) See 2 Sugd. Pow. 317-319; 4 Cruise T. 32, c. 15, g 8, 9. (?) 4 Cruise T. 32, c. 15, J 8, 9. (r) Doe d. Earl of Egremont v. Williams, 11 Ad. & E. (N. S.) 688. (s) 2 Sugd. Pow. 417. V (t) Doe d. Lord Egremont v. Stephens, 6 Ad. & E. (N. S.) 208. (u) 2 Sugd. Pow. 361, 363. (z) 2 Sugd. Pow. 343-4 ; 4 Cruise T. 32, c. 15, ? 21, 40. (y) 2 Sugd. Pow. 345 ; 4 Cruise T. 32, c. 15, ^ 24. OF LEASES UNDER POWERS. 399 lease in *reversioii of the same land.(«) And in the case of a rj|;(3f\f)-| lease of the reversion there should not be an interval between L J the former lease and the lease of the reversion. (a) 4. Duration of the Lease. The usual practice is to restrain tenants for life from making leases for a longer term than twenty-one years, except in those counties where lands are usually let for lives. (6) The usual power of leasing for lives authorises a lease for lives in esse, and for concurrent lives only.(c) A power to make leases for two or more lives authorizes a lease for a less number of lives, or for the same number of lives and the life of the survivor.(t^) 5. The Reservation. The word "rent" in powers of leasing may mean any return or equi- valent adapted to the nature of the subject demised. So that, upon a lease of mines, a due proportion of the produce may be reserved as a rent.(e) Where the usual or ancient rent is to be reserved, generally the usual way of reserving it must be followed. But where merely the best yearly rent is required to be reserved, it may be made payable quarterly or half-yearly. The word yearly in such powers denotes, not that the pay- ment is to be made only once a year, but that it is to be made in each successive year.(/) If "the best improved rents" or "the ancient accustomed rents" be reserved, the lease is void on account of the uncertainty as to the amount of the rent.(^) *6. Covenants. P601] The covenants entered into by a lessee with a tenant for life, the donee of the power, his heirs and assigns, will enure to the remainderman, who is considered to be an assignee within the meaning of the statute of Hen. 8, as being an assignee of the estate out of which the lease was created. (^) Where a power of leasing provides that the lease shall contaiii all " usual and reasonable covenants," the general rule is to determine the question " what are usual covenants" by reference to the lease in exist- ■ ence at the date of the power.(i) Where a power of leasing requires that the usual covenants shall be inserted in the lease, with a condition of re-entry " for non-performance of the covenants therein to be contained," and the lease contains a general covenant to repair and keep in repair, but, by the clause of re-entry, the right to re-enter is not, in general terms, in case the lessee shall not (z) 2 Sugd. Pow. 358. (a) 2 Sugd. Pow. 359. (i) 4 Cruise T. 32, c. 15, | 43. (c) 2 Sugd. Pow. 329, 340. (d) 2 Sugd. Pow. 339, 341. (e) 2 Sugd. Pow. 402. (/) 2 Sugd. Pow. 403-406. {g) 2 Sugd. Pow. 414, 415. (h) 2 Sugd. Pow. 451-2. (t) Doe d. Lord Egremont v. Stephens, 6 Ad. & B. 208. 400 SMITH ON KEAL AND PERSONAL PROPERTY. repair, but in case the lessee shall not repair ',' within six calendar months next after notice ;" in such cases the lease is not in compliance with the power, (/i!) II. Relief against the defective Execution of Powers of Leasing. In some cases, where the forms prescribed by the power have not been observed, equity will relieve in favour of a lessee, if he is in the nature of a purchaser. r*fi09'l "^y ^^^^' ■'■^ ^ ^^ Vict. c. 26,(m) s. 2, " where in the *in- L J tended exercise of any such power of leasing as aforesaid, whether derived under an Act of Parliament or under any instrument lawfully creating such power, a lease has been or shall hereafter be granted, which is, by reason of the non-observance or omission of some condition or restriction, or by reason of any other deviation from the terms of such power, invalid as against the person entitled after the determination of the interest of the person granting such lease to the reversion, or against other the person who, subject to any lease lawfully granted under such power, would have been entitled to the hereditaments comprised in such lease, such lease, in case the same have been made bona fide, and the lessee named therein, his heirs, executors, administrators, or assigns, (as the case may require,) have entered thereunder, shall be considered in equity as a contract for a grant, at the request of the lessee, his heirs, executors, administrators, or assigns, (as the case may require,) of a valid lease under such power, to the like purport and effect as such invalid lease as aforesaid, save so far as any variation may be necessary in order to comply with the terms of such power ; and all persons who would have been bound by a lease lawfully granted under such power shall be bound in equity by such contract : Provided always, that no lessee under any such invalid lease as aforesaid, his heirs, executors, administrators, or assigns, shall be entitled by virtue of any such equitable contract as aforesaid to obtain any variation of such lease, where the persons who would have been bound by such contract are willing to confirm such lease without variation." By s. 3, " the acceptance of rent under any such invalid lease as afore- said shall, as against the person so accepting the same, be deemed a con- firmation of such lease." By s. 4, " where a lease granted in the intended exercise of any such power of leasing as aforesaid is invalid by reason that at the time of the r»fin^n g''^n''i°S thereof the person ^granting the same could not lawfully L J grant such lease, but the estate of such person in the heredita- ments comprised in such lease shall have continued after the time when such or the like lease might have been granted by him in the law- ful exercise of such power, then and in every such case such lease shall (k) Doe d. Lord Egremont y. Burrough, 6 Ad. & E. 229. (I) 2 Sugd. Pow. 138. (m) By s. 1, "person" shall include corporations aggregate and sole, unless tbere be something in the context contrary to such construction. OF LEASES UNDER POWERS. 401 take effect and be as valid as if the same had been granted at such last mentioned time, and all the provisions herein contained shall apply to every such lease." By s. 5, " when a valid power of leasing is vested in or may be exer- cised by a person granting a lease, and such lease (by reason of the de- termination of the estate or interest of such person or otherwise) cannot have effect and continuance according to the terms thereof, independently of such power, such lease shall, for the purposes of this act, be deemed to be granted in the intended exercise of such power, although such power be not referred to in such lease." By s. 6, " nothing in this act contained shall extend or be construed to prejudice or take away any right of action or other right or remedy to which, but for the passing of this act, the lessee named in any such .lease as aforesaid, his heirs, executors, administrators, or assigns, would or might have been entitled, under or by virtue of any covenant for title or quiet enjoyment contained in such lease on the part of the person granting the same, or to prejudice or take away any right of re-entry or other right or remedy to which, but for the passing of this act, the person granting such lease, his heirs, executors, administrators, or assigns, or other the person for the time being entitled to, the reversion expectant on the .^determination of such lease, would or might have been entitled, for or by reason of any breach of the covenants, conditions, or provisoes contained in such lease, and on the part of the lessee, his heirs, executors, administrators, or assigns, to be observed and per- formed." *By s. 7, " this act shall not extend to any lease by an eccle- rHcfsfi^-i siastical corporation or spiritual person, or to any lease of the L J possessions of any college, hospital, or charitable foundation, or to any lease where, before the passing of this act, the hereditaments comprised in such lease have been surrendered or relinquished, or recovered ad- versely by reason of the invalidity thereof, or there has been any judg- ment or decree in any action or suit concerning the validity of such lease," &c. By the stat. 12 & 13 Vict. c. 110, the operation of this act was sus- pended till the 1st of June, 1850. And by the stat. 13 Vict. c. 17, the 3rd section of the 12 & 13 Vict. c. 26 was repealed. And by s. 2, " where, upon or before the acceptance of rent under any such invalid lease, as in the said first-recited act mentioned, any receipt, memoran- dum, or note in writing, confirming such lease, is signed by the person accepting such rent, or some other person by him thereunto lawfully authorised, such accptance shall, as against the person so accepting such rent, be deemed a confirmation of such lease." By s. 3, " where during the continuance of the possession taken under any such invalid lease, as in the said first-recited act mentioned, the person for the time being entitled (subject to such possession as afore- said) to the hereditaments comprised in such lease or to the possession or the receipt of the rents and profits thereof, is able to confirm such lease without variation, the lessee, his heirs, executors, or administrators, (as the case may require,) or any person who would have been bound March, 1856.-26 402 SMITH ON REAL AND PERSONAL PROPERTY. by the lease if the same had been valid, shall, upon the request of the person so able to confirm the same, be bound to accept a confirmation accordingly; and such confirmation may be by memorandum or note in writing, signed by the persons confirming and accepting respectively, or by some other persons by them respectively thereunto lawfully P^„„_-. authorised; and *after confirmation and acceptance of confirma- L -I tion such lease shall be valid, and shall be deemed to have had from the granting thereof the same efiect as if the same had been originally valid." Section VIII. Of Assurances under the Act for the Abolition of Fines and Recoveries. By section 1 it is enacted, "that in the construction of this act the word ' lands' shall extend to manors, advowsons, rectories, messuages, lands, tenements, tithes, rents, and hereditaments of any tenure (except copy of court roll,) and whether corporeal or incorporeal, and any un- divided share thereof, but when accompanied by some expression inclu- ding or denoting the tenure by copy of court roll, shall extend to manors, messuages, lands, tenements, and hereditaments of that tenure, and any undivided share thereof; and the word 'estate' shall extend to an estate in equity as well as at law, and shall also extend to any in- terest, charge, lien, or incumbrance in, upon, or affecting lands, either at law or in equity, and shall also extend to any interest, charge, lien, or incumbrance in, upon, or affecting money subject to be invested in the purchase of lands ; and the expression ' base fee,' shall mean ex- clusively that estate in fee simple into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred ; and the expression ' estate tail,' in addition to its usual meaning, shall mean a base fee into which an estate tail shall have been converted ; and the expression ' actual tenant in tail' shall mean exclusively the tenant of an estate tail which shall not have been barred, and such tenant shall be deemed an r*finRT ^<''''i''l tenant in tail, *although the estate tail may have been L -I divested or turned to a right; and the expression 'tenant in tail' shall mean, not only an actual tenant in tail, but also a person who, where an estate tail shall have been barred and converted into a base fee, would have been tenant of such estate tail if the same had not been barred ; and the expression ' tenant in tail entitled to a base fee,' shall mean a person entitled to a base fee, or to the ultimate beneficial interest in a base fee, and who, if the base fee had not been created, would have been actual tenant in tail ; and the expression ' money subject to be invested in the purchase of lands' shall include money, whether raised or to be raised, and whether the amount thereof be or be not as- certained, and shall extend to stocks and funds, and real and other securities, the produce of which is directed to be invested in the pur- chase of lands ; and the lands to be purchased with such money or ' ASSURANCES, ETC. 403 produce shall extend to lands held by copy of court roll, and also to lands of any tenure, in Ireland or elsewhere out of England, where such lands or any of them are within the scope or meaning of the trust or power directing or authorising the purchase ; and the word < person' shall extend to a body politic, corporate, or collegiate, as well as an in- dividual; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the plural number shall extend and be applied to one person or thing as well as several persons or things ; and every word importing the masculine gender only shall extend and be applied to a female as well as a male ; and every assurance already made or hereafter to be made, whether by deed, will, private act of parliament, or otherwise, by which lands are or shall be entailed, or agreed or directed to be entailed, shall be deemed a settlement; and every appointment made in exercise of any power contained in any settle- ment, or of *any other power arising out of the power contained p#f.nw-i in any settlement, shall be considered as part of such settlement, >- J and the estate created by such appointment shall be considered as having been created by such settlement; and where any such settlement is or shall be made by will, the time of the death of the testator shall be considered the time when such settlement was made : Provided always, that those words and expressions occurring in this clause, to which more than one meaning is to be attached, shall not have the different mean- ings given to them by this clause in those oases in which there is any- thing in the subject or context repugnant to such construction." It will be convenient in this place to observe, that, by sect. 73, it is enacted, '< that any rule or practice requiring deeds to be acknowledged before inrolment shall not apply to any deed by this act required to be inrolled in His Majesty's High Court of Chancery in England or Ire- land." And by section 74, " every deed required to be inrolled in his majesty's High Court of Chancery in England or Ireland, by which lands, or money subject to be invested in the purchase of lands, shall be disposed of under this act, shall, when inrolled as required by this act, operate and take effect in the same manner as it would have done if the inrolment thereof had not been required, except that every such deed shall be void against any person claiming the lands or money thereby disposed of, or any part thereof, for valuable consideration, under any subsequent deed duly inrolled under this act, if such sub- sequent deed shall be first inrolled." *I. Assurances hy Persons liable after the Slst December, 1833, i-;j;f.rvQ-i to levy a Fine or suffer a Recovery. L J By the stat. 3 & 4 Will. 4, c. 74, s. 3, persons liable after the 31st De- cember, 1833, to levy fines or suffer recoveries, or to procure the same to be levied or suffered, shall effect such of the intended purposes as can be so effected by a disposition under the act, and such of them as cannot be so effected, by a deed which shall purport to be intended to have, and which shall accordingly have, the same operation as a fine or reco- 404 SMITH ON REAL AND PERSONAL PROPERTY^ very : — " In case any person shall, after the 31st day of December, 1833, be liable to levy a fine or suffer a common recovery of lands of any tenure, or to procure some other person to levy a fine or suffer a common recovery of lands of any tenure, under a covenant or agree- ment already entered into or hereafter to be entered into, before the 1st day of January, 1834, then and in such case, if all the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, the person liable to levy such fine or suffer such reco- very, or to procure some other person to levy such fine or suffer such recovery, shall, after the 31st day of December, 1833, be subject and liable under such covenant or agreement to make or to procure to be made such a disposition under this act as will affect all the purposes in- tended to be effected by such fine or recovery ; but if some only of the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, then the person so liable to levy such fine or suffer such recovery, or to procure some other person to levy such fine or suffer such recovery as aforesaid shall, after the 31st day of De- cember, 1833, be subject and liable under such covenant or agreement to make or procure to be made such a disposition under this act as will effect such of the purposes intended to be effected by such fine or reoo- r*flnQT ^^^y ^^ '^^^ ^® effected by a disposition under this act; and in L J those cases where the purposes intended to be effected by such fine or recovery or any of them cannot be effected by any disposition under this act, then the person so liable to levy such fine or suffer such recovery, or to procure some other person to levy such fine or suffer such recovery as aforesaid, shall, after the 31st day of December, 1833, be liable under such covenant or agreement to execute or to procure to be executed some deed whereby the person intended to levy such fine or suffer such recovery shall declare his desire that such deed shall have the same operation and effect as such fine or recovery would have had if the same had been actually levied or suffered; and the deed by which such declaration shall be made shall, if none of the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, have the same operation and effect in every respect as such fine or recovery would have had if the same had been actually levied or suffered : but if some only of the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, then the deed by which such declaration shall be made shall, so far as the purposes intended to be effected by such fine or recovery cannot be effected by a disposition under this act, have the same opera- tion and effect in every respect as such fine or recovery would have had if the same had been actually levied or suffered." II. Disposition of Freehold Lands hy Tenants in Tail, Issue in Tail, and Persons entitled to Base Fees in General. By the stat. 3 & 4 Will. 4, o. 74, s. 16, power is given to bar entails and estates to take effect after or in defeasance of estates tail : — " After the 31st day of December, 1833, every actual tenant in tail, whether in ASSUEANCBS, ETC. 405 possession, remainder, contingency, or otherwise, shall have full power to dispose *of for an estate in fee simple absolute, or for any rj^f^ifii less estate, the lands entailed, as against all persons claiming the L J lands entailed by force of any estate tail which shall be vested in or might be claimed by, or which but for some previous act, would have been vested in or might have been claimed by, the person making the disposition, at the time of his making the same, and also as against all persons, including the king's most excellent majesty, his heirs and suc- cessors, whose estates are to take effect after the determination or in defeasance of any such estate tail ; saving always the rights of all per- sons in respect of estates prior to the estate tail in respect of which such dispositions shall be made, and the rights of all other persons, except those against whom such disposition is by this act authorized to be made." But, 1. by s. 16, " where, under any settlement made before the passing of this act, any woman shall be tenant in tail of lands within the provisions of an act passed in the eleventh year of the reign of his Majesty King Henry the Seventh, intituled ' Certain Alienations made by the Wife of the Lands of her deceased Husband shall be void,' the power of disposition hereinbefore contained as to such lands shall not be exercised by her except with such assent as, if this act had not been passed, would, under the provisions of the said Act of King Henry the Seventh, have rendered valid a fine or common recovery levied or suflfered by her of such lands." And by s. 17 that statute is repealed, except as to lands in settlement before the Fines and Eecoveries Act. 2. By s. 18, " the power of disposition hereinbefore contained shall not extend to tenants of estates tail who, by an act passeed in the thirty-fourth and thirty-fifth years of the reign of his majesty King Henry the Eighth, intituled 'An Act to embar feigned Recovery of Lands wherein the King is in Reversion,' or by any other act, are restrained from barring their estates tail, or to *tenants in tail after possibility of issue i-sk/sii-i extinct." 3. By s. 20, " nothing in this act contained shall L J enable any person to dispose of any lands entailed in respect of any expectant interest which he may have as issue inheritable to any estate tail therein." Section 19 gives the power of enlarging base fees, with the consent of the protectors, if any: — " After the 31st day of December, 1833, in every case in which an estate tail in any lands shall have been barred and converted into a base fee, either before or on or after that day, the person who, if such estate tail had not been barred, would have been actual tenant in tail of the same lands, shall have full power to dispose of such lands as against all persons, including the King's most excellent majesty, his heirs and successors, whose estates are to take effect after the determination or in defeasance of the base fee into which the estate tail shall have been converted, so as to enlarge the base fee into a fee simple absolute ; saving always the rights of all persons in respect of estates prior to the estate tail which shall have been converted into a base fee, and the rights of all other persons, except those against whom such disposition is by this act authorized to be made." 406 SMITH ON REAL AND PERSONAL PROPERTY. Section 21 defines what shall be the effect of a disposition by a tenant in tail by way of mortgage, or for any other limited purpose : — " If a tenant in tail of lands shall make a disposition of the same under this act, by way of mortgage, or for any other limited purpose, then and in such case such disposition shall, to the extent of the estate thereby created, be an absolute bar in equity as well as at law to all persons as against whom such disposition is by this act authorized to be made, notwithstanding any intention to the contrary may be expressed or implied in the deed by which the disposition may be effected : Provided always, that if the estate created by such disposition shall be only an r*R191 ^^'^'^ TpouT autre vie, or for years absolute or *determinable, L -I or if, by a disposition under this act by a tenant in tail of lands, an interest, charge, lien, or incumbrance shall be created without a term of years absolute or determinable, or any greater estate, for securing or raising the same, then such disposition shall in equity be a bar only so far as may be necessary to give full effect to tbe mortgage, or to such other limited purpose, or to such interest, lien, charge, or incumbrance, notwithstanding any intention to the contrary may be expressed or implied in the deed by which the disposition may be effected." By s. 22 it is enacted, " that if, at the time when there shall be a tenant in tail of lands under a settlement, there shall be subsisting in the same lands or any of them, under the same settlement, any estate for years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years,) prior to the estate tail, then the person who shall be the owner of the prior estate, or the first of such prior estates if more than one, then subsisting under the same settle- ment, or who would have been so if no absolute disposition thereof had been made, (the first of such prior estates, if more than one, being for all the purposes of this act deemed the prior estate,) shall be the pro- tector of the settlement so far as regards the lands in which such prior estate shall be subsisting, and shall for all the purposes of this act be deemed the owner of such prior estate, although the same may have been charged or incumbered either by the owner thereof or by the settlor, or otherwise howsoever, and although the whole of the rents and profits be exhausted or required for the payment of the charges and incumbrances on such prior estate, and although such prior estate may have been absolutely disposed of by the owner thereof, or by or in consequence of the bankruptcy or insolvency of such owner, or by any other act or default of such owner; and that an estate by the curtesy, in respect of the estate r*fii^n '^^^J °^ °^ ^°y prior *estate created by the same settlement, shall L J be deemed a prior estate under the same settlement within the meaning of this clause ; and that an estate by way of resulting use or trust to or for the settlor shall be deemed an estate under the same settlement within the meaning of this clause." By s. 23, " where two or more persons shall be owners, under a set- tlement within the meaning of this act, of a prior estate, the sole owner of which estate, if there had been only one, would in respect thereof have been the protector of such settlement, each of such persons, in respect of such undivided share as he could dispose of, shall for all the ASSURANCES, ETC. 407 purposes of this act be deemed the owner of a prior estate, and shall, in exclusion of the other or others of them, be the sole protector of such settlement to the extent of such undivided share." By s. 24, " where a married woman would, if single, be the protector of a settlement in respect of a prior estate, which is not thereby settled, or agreed or directed to be settled, to her separate use, she and her hus- band together shall in respect of such estate be the protector of such settlement, and shall be deemed one owner; but if such prior estate shall by such settlement have been settled, or agreed or directed to be settled, to her separate use, then and in such case she alone shall in respect of such estate be the protector of such settlement." By s. 25, " except in the case of a lease hereinafter provided for, where an estate shall be limited by a settlement by way of confirmation, or where the settlement shall merely have the effect of restoring an estate, in either of those cases such estate shall for the purposes of this act, so far as regards the protector of the settlement, be deemed an estate subsisting under such settlement." By s. 26, " where a lease at a rent shall be created or confirmed by a settlement, the person in whose favour such *lease shall be r^f--iA-i created or confirmed, shall not in respect thereof be the protec- L J tor of such settlement." And by s. 27, " no woman in respect of her dower, and (except in the case hereinafter provided for of a bare trustee under a settlement made on or before the 31st day of December, 1833), no bare trustee, heir, executor, administrator, or assign, in respect of any estate taken by him as such bare trustee, heir, executor, adminis- trator, or assign, shall be the protector of a settlement." And by s. 28, " where under any settlement there shall be more than one estate prior to an estate tail, and the person who shall be the owner within the meaning of this act of any such prior estate, in respect of which but for the two last preceding clauses, or either of them, he would have been the protector of the settlement, shall by virtue of such clauses, or either of them, be excluded from being the protector, then and in such case the person (if any) who if such estate did not exist would be the pro- tector of the settlement shall be such protector." By s. 29, "where already, or on or before the 31st day of December, 1832, an estate under a settlement shall have been disposed of either absolutely or otherwise, and either for valuable consideration or not, the person who in respect of such estate would, if this act had not been passed, have been the proper person to have made the tenant to the writ of entry or other writ for sufifering a common recovery of the lands entailed by such settlement, shall, during the continuance of the estate which conferred the right to make the tenant to such writ of entry or other writ, be the protector of such settlement." And by s. 30, "where any person having either already, or on or before the 3Ist day of Decem- ber, 1833, either for valuable consideration or not, disposed of, either absolutely or otherwise, a remainder or reversion in fee in any lands, or created any estate out of such remainder or reversion, would under this act, if this *clause had not been inserted, have been the protec- (-^„-, c-, tor of the settlement by which the lands were entailed in which L J 408 SMITH ON REAL AND PERSONAL PROPBETT. such remainder or reversion may be subsisting, and thereby be enabled to concur in the barring of such remainder or reversion, which he could not have done if he had not become such protector, then and in every such case the person who, if this act had not been passed, would have been the proper person to have made the tenant to the writ of entry or other writ for suffering a common recovery of such lands, shall, during the continuance of the estate which conferred the right to make the tenant to such writ of entry or other writ, be the protector of such settlement." By s. 31, "where, under any settlement of lands made before the passing of this act, the person who, if this act had not been passed, would have been the proper person to make the tenant to the writ of entry or other writ for suffering a common recovery of such lands for the purpose of barring any estate tail or other estate under such settle- ment, shall be a bare trustee, such trustee shall, during the continuance of the estate conferring on him the right to make the tenant to such writ of entry or other writ, be the protector of such settlement." Section 32 gives power to any settlor to appoint any person or persons the protector, and to perpetuate the protectorship. The number of per- sons to compose the protector is not to exceed three. Every deed whereby a protector shall be appointed or shall relinquish his office is to be void unless inroUed in Chancery within six months : — " It shall be lawful for any settlor entailing lands to appoint, by the settlement by which the lands shall be entailed, any number of persons in esse, not exceeding three, and not being aliens, to be protector of the settlement in lieu of the person who would have been the protector if this clause had not been inserted, and either for the whole or any part of the period r*Rlfin ^°^ which such person might have continued protector, *and by L J means of a power to be inserted in such settlement to perpetuate during the whole or any part of such period the protectorship of the set- tlement in any one person or number of persons in esse, and not being an alien or aliens, whom the donee of the power shall think proper by deed to appoint protector of the settlement in the place of any one per- son or number of persons who shall die or shall by deed relinquish his or their office of protector ; and the person or persons so appointed shall, in case of there being no other person then protector of the settlement, be the protector, and shall, in case of there being any other person then protector of the settlement, be protector jointly with such other person : Provided nevertheless, that by virtue or means of any such appointment the number of the persons to compose the protector shall never exceed three : Provided further nevertheless, that every deed by which a pro- tector shall be appointed under a power in a settlement, and every deed by which a protector shall relinquish his office, shall be void unless in- rolled in His Majesty's High Court of Chancery within six calendar months after the execution thereof : Provided further nevertheless, that the person who but for this clause would have been sole protector of the settlement may be one of the persons to be appointed protector under this clause, if the settlor shall think fit, and shall, unless otherwise directed by the settlor, act as sole protector if the other persons constituting the protector shall have ceased to be so by death or relinquishment of the ASSURANCES, ETC. 409 office by deed, and no other person shall have been appointed in their place." By s. 33, " if any person, protector of a settlement, shall be lunatic, idiot, or of unsound mind, and whether he shall have been found such by inquisition or not, then the lord high chancellor of Great Britain, or the lord keeper or the lords commissioners for the custody of the great seal of Great Britain, for the time being, or other the person or *persons for the time being intrusted by the king's sign manual piff-iy-, with the care and commitment of the custody of the persons and L J estates of persons found lunatic, idiot, and of unsound mind, shall be the protector of such settlement in lieu of the person who shall be such lunatic or idiot, or of unsound mind as aforesaid ; or if any person, pro- tector of a settlement, shall be convicted of treason or felony, or if any person, not being the owner of a prior estate under a settlement, shall be protector of such settlement, and shall be an infant, or if it shall be un- certain whether such last mentioned person be living or dead, then his majesty's High Court of Chancery shall be the protector of such settle- ment in lieu of the person who shall be an infant, or whose existence cannot be ascertained as aforesaid; or if any settlor entailing lands shall in the settlement by which the lands shall be entailed declare that the person who as owner of a prior estate under such settlement would be entitled to be protector of the settlement shall not be such protector, and shall Ljt appoint any person to be protector in his stead, then the said Court of Chancery shall, as to the lands in which such prior estate shall be subsisting, be the protector of the settlement during the continuance of such estate ; or if in any other case where there shall be subsisting under a settlement an estate prior to an estate tail under the same settle- ment, and such prior estate shall be sufficient to qualify the owner thereof to be protector of the settlement, and there shall happen at any time to be no protector of the settlement as to the lands in which the prior estate shall be subsisting, the said Court of Chancery shall, while there shall be no such protector, and the prior estate shall be subsisting, be the pro- tector of the settlement as to such lands." By sections 34 and 35, where there is a protector, his consent is to be requisite to enable an actual tenant in tail to create a larger estate than a base fee, or to enable a person *to exercise the statutory power |-^„, „-. of disposition in the case of a base fee : — " If at the time when L J any person, actual tenant in tail of lands under a settlement, but not en- titled to the remainder or reversion in fee immediately expectant on the determination of his estate tail, shall be desirous of making under this act a disposition of the lands entailed, there shall be a protector of such settlement, then and in every such case the consent of such protector shall be requisite to enable such actual tenant in tail to dispose of the lands entailed to the full extent to which he is hereinbefore authorized to dispose of the same ; but such actual tenant in tail may, without such consent, make a disposition under this act of the lands entailed, which shall be good against all persons who, by force of any estate tail which shall be vested in or might be claimed by, or which but for some previous act or default would have been vested in or might have been 410 SMITH ON REAL AND PERSONAL PROPERTY. claimed by, the person making the disposition at the time of his making the same, shall claim the lands entailed."(s. 34.) " Where an estate tail shall have been converted into a base fee, in such case, so long as there shall be a protector of the settlement by wh ich the estate tail was created, the consent of such protector shall be requisite to enable the per- son who would have been tenant of the estate tail, if the same had not been barred, to exercise, as to the lands in respect of which there shall be such protector, the power of disposition hereinbefore contained." (s. 35.) By s. 36, the protector is to be subject to no control in the exercise of his power of consenting ; — " Any devise, shift, or contrivance, by which it shall be attempted to control the protector of a settlement in giving his consent, or to prevent him in any way from using his abso- lute discretion in regard to his consent, and also any agreement entered into by the protector of a settlement to withold his consent, shall be void : and the protector of a settlement shall not be deemed to be a r*fi1Qn '''"^''Se in respect of *his power of consent ; and a Court of Equity L J shall not control or interfere to restrain the exercise of his power of consent, nor treat his giving consent as a breach of trust." And by s. 37, " the rules of equity in relation to dealings and transactions be- tween the donee of a power and any object of the power in whose favour the same may be exercised, shall not be held to apply to dealings and transactions between the protector of a settlement and a tenant in tail under the same settlement, upon the occasion of the protector giving .his consent to a disposition by a tenant in tail under this act." By s. 38, a voidable estate by a tenant in tail in favour of a purchaser is confirmed by a subsequent disposition of such tenant in tail under the act, but not against a purchaser without notice : — " When a tenant in tail of lands under a settlement shall have already created or shall here- after create in such lands, or any of them, a voidable estate in favour of a purchaser for valuable consideration, and shall afterwards under this act, by any assurance other than a lease not requiring inrolment, make a disposition of the lands in which such voidable estate shall be created, or any of them, such disposition, whatever its object may be, and what- ever may be the extent of the estate intended to be thereby created, shall, if made by the tenant in tail with the consent of the protector (if any) of the settlement, or by the tenant in tail alone, if there shall be no such pro- tector, have the effect of confirming such voidable estate in the lands thereby disposed of to its full extent as against all persons except those whose rights are saved by this act; but if at the time of making the disposition there shall be a protector of the settlement, and such pro- tector shall not consent to the disposition, and the tenant in tail shall not without such consent be capable under this act of confirming the voidable estate to its full extent, then and in such case such disposition r*620n ^^^^^ have the effect of confirming *such voidable estate so far as L J such tenant in tail would then be capable under this act of con- firming the same without such consent : Provided always, that if such dis^position shall be made to a purchaser for valuable consideration, who shall not have express notice of the voidable estate, then and in such case ASSURANCES, ETC. 411 the voidable estate shall not be confirmed as against such purchaser and the persons claiming under him." By s. 39, base fees, when united with the immediate reversions, are enlarged, instead of being merged : — " If a base fee in any lands, and the remainder or reversion in fee in the same lands, shall at the time of the passing of this act, or at any time afterwards, be united in the same person, and at any time after the passing of this act there shall be no intermediate estate between the base fee and the remainder or reversion, then and in such case the base fee shall not merge, but shall be ipso facto enlarged into as large an estate as the tenant in tail, with the con- sent of the protector, if any, might have created by any disposition under this act if such remainder or reversion had been vested in any other per- son." By s. 40, a disposition by a tenant in tail is to be efi'ected by any de- scription of deed used to pass the legal fee, but not by a will or by aeon- tract y and if the tenant is a married woman, the disposition must be with the concurrence of her husband, and must be acknowledged by her: — " Every disposition of lands under this act by a tenant in tail thereof shall be efi'ected by some one of the assurances (not being a will) by which such tenant in tail could have made the disposition if his estate were an estate at law in fee simple absolute : Provided nevertheless, that no disposition by a tenant in tail shall be of any force either at law or in equity, under this act, unless made or evidenced by deed ; and that no disposition by a tenant in tail resting only on contract, either express or implied, or otherwise, *and whether supported by a valuable r^uni-i or meritorious consideration or not, shall be of any force at law L J or in equity under this act, notwithstanding such disposition shall be made or evidenced by deed ; and if the tenant in tail making the dispo- sition shall be a married woman, the concurrence of her husband shall be necessary to give efieot to the same ; and any deed which may be ex- ecuted by her for effecting the disposition shall be acknowledged by her as hereinafter directed." By s. 41, no assurance by a tenant in tail, except a lease for not more than twenty-one years at not less than five-sixths of a rack rent, shall have any operation under the act, unless inrolled in chancery within six calen- dar months : — " No assurance by which any disposition of lands shall be effected under this act by a tenant in tail thereof (except a lease for any term not exceeding twenty-one years, to commence from the date of such lease, or from any time not exceeding twelve calendar months from the date of such lease, where a rent shall be thereby reserved, which, at the time of granting such lease, shall be a rack rent, or not less than five- sixth parts of a rack rent,) shall have any operation under this act unless it be inrolled in his majesty's High Court of Chancery within six calen- dar months after the execution thereof; and if the assurance by which any disposition of lands shall be effected under this act shall be a bargain and sale, such assurance, although not inrolled within the time prescribed by the act passed in the twenty-seventh year of the reign of his majesty King Henry the Eighth, intituled ' For Inrollment of Bargains and Sales,' shall, if inrolled in the said Court of Qhancery within the time 412 SMITH ON EEAL AND PERSONAL PROPERTY. prescribed by tbis clause, be as good and valid as the same would have been if the same had been inrolled in the said court within the time pre- scribed by the said act of Henry the Eighth." r*622n ■^^ ^' ^^' ''^® consent of the protector is to be given by *the L J same assurance or by a prior or contemporaneous deed. And by s. 43, if by a distinct deed, it shall be considered an unqualified con- sent, unless he confines it to a particular dispositian. And in that case, by s. 46, it must be inrolled in chancery, with or before such assurance : — " The consent of the protector of a settlement to the disposition under this act of a tenant in tail shall be given either by the same assurance by which the disposition shall be effected, or by a deed distinct from the assurance, and to be executed either on or at any time before the day on which the assurance shall be made, otherwise the consent shall be void." (s. 42.) "If the protector of a settlement shall, by a distinct deed, give his consent so the disposition of a tenant in tail, it shall be considered that such protector has given an absolute and unqualified consent, unless in such deed he shall refer to the particular assurance by which the dispo- sition shall be effected, and shall confine his consent to the disposition thereby made." (s. 43.) And " the consent of a protector to the dispo- sition of a tenant in tail shall, if given by a deed distinct from the assur- ance by which the disposition shall be eficcted by the tenant in tail, be void, unless such deed be inrolled in his Majesty's High Court of Chan- cery either at or before the time when the assurance shall be inrolled." (s. 46.) By s. 44, " it shall not be lawful for the protector of a settlement who under this act, shall have given his consent to the disposition of a tenant in tail, to revoke such consent." By s. 45, "any married woman, being either alone or jointly with her husband protector of a settlement, may under this act, in the same manner as if she were a feme sole, give her consent to the disposition of a tenant in tail." By s. 47, courts of equity are excluded from giving any effect to dis- r*fi9m positions by tenants in tail or consents of protectors *of settle- L J ments which in courts of law would not be effectual : — " In cases of dispositions of lands under this act by tenants in tail thereof, and also in cases of consents by protectors of settlements to dispositions of lands under this act by tenants in tail thereof, the jurisdiction of courts of equity shall be altogether excluded, either on the behalf of a per- son claiming for a valuable or meritorious consideration, or not, in regard to the specific performance of contracts, and the supplying of defects in the execution either of the powers of disposition given by this act to ten- ants in tail, or of the powers of coosent given by this act to protectors of settlements, and the supplying under any circumstances of the want of execution of such powers of disposition and consent respectively, and in regard to giving effect in any other manner to any act or deed by a tenant in tail or protector of a settlement which in a court of law would not be an effectual disposition or consent under this act ; and that no disposi- tion of lands under this act by a tenant in tail thereof in equity, and no consent by a protector of a settlement to a disposition of lands under ASSURANCBlS, ETC. 413 this act by a tenant in tail thereof in equity, shall be of any force unless such disposition or consent would in case of an estate tail at law be an effectual disposition or consent under this act in a court of law." By s. 48, 49, the lord chancellor or the Court of Chancery, while pro- tector of a settlement, is to have the same power to consent and to make such orders as shall be thought necessary, which shall be evidence of such consent j and if any other person shall be joint protector, the dis- position shall not be valid without his consent : — " In every case in which the lord high chancellor, lord keeper or lords commissioners for the cus- tody of the great seal, or other the person or persons intrusted with the care and commitment of the custody of the persons and estates of per- sons found, lunatic, idiot, and of unsond mind, or his Majesty's r^ianA-i *High Court of Chancery, , shall be the protector of a settlement L J such lord high chancellor, lord keeper, or lords commissioners, or person or persons so intrusted as aforesaid, or the said Court of Chancery (as the case may be,) while protector of such settlement, shall, on the motion or petition in a summary way by a tenant in tail under such settlement, have full power to consent to a disposition under this act by such tenant in tail, and the disposition to be made by such tenant in tail upon such motion or petition as aforesaid shall be such as shall be approved of by such lord high chancellor, lord keeper, or lords commissioners, or person or persons so intrusted as aforesaid, or the said Court of Chancery (as the case may be ;) and it shall be lawful for such lord high chancellor, lord keeper, or lords commissioners, or person or persons so intrusted as aforesaid, or the said Court of Chancery (as the case may be,) to make such orders in the matter as shall be thought necessary ; and if such lord high chancellor, lord keeper, or lords commissioners, or person or per- sons so intrusted as aforesaid, or the said Court of Chancery (as the case may be,) shall, in lieu of any such person as aforesaid, be the protector of a settlement, and there shall any other person protector of the same settlement jointly with such person as aforesaid, then and in every such case the disposition by the tenant in tail, though approved of as afore- said, shall not be valid, unless such other person being protector as aforesaid shall consent thereto in the manner in which the consent of the protector is by this act required to be given." (s. 48.) And " in every case in which the lord high chancellor, lord keeper, or lords com- missioners for the custody of the great seal, or other the person or per- sons intrusted with the care and commitment of the custody of the per- sons and estates of persons found lunatic, idiot, and of unsound mind, or his Majesty's High Court of Chancery, shall be the protector *of r^j'o^T a settlement, no document or instrument, as evidence of the con- L J sent of protector to the disposition of a tenant in tail under such settle- ment, settlement, shall be requisite beyond the order in obedience to which the disposition shall have been made." (Sect, 49.) III. Dispositions hy Tenants in Tail and Owners of Base Fees in Copyholds. By s. 50, « all the previous clauses in this act, so far as circumstances 414 SMITH ON EEAL AND PERSONAL PROPERTY. and the different tenures will admit, shall apply to lands held by copy of court roll, except that a disposition of any such lands under this act by a tenant in tail thereof, whose estate shall be an estate at law, shall be made by surrender, and except that a disposition of any such lands under this act by a tenant in tail thereof, whose estate shall be merely an estate in equity, may be made either by surrender or by a deed as hereinafter provided, and except so far as such clauses are otherwise altered or varied by the clauses hereinafter contained." But by s. 51 it is provided, " that, if the consent of the protector of a settlement to the disposition of lands held by copy of court roll by a tenant in tail thereof shall be given by deed, such deed shall, either at or before the time when the surrender shall be made by which the dis- position shall be effected, be executed by such protector, and produced to the lord of the manor of which the lands are parcel, or to his steward, or to the deputy of such steward ; and the consent of such protector shall be void unless such deed shall be so executed and produced; and on the production of the deed the lord or steward or deputy steward, shall by writing under his hand, to be indorsed on the deed, acknowledge that the same was produced within the time limited, and shall cause such deed, with the indorsement thereon, to be entered on the court rolls of the manor; and the indorsement, purporting to be so signed, shall of r*fi9fiT ^'^^^^ ^^ *prima facie evidence that the deed was produced L J within the time limited, and that the person who signed the indorsement was the lord of the manor, or his steward or the deputy of such steward ; and after such deed shall have been so entered the lord of the manor, or his steward, or the deputy of such steward, shall indorse thereon a memorandum signed by him, testifying the entry of the same on the court rolls." By s. 52, " if the consent of the protector of a settlement to the dis- position of lands held by copy of court roll by a tenant in tail thereof shall not be given by deed, then and in such case the consent shall be given by the protector to the person taking the surrender by which the disposition shall be effected ; and if the surrender shall be made out of court, it shall be expressly stated in the memorandum of such surrender that such consent had been given, and such memorandum shall be signed by the protector; and the lord of the manor of which the lands are parcel, or his steward, or the deputy of such steward, shall cause the memorandum, with such statement therein as to the consent, to be entered on the court rolls of the manor ; and such memorandum shall be good evidence of the consent and of the surrender therein stated to be made ; and the entry of the memorandum on the court rolls, or a copy of such entry, shall be as available for the purposes of evidence as any other entry on the court rolls, or a copy thereof; but if the surren- der shall be made in court, the lord of the manor, or his steward, or the deputy of such steward, shall cause an entry of such surrender, contain- ing a statement that such consent had been given, to be made on the court rolls ; and the entry of such surrender on the court rolls, or a copy of such entry, shall be as available for the purposes of evidence as any other entry on the court rolls, or a copy thereof." ASSURANCES, ETC. 415 By s. 53, " a tenant in tail of lands held by copy of *court r-j^f.n>j-, roll, whose estate shall be merely an estate in equity, shall have L J full power by deed to dispose of such lands under this act in the same manner in every respect as he could have done if they had been of free- hold tenure ; and all the previous clauses in this act, shall, so far as circumstances will admit, apply to the lands in respect of which any such equitable tenant in tail shall avail himself of this present clause ; and the deed by which the disposition shall be effected shall be entered on the court rolls of the manor of which the lands thereby disposed of may be parcel; and if there shall be a protector to consent to the dispo- sition, and such protector shall give his consent by a distinct deed, the consent shall be void unless the deed of consent be executed by the pro- tector either on or at any time before the day on which the deed of dis- position shall be executed by the equitable tenant in tail ; and such deed of consent shall be entered on the court rolls ; and it shall be imperative on the lord of the manor, or his steward, or the deputy of such steward, when required so to do, to enter such deed or deeds on the court rolls, and he shall indorse on each deed so entered a memorandum, signed by him, testifying the entry of the same on the court rolls : Provided always, that every deed by which lands held by copy of court roll shall be disposed of under this clause, by an equitable tenant in tail thereof, shall be void against any person claiming such lands or any of them, for valuable consideration under any subsequent assurance duly entered on the court rolls of the manor of which the lands may be parcel, unless the deed of disposition by the equitable tenant in tail be entered on the court rolls of such manor before the subsequent assurance should have been entered." By s. 54, "in no case where any disposition under this act of lands held by copy of court roll, by a tenant in tail thereof, shall be effected by surrender or by deed, shall the surrender or the memorandum, or a copy thereof, or the *deed of disposition, or the deed, if any, by r^f-nn-, which the protector shall consent to the disposition, require L -• inrolment otherwise than by entry on the court rolls." IV. Disposition of Lands of which Bankrupts are Tenants in Tail, or in which they have Base Fees. Section 55 repeals the Bankrupt Act 6 Geo. 4, c. 16, s. 65, so far as relates to estates tail. By s. 56, the commissioner, in the case of an actual tenant in tail becoming bankrupt after the 31st of December, 1833, may by deed dispose of the lands of the bankrupt to a purchaser, and without the protector's consent, for as large an estate as the actual tenant in tail, if not a bankrupt, could have created without such consent : — " Any com- missioner acting in the execution of any fiat which after the 31st day of December, 1833, shall be issued in pursuance of the said act passed in the first and second years of the reign of King William the Fourth, under which any person shall be adjudged a bankrupt who at the time of issuing such fiat, or at any time afterwards, before he shall have 416 SMITH ON EEAL AND PERSONAL PROPERTY. obtained his certificate, shall be an actual tenant in tail of lands of any tenure, shall by deed dispose of such lands to a purchaser for valuable consideration, for the benefit of the creditors of such actual tenant in tail, and shall create by any such disposition as large an estate in the lands disposed of as the actual tenant in tail, if he had not become bankrupt, could have done under this act at the time of such disposi- tion : Provided always, that if at the time of the disposition of such lands, or any of them, by such commissioner as aforesaid, there shall be a protector of the settlement by which the estate of such actual tenant in tail in the lands disposed of by such commissioner was created, and the consent of such protector would have been requisite to have enabled the actual tenant in tail, if he had not become bankrupt, to have disposed r*fi9Q1 °^ s^^^ lands to the full extent to which, if there had been no L J *such protector, he could under this act have disposed of the same, and such protector shall not consent to the disposition, then and in such case the estate created in such lands, or any of them, by the disposition of such commissioner, shall be as large an estate as the actual tenant in tail, if he had not become bankrupt, could at the time of such disposition have created under this act in such lands without the consent of the protector." By s. 57, the commissioner, in the case of a tenant in tail entitled to a base fee becoming bankrupt, and of there being no protector, may by deed dispose of the lands of the tenant in tail to a purchaser for as large an estate as such tenant in tail could have created, if not a bankrupt : — " Any commissioner acting in the execution of -any such fiat as afore- said under which any person shall be adjudged a bankrupt, who at the time of issuing such fiat, or at any time afterwards before he shall have obtained his certificate, shall be a tenant in tail entitled to a base fee in lands of any tenure, shall by deed dispose of such lands to a pur- chaser for valuable consideration, for the benefit of the creditors of the person so entitled as aforesaid, provided at the time of the disposition there be no protector of the settlement by which the estate tail convert- ed into the base fee was created ; and by such disposition the base fee shall be enlarged into as large an estate as the same could at the time of such disposition have been enlarged into under this act by the person so entitled if he had not become bankrupt." By s. 58, the commissioner shall stand in the place of the actual tenant in tail or tenant in tail entitled to a base fee, so far as regards the con- sent of such protector: — "The commissioner acting in the execution of any such fiat as aforesaid under which a person being, or before obtain- ing his certificate becoming, an actual tenant in tail of lands of any ten- r*fiRm ^''^> "'^ ''' t^'^^ii^ i° *^^1 entitled to a base fee in *lands of any L J tenure, shall be adjudged a bankrupt, shall, if there shall be a protector of the settlement by which the estate tail of such actaul tenant in tail, or the estate tail converted into a base fee (as the case may be,) was cre- ated, stand in the place of such actual tenant in tail, or tenant'in tail so enti- tled as afore said, so far as regards the consent of such protector; and the disposition of such lands, or any of them, by such commissioner as aforesaid, if made with the consent of such protector, shall, whether such commis- ASSURANCES, ETC. 417 sioner may have made under this act a prior disposition of the same lands without the consent of such protector or not, or whether a prior sale or conveyance of the same lands shall have been made or not, under the said acts of the sixth year of King Greorge the Fourth and the first and second years of King William the Fourth, or either of them, or any acts hereafter to be passed concerning bankrupts, have the same effect as such disposition would have had if such actual tenant in tail, or tenant in tail so entitled as aforesaid, had not become bankrupt, and such dis- position had been made by him under this act, with the consent of such protector ; and all the previous clauses in this act, in regard to the con- sent of the protector to the disposition of a tenant in tail of lands not held by copy of court roll, and in regard to the time and manner of giv- ing such consent, and in regard to the inrolment of the deed of consent, where such deed shall be distinct from the assurance by which the dis- position of the commissioner shall be effected, shall, except so far as the same may be varied by the clause next hereinafter contained, apply to every consent that may be given by virtue of this present clause." By s. 59, a deed of disposition of freeholds by a commissioner shall be inrolled in chancery within six months, and a deed of disposition of copyholds by him shall be entered on the court rolls, and the consent to a disposition of such copyholds, if by a distinct deed, shall be executed *on or before the deed of disposition, and shall be entered on the r*f.qi -i court rolls, and a memorandum by the steward or deputy stew- L J ard testifying the entry of such deeds on the court rolls shall be indorsed thereon : — " Every deed by which any commissioner acting in the exe- cution of any such fiat as aforesaid shall, under this act, dispose of lands not held by copy of court roll, shall be void unless inrolled in his ma- jesty's High Court of Chancery within six calender months after the ex- ecution thereof ; and every deed by which any commissioner acting in the execution of any such fiat as aforesaid shall, under this act dispose of lands held by copy of court roll, shall be entered on the court rolls of the manor of which the lands may be parcel ; and if there shall be a pro- tector who shall consent to the disposition of such lands held by copy of court roll, and he shall give his consent by a distinct deed, the consent shall be void unless the deed of consent be executed by the protector either on or at any time before the day on which the deed of disposition shall be executed by the commissioner ; and such deed of consent shall be entered on the court rolls; and it shall be imperative on the lord of every manor of which any lands disposed of under this act by any such commissioner as aforesaid may be parcel, or the steward of such lord, or the deputy of such stevi^ard, to enter on the court rolls of the manor every deed required by this present clause to be entered on the court rolls, and he shall indorse on every deed so entered a memorandum, signed by him, testifying the entry of the same on the court rolls." By s. 60, where the disposition of a commissioner only creates a base fee, in consequence of the protector not giving his consent, then such base fee shall be enlarged as soon as there ceases to be a protector, and, by s. 61, even subsequent to the sale or conveyance of the lands under Maboh, 1856.— 27 418 SMITH ON REAL AND PERSONAL PROPERTY. r^oon-i Ae bankrupt laws : — " If any commissioner acting *in the exe- L J cution of any such fiat as aforesaid shall, under this act, dispose of any lands of any tenure of which the bankrupt shall be actual tenant in tail, and in consequence of there being a protector of the settlement by which the estate of such actual tenant in tail was created, and of his not giving his consent, only a base fee shall by such disposition be cre- ated in such lands, and if at any time afterwards during the continu- ance of the base fee there shall cease to be a protector of such settlement, then and in such case, and immediately thereupon, such base fee shall be enlarged into the same estate into which the same could have been enlarged under this act if at the time of the disposition by such com- missioner as aforesaid there had been no such protector." — (Sect. 60) " If a tenant in tail entitled to a base fee in lands of any tenure shall be adjudged a bankrupt at the time when there shall be a protector of the settlement by which the estate tail converted into the base fee was cre- ated, and if such lands shall be sold or conveyed under the said acts of the sixth year of King George the Fourth and the first and second years of King William the Fourth, or either of them, or any other acts here- after to be passed concerning bankrupts, and if at any time afterwards during the continuance of the base fee in such lands there shall cease to be a protector of such settlement, then and in such case, and immedi- ately thereupon, the base fee in such lands shall be enlarged into the same estate into which the same could have been enlarged under this act if at the time of the adjudication of such bankruptcy there had been no such protector, and the commissioner acting in the execution of the fiat under which the tenant in tail so entitled shall have been adjudged a bankrupt had disposed of such lands under this act." — (Sect. 61.) By s. 62, a voidable estate created in favour of a purchaser by an P^„oq-i actual tenant in tail becoming bankrupt, or *by a tenant in tail L J entitled to a base fee becoming a bankrupt, is confirmed to the full extent as against all persons, except those whose rights are saved by the act, by the disposition of the commissioner, if there is no protector, or if the protector consents, or if there ceases to be a protector, or con- firmed so far as such actual tenant in tail, if not a bankrupt, could have confirmed the voidable estate without such consent, if the protector does not consent ; but not in either case against a purchaser without express notice of the voidable estate : — " Where an actual tenant in tail of lands of any tenure, or a tenant in tail entitled to a base fee in lands of any tenure, shall have already created or shall hereafter create in such lands, or any of them, a voidable estate in favour of a purchaser for valuable consideration, and such actual tenant in tail, or tenant in tail so entitled as aforesaid, shall be adjudged a bankrupt under any such fiat as afore- said, and the commissioner acting in the execution of such fiat shall make any disposition under this act of the lands in which such voidable estate shall be created, or any of them, then and in such case, if there shall be no protector of the settlement by which the estate tail of the actual tenant in tail, or the estate tail converted into a base fee, as the case may be, was created, or being such protector he shall consent to the disposi- tion by such commissioner as aforesaid, whether such commissioner may ASSURANCES, ETC. 419 have made under this act a previous disposition of such lands or not, or whether a prior sale or conveyance of the same lands shall have been made or not under the said acts of the sixth year of king George the Fourth and the first and second years of king William the Fourth, or either of them, or any other acts hereafter to be passed concerning bank- rupts, the disposition by such commissioner shall have the effect of con- firming such voidable estate in the lands thereby disposed of to its full extent as against all persons except those whose rights are saved by this *act; and if at the time of the disposition by such commissioner, |-^f.q^-, in the case of an actual tenant in tail, there shall be a protector, L J and such protector shall not consent to the disposition by such commis- sioner, and such actual tenant in tail, if he had not been adjudged a bankrupt, would not without such consent have been capable under this act of confirming the voidable estate to its full extent, then and in such case such disposition shall have the effect of confirming such voidable estate so far as such actual tenant in tail, if he had not been adjudged a bankrupt, could at the time of such disposition have been capable under this act of confirming the same without such consent ; and if at any time after the disposition of such lands by such commissioner, and while only a base fee shall be subsisting in such lands, there shall cease to be a pro- tector of such settlement, and such protector shall not have consented to the disposition by such commissioner, then and in such case such voida- ble estate, so far as the same may not have been previously confirmed, shall be confirmed to its full extent as against all persons except those whose rights are saved by this act : Provided always, that if the dispo- sition by any such commissioner as aforesaid shall be made to a purchaser for valuable consideration, who shall not have express notice of the void- able estate, then and in such case the voidable estate shall not be con- firmed against such purchaser and the persons claiming under him." By s. 63, " all acts and deeds done and executed by a tenant in tail of lands of any tenure, who shall be adjudged a bankrupt under any such fiat as aforesaid, and which shall affect such lands or any of them, and which, if he had been seised of or entitled to such lands in fee sim- ple absolute, would have been void against the assignees of the bank- rupt's estate, and all persons claiming under them, shall be void against any disposition which may be made of such lands under this act by such commissioner as aforesaid." *By s. 64, subject to the powers given to the commissioner r^fjoK-i and to the estate in the assignees, a bankrupt tenant in tail shall L J retain his powers of disposition : — " Subject and without prejudice to the powers of disposition given by this act to the commissioner acting in the execution of any such fiat as aforesaid under which a person being, or before obtaining his certificate becoming, an actual tenant in tail of lands of any tenure, or a tenant in tail entitled to a base fee in lands of any tenure shall be adjudged a bankrupt, and also subject and without prejudice to the estate in such lands which may be vested in the assignees of the bankrupt's estate, and also subject and without prejudice to the rights of all persons claiming under the said assignees in respect of such lands or any of them, such actual tenant in tail, or tenant in tail so en- 420 SMITH O.N REAL AND PERSONAL PROPERTY. titled as aforesaid, shall have the same powers of disposition under this act in regard to such lands as he would have had if he had not become bankrupt." By s. 65, the disposition by the commissioner of the lands of a bank- rupt tenant in tail shall, if the bankrupt be dead, have the same opera- tion as if he were alive, in case at the time of the bankrupt's decease there shall be no protector of the settlement, or in case the bankrupt had been an actual tenant in tail, and there shall, at the time of the disposi- tion, be any issue inheritable to the estate tail, or in case the bankrupt bad been a tenant in tail entitled to a base fee, and there shall, at the time of the disposition, be any issue who, if the base fee had not been created, would have been actual tenant in tail, and either no protector, or a protector who shall consent to the disposition : — " Any disposition under this act of lands of any tenure by any commissioner acting in the execution of any such fiat as aforesaid under which a person being, or before obtaining his certificate becoming, an actual tenant in tail of such lands, or a tenant in tail entitled to a base fee in such lands shall be r*R^Rn *3''lj"dg6^ ^ bankrupt, shall, although the bankrupt be dead at 1- J the time of the disposition, be in the following eases as valid and effectual as the same would have been, and have the same operation un- der this act as the same would have had, if the bankrupt were alive ; (that is to say,) in case at the time of the bankrupt's decease there shall be no protector of the settlement by which the estate tail of the actual tenant in tail, or the estate tail converted into a base fee, as the case may be, was created ; or in case the bankrupt had been an actual tenant in tail of such lands, and there shall at the time of the disposition be any issue inheritable to the estate tail of the bankrupt in such lands, and either no protector of the settlement by which the estate tail was created, or a protector of such settlement who, in the manner required by this act, shall consent to the disposition, or a protector of such settlement who shall not consent to the disposition ; or in case the bankrupt had been a tenant in tail entitled to a base fee in such lands, and there shall at the time of the disposition be any issue who if the base fee had not been created would have been actual tenant in tail of such lands, and either no protector of the settlement by which the estate tail converted into a base fee was created, or a protector of such settlement who, in the manner required by this act, shall consent to the disposition." By s. 66, every disposition of copyholds by a commissioner of bank- rupts, where the estate shall not be equitable, shall have the same opera- tion as a surrender : — " Every disposition which under this act may be made by any commissioner acting in the execution of any such fiat as aforesaid of lands held by copy of court roll shall, in every case in which the estate of the bankrupt in such lands shall not be merely an estate in equity, operate in the same manner as if such lands had, for the same estate which shall have been acquired by the disposition by ^*(WT\ ^^'^'^ commissioner *as aforesaid, been duly surrendered into the L J hands of the lord of the manor of which they may be parcel, to the use of the person to whom the same shall have been disposed of by such commissioner ; and the person to whom the lands shall have been ASSUEANCES, ETC. 421 SO disposed of by such commissioner may claim to be admitted tenant of such lands, to hold the same by the ancient rents, customs, and services^ in the same manner as if such lands had been duly surrendered to his use into the hands of the lord of the manor of which such lands may be parcel, and shall, upon being admitted tenant of such lands, to hold the same as aforesaid, pay the fines, fees, and other dues which could have been lawfully demanded upon such admittance if such lands had, for the same estate which shall have been acquired by the disposi- tion by such commissioner as aforesaid, passed by surrender into the hands of the lord, to the use of the person so admitted." By s. 67, the mesne rents and profits of the lands of a bankrupt, of which a commissioner has power to make disposition, shall be received and recoverable by the assignees ; and they may enforce covenants, con- ditions, and agreements. — " The rents and profits of any lands of which any commissioner acting in the execution of any such fiat as aforesaid hath power to make disposition under this act shall in the meantime and until such disposition shall be made, or until it shall be ascertained that such disposition shall not be required for the benefit of the creditors of the person adjudged bankrupt under the fiat, be received by the as- signees of the estate of the bankrupt, for the benefit of his creditors; and the assignees may proceed by action of debt for the recovery of such rents and profits, or may distrain for the same upon the lands sub- ject to the payment thereof, and in case any action of trespass shall be brought for taking any such distress may plead thereto the general issue, and give this act or other special matter in evidence, and also, *in case any such distress shall be replevied, shall have power pH ^'^^^^ acknowledged shall not be impeached by reason only L J of the party taking the acknowledgment being interested. But by s. 3, the Court of Common Pleas may make rules to prevent interested persons from taking acknowledgments. By stat. 3 & 4 W. 4, c. 74, s. 86, " when the certificate of the ac- knowledgment of a deed by a married woman shall be so filed of record as aforesaid, the deed so acknowledged shall, so far as regards the dispo- sition, release, surrender, or extinguishment thereby made by any married woman whose acknowledgment shall be so certified concerning any lands or money comprised in such deed, take efi'ect from the time of its being acknowledged, and the subsequent filing of such certificate as aforesaid shall have relation to such acknowledgment." By the stat. 3 & 4 Will. 4, c. 74, s. 90, a married woman is to be separately examined on the surrender of her equitable estate in copy- holds, as if such estate were legal, and every such surrender, whether made before or after the passing of the act, shall be valid. By s. 91, the concurrence of the husband is dispensed with in cer- tain cases : — " If a husband shall, in consequence of being a lunatic, idiot, or of unsound mind, and whether he shall have been found such by inquisition or not, or shall from any other cause be incapable of exe- cuting a deed, or of making a surrender of lands, held by copy of court roll, or if his residence shall not be known, or shall be in prison, or shall be living apart from his wife, either by mutual consent or by sentence OF CONCISE CONVEYANCES, ETC. 425 of divorce, or in consequence of his being transported beyond the seas, or from any other cause whatsoever, it shall be lawful for the Court of Common Pleas at Westminster, by an order to be made in a summary way upon the application of the wife, and upon such evidence as to the said court shall seem meet, to dippense with the concurrence of the husband in any case in which his concurrence is required by this act or other- wise ; and *all acts, deeds, or surrenders to be done, executed, or r^f.AA-i made by the wife in pursuance of such order, in regard to lands L J of any tenure, or in regard to money subject to be invested in the pur- chase of lands, shall be done, executed, or made by her in the same manner as if she were a feme sole ; and when done, executed, or made by her shall (but without prejudice to the rights of the husband as then existing independently of this act) be as good and valid as they would have been if the husband had concurred : Provided always, that this clause shall not extend to the case of a married woman where under this act the lord high chancellor, lord keeper, or lords commissioners for the custody of the great seal, or other the person or persons intrusted with the care and commitment of the custody of the persons and estates of persons found lunatic, idiot, and of unsound mind, or his Majesty's High Court of Chancery, shall be the protector of a settlement in lieu of her husband." Section IX. Of Concise Conveyances and Leases under the Stat. 8 c& 9 Vict. c. 119, 124. In the stat. 8 & 9 Vict. c. 119, intituled " An act to facilitate the con- veyance of real property," and commencing on the 1st October, 1845, a form of the commencement and the operative part and conclusion of a deed is given in the first schedule. And in the second schedule there are two columns, the first of which consists of some very short forms of words, expressive of the substance of certain longer forms contained in the second column, which are of the length and character usually em- ployed in deeds. And by s. 1, it is enacted, that, where the words of any form in the first column are employed, the deed is to have the same effect as if the *corresponding form of words in the second column r*fj4^c-i had been used. The second schedule also contains directions L J for varying the forms in the first column ; and provides, that, where they shall be so varied, similar variations shall be deemed to be made in the corresponding forms in the second column. By s. 2, unless specially excepted, the deed shall be construed to include those clauses which generally begin with the words, " and all houses," &c., " and the rever- sion," &c., "and all the estate," &c. By s. 3, provision is made as to the stamp duty. By s. 4, the remuneration for such a deed is to be according to the skill and labour and responsibility. And by s. 5, any deed or part of a deed failing to take effect by virtue of the act, is to be as valid as if the act had not been made. 426 SMITH ON REAL AND PERSONAL PROPERTY. By the stat. 8 & 9 Vict. c. 124, intitutled " An Act to facilitate the Granting of certain Leases," provisions are made for facilitating the granting of leases of houses, similar to the provisions of the stat. 8 & 9 Viet. c. 119, for facilitating the conveyance of property. [*646] *CH AFTER IV. OF THE DIFFERENT KINDS OF DEEDS OTHER THAN CONVErANCES. There are, as already observed, some other deeds which are not pro- perly termed conveyances. Such are, 1. Deeds of covenant or agree- ment; 2. Bonds; 3. Declarations of trust; 4. Deeds of appointment of trustees, receivers, stewards, guardians, attorneys, and others standing in a confidential relation. The points connected with deeds of covenant or agreement and deeds of appointment of trustees, &c., so far as they fall within the scope of this work, will be found under other heads. But some observations may be made in this place on bonds and declaration of trust. Section I. Of Bonds. 1. Bonds generally. A bond or obligation is a deed poll, whereby the obligor binds or obliges himself alone, or himself and his heirs, or himself, his heirs, executors, and administrators, to pay a sum of money, or to do some other thing at a particular time, (a) Bond are of two kinds : simple or single, that is, without any defea- r*fi4.7n ^^^'^^ °'' condition in or annexed to them ; and *double or con- L -I ditional, that is, accompanied with a condition, (5) that, if the obligor does some act, the obligation shall be void, or else shall remain in full force ; as payment of rent, performance of covenants in a certain deed, or repayment of a principal sum of money borrowed of the obligee with interest. Where the obligation is to pay a sum of money to secure the repayment of a sum of money mentioned in the condition, the penal sum mentioned in the obligation is usually double the sum mentioned in the condition, the payment of which is so secured.(c) There are only three things essentially necessary to a bond, namely, writing, sealing, and delivery. For, as to signing, that was clearly not necessary in former times, and the Statute of Frauds does not extend to bonds ; for no estate or interest in lands is immediately created by (o) See 2 Pres. Shep. T. 367, 369, 376 ; 4 Cruise T. 32, c. 8, § 1 ; 2 Bl. Com. 340. (b) 2 Pres. Shep. T. 367. (c) 4 Cruise T. 32, c. 8, J 1. OF BONDS. 427 theiii.(cZ) And no particular form of words is required to constitute a bond.(e) Executors and administrators will be bound by an obligation, although tbey be not named; but the heir of the obligor will not be bound by the obligation, unless he is named. (/) An exception to this, however, is created by the 27th section of the statute 33 Hen. 8, c. 39, by which it is enacted, that the King shall not be excluded from demanding his just debts against any of his subjects, as heir or heirs to any person or persons indebted to the king or to any other persons to his use, albeit the word heir be not comprised in such recognisance, obligation, or specialty. (^) If an obligation is made to one and his heirs, the executors and administrators, and not the heir, shall take advantage of it; for the heirs do not represent the obligee as to such a matter. (A) *Where there are two or more obligors, a bond may be either r^aAo-i joint only or joint and several. If two or more bind themselves L J simpliciter, without any words expressive of severalty or individuality, the obligation is joint only, and not several. But even if the obligation is several, the obligee may sue all the obligors together, or all of them apart, at his pleasure ; and yet it seems that unless the obligation is special for this purpose, he may not sue some of them, and spare the rest, but he must sue them all. Although he may have several judg- ments and several executions against the obligors, yet he shall have satisfaction but once, or from one of them only ; for, after he has been satisfied by one, the rest shall be discharged. But where the obligation is joint and not several, the obligee must sue all the obligors together, except in some special cases ; as where one of the obligors alone seals the deed, or where all of them seal, but one of them is an infant, a woman covprt, a monk, or the like, or where one of them is dead.(i) A single obligation is always taken most in advantage of the obligee and against the obligor. But the condition of an obligation is always taken most in advantage of the obligor and against the obligee, because it is introduced for his benefit.(A) II. The Condition of a Bond. If these words are omitted in the close of the condition, " that then the obligation shall be void," the condition is void.(^) The condition of an obligation may be either in the same or in another deed, and, if in the same deed, it may be indorsed on the back of the obligation, subscribed under it, or contained within it.(»i) *The condition of an obligation may be to do any lawful or r^fj^^Q-i possible thing, (n). L -I When the object sought to be accomplished by the condition is malum in se, that is, contrary to the moral law, there, not only the condition, but the whole obligation also is void, ab initio.(o) le) 4 Cruise T. 32, c. 8, § 3 ; 2 Pres. Shep. T. 367. (d) 4 Cruise T. 32,c. 8, g 2. (/) 2 Pres. Shep. T. 376, 369. (g) 4 Cruise T. 32, c. 8, § IT. (A) 2 Pres. Sliep. T. 376. (i) 2 Pres. Shep. T. 375. h) 2 Pres. Shep. T. 375. (I) 2 Pres. Shep. T. 371. (m) 2 Pres. Shep. T. 370. (n) 2 Pres. Shep. T. 371. (o) 2 Pres. Shep. T. 371 ; 2 Bl. Com. 340. 428 SMITH ON REAL AND PERSONAL PROPERTY. But when the object is only against some maxim of law, or is but malum prohibitum only, or is repugnant to the estate, the condition only is void, and the obligation remains single and without a condition. (^) But it may here be remarked, that a bond that a person shall not sell his land, is good.(g') When the condition of an obligation is insensible and uncertain, so that the meaning cannot be known, or is repugnant to the obligation, the condition only is void, and the obligation good.(r) When the thing which is required to be done by the condition is in its nature impossible to be done at the time of the making of the obliga- tion, there the obligation is good, and the condition only is void. But when it is a thing possible at the time of making the obligation, and afterwards, by matter ex post facto, by the act of Grod, the act of the law, or the act of the obligee, it becomes impossible, the obligation and the condition both become void.(s) When the condition of an obliga- tion is to do one of two things by a given day, and at the time of making the obligation both of them are possible, but afterwards one of the things becomes impossible by the act of God, or by the sole act and laches of the obligee himself, the obligor is discharged of the whole obligation. But if, at the time of the making of the obligation, one of the things is, r*fi'im ^^^ ^^^ *other of the things is not, possible to be done, he must L -I perform that which is possible. And if, in the first case, one of the things becomes impossible afterwards by the act of the obligor or a stranger, the obligor must do the other thing.^A On breach of the condition of a bond, the penalty then becomes the legal debt ; nor was any relief given against it by the common law. But in equity, where the bond is for the payment of money, the obligee can only recover his principal, interest, and costs. And now, by the stat. 4 Anne, e. 16, s. 12, payment of the principal, interest, and costs, is good at law. And where the bond is for the performance of any other act, for the non-performance of which compensation may be made in damages, the obligee is in equity only allowed those damages, (m) When the condition of a bond is not performed, and it thereby thereby becomes absolute, it is a charge on the personal estate, including the chattels real of the obligor. And on the death of the obligor, it charges his heir, if named, who, if there is a deficiency of personal as- sets, is bound to discharge it, so far as he has assets by descent.(x) But the bond itself, without a judgment, is not an immediate or a direct charge upon the real estate of the obligor ; and therefore any settlement or disposition which he makes in his lifetime of his freehold estates, whether voluntary or not, will be good against bond creditors, except so far as they may be protected by the statute 13 Eliz. c. 5.(y) (p) 2 Pres. Shep. T. 3V2 ; 2 Bl. Com. 340. (?) 2 Pres. Shep. T. 311. (r) 2 Pres. Shep. T. 373 ; 2 Bl. Com. 373. (s) 2 Pres. Shep. T. 372, 382, 393 ; 2 Bl. Com. 340. (t) 2 Pres. Shep. T. 382, 393. (u) i Cruise T. 32, t. 8, § 13; 2 Bl. Com. 341 ; Story's Eq. Jur. ? 1314. [x] 2 Bl. Com. 340 ; 4 Cruise T. 32, o. 8, § 8. (Vj 4 Cruise T. 32, c. 8, J 8, 10. See supra, pp. 311, 312. or DBCLAKATION.S OF TRUST. 429 Section II. Of Declarations of Trust. It is not necessary that uses or trusts should be created by writing, but it is necessary that uses or trusts of freehold, *copyhold, or r*ori-| leasehold hereditaments be evidenced by writing. By the Sta- L J tute of Frauds (29 Car. 2, c. 3), s. 7, it is enacted, "That all declara- tions or creations of trusts or confidences of any lands, tenements or he- reditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect." But by s. 8 it is provided, "That where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by an act or operation of law, then and in every such case such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made." Declarations of trust of money secured on real estate or of chattels personal, need not be evidenced by writing, (a) If a person declares himself to be a trustee for another of money or personal property to be recovered, whether in writing or by acts or declarations of a decisive and definite nature sufficiently proved, the transaction will be binding against him and his representatives. ;(o) and if a person, by writing or by word, directs his debtor to hold the money due in trust for a third person, and such direction is communicated to the debtor and the donee, an effectual trust is created in favour of the donee. (J) But a defective conveyance or assignment without valuable consideration, where the party means actually to vest the legal ownership in the donee, or in any other person as trustee for him, will not be considered as a declaration of trust. (c) Where a person holds property in trust, a declaration of *trust, j-^-.n-. if bonS, fide, is valid, though at a distance of time, and even after L J the trustee has committed an act of bankruptcy. ((?) And if the signed document refers to any other document, which shows what was meant by the parties, that will be sufficient.(e) And if the terms of the trust do not sufficiently appear upon the face of the instrument, evidence may be received to show the position of the party signing, and the circumstances by which he knew himself to be surrounded, and the credibility of the instrument.(/) Declarations of trust executed are construed in the same manner as common law conveyances, (y) But, as we have seen, executory trusts are construed more liberally .(^) (s) 4 Cruise T. 32, c. 12, ? 2, 3 ; Story's Eq. Jur. J 972 ; 1 Spence's Eq. Jar. 497-8 ; 2 Spence's Eq. Jur. 19, 20, 897. (a) 2 Spence's Eq. Jur. 897. [b) 2 Spence's Eq. Jur. 531, 898. (c) 2 Spence's Eq. Jur. 57, 886. (d) 2 Spence's Eq. Jur. 21. (e) 2 Spence's Eq. Jur. 22. (/) 2 Spence's Eq. Jur. 22. (g) 4 Cruise T. 32, c. 19, J 66. (A) 4 Cruise T. 32, c. 16, \ 67. See supra, pp. 203, 204. 430 SMITH ON REAL AND PERSONAL PROPERTY. [*653] *CHAPTEK V. OP THE DIFFERENT KINDS OF DEEDS, WHEN CONSIDERED WITH REFE- RENCE TO THE PURPOSE TO BE EFFECTED BY THEM. Some of the various kinds of deeds serve as purchase deeds, others as mortgage deeds, others as marriage settlements, others as deeds of arrangement, others as deeds of indemnity, others as composition or creditors deeds, others as apportionments of rents, others as partnership deeds, and others are used for certain other purposes, which will appear from the definitions given of them in the preceding pages. The attention of the reader will only be directed in this place to purchase deeds, so far as the covenants in them are concerned, the other points connected with them forming the subjects of many other parts of this work. The law connected with marriage settlements will also be found in other parts of this work, with the exception of a few points which will be mentioned in the second section of this chapter. Mortgages and mortgage deeds have been already noticed, and, with the exception of some observations on deeds of compromise and arrangement and creditors deeds, which are made in the third and fourth sections, the reader is referred to other parts of this book, and to other works, for the points which ought to be borne in mind respecting the other kinds of deeds when considered with reference to the purpose to be effected by them. [*654] *Section I. Of Purchase Deeds. {a) I. Who covenant for ike Title. All persons (except the sovereign and married women) who convey lands in their own right and for a valuable consideration, are bound to enter into the usual covenants for the title.(6) Where the wife's estate is sold by her and her husband, as she cannot bind herself by covenant, he enters into the ordinary covenants for title. (c) Tenants for life are bound to covenant for title, where the estate is sold with their assent under a power, or where a power of sale has been obtained by them to be vested in trustees by an Act of Parliament. But covenants could not be required where the sale is compulsory under Kail- way Acts and the like.((^) A person whose estate is sold under an order of a Court of Equity, [a] Most of the points necessary to be borne in mind in connection with pur- chase deeds will be found under other heads, to which they properly belong. (M 4 Cruise T. 32, c. 25, § 82 ; Sugd. Concise View, 433. U) Sugd. Concise View, 433 ; \d) Sugd. Concise View, 433. Sugd. Concise View, 433 ; 9 Jarm. & Bytb. by Sweet, 455. OP COVENANTS IN PURCHASE DEEDS. 431 or by a trustee to whom he has conveyed it upon trust to sell, is bound to covenant for the title, in the same manner as he must have done if he himself had sold the estate.(e) Where lands are devised to trustees upon trust to sell, and the pro- ceeds are absolutely given to two or more persons, all the persons whose shares in the purchase money are in anywise considerable, are bound to enter into the usual covenants for the title, to the extent of their respec- tive shares. (/) And the same course is adopted in ^practice, r^^f-rr-, even where an estate is sold by trustees under a will, and the L -I money is to be applied in payment of debts, &c., and the residue is given over, or where an estate is sold for similar purposes under an order of the Court of Chancery, although the purchaser cannot insist on any covenants for the title in such cases. Where an estate is conveyed by persons who have no beneficial interest, such as trustees or assignees of a bankrupt, or with their con- currence, each is only bound to covenant that he has done no act to incumber the estate.M A purchaser cannot insist on the bankrupt's covenanting for title ; for the bankrupt cannot be compelled even to join in the conveyance. (A) But the usual practice is for the bankrupt to enter into the ordinary covenants for title, (i) II. Covenants for Title in the case of Estates in Fee. The covenants usually entered into by a vendor seised of the inheri- tance, are, 1st, that he is seised in fee. 2ndly, that he has power to convey. 3rdly, for quiet enjoyment by the purchaser, his heirs and assigns. 4thly, that the land shall be held free from incumbrances. And 5thly, for further assurance. (A) A man having merely a power to appoint an estate cannot be said to be seised in fee of the estate, although he has a right to convey ; and therefore, in such a case, it is usual to omit the first covenant, and to insert a covenant that the power was well created, and is not suspended or extinguished. (?) Where lands are- conveyed to particular uses, instead of a r;|rof:i^-| *covenant for quiet enjoyment, the words usually inserted are, L J that the estates conveyed shall be and remain to the uses thereby declared, without any eviction, &c.(«i) With respect to the covenant as to incumbrances, which is always con- nected with the covenant for quiet enjoyment, the common form is not, that the estate is free from incumbrances, which would amount to a covenant that would be broken as soon as made if there were any incum- brance, but it is only that the purchaser shall enjoy free from incum- (e) Sugd. Concise View, 432. (/') 4 Cruise T. 32, c. 25, J 82, 84; Sugd. Concise View, 433. (g) 4 Cruise T. 32, c. 25, § T5 ; Sugd. Concise View, 433-4 ; Burton, J 577. (A) 9 Jarm. & Byth. by Sweet, 266, n. (o). (i) Sugd. Concise View, 433. (k) Sugd. Concise View, 459 ; 4 Cruise T.,32, c. 25, I 45, 46, 49, 57, 59. [l) Sugd. Concise View, 459. (m) 4 Cruise T. 32, c. 25, § 56. 432 SMITH ON KEAL AND PERSONAL PROPERTY. brancee ; and so long as he does so enjoy the estate, the covenant is not broken, although there may be incumbrances. (ra) A covenant to do all reasonable acts, means such necessary acts as the law requires. (o) Where any defects in the title, which may be supplied by the vendor, are discovered after the execution of the conveyance, the vendor may be compelled in equity to do whatever is necessary to supply such defects by a bill for a specific performance of the covenant for further assurance, if the transaction is free from all objection. (^j) Under such a covenant, a purchaser may require the removal of a judgment or other incum- brances. (j) But it is laid down by Lord Cowper that a covenant for further assurance will not help the case, where the original conveyance itself is void.f?-) Where the agreement is to convey an estate upon a sale, the purchaser would have a right to a conveyance with usual covenants, although nothing was expressed about covenants in the agreement.(s) But where the conveyance is a further assurance, the purchaser must be supposed to have already obtained all such covenants and evidence as he was entitled to; and therefore he cannot insist upon any covenants which he r*R'^7T °'^S^^ *° hme obtained *before (such, for instance, as a cove- L -I nant for production of deeds,) under the covenant for further assurance. (<) And it has been held that the covenant for further assu- rance does not entitle a purchaser, who has neglected to obtain evidence of facts material to his title at the time of his purchase, afterwards to call for the production of such evidence, or to have the future preserva- tion and production of the documents containing the evidence secured to him.(M) Where a man is bound to make such an assurance as A. or his heirs or their counsel shall devise, A. or his heirs must take care that in time they have an assurance reasonably drawn and ready to be sealed, and to tender it to him, that is, to seal it ; for until that is done, there is no breach of covenant.(x) If the seller's solicitor permits his client to enter into an unusual covenant for title, without explaining to him, not only its effect, but also that it is an unusual covenant and cannot be insisted on, the solicitor will be liable to the client for any consequent loss.(y)^ III. Covenants on Sale of Leaseholds. The usual covenants in assignments of leasehold estates, are 1st, that the lease is valid in law, not forfeited, surrendered, or determined, or become void or voidable ; 2ndly, that the assignor has good right to assign ; 3rdly, that the rent has been paid, and the covenants performed, (n) Sugd. Concise View, 471. (o) Siigd. Concise View, 474. Ip) 4 Cruise T. 32, c. 25, § 93 ; Sugd. Concise View, 473. (q) Sugd. Concise View, 474. (r) 4 Cruise T. 32, c. 25, J 94. (j) Sugd. Concise View, 475. {t) Sugd. Concise View, 475-6; 1 Jarm. & Byth. by Sweet, 102. (u) 1 Jarm. & Byth. by Sweet, 102. (x) 4 Cruise T. 32, c. 25, J 62. (y) Sugd. Concise View, 430 ; 9 Jarm. & Byth. by Sweet, 3T3. OF COVENANTS IN PURCHASE DEEDS. 433 up to the time of the assignment ; 4thly, for quiet enjoyment during the term, free from incumbrances, without any restriction; and 5thly, for further assurance. (z) Where a leasehold estate is sold by the lessee, the purchaser, without any express stipulation, is bound to enter *into a covenant with riif^co-, the vendor to indemnify him against the rent and covenants of L J the lease ; because the original lessee continues liable, even for breaches of covenant committed after he has assigned. But where a leasehold estate is sold by an assignee of the lessee or of any other assignee, the vendor, by the assignment itself, is discharged from liability for any breaches of covenant not committed during the period of his ownership, unless he has entered into a covenant with the person from whom he purchased, whether lessee or assignee, to pay the rent and perform the covenants ; and in that case he is entitled to an indemnity from the purchaser against this covenant, from which he is not released by his assignment. (a) The executor of a lessee assigning leaseholds to a legatee, whether specific or residuary, is entitled to an indemnity against the rent and covenants of the lease, to which, notwithstanding the assign- ment, he continues liable to the extent of the assets that have reached his hands.rS) Where a leasehold estate is sold by the assignees of a bankrupt, inasmuch as such assignees are not liable to the covenants of the lease after assignment, nor to any covenant of indemnity the bank- rupt may have entered into, they cannot require the purchaser to enter into a covenant for their indemnity or for the indemnity of the bank- rupt — a circumstance which gives purchasers of leaseholds from assig- nees of bankrupts an important advantage. (c) IV. Against whose Acts a Vendor should Covenant. Covenants for the title are usually restrained and qualified according to the nature of the vendor's title. And although where covenants are several and of distinct natures, *restrictive words annexed to _^„^q-| one of them will not be applied to the others, yet where all the L J covenants have the same object, and restrictive words are annexed to the first of them, those words will be considered as extending to all the others. (cZ) Where the vendor has himself purchased the estate, and has obtained proper covenants for the title, he is only bound (giving up the title deeds) to covenant against his own acts.(e) But where the title deeds are not delivered up to the vendee, it is desirable that the cove- nants should extend to the acts of the person from whom the vendor purchased the estate ; for the covenant to produce his purchase deeds cannot insure the production of them, which may be prevented by acci- (z) 4 Cruise T. 32, c. 25, ? 95. (a) 9 Jarm. & Byth. by Sweet, 111 ; Sugd. Concise View, 25 ; 4 Cruise T. 32, c. 25, J 37, 96 ; 2 Piatt on Leases, 41Y ; Hickling v. Boyer, 3 Mac. & G. 645. (6) 9 Jarm. & Byth. by Sweet, 839. (c) Sugd. Concise View, 26 ; 9 Jarm. & Byth. by Sweet, 1T2, 272, 273. (d) 4 Cruise T. 32, c. 25, § 68 ; Sugd. Concise View. 465. (e) 4 Cruise T. 32, c. 25, § 72, 74 ; Sugd. Concise View, 432 ; 9 Jarm. & Byth. by Sweet, 373. March, 1856.— 28 434 SMITH ON KBAL AND PERSONAL PROPERTY. dents, for which the vendor, in whose custody the deeds are, ought to be the sufferer rather than the vendee.(/) The Court of Chancery appears to hold that a vendor not claiming by purchase, is only bound to covenant against his own acts and those of the owner who immediately preceded him.(^) But upon principle and according to the settled practice of conveyancers, where a vendor derives title by descent, devise or voluntary deed, without proper covenants for the title, he ought to covenant, not only against his own acts, but also against the acts of all the intermediate owners, up to the last purchaser for valuable consideration or other person who obtained proper cove- nants for the title, so that the purchaser from such vendor may be pro- tected by covenants extending to the acts of all the successive owners of the property. (^) r*fiRfn Where there is a defect in the title, a purchaser has a *right l- -"to covenants against all persons claiming a lawful title to the estate, which, unless the defect appears on the face of the conveyance, should be by a separate deed. And where a purchaser consents to take a defective title, relying for security on the vendor's covenant, this should be particularly mentioned to be the agreement of the parties; for otherwise, as the defect was known, it might be contended that the covenants for the title should not extend to warrant it against such par- ticular defect, (i) V. To what hind of Acts Covenants will extend. The law will never adjudge a person to covenant against the wrong- ful acts of strangers, unless his covenant is express to that purpose ; for the law itself defends every one against wrong. And therefore, though a person should covenant in the most general terms for the title to lands, yet such covenant will not be held to extend to tortious entries. If general covenants extended to tortious evictions, a way might be opened for secret practices and combinations between a purchaser and strangers, that the purchasers might recover damages from the cove- nan tors. (fe) But where the covenant is to save the purchaser harmless from all acts of a particular person, there the vendor is bound to defend the purchaser against the entry of that person, whether by title or not.(?) So where the covenant is against all claims to a particular right, it will extend to tortious as well as to legal claims. (m) And notwithstanding the engagement be expressly against lawful acts, yet any act of the covenantor himself which amounts to an assertion of title, however (/) 4 Cruise T. 32, c. 25, I '?3 ; Fearne's Posth. Works, 110. But see Sugd. Concise View, 432. {g) Sugd. Concise View, 432 ; 9 Jarm. & Byth. by Sweet, 373. (A) Fearne's Posth. Works, 110 ; Sugd. Concise View, 432 ; 4 Cruise T. 32, c. 25, I 74-5 ; 9 Jarm. & Byth. by Sweet, 373. (i) 4 Cruise T. 32, c. 25, | 75 ; Sugd. Concise View, 431. {k) Sugd. Concise View, 459 ; Burton, | 578 ; 4 Cruise T. 32, u. 25, § 50. \l) 4 Cruise T. 32, c. 25, § 52 ; Sugd. Concise View, 459. (m) 4 Cruise T. 32, t. 25, J 54 ; Sugd. Concise View, 460. OP MARRIAGE SETTLEMENTS. 435 groundless, will be a breach of *the covenant,^™) although the rsj-f-f^-i -i act done by him was tortious and might be the subject of an L J action of trespass ; and if the covenant extends to his heirs or execu- tors, the rule equally applies to them.(o') Section II. Of Marriage Se(tlements.[j>\ Where there are articles and a settlement before marriage, there, as a general rule, the settlement alone can be looked to. If it is different from the articles, it must be taken as a new agreement, unless it purports to be executed in pursuance of the articles. If the articles are before marriage and the settlement after marriage, the articles are in effect the binding settlement; and if the settlement gives estates or interests dif- ferent from those which the court would give on the construction of the articles, the settlement will be reformed, as between the parties and their representatives and mere volunteers, but not as against a purchaser for valuable consideration. (5) In a marriage settlement there is sometimes a clause providing that " in case any of the younger sons shall become an eldest or only son," his portion shall accrue to the other children. And by force of this clause a younger son may lose his portion on becoming an eldest or only son, although he may not have succeeded to the property of his elder brother,(r) This is of course contrary to the intention of the settlor, who must be presumed to have intended that all the children of the mar- riage should be provided for. It is *evident therefore, that the p;|.f>f>c)-i condition on which the accruer is to take place ought to be more L J fully and accurately expressed. A clause in a marriage settlement, requiring the trustees, at the re- quest in writing of the wife, to advance part of the trust moneys to the husband, on the security of his bond, with a proviso that they should not be obliged to call in the moneys so lent unless required by the wife, ceases to be applicable to the husband after he has taken the benefit of the Insolvent Debtors Aot.(s) Where a person makes a settlement on his first marriage on his sons in tail, remainder to persons not within the consideration of the mar- riage, and subsequently, on a second marriage, covenants that- he will settle the reversion expectant upon the decease of his sons without issue, to the use of the children of that marriage, it has been held by Sir E. Sugden, when Lord Chancellor of Ireland, that they will take in prefer- ence to the persons claiming under the voluntary limitations in the first settlement. («) (n) Burton, ? 578. (0) Sugd. Concise View, 460. (p) Most of the points necessary to be borne in mind in connection with mar- riage settlements, will be found under other heads, to which they properly belong. (q) 2 Spence's Eq. Jur. 140-1. (r) See Peacock v. Pares, 2 Keen, 689. («) Boss V. Godsell, 1 Y. & 0. C. C. 61Y. («) Stackpoole v. Stackpoole, i Drew. & W. 320. 436 SMITH ON EBAL AND PEKSONAL PROPBRTT. Marriage articles will be specifically executed on the application of any person within the scope of the consideration of the marriage, or of those claiming under any such person. But they will not be specifically exe- cuted on the application of persons who are volunteers, even of a wife or child by a subsequent marriage ; although where the bill is brought by persons who are within the scope of the consideration, or by those claim- ing under them. Courts of Equity will decree a specific execution throughout, as well in favour of the mere volunteers, as of the plaintiff, as they either execute them in toto, or not at all.(M) In a settlement on the marriage of a female ward of court, provision must be made, out of her fortune, for the children of a future mar- riage, (w) r*fifiqT *The effect of a settlement by deed limiting property to the •- -■ executors or administrators of the settlor, is to make it part of his general personal estate, so as to give him as unlimited a power of disposi- tion over it, either by act inter vivos or by will, as he had before the settle- ment, and render it liable to his creditors in bankruptcy or insolvency as much as it was before, and, subject to such liability, and in default of such disposition, to cause it to be dealt with under the Statutes of Distri- bution. And this is the case even where the property consists of money payable on a policy on the life of the settlor.(a;) Relief will be granted against acts secretly done by a woman in con- travention of the marital rights, or in disappointment of the just expect- ations of her intended husband. As where a woman, in contemplation of marriage, and without the privity of her intended husband, makes a settlement to her separate use, or a conveyance in favour of persons for whom she is under no moral obligation to provide. But a reasonable provision for her children by a former marriage, under circumstances of good faith, is free from objection. (y) Section III. Of Deeds of Compromise and Arrangement. In the case of a compromise of doubtful rights, if all the parties are in a state of mutual ignorance, or they are all acquainted with the doubts which exist in their favour, the compromise is binding. But where one or more of them is or are not aware of the doubts existing in his or their r*fifi4l *f^^0"''> while the fact that such doubts exist is known to the L J other or others of them, the compromise is not binding ;(2) be- cause in that case, there is room for the presumption of surprise or con- fidence abused, and the very nature of the transaction made it requisite that all the parties should be on an equality as regards knowledge or ignorance of the doubts existing in their favour. To render a family («) Story's Eq. Jur. ? 986, 987; 2 Spence's Eq. Jur. 287. (v) Eudge V. Winnell, 10 Beav. 98. (x) Mackenzie t. Mackenzie, 3 Mac. & G. 559. [y) Story's Eq. Jur. § 273 ; 2 Spence's Eq. Jur. 505. [z] See Story's Eq. Jur. 130-1. OF CREDITOES' DEEDS. 437 compromise binding, there must be an honest disclosure, by each party to the other, of all such material facts known to them, relative to their rights and title, as are calculated to influence the judgment in the adop- tion of the compromise ; and any advantage taken by either of the par- ties of the known ignorance of the other of such facts, renders such com- promise void in equity. (a) Deeds of the nature of family arrangements are exempted from the rules as to the adequacy of the consideration applicable to other deeds ; the consideration in such cases being compounded partly of value and partly of natural love and afi'ection.(5) ^ Section IV. Of Creditors' Deeds. Independently of the Bankrupt and Insolvent Acts, an assignment for the benefit of all the creditors or of a particular creditor is valid, and a security given to a particular creditor is valid, though such assign- ment or security be executed with an intent to defeat the execution of another creditor ; and even a warrant of attorney to enter up judg- ment given voluntarily by a debtor in order to prefer a particular creditor to another who has recovered judgment 'against the debtor, is rjKf;f>c-i not void against such latter creditor under the statute of Eliza- L J beth.(c) But an assignment to trustees by a trader of his effects for the benefit of all creditors who may execute the deed, is not valid as against creditors who do not execute, if it authorize the creditors to carry on the debtor's trade, and contains such terms that the creditors subscribing would become partners in the business, (rf) Conveyances in trust to sell and pay creditors are in the nature of an instrument of agency, and revocable at the will of the debtor, unless the creditors are executing parties, or the deed has been acted upon, or notice given to the creditors. (e) Where a deed of assignment purports to be made by all the partners in a firm, and to convey all their personal estate and effects whatsoever in trust for the benefit of creditors, and it is executed by one of them only, it operates to convey all his separate effects, and all his share in the joint effects.(/) In order to entitle the creditors named in a general assignment for the benefit of creditors to take under it, it is not necessary that they should be technical parties thereto, unless they are named in the assignment as parties, and are expressly required to execute before they can take under its provisions. It is sufficient if they have notice of the trust in their favour, and assent to it; and if there is no stipulation for a release, or (a) Smith v. Pincombe, 3 Mac. & G. 659. (J) Persse v. Persse, 7 CI. & P. 2V9. (c) Coote, Mortg. 3rd edit. 241 ; 2 Spence's Eq. Jur. 350-352 ; Story's Eq. Jur. ? 1036. [d) Coote, Mortg. 3rd edit., 241. [e] Coote, Mortg. 3rd edit. 164. {/) Bowker v. Burdekin, 11 M. & "W. 128. 438 SMITH ON REAL AND PBESONAL PKOPBETY. any other condition in it which may not be for their benefit, their assent will be presumed, till the contrary appears. (^) Until, however, the creditors have assented to the trust, and given notice thereof to the r*fififiT ^^^'8°^^; ^^ assignment of this kind, *in which the creditors are L J not parlies and have not executed, is deemed revocable by the debtor, in equity as well as at law, whether the creditors are individually named or not.(A) Where creditors have acted under a deed of composition and treated it as valid, the Court of Chancery will also act under it and treat it as valid as against the assignor, though the creditors have not executed it within the time prescribed. (i) A deed of trust for the benefit of credi- tors is not avoided, though the creditors named as parties to it of the second part are described as the several persons whose names and the amount of whose debts are set out in a schedule thereunto annexed, and yet there is no schedule annexed at the time of execution, and erasures are made in the names of some of the creditors written in the schedule afterwards added, and against the names of others no sums are set.(A;) If any creditor who is a party to a composition deed, has, unknown to the other creditors, obtained any benefit or security, either from the debtor or a third person, beyond what the others have received, or enters into a contract with the debtor, which prevents him from being put into that situation of freedom from resisting demands which may be consi- dered as one of the chief inducements to the others to sign the deed, it is a fraud on the policy of the law j and such secret arrangements are entirely void, even as against the assenting debtor, or his sureties, or his friends; and money paid under them may be recovered back. (A [*667] *CHAPTER VI. OF VOID AND VOIDABLE DEEDS AND CONTRACTS. (a) Section I. 0/ Deeds which are Invalid hy reason of the Absence of any Conside- ration, or the Inadequacy or Unlawfulness of the Consideration. I. Ahsence or Failure of Consideration. Lawful considerations are of two kinds — valuable and good. A valu- able consideration is money, or any other thing that bears a known (g) Story's Eq. Jur. I 1036, a. (h) Story's Eq. Jur. | 1036, b. (i) 2 Spence's Eq. Jur. ? 354. (k) "West T. Steward, 14 M. & W. 47. (I) See Story's Eq. Jur. ^ STS-Q ; 2 Spence's Eq. Jur. 357-360. (o) Of course this chapter only points out certain grounds on which deeds are void or Toidable, and which are not noticed under other heads. The perusal of other parts of the work will at once direct the reader to other grounds of inva- lidity. OF DEEDS VOID OR VOIDABLE, ETC. 439 value, or marriage. A good consideration is affection to a child or re- lation, or the payment of debts. (6) In the case of deeds operating by transmutation of the possession, no consideration is necessary as between the parties, nor as to strangers, except in cases of actual or constructive fraud. (c) But in the case of deeds operating without transmutation of the possession, that is, bargains and sales, and covenants to stand seised, a consideration is absolutely necessary. (tZ) Where a person executes and delivers a deed of *conveyance r^/^/^g-, of equitable property to a volunteer, or where the legal estate is L -i transferred, and a trust of it is declared in favour of a volunteer, and there is nothing upon the face of the transaction or from contemporaneous evidence to show that it was intended to be revocable, it cannot be re- voked or avoided in any way. And even if the donor should procure a re-transfer of stock by the trustees, and, where it is in writing, should cancel the instrument, and by will make a provision for the same cestuis que trust, the settlement would be binding ; and unless the subsequent provision is expressed to be substitutionary, the cestuis que trust, if the gift is not by way of portion, will take both. They will have their election, if it is expressed to be in substitution ; and stock not being within the stat. of 27 Eliz., a purchaser from the donor cannot avoid the voluntary settlement or gift.(e) The keeping a deed, so executed as to pass the estate, in the donor's possession, is not of itself sufficient to enable the donor to revoke it by cancellation or by will; for the estate having passed, it would require the active interference of the Court of Chancery to revest the estate ; and it is no ground for such interference, that the act was foolishly or inconsiderately done.(/j Hence, a person unmarried cannot recall a voluntary deed which he has executed for the benefit of future children. Nor can he relieve himself from a provision by which he has chosen, for the benefit of those children, to submit to the discretion of a third person the extent of the enjoyment of the income of his property. (gr) And where a feme sole makes a settlement of personal property upon certain trusts for herself, and any husband with whom she may intermarry, and any children she may have, and her appointees and next of kin, such settlement cannot be revoked some years afterwards, *although fi,of-n-\ she never marries, and it does not appear that it was made in L J contemplation of an immediate marriage, or of a marriage with any par- ticular individual, at any subsequent time ; and although it is alleged in the bill, and the probability is, that it was executed solely in order to protect herself against the importunities of relations, and is purely voluntary, and although, in consequence of the lodging up of the capital, she becomes greatly embarrassed. (A) (b) See 4 Cruise T. 32, c. 2, § 50, 51. (c) See infra, p. 680-686, on voluntary deeds void as against purchasers and creditors. , (d) 4 Cruise T. 32, c. 2, | 46 ; 2 Pres. Shep. T. 510 ; Burton, ? 536. (e) 2 Spence's Eq. Jur. 882-3. (/) 2 Spence's Eq. Jur. 885. {g) Petre v. Espinesse, 2 My. & E. 496. (h) Bill v. Oureton, 2 My. & K. 503. 440 SMITH ON REAL AND PERSONAL PROPBKTT. Courts of equity will enforce an obligation imposed by will, without any consideration.(i) But they will not enforce, either against the party himself or any volunteers claiming under him, any contract or any im- perfect gifts inter vivos (not being donations mortis causa,) or imperfect assignments of debts or other property, or executory trusts raised by a covenant or agreement, or defective settlements or conveyances, which are not founded in a valuable consideration, even though the transaction be founded on a meritorious consideration, as in the case of a provision for a wife or child ; that is, equity will not enforce them so far as some- thing is sought beyond what, if anything, may be recovered under them at law, although it will, if necessary, give effect to any legal obligation created by them. But where a person executed a deed of covenant with trustees, that his executors should pay a sum of money to such trustees upon trust for illegitimate children named in the deed, and an action could be brought by the trustees for the money, the deed will be enforced in equity against the assets, although the deed be voluntary, and although the covenantor retained it in his possession, and neVer even acquainted the trustees or the cestuis que trust with the facts of its having been executed, although the cestuis que trust be not parties to the deed.(^) And if a transfer, assignment, trust, settlement, or conveyance is com- r*fi7m P^^'^j s° ^^^^ "^ ^"^ remains to be done *to give full effect to the L -J title, equity will enforce it throughout against the party making or creating it, and his representatives, although it be merely voluntary.(Z) But, in general, it cannot be laid down with certainty what particular acts are necessary to make an assignment of a chose in action, or an equitable interest, not being an equitable estate, complete. (m) And hence, the surest way, short of a legal transfer, where that is practicable, of effecting a voluntary transfer, is by the party entitled not making an assignment, as such, but signing a declaration of trust in favour of the donee. (ra) A third person, particularly if a relation, may enforce in equity a stipulation made by another in his favour, and for which the party who ob- tained it has given a valuable consideration plainly with a view of benefit- ing such third person, though such third person as regards each of the con- tracting parties, may be a volunteer.(o) As where a person who has con- tributed a valuable consideration to a settlement, has exacted, as part of the contract, that certain property shall be so settled as that, in the event of the intended limitation to the issue of the marriage failing to take effect, the property, whether belonging to one of the parties or the other, shall go to some near relative.(p) But it would appear, that if the party exact- ing the stipulation releases the other, the stranger cannot enforce it, un- less his condition in life has been altered by the stipulation. (j) (t) 2 Speuce's Eq. Jur. 255. [k) Fletcher v. Fletcher, 4 Hare, 67. (I) Story's Eq. Jur. § 433, 78T, 793, a, b, 973 ; 1 Spence's Eq. Jur. 507 ; 2 Spence's Eq. Jur. 52, 57, n. («), 129, 254, 255, 285, 889-893, 907, 909-912 j Voyle T. Hughes, 2 S. & G. 18 ; Bridge v. Bridge, 16 Beav. 316. (m) 2 Spence's Eq. Jur. 907. [n] 2 Spence's Eq. Jur. 898, 909, 913, 915. See Kekewich v. Manning, 1 D. M. & G. 176. (o) 2 Spence's Eq. Jur. 286. {p) 2 Spence's Eq. Jur. 281. \q) See 2 Spence's Eq. Jur. 280, 281. OF DEEDS VOID OR VOIDABLE, ETC. 441 When the cause of a grant fails, and the thing granted is executory, the grant becomes void : as if one grants an ^annuity for an acre r^^tr'n-i-i of land, for tithes, or for counsel, " for" is conditional, and there- <- J fore, if the land is evicted by an elder title, or if the grantor is disturbed in the tithes, or if the annuitant refuses to give counsel, the annuity is determined. (r) II. Inadequacy of the Consideration. Mere inadequacy of price, or any other inequality in the bargain, dots not constitute by itself a ground to avoid it.(s) Still, however, there may be such an unconscionableness or inadequacy in the bargain as to shock the conscience, and amount to conclusive evidence of imposition or undue influence ; and, in such a case, courts of equity ought to inter- fere on the ground of fraud. And where there are other ingredients of a suspicious nature, gross inadequacy must furnish the most vehement pre- sumption of fraud. (A Where there is very gross inadequacy in the consideration, and advan- tage has been taken of the necessities of the grantor, equity will relieve, especially if he is an illiterate person,(M) unless the parties cannot be placed in statu quo : as in the case of marriage settlements, where equity will not relieve, because the court cannot unmarry the parties, («) Relief will be granted, on account of the smallness of the consideration, in favour of those classes of persons, of whom, from their peculiar cir- cumstances, irrespective of any mental incapacity, undue advantage may readily be taken, although the transaction could not be impeached, if entered into by parties otherwise situated. Thus, Bargains with expectant heirs, who were in diflBeulties at the time, will be set aside, unless the party can show that a fair consideration was paid, or that the bargain was fully made known to and approved rt^ia'-n-i by the person to whose estate *the expectant heir hoped to sue- L J ceed.(a;) But although a person seeking the benefit of a dealing with an expectant heir for his expectancy must show that he gave him a fair market price at the time of the dealing, yet he is not bound to show that he gave the full value according to the calculations of actuaries on the tables; as those calculations were made on the result of a great mass of cases, and therefore may not be a true criterion of the value of the particular case, as, for instance, where the life in question is not of average value. Be- sides, if the utmost value were required to be given, it might altogether prevent expectants from dealing with their expectancies. (y) TiJe same relief is afforded to remaindermen and reversioners, who were in difficulties at the time of the bargain, unless the party who dealt with them can show that a fair consideration was paid, or that the bar- gain was fully made known to and approved by their parents or other (r) 2 Pres. Shep. T. 285. («) Story's Eq. Jur. § 244. [t) Story's Eq. Jur. ? 246, 251. (m) Cockell V. Taylor, 15 Beav. 103, 115, [v) Story's Eq. Jur. I 250. (x) See Story's Eq. Jur. § 334-340, 343. \y) Earl of Aldborough v. Trye, 7 01. & F. 436. [*673] 442 SMITH ON EBAL AND PERSONAL PROPERTY. persons standing in loco parentis, who had the means of obviating the necessity for such an alienation of their future interests. («) If the heir or other expectant, after being relieved from his necessi- ties, absolutely, and deliberately, and on full information as to his right of setting aside the bargain, confirms the transaction, or does any act by which the rights or property of the other party are injuriously aflfected, he will not be allowed to repudiate the bargain. (a) On these principles post-obit bonds and other securities of the like nature are set aside, when made by heirs and other expectants. A post- obit bond is an agreement made on the receipt of money by the obligor to pay a sum exceeding the sum so received and the ordinary interest thereof on the death of the person upon whose decease he expects *to become entitled to some property. (6) Even the sale of a post-obit bond at a public auction will not give it validity, unless the sale was free, fair, and with the ordinary precautions and advertise- ments, (c) If, however, these contracts are perfectly fair in other respects relief will not be granted, except upon the terms of paying that to which the lender is equitably entitled. (f?) Common sailors, being so extremely generous, credulous, and impro- vident a class of men, that they require guardianship all their lives, Equity treats them in the same light as young expectant heirs ; and re- lief is generally afforded against contracts respecting their prize-money or wages, wherever any inequality appears in the bargain, or any undue advantage has been taken, (e) III. Unlawfulness of the Consideration. Considerations which are against the principles of justice, the rules of morality, or the policy of the law, are utterly void ; it being a rule of both law and equity that ex turpi contractu actio non oritur.(/) Hence, a bond given to a woman as the price of prostitution is void in law.(^) But where a bond is given for securing an annuity or a sum of money for the support and maintenance of the person seduced, and not with any view to future cohabitation, a Court of Equity will not relieve, even though she was a common prostitute. (^) [*674] *Skction II. Of Deeds and Contracts which are invalid on the ground of Constructive Fraud practised hy Persons standing in a Confidential Relation to the Parties sought to he hound hy such Deeds or Contracts. • Where a reasonable confidence is reposed in another person, or a pe- culiar influence is possessed by him in consequence of standing in a (z) See Story'g Eq. Jur. § 334-340. And see Smith's Manual of Equity Juris- prudence, 4tli edit. 73. (a) Story'g Eq. Jar. § 345, 346. [b] Story's Eq. Jur. J 342. (c) Story's Eq. Jur. § 347. {d) Story's Eq. Jur. § 344. (e) Story's Eq. Jur. g 332. (/) 4 Cruise T. 32, c. 2, § 51 ; Story's Eq. Jur. § 294-297. {g) 4 Cruise T. 32, c. 26, § 49. (A) 4 Cruise T. 32, c. 26, ? 51, 55. DEEDS INVALID, ETC. 443 confidential relation, or where a person, by being employed or concerned in the afiairs of another, has acquired a knowledge of his property, and he makes use of that confidence or that infiuence or that knowledge to obtain an advantage to himself at the expense of the party confiding in him or under his influence or in whose affairs he is concerned, he will not be permitted to retain any such advantage, however unimpeachable the transaction would otherwise have been. Thus, 1. Contracts and conveyances whereby benefits are secured by children to their parents, if not entered into with scrupulous good faith, and rea- sonable under the circumstances, will be set aside, unless third persons have acquired an interest under them.(i) 2. During the existence of guardianship, the relative situation of the parties occasions a general inability to deal with each other. And courts of equity will not permit transactions between guardians and wards to stand, even when they have occurred after the minority has ceased, if the intermediate period is short ; especially if all the duties attached to the office have not ceased, or if the estate still remains in some sort under the control of the guardian ; unless the circumstances demonstrate the fullest deliberation *on the part of the ward, r*o7K-i and the most absolute good faith on the part of the guardian. (/^) L J But when the guardianship has entirely ceased, and a full and fair set- tlement of all transactions growing out of it has been made, and a suffi- cient time has intervened to allow the ward to feel completely independ- ent of the guardian; there is then no objection even to a bounty being conferred upon the latter.(Z) 3. The same principles are applied to persons standing in the relation of quasi guardians or confidential advisers, (m) 4. A solicitor is not incapable of contracting with his client ; but, as the relation must give rise to great confidence in the solicitor, or to very strong influence over the client, either the relation must be dissolved before the contract, or all the duties pertaining to the character of pur- chaser and vendor must be performed. And the whole onus of proving the fairness and propriety of the transaction will be thrown on the pur- chasing solicitor, if at least the client has no other solicitor to advise with him as to the value. («) And a solicitor who is an agent for a sale, cannot become the purchaser without full explanation to the parties interested of all the circumstances of the sale and of the value of the property, as his duty and his interest are in conflict.(o) And if an attorney can show that he is entitled to purchase, yet if, instead of openly purchasing, he purchases in the name of a trustee or agent, with- out disclosing the fact, no such purchase can stand, (p) No gift or gratuity to a solicitor, beyond his fair and professional de- mands, made during the time that he continues to conduct or manage (i) Story's Eq. Jur. § 309; Hogliton v. Hoghton, 15 Beav. 278; Espley v. Lake, 10 Hare, 260. (k) Story's Eq. Jur. § 317-320. (l) Id. | 320. (m) Id. J 319. In) See Sugd. Concise View, 548; Story's Eq. Jur. § 310-313. (o) In re Bloyes' Trust, 1 Mao. & G. 494, 497. {p) Lewis V. Hillman, 3 H. L. Cas. 630. 444 SMITH ON REAL AND PERSONAL PROPERTY. the affairs of the donor, shall be permitted to stand. (5) So that an r*fi7fn ^g'^ssment on the part of *a client to allow a solicitor a commis- L -I sion of so much per cent, on a fund in court, as a remuneration for recovering the fund or employing another solicitor to recover it, is void as contrary to the policy of the law.(»-) Still, a deed executed by a client in favour of hia solicitor, if voidable, may be confirmed by the will of the client, (s) 5. Similar rules apply to the case of a medical adviser and his patient, (i) 6. An agent will not be permitted to reap any advantage by becoming secret vendor or purchaser of property which he is authorised to buy or sell for his principal. Tm^ So that if an agent sells his own property to his principal as the property of another, without disclosing the fact, the bargain, at the election of the principal, will be held void. And if an agent purchases in another's name instead of his own, however fair the transaction, it will be invalid. And if an agent employed to purchase for another purchases for himself, he will be considered as the trustee of his employer.(a;) And in all transactions directly and openly entered into between principal and agent, the utmost good faith is required ; so that the agent must not conceal any facts within his knowledge which might influence the judgment of his principal as to price or value. (y) 7. A trustee is not allowed to partake of the bounty of the party for whom he acts, except under circumstances which would make the same valid if it were a case of guardianship. (2) Trustees, mortgagees, and executors with powers of sale, cannot buy the trust estate from themselves, or in other words they cannot sell it to [-^„_..-, themselves ; for although *they may vest the estate by convey- L J ance in themselves as purchasers, or in a nominal purchaser as a trustee for them, yet equity would not allow such a purchase to stand, unless it should prove beneficial to the cestui que trusts. (a) But a trustee may purchase from his cestui que trust when the latter is sui juris, if he clearly discharges the trustee from the trust and considers him as an indifferent person, after the trustee has fully made known any information he possesses, and his desire to purchase the property. (^6) Except under such circumstances, in order to prevent the temptation of availing themselves of information for their own benefit, and concealing it from those for whom they act, a purchase by a trustee, whether he be a trustee for adults or infants, unless he be only a formal or nominal trustee, such as a trustee to preserve contingent remainders, may be set aside, although the transaction be a fair one, or although the estate be sold by public auction or under a decree for sale.(c) And a trustee for (?) 4 Cruise T. 32, c. 26, § 35 ; Story's Eq. Jur. § 312. (r) Strange v. Brennon, 15 Sim. 346. (s) Stump. V. Gaby, 2 D. M. & G. 631. (t) Story's Eq. Jur. § 314. (u) Story's Eq. Jur. J 315. (x) Story's Eq. Jur. g 316; Sugd. Concise View, 545. (j/\ Story's Eq. Jur. | 315, 316, a. (z) Story's Eq. Jur. ? 321-2. (a) Sugd. Concise View, 48, 54'7. (i) Sugd. Concise View, 647. (c) See Sugd. Concise View, 545-6 ; Story's Eq. Jur. § 322 ; 2 Spence's Eq. Jur. 943-4. DEEDS INVALID, ETC. 445 a person not sui juris can only buy the estate under the authority of the ConTt.[d) On similar principles, agents, commissioners of bankrupts, assignees, and solicitors of bankrupts' and insolvents' estates, or their partners in business, auctioneers, creditors' who have been consulted as to the mode of sale, counsel, or any persons who by being employed or concerned in the affairs of another have acquired a knowledge of his property, even though the bargain be perfectly fair, are incapable of purchasing such property, except under similar restrictions. (e) And where a trustee or agent agrees to accept a benefit from an intended purchaser, the purchase cannot be maintained. (/) *Where a person cannot purchase the estate himself, he can- r*o7Q-i not buy it as agent for another. So if a party is disabled from L J purchasing, his solicitor or agent in the transaction is equally disabled, although for his own benefit. (gr) The circumstance, however, that two parties stand to each other in the relation of trustee and cestui que trust, does not affect any dealing between them unconnected with the subject of the trust, f A) A sale by a mortgagor to a mortgagee does not stand upon the prin- ciple of a sale by a cestui que trust to his trustee, but on the same prin- ciple as a sale between parties having no connection with each other; for otherwise it might be impossible for the mortgagor ever to get rid of his debt by releasing the equity of redemption, (i) But if a mortgagee takes a conveyance with a power of sale, he is a trustee for sale, and as such disabled from purchasing. (A;) A creditor who has taken out execution, may buy the estate sold under the execution. (A It may here be remarked, that, where a power is given by a settlement to trustees to sell the estate with the consent of the tenant for life, or to the tenant for life to sell with the consent of the trustees, the estate may be safely purchased by the tenant for life himself.(?») Section III. 0/ Deeds which are invalid on account of Actual or Constructive Fraud on Third Persons. An instrument may be entirely set aside on the ground *of i-tfj^Q-i mistake or fraud,(m) whether actual or constructive ; so that L J contracts which operate as a virtual frajifl upon third persons are invalid. Thus, I. If clandestine marriage contracts are designed to impose on parents, or persons standing in loco parentis or in some other peculiar relation to the parties, so as to disappoint their bounty, or to defeat their inten- (d) Sugd. Concise View, 548. (e) See Story's Eq. Jur. § 322; 2 Spence's Eq. Jur. 943-4; Sugd. Concise View, 543-4. (/) Sugd. Concise View, 545. (^) Sugd. Concise View, 546. (A) Knight T. Majoribanks, 2 Mac. & G. 12. (i) Knight v. Majoribanlss, 2 Mac. & G. 10; Sugd. Concise View, 645. (k) Sugd. Concise View, 545-6. (I) Sugd. Concise View, 545. (m) Sugd. Concise View, 546-49. (n) See Story's Eq. Jur. § 161. 446 SMITH ON REAL AND PERSONAL PROPERTY. tions in the disposition of their property, such contracts will be set aside, or the equities will be held to be the same as if they had not been entered into.(o) II. So, relief will be granted to the injured parties, where persons, after doing acts required to be done on a treaty of marriage render those acts virtually unavailing by entering into other secret agreements, or derogate from those acts, or otherwise commit a fraud upon a marriage. (j>) As where a parent declines to consent to a marriage on account of the intended husband being in debt, and the brother of the latter gives a bond for the debts to procure such consent, and the intended husband then gives a secret counter-bond to his brother to indemnify him against the first.(j) So where a brother, on the marriage of his sister, let her have a sum of money privately, that her fortune might appear to be as much as was insisted on, and the sister gave a bond to the brother to secure the repayment thereof, the bond was set aside.(r) So where, upon a treaty of marriage, a creditor of the intended husband concealed his own debt, and misrepresented to the wife's father the amount of the husband's debts, the transaction was treated as a fraud upon the marriage, and the creditor was prevented from enforcing his debt.(s) And where a father, on the marriage of his daughter, enters into a covenant, that, r#fi8m °^ ^^^ death, he will leave her a full and equal share *of all L J his personal estate, he cannot afterwards transfer a portion of his personal property to another child, retaining the annual income thereof for his life.(«) III. Belief will also be granted against acts secretly done by a woman in contravention of the marital rights, or in disappointment of the just expectations of her intended husband. As where a woman, in contem- plation of marriage, and without the privity of her intended husband, makes a settlement to her separate use, or a conveyance in favour of persons for whom she is under no moral obligation to provide. But a reasonable provision for her children by a former marriage, under cir- cumstances of good faith, is free from objection. (m) IV. By the stat. 3 Hen. 7, c. 4, all deeds of gift of goods made in trust to the use of the donor, shall be void ; because otherwise persons might be tempted to commit treason or felony without danger of forfei- ture, and the creditors of the donor might also be defrauded of their rights. (x) V. By the stat. 13 Eliz. c. 5, s. 1, made perpetual by the stat. 29 Eliz. c. 5, it is enacted, that " all and every feoffment, gift, grant, aliena- tion, bargain and conveyance of lands, tenements, hereditaments, goods and chattels, or of any of them, or of any lease, rent, common or other profit or charge out of the same lands, tenements, hereditaments, goods and chattels, or any of them, by writing or otherwise, and all and every bond, suit, judgment and execution, at any time had or made sithence the beginning of the queen's majesty's reign that now is, or at any time M See Story's Eq. Jur. § 275. (p) Story's Eq. Jur. ? 268-2'72. q) Story's Eq. Jur. § 269. (r) Story's Eq. Jur. | 270. is) Story's Eq. Jur. § 271. (() Story's Eq. Jur. | 382. (u) Story's Eq. Jur. § 273 ; 2 Spence's Eq. Jur. 505. (x) 2 Bl. Com. 441. DEEDS INVALID, ETC. 447 hereafter to be had or made, to or for any intent or purpose before declared and expressed, shall be from henceforth deemed and taken (only as against that person or persons, *his or their heirs, successors, riKf.oin executors, administrators and assigns, and every of them, whose L J actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries and reliefs, by such guileful, covenous, or fraudulent devices and practices, as is aforesaid, are, shall, or might be in any ways disturbed, hindered, delayed, or defrauded,) to be clearly and utterly void, frustrate, and of none effect ; any pretence, colour, feigned consi- deration, expressing of use, or any other matter or thing to the contrary notwithstanding." But, by s. 5, it is provided " that this act, or any- thing therein contained, shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, commons, profits, goods or chattels, had, made, conveyed or assured, or hereafter to be had, made, conveyed or assured, which estate or interest is or shall be upon good consideration and bona fide lawfully conveyed or assured to any person or persons, or bodies politic or corporate, not having at the time of such conveyance or assurance to them made, any manner of notice or knowledge of such covin, fraud, or collusion as is aforesaid; anything before mentioned to the contrary hereof notwithstanding." In consequence of this statute, deeds are void as against creditors, though good in other respects, when made.with an express intent to de- fraud them,(y) even though such deeds be for valuable consideration. (z) And if a person makes a conveyance or assignment of any real or perso- nal property which is liable to his debts, unless it is for valuable conside- ration and bonS, fide, to a person who has no notice of a fraudulent intent, and at the time, or immediately afterwards, he is indebted to such an amount that he has not ample means available to pay the debts, such conveyances will be deemed fraudulent and void as against the creditors, to the extent to which it may be necessary to *deal with the property r^^oon-i for their satisfaction. (a) A deed, however, which is apparently L J voluntary, may be shown by extrinsic evidence to have been made for valuable consideration, and may be supported as such against creditors.(6) Although possession of goods and chattels after sale or mortgage is prima facie a mark of fraud within the stat. 13 Eliz., yet it is but pre- sumptive evidence, which may be rebutted by evidence on the part of the vendee or mortgagee, showing that the possession was consistent with the nature of the transaction. (c) If a father assigns to his son his dwelling house and personal estate, in consideration of natural love and affection, and by a bond, bearing even date with the assignment, but not noticed therein, the son binds himself to maintain his father's wife and children, the assignment is not void against creditors under the stat. 13 Eliz. c. b.(d'j (y) 4 Cruise T. 32, c. 27, § 4. (2) 4 Cruise T. 32, c. 27, § 4. (a) See Story's Bq. Jur. ? 352-374, 381 ; 2 Spence's Eq. Jur. 887; 4 Cruise T. 32, c. 27, § 15-17 ; Coote, Mortg. 3rd edit. 238 ; 2 BI. Com. 441 ; 1 Pres. Shep. T. 66; Scarf T. Soulby, 1 Mac. & G. 364 ; Re Magawley's Trust, 5 De G. & S. 1. (6) Pott T. Todhunter, 2 Coll. 76. (c) Coote, Mortg. 3rd edit. 239. {d) Gale v. Williamson, 8 M. & W. 405. 448 SMITH ON REAL AND PBESONAL PKOPEKTT. " If a voluntary settlement contains a general power to the settlor to dispose of or mortgage the estate, it will be deemed fraudulent as against creditors by statute and judgment; but a power to revoke for a particu- lar purpose may not make such a deed void.(e) By the stat. 27 Eliz. c. 4, s. 1, (made perpetual by the stat. 30 Eliz. c. 18,) it is enacted, " That all and every conveyance, grant, charge, lease, estate, incumbrance, and limitation of use or uses, of, in, or out of any lands, tenements, or other hereditaments whatsoever, had or made any time heretofore sithence the beginning of the queen's majesty's reign that now is, or at any time hereinafter to be had or made, for the intent and of purpose to defraud and deceive such person or persons, bodies politic, r*fiS^1 '^^ corporate, as have *purchased or shall afterwards purchase in L J fee simple, fee tail, for life, lives, or years, the same lands, tene- ments, and hereditaments, or any part or parcel thereof, so formerly con- veyed, granted, leased, charged, incumbered, or limited in use, or to de- fraud and deceive such as have or shall purchase any rent, profit, or commodity in or out of the same or any part thereof, shall be deemed and taken only as against that person and persons, bodies politic and cor- porate, his and their heirs, successors, executors, administrators, and assigns, and against all every other person and persons lawfully having or claiming by, from, or under them or any of them, which have pur- chased or shall hereafter so purchase for money or other good conside- ration, the same lands, tenements, or hereditaments, or any part or parcel thereof, or any rent, profit, or commodity in or out of the same, to be utterly void, frustrate, and of none effect ; any pretence, colour, feigned consideration, or expressing of any use or uses to the contrary notwith- standing." But by s. 4, it is provided, "That this act or anything therein contained shall not extend or be construed to impeach, defeat, make void, or frustate any conveyance, assignment of lease, assurance, grant, charge, lease, estate, or limitation of use or uses, of, in, to, or out of any lands, tenement, or hereditaments heretofore at any time had or made or hereafter to be had or made, upon or for good consideration and bona fide, to any person or persons, bodies politic or corporate 3 anything before mentioned to the contrary hereof notwithstanding." The object of this statute being to give full protection to subsequent purchasers against prior voluntary conveyances, it has been decided, that, in consequence of this statute, a prior conveyance is void as against a subsequent purchaser or mortgagee, from or of the voluntary grantor, whether with or without notice, but not from or of his heir or devisee : and r*fi84.n ^^^^ after a bill filed to enforce such prior conveyance, if "not L J actually on valuable consideration, although it may be bona fide and on good consideration, or although it may be expressed to be made for divers valuable considerations (not naming them,) or although made by direction of the Court of Chancery ; on the ground that the statute in every such case infers fraud, and will not suflFer the presumption to be rebutted. As between the parties themselves, however, such convey- ances are binding; and as between two voluntary' conveyances, if the (c) 2 Sugd. Pow. 234. DEEDS INVALID, ETC. 449 first is fraudulent, the second will prevail ; but where each is bona fide, equity will not interfere. (/) A conveyance in the form of a purchase deed for valuable consideration, but, in fact, voluntary, will not be sup- ported against a prior voluntary conveyance by the same party, even though the prior voluntary conveyance did not appear to have been parted with or communicated to the voluntary grantee. (^) And where the price is inadequate in a considerable degree, or where an apparent inadequacy of price is coupled with other circumstances indicating a fraudulent collusion between the purchaser and the vendor to avoid a preceding conveyance, a purchaser under such circumstances will not be entitled to the protection of the statute. (A.) Nor will equity interfere in favour of a subsequent purchaser, where the voluntary grantee has con- veyed to a bona fide purchaser for valuable consideration, or a person has intermarried with the voluntary grantee on the faith of the voluntary deed, before the bona fide purchaser from the voluntary grantor acquired his title.(t) And equity will not give its aid to a voluntary settlor to enable him to complete *a contract for sale against a purchaser; r*oQc-i though the court will enforce it at the suit of the purchaser, even L J with notice at the time of his purchase. (A) There is this exception to the general rule in the case of a charity, that, if a purchaser has notice of a gift to a charitable use, he takes subject to it, though, if he has no notice, he will have the same protection as in the case of an ordinary voluntary conveyance. (il] A fair voluntary settlement in favour of a wife and children is also an exception to the rule to this extent, that almost any bona fide considera- tion, in addition to the meritorious consideration of the provision itself, will be sufficient for the purpose of supporting the settlement. There- fore, if a person whose concurrence the parties deem essential joins in a a settlement, his concurrence will be deemed a valuable consideration, although he did not substantially part with anything.(m) And as to pre- nuptial settlements, and postnuptial settlements in pursuance of prenup- tial articles or on receipt of an additional portion, they are settlements for valuable consideration, and of course good against subsequent pur- chasers,(ra) or against prior voluntary grantees, as the case may be.(o) In general, the marriage consideration will not extend to remainders to collateral relations, so as to support them against a subsequent sale to a bon& fide purchaser, (p) But if the remainders are specifically con- (/) Story's Eq. Jur. ? 425, 426, 433 ; 2 Spence's Eq. Jur. 288, 638 ; 4 Cruise T. 32, c. 27, ? 9, 12, 21, 23, 26, 29, 44, 47, 49 ; Sugd. Concise View, 565-6 ; Burton, ? 224-5 ; Kelson v. Kelson, 10 Hare, 385 ; Doe d. Newman v. Eushan, 17 Ad. & E. 724. (ff) Eoberts t. Williams, 4 Hare, 130. (A) 4 Cruise T. 32, c. 27, § 42 ; 2 Sugd. Pow. 228. (i) For examples of the mode of relief in cases of Fraud, see Story's Eq. Jur. § 437-439 ; Id. | 434 ; Sugd. Concise View, 569 ; 1 Pres. Shep. T. 65. (k) Sugd. Concise View, 570; 2 Spence's Eq. Jur. 289 ; 4 Cruise T. 32, c. 27, I 29 ; 1 Pres. Shep. T. 65. (Z) 2 Spence's Eq. Jur. 289. (m) See 2 Spence's Eq. Jur. 288, 290 ; 4 Cruise' T; 32, c. 27, ? 23, 73 ; Butter- field T. Heath, 15 Beav. 408 ; Sugd. Concise View, 568-9. (n) 2 Sugd. Pow. 229 ; Sugd. Concise View, 568 ; 4 Cruise T. 32, c. 27, | 55. (o) 4 Cruise T. 32, c. 27, I 43, 57. (p) Sugd. Concise View, 567 ; 2 Spence's Eq. Jur. 291-298. Makch. 1856.— 29 450 SMITH ON REAL AND PERSONAL PROPERTY tracted for and brought within the consideration, they will be good againgt subsequent purchasers. And the same is the case where they are inter- r*fiSfin posed between two limitations to the dififerent ^classes of the issue L J of the marriage, (g') And where a settlement is made by a father or other lineal ancestor, in consideration of the marriage of one of his sons or descendants, and it contains remainders to the other sons or de- scendants, such remainders will be good against creditors and subsequent purchasers. (r) A lessee, or a mortgagee, or any other person who for a valuable con- sideration has any charge out of or upon the land, is a purchaser within the statute, (s) A conveyance for payment of debts generally, to which no creditor is a party, and in which no particular debt is expressed, is a fraudulent conveyance within the statute. (rt It is seldom advisable to accept a title as a purchaser from one who has made a prior conveyance ; because, in the first place, such prior con- veyance may in reality have been for a valuable consideration, though none appear ; and parol evidence of the valuable consideration would be admissible in order to support the deed ;(m) and, secondly, because the prior grantee, if voluntary, may have made a conveyance for valuable consideration before the purchaser from the voluntary grantor. (x) But yet it has been held, that a purchaser will be compelled to accept a title depending upon the invalidity of a voluntary deed.(y) Copyholds are within the stat. 27 Eliz. c. 4.(2;) VII. The statute 27 Eliz. 0. 4, s. 5 (made perpetual by stat. 30 Eliz. c. 18, s. 3,) makes void, as against subsequent purchasers for money or r*fifi7T °'^^'' good consideration, all conveyances *with any clause, pro- L J vision, article, or condition of revocation, determination, or alter- ati^ at the grantor's will or pleasure, whether such clause, &c., extend to the whole interest conveyed, or only partially affect it.(a) The words are these : " If any person or persons have heretofore since the begin- ning of the queen's majesty's reign that now is, made or hereafter shall make any conveyance, gift, grant, demise, charge, limitation of use or uses, or assurance of, in, or out of any lands, tenements or hereditaments, with any clause, provision, article, or condition of revocation, determination, or alteration, at his or their will or pleasure, of such conveyance, assur- ance, grants, limitations of uses or estates of, in, or out of the said lands, tenements, or hereditaments, or of, in, or out of any part or parcel of them, contained or mentioned in any writing, deed, or indenture of such assurance, conveyance, grant, or gift; and after such conveyance, grant, gift, demise, charge, limitation of uses, or assurance so made or had, shall or do bargain, sell, demise, grant, convey, or charge the same lands, (q) Sugd. Concise View, 567. (r) See 4 CruisS-T. 32, 0. 27, J 67-71. (s) 2 Sugd. Pow. 228. (() 2 Spence's Eq. Jur. 351. See also Burton, g 228. (m) Sugd. Concise View, 570; 2 Pres. Shep. T. 511. {x) Sugd. Concise View, 570 ; Burton, § 226-7. (y) Currie v. Niud, 1 My. k Or. 17 ; Butterfield t. Heath, 15 Beav. 408. (z) Doe d. Tunstill y. Bottriel, 5 B. & Ad. 131 ; Currie t. Nind, 1 My. ? Cr. 25. {a) Burton, | 224. DEEDS INVALID, ETC. 451 tenements or hereditaments, or any part or parcel thereof, to any person or persons, bodies politic and corporate, for money or other good con- sideration paid or given (the said first conveyance, assurance, gift, grant, demise, charge or limitation, not by him or them revoked, made void or altered, according to the power and authority reserved or expressed unto him or them in and by the said secret conveyance, assurance, gift or grant) that then the said former conveyance, assurance, gift, demise, and grant, as touching the said lands, tenements, and hereditaments, so after bargained, sold, conveyed, demised or charged against the said bar- gainees, vendees, lessees, grantees and every of them, their heirs, succes- sors, executors, administrators and assigns, and against all and every person and persons which have, shall or may lawfully claim anything, *by, from or under them or any of them, shall be deemed, taken, r^tf^Qo-i and adjudged to be void, frustrate, and of none eflFeot, by virtue *■ -" and force of this present act." But by s. 6, it is provided, " that no lawful mortgage made or to be made bona fide, and without fraud or covin, upon good consideration, shall be impeached or impaired by force of this act, but shall stand in the like force and effect as the same should have done if this act had never been had nor made; anything in this act to the contrary in any wise notwithstanding." In consequence of this statute, where a deed contains a power of revo- cation at the will of the settlor, or a power tantamount to it, and the deed is not revoked, it is void against subsequent purchasers, even though the settlement be for a valuable consideration, unless the power of revo- cation can only be exercised with the consent of persons who are not under the control of the settlor.(Z)) A power to mortgage to an indefinite extent,(c) and to lease all or part of the lands for any number of years, with or without rent,(c?) are in effect powers of revocation, and have there- fore been held to render the deed in which they are contained void as against a subsequent purchaser.(e) But a power to charge a sum of money on an estate is not in effect a power of revocation, unless the sum bears so large a proportion to the value of the estate, that the exercise thereof would virtually amount to a revocation. (/") And a settlement with a power to the settlor to revoke, that the money might be paid to trustees to be invested in the purchase of other estates, would be valid. (^) VIII. Where a person takes a mortgage or a conveyance with full notice of the legal or equitable title of other persons *to the same p*f.r,q-| property, his own title will be postponed and made subservient L J to their title,(A.) except in cases within the stat. 27 Eliz. c. 4.(i) Thus, if a person takes a mortgage of property, knowing that it was subject to an equitable mortgage made by deposit of the title-deeds, the notice of the equitable mortgage will raise a trust in him to the amount of the equitable mortgage. (A) ^ (6) 4 Cruise T. 32, c. 27, § 30, 35, 37 ; 2 Sugd. Pow. 223-4. (c) 4 Cruise T. 32, c. 27, § 33. (d) 4 Cruise T. 32, o. 27, § 34. (e) 4 Cruise T. 32, c. 27, | 39-41. (/) See 2 Sugd. Pow. 223. iff) Sugd. Concise View, 571. (A) Story's Eq. Jur. § 395-S ; Sugd. Concise View, 595, 597. (i) See supra, p. 682. (k) Story's Bq. Jur. § 395. 452 SMITH ON REAL AND PERSONAL PROPERTY. This is the case even where the property lies in a register county. The object of the Kegistry Acts was, to aflFord to persons proposing to become mortgagees or purchasers, the means of discovering any prior incumbrances, if registered, or of protecting them against any unregis- tered and secret prior incumbrances or conveyances. Where, therefore, a person proposing to become a mortgagee or purchaser has actual notice of a prior unregistered incumbrance or conveyance, the principle of the Eegistry Acts becomes inapplicable ; because it is his own folly if he is a loser by advancing any money by way of purchase or loan ; and there- fore, if a subsequent purchaser or mortgagee has notice, at the time of his purchase or mortgage, of any prior unregistered conveyance or mort- gage, he will not be permitted, in equity, to avail himself of his title against the prior conveyance or mortgage, any more than he would if the same were registered. (Z) Notice may be either actual, or constructive, i. e. imputed by con- struction of law.(«i) Actual notice, to constitute a binding notice, at least where it depends on oral communication only, must be given by a person interested in the property, and in the course of the treaty. (m) r*fiQm *'^^ *° constructive notice, whatever is sufficient to put any L -I person of ordinary prudence on inquiry, is constructive notice of every thing to which that inquiry might have led.(o) And hence a purchaser is presumed to have knowledge of the instrument under which the party with whom he contracts as executor, or trustee, or appointee, derives his power.(^) And if a purchaser has notice of a deed, he has constructive notice of all its contents, (j) And it is sufficient if it is brought home to the agent, attorney, or counsel in the transaction, or in one immediately preceding it.(r) ' Registration is not of itself notice. (s) And hence a person having the legal estate as a mortgagee, and advancing more money without notice aliunde of a second mortgage, or of a purchase of the equity of redemp- tion, though duly registered, shall hold against the second mortgagee or purchaser of the equity of redemption, until all the money is paid.(«) And, for the same reason, a purchaser obtaining the legal estate will not be prejudiced by a prior equitable incumbrance, of which, though duly registered previously to his purchase, he had no notice aliunde.(M) But if a man searches the register, he will be deemed to have notice; though, if a search is made for a particular period, the purchaser will not by the (l) Story's Eq. Jur. § 397 ; 2 Spence's Eq. Jur. 163 ; Coote, Mortg. 3rd edit. 381 ; 4 Cruise T. 32, c. 28, g 20; Sugd. Concise View, 578-9; 9 Jarm. & Bjth. by Sweet, 691. (m) 2 Spence's Eq. Jur. 754. (n) 2 Spence's Eq. Jur. 753 ; Sugd. Concise View, 601. (o) 2 Spence's Eq. Jur. 755-760 ; Sugd. Concise View, 606 ; Coote, Mortg. 3rd edit. 372. Q7T ascertained, also a right of entry, whether ^immediate or future, L J and whether vested or contingent, into or upon any tenements or hereditaments in England, of any tenure, may be disposed of by deed ; but that no such disposition shall, by force only of this act, defeat or en- large an estate tail ; and that every such disposition by a married woman shall be made conformably to the provisions, relative to dispositions by married women, of an act passed in the third and fourth years of the reign of his late majesty King William the Fourth, intituled ' An act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance,' or in Ireland of an act passed in the fourth and fifth years of the reign of his said late Majesty, intituled ' An act for the Abolition of Fines and Recoveries, and for the Substitution of more simple modes of Assurance, in Ireland.' " But even in cases not within these acts, contingent remainders and other executory interests in real or personal estate may he bound by es- toppel, on a fine or recovery, or, it seems, even on an indenture. (<) They are also assignable in equity for valuable consideration. And it would (() 2 Pres. Shep. T. 238, 322 ; 4 Jarm. & Byth. by Sweet, 122-128 ; Smith's Ex- ecutory Interests annexed to Fearne, § 754-756. DEEDS, ETC., AGAINST PUBLIC POLICY. 457 seem that they are assignable in equity even for good consideration, ex- cept as against bonS, fide purchasers. A voluntary assignment of a mere expectancy is invalid both at law and in equity. But courts of equity give effect to assignments, for valuable consideration, of possibilities, and even of mere expectancies of heirs at law, and choses in action. Such assignments of a chose in action are considered in equity as amounting to an agreement to permit the assignee to make use of the name of the assignor at law, in order to recover the debt, or to reduce the property into possession ; or as a contract entitling the assignee to sue in equity in his own name, and enforce payment of *the debt directly r^f-Qon against the debtor, whether he has assented or not, making him L J as well as the assignor, if necessary a party to the suit.^w) And such assignments of possibilities and expectancies are regarded in equity as amounting to a contract to assign, when the interest becomes vested ; and when the interest does so become vested, the claim of the assignee is en- forced, not indeed as a trust, but as a right under a contract. (a;) VI. At law, an assignment of goods which do not belong to the as- signor at the time does not pass the property in them.(y) And accord- ingly a bill of sale of the furniture, and effects of a certain house will only pass such things as are in the house at the time of the grant, though effects to be subsequently brought on the premises are expressly includ- ed. But the instrument might, it seems, be so framed as to give the mortgagee a power of seizing such future chattels of the grantor, as they should be acquired and brought upon the premises, (z) But the future fruits or proceeds of property which the grantor has at the time of the assignment will pass. Thus, the next year's wool of sheep belonging to the grantor is capable of being assigned.(a) And so a tenant's inter- est in crops grown in future years will pass by an assignment to the land- lord of all the tenant's " tenant-right and interest yet to come and unex- pired in and to the farm."(6) And an assignment of freight not actual- ly earned, but to be earned, is good in equity. (c) So also is an assignment of a cargo to be obtained. ((^) *And a debtor may assign future r#f>qqT accruing payments to be made to him under an engagement with L J a third person, (e) And if a policy of assurance is assigned, with the sum assured, future bonusses will pass with it.(/) VII. Marriage brokage contracts, which are agreements whereby a party engages to give another remuneration if he will negociate a mar- riage for him, are void, as tending to introduce matches which are ill- advised and not based on mutual affection, and therefore against public policy. And they are so utterly void, that they are deemed incapable of confirmation ; and money paid under them may be recovered back again (m) See Story's Eq. Jur. § 1040, 1040, c. 1044, 1055, 1057 ; 2 Spence's Eq. Jur. 852, 865, 866, 896; 2 Pres. Shep. T. 231, 238, 240, 322 ; 2 Bl. Com. 442 ; Copte, Mortg. 3rd edit. 235 ; 4 Jarm. & Byth. by Sweet, 122 ; Smith's Executory Interests annexed to Fearne, § 749, 750. (x) Story's Eq. Jur. J 1040, b. (y) Lunn v. Thornton, 1 M. Gr. & Sc. 379 ; Gale v. Burnell, 7 Ad. & B. (N. S.) 850 ; Coote, Mortg. 3rd edit. 235. (z) Coote, Mortg. 3rd edit. 235. (a) Coote, Mortg. 3rd edit. 235. (b) Fetch V. Tutin, 15 M. & W. 110. (c) Douglas t. Russell, 4 Sim. 524. (d) Langton v. Horton, 1 Hare, 549. (e) Coote, Mortg. 3rd edit. ,235. (/) Coote, Mortg. 3rd edit. 235. 458 SMITH ON EEAL AND PERSONAL PROPERTY. in a court of equity, whether the marriage is an equal or an unequal one.(gi) VIII. The same rules are applied to bonds and other agreements en- tered into as a reward for using influence over another, to induce him to make a will for the benefit of the obligor i(^) for such contracts en- courage a spirit of artifice and scheming, most prejudicial to the moral tone of those in whom it exists ; and they tend to deceive and injure others. IX. On a similar ground, secret contracts made with parents, or guardians, or other persons standing in a peculiar relation to a party, whereby, on a treaty of marriage, they are to receive a remuneration for promoting the marriage or giving their consent to it, are held void.(i) X. On the other hand, a contract is void, if it is expressly in restraint of marriage generally, or if it is so restricted that it is probable that it may virtually operate in restraint of marriage generally ;(A:) as, that a woman shall not marry a man who has not an estate of 500?. a year,(A r*7nfn °'' ^^^^^ ^'^^ marry till fifty years of age, or shall *not marry L J any person residing in the same town, or any person who is a clergyman, a physician or a lawyer, or any person except of a particular trade or occupation, (m) XI. So, contracts in general restraint of trade are void, as tending to discourage industry, enterprise, and just competition. But a person may be restrained from carrying on trade in a particular place, or with particular persons, or for a reasonable limited time.(n) Reasonable contracts for the partial restraint of trade are upheld, be- cause they are advantageous not only to the individual in favour of whom the restraint is inserted, but to the public also, who, instead of being thereby injured, derive advantage in the unrestrained choice of able as- sistants which such a stipulation gives to the employer, and in the secu- rity it afi'ords that the master will not withold'from his assistants instruc- tion in the secrets of his trade and the communication of his own skill and experience, from any fear of afterwards having a rival in the same business. And hence a stipulation on the part of an assistant to a Lon- don dentist not to practice in London, will be enforced. (o) But what- ever restraint is larger than the necessary protection of the party with whom the contract is made, is unreasonable and void, as being injurious to the interests of the public, on the ground of public policy. And therefore a contract by an assistant to a London dentist not to practise in any of the places in England or Scotland where the employer might have been practising before the expiration of the service is void.(p) XII. Agreements for the suppression of criminal prosecutions are void,(2) as tending to weaken the beneficial preventive influence of the law by diminishing the certainty of punishment. (g) Story's Eq. Jur. g 260-263. (A) Story's Eq. Jur. ? 265. («) Story's Eq. Jur. § 266, 267. (ft) See Story's Eq. Jur. J 274, 276-283. (l) Story's Eq. Jur. ? 280. (m) Story's Eq. Jur. | 283. (n) Story's Eq. Jur. I 292. (o) Malleu v. May, 11 M. & W. 683. (p) Mallen v. May, 11 M. & W. 683. (q) Story's Eq. Jur. J 294. DEEDS, ETC., AGAINST PUBLIC POLICY. 459 *XIII. Simoniacal contracts are void as contrary to public ri^fjr.-, -, policy. Simony is the corrupt presentation of any one to an L J ecclesiastical benefice for money, gift, or reward, (r) By the statute 81 Eliz. c. 6, s. 5, it is enacted, " that if any person or persons, bodies politic and corporate, shall or do at any time after the end of forty days next after the end of this session of Parliament, for any sum of money, reward, gift, profit or benefit, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurances, of or for any sum of money, reward, gift, profit or benefit whatsoever, directly, or indirectly, present or collate any person to any benefice with cure of souls, dignity, prebend or living ecclesiastical, or give or .bestow the same, for or in respect of any such corrupt cause or consi- deration ; that then every such presentation, collation, gift and bestow- ing, and every admission, institution, investiture and induction thereupon, shall be utterly void, frustrate, and of none effect in law ; and that it shall and may be lawful to and for the queen's majesty, her heirs and successors, to present, collate unto, or give or bestow every such benefice, dignity, prebend and living ecclesiastical for that one time or turn only; and that all and every person or persons, bodies politic and corporate, that from thenceforth shall give or take any such sum of money, reward, gift or benefit, directly or indirectly, or that shall take or make any such promise, grant, bond, covenant or other assurance, shall forfeit and lose the double value of one year's profit of every such benefice, dignity, prebend and living ecclesiastical ; and the person so corruptly taking, procuring, seeking, or accepting any such benefice, dignity, prebend or living, shall thereupon and from thenceforth be adjudged a disabled per- son in law to have or enjoy the same benefice, dignity, prebend or living ecclesiastical." And by the stat. 12 Anne, st. 2, c. 12, s. 2, it is enacted, *that " if any person shall or do, for any sum of money, rswAn-i reward, gift, profit, or advantage, directly or indirectly, or for or L J by reason of any promise, agreement, grant, bond, covenant, or other assurance, of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly, in his own name, or in the name of any other person or persons, take, procure, or accept the next avoidance of or presentation to any benefice with cure of souls, dignity, prebend or living ecclesiastical, and shall be presented or collated thereupon, that then every such presentation or collation, and every admission, institution, investiture, and induction upon the same shall be utterly void, frustrate, and of no efi'ect in law, and such agreement shall be deemed and taken to be a simoniacal contract; and that it shall and may be lawful to and for the queen's majesty, her heirs and successors, to present or collate unto, or give or bestow every such benefice, dignity, prebend, and living ecclesiastical, for that one time or turn only; and the person so corruptly taking, procuring, or accepting any such benefice, dignity, prebend, or living shall thereupon, and from thenceforth, be adjudged a disabled person in law to have and enjoy the same."(rr) Although he who is presented be not aware of the simony, yet the (y) 2 Bl. Com. 278. (rr) See 2 Bl. Com. 279. 460 SMITH ON EBAL AND PERSONAL PROPERTY. presentation, admission, and induction are void. But if the presentee he not congnizant of the corruption, then he shall not be within the clause of disability in the statute, (s) As to what constitutes simony, ^he following rules may be laid down ; 1. A purchase of a next presentation made after the church has actually fallen vacant, is void j and a purchase of an advowson at such a time is void, quoad the fallen vacancy, but not otherwise. (<) 2. For a clerk to r*70^n *^^''g^i° for ^^^ ^^^^ presentation, the incumbent being sick L J and about to die, was simony, even before the statute of Queen Anne : and now, by that statute, to purchase either in his own name or in another's the next presentation, and be thereupon presented at any future time to the living, is simony, (m) But, 3, where a person pur- chases the next presentation to a benefice, the church being then full, and the incumbent not ill, even though the purchaser intends to present a particular person other than himself, and he afterwards does present that person, such a purchase is not deemed simony.(a;) 4. A purchase of the next presentation to a church, even when the incumbent is in a dying state, is not simony, if without the privity and without any view to the nomination of the particular person presented. (;y) And a pur- chase of an advowson in fee simple under similar circumstances, is not simony, (z) The stat. 9 Greo. 4, c. 94, s. 1, declares valid every engagement by promise, grant, agreement, or covenant for the resignation of benefices which are private property, after the 28th of July, 1828, to the expressed intent of appointing any one person therein named, or one of two persons therein named, each of whom is related by blood or marriage, as uncle, son, grandson, brother, nephew, or grand nephew of the person, or the wife of the person, in whom the patronage is beneficially vested. But such engagement must be entered into before the appointment of the party entering into it, and one part of the instrument must be depo- sited within two months with the registrar of the diocese or peculiar jurisdiction. XIV. An assignment of goods in fraud of creditors is valid as between the parties to the deed, and as between either party and a stranger. (a) r*7ft4T ^^^"'^ ^ person, to *secure the repayment of a loan, assigns to L J the lender certain chattels, which are at the time, or at any time during the security shall be in, or about, or belonging to a house ; with a proviso for avoiding the assignment on repayment within a given time, and a declaration that, after default in payment of principal or interest, the lender may then take possession, and thenceforth hold and enjoy the chattels, and also sell the same, and out of the proceeds retain the prin- cipal, interest, and expenses, and render the surplus to the borrower j and that, until default, the borrower may hold, make use of, and possess (s) 3 Cruise T. 21, c. 2, J 59 ; 2 Bl. Com. 280. [t) 3 Cruiae T. 21, c. 2, | 64 ; 3 Steph. Com. TO, 71, 72 ; 2 Pres. Shep. T. 240. (u) 2 Bl. Com. 479. (x) 3 Cruise T. 21, c. 2, ? 67 ; 3 Steph. Com. 72. (y) 3 Steph. Com. 72; Sugd. Concise View, 259. (z) 3 Cruise T. 21, c. 2, § 68 ; Sugd. Concise View, 259 ; 3 Steph. Com. 71. (a) Bessey v. Windham, 6 Ad. & E. (N. S.) 166. DEEDS, ETC., AGAINST PUBLIC POLICY. 461 the chattels ; such an assignment is not void as a colourable assignment executed for the purpose of protecting the property, but is an immediate assignment, and a bona fide valid security, vesting the property in the chattels, as distinguished from the mere possession, in the lender imme- diately on the execution of the deed ; but the deed does not operate as an assignment of chattels which are afterwards to be brought upon the premises. (6) XV. There is nothing contrary to the policy of the law, as tending to murder, or to undue influence over a testator, or contrary to the stat. 32 Hen. 8, c. 9, relating to pretended titles, in an agreement by a person who expects to become devisee of land, that, if he should be such, he will convey it to another person for a certain sum; but if he should not become devisee, he will return the money. (c) XVI. In consequence of the stat. 12 Anne, st. 2, c. 16, a contract for the payment of more than 51. per cent, interest was usurious, except in certain cases. («^ But by the stat. 17 & 18 Vict. o. 90, the statutes relating to usury, except those relating to pawnbrokers, are repealed, as regards transactions subsequent to the 10th of August, 1854, the time of the passing of the act. *A transaction is sometimes void as indirectly operating in a ri^'^niz-, violation of the law against usury. Thus, a purchase of a rent- L J charge or an annuity for a determinate number of years is set aside as usurious in equity, if the total amount of the annual payments is more than suflSoient to pay the principal sum and legal interest.(e) So, a lease to be granted in consideration of a loan of money, could not be supported. But where the creditor is to be repaid his principal and legal interest by way of a rent to be received or retained by him, the agreement is in the nature of a mortgage security, and will be supported in equity. Where an instrument which is in appearance a lease, is in fact a contrivance to secure to the vendor the purchase money by instal- ments carrying illegal interest, it is usurious and void. And where a builder assigned his lease or contract for lease in consideration of a sum of money advanced to him, and, as part of the same transaction, took, or agreed to take an underlease, at a rent greatly exceeding the rate of in- terest on the sums advanced after deducting the ground rent, (so that the total amount of the payments during the lease would exceed the principal moneys and interest), and with the same covenants and obliga- tions in the underlease as were contained in the original lease, the courts both of equity and common law have treated such contracts as usurious, notwithstanding the liability of the lender to the superior landlord, and risk of forfeiture, and although he have no power of calling in his money, whilst the other may have an unlimited power of repurchas- " iig-(/) (S) Gale y. Burnell, T Ad. & E. (N. S.) 850. (c) Cook T. Field, 15 Ad. & E. 460. (d) 2 Steph. Com. 86-94; Stalnp's Index to the Statute Law, tit. " Usury." (e) Coote, Mortg. 3rd edit. 423. (/) Ooote, Mortg. 3rd edit. 424. 462 SMITH ON REAL AND PERSONAL PROPERTY. [*706] *SEorioN V. Of Deeds void for Uncertainty. A deed is void for uncertainty, if it is totally uncertain on the face of it who is or are the intended grantee or grantees. Thus, if a grant is made to one of the children of J. S., who has more than one child, and the grantor does not describe which he intends, this grant is void for un- certainty, and cannot be rendered good by any evidence ; for the ambi- guity is patent, and parol evidence is inadmissible. (A) An instrument which is left blank in any material part, is incapable of operation until such blank is filled up, although executed by the par- ties, and does not become effectual by the subsequent filling up of the blank by a stranger, in the absence of the parties, unless he is authorized to do so by deed.(i) Section VI. Of the Avoidance of a Deed hy Disagreement. No person can be made to take an estate without his consent, express or implied ; and therefore the purchases of idiots, lunatics, infants, and femes covert, if disadvantageous, may be set aside.(A) And it is com- mon for trustees, when nominated without their consent, to renounce the estate conveyed to them, which is done by deed of disclaimer.(?) The law presumes that every conveyance is for the benefit of the [*707] grantee ; and therefore, till the contrary is shown, *supposes an agreement to the conveyance. From the moment there is evi- dence of disagreement, then, in construction of law, the conveyance is void ab initio, as if none had been made ; and in intendment of law, the freehold never passed from the grantor.(m) If, however, a feoffment is made to two as joint tenants, and one only disagrees, the entirety vests in the other. But if a feoffment is made to two tenants in common, and one disagrees, this only avoids the grant as to his share. (n) When the party, being free from insanity, coverture, or infancy, has once by his agreement made the deed good, he cannot afterwards, by his disagreement make it void. And when once by refusal and disagree- ment he has made the deed void, he cannot by agreement or acceptance afterwards make it good.(o) [li) 2 Pres. Shep. T. 251. (i) 3 Jarm. & Bvth. by Sweet, 19. Uc) Burton, § 212. \l) Burton, g 213. (m) 2 Pres. Shep. T. 285. (n) 2 Pres. Shep. T. 285. (o) 1 Pres. Shep. T. VO. OF THE EXECUTION OF DEEDS. 463 *CH AFTER VII. [*708] OF DIVERS MATTERS PERTAINING TO DEEDS IN GENERAL. Section I. Of Stamping Deeds.{a\ It is generally necessary that a deed should be stamped, as required by the Stamp Acts, in order to render it available in court ; but the want of a proper stamp does not prevent its legal effect and operation in other respects. (6) The deed ought regularly to be, and usually is, properly stamped be- fore execution. But by stat. 37 G-eo. 3, c. 136, s. 2, and 18 & 14 Viot. c. 97, s. 12, the stamp may be affixed afterwards, on payment, in addi- tion to the duty, of a certain penalty. And by stat. 44 G-eo. 3, c. 98, s. 24,(c) and 13 & 14 Vict. c. 12, this penalty, which by the latter act is fixed at 10?., may be remitted, if the application be made within twelve months after the execution, and the commissioners be satisfied that no fraud upon the revenue was intended. The principal statutes by which the existing duties for Great Britain have been imposed are the the 55 G-eo. 3, 0. 184, and the Stamp Duties Act of 1850, 13 & 14 Vict. c. 97. Section II. Of the Execution of Deeds. I. So far as regards any person requiring a deed to be read, it is ne- cessary to its validity, either that he be permitted *to read it rtf^jr^iyi himself, or, if he cannot read, that it be read to him. If it be L J read to him falsely, it will be void, at least for so much as was misread ; unless it be agreed by collusion that the deed should be read falsely, on pur- pose to make it void; in which case it will bind the fraudulent party. (^e) II. Signing is often necessary to the valid execution of powers. And in cases within the Statute of Frauds, the better opinion would seem to be, that it is rendered necessary by that statute. (/) In practice it is an invariable part of the execution of all deeds, as the present practice (a) As to the amount of the stamp required, and the esemptions, see Mr. George Sweet's Supplement to Jarm. & Byth. Conveyancing, which contains a summary of the Stamp Laws ; and see 16 & lY Vict. c. 59, and c. 63 ; 17 & 18 Yict. c. 83. (b) 4 Cruise T. 32, c. 2, | 57 ; Burton, ? 451. (c) Barton, ? 451. (e) 2 Bl. Com. 304; 4 Cruise T. 32, c. 2, g 61 ; 3 Jarm. & Byth. by Sweet, 24; 1 Pres. Shep. T. 56. (/) 2 Bl. Com. 305, 306 ; 4 Cruise T. 32, c. 2, | 66, 69 ; Mr. Hilliard's note to 1 Pres. Shep. T. 56. But see Mr. Preston's remarks, lb., and 1 Sugd. Pow. 286, contra. 464 SMITH ON REAL AND PERSONAL PROPERTY. of sealing cannot serve any purpose of identification or verification, but has degenerated into a mere useless form. But where a person is inca- pacitated from signing, by infirmity or want of instruction, he may either make a mark by way of signature to a deed, or it may be signed for him by a stranger at his request and in his presence. (^) III. A seal is essential to a deed, since no writing without a seal can be a deed. But if the deed is sealed with any seal whatever, or even if an impression is made with a stick or anything else, it is sufficient. (^) It is sufficient that there is a seal to the deed at the time of its actual or , constructive delivery ; and that the party, in terms or by conduct, adopts the sealing. And if another person seals the deed, yet if the party de- livers it himself, he thereby adopts the sealing, (i) The common practice is for the copying clerk to affix any kind of seal when he has finished copying it, and for the party to adopt the sealing P^„-„^ at the time of execution, by *placing his finger on the seal, and L J saying, " I deliver this as my act and deed." If there are several grantors, obligors, &c., named in a deed, and one of them only seals the deed, this is a good deed as against him, and void as to all the rest.(^) A person may appoint another to be his attorney to seal and sign a deed for him, but in such a case the deed must be executed in the name of the prinoipal.(Z) IV. Delivery is another circumstance necessary to a deed.(m) De- livery may be actual, i. e., by doing something; or verbal, i. e., by saying something ; or both actual and verbal, i. e., by both doing and saying something, (n) And a deed may either be delivered by the party himself who makes it, or by any other person, by his appointment or authority precedent, or assent or agreement subsequent.(o) Where one person delivers an in- strument as the act of another person who is present, no deed conferring an authority is requisite. But unless authorised by deed, a person cannot execute an instrument as the act of a person who is absent, and every letter of attorney must be by deed.(f>) A deed may be delivered to the party himself 3 or it may be delivered to any other person by sufficient authority from him ; or to any stranger, for and on behalf and to the use of him to whom it is made, without authority ■,(q\ or it may be delivered verbally and constructively, by saying, " I deliver this as my act and deed," or words to the like efiect, and yet be retained in the custody of the party who made itfr) P^-..-, A deed maybe either delivered absolutely as a deed, or *it L -I may be delivered conditionally as an escrow, i. e., as a scroll or (ff) 3 Jarm. & Byth. by Sweet, 24, 25. (A) 2 Bl. Com. 305 ; 4 Cruise T. 32, c. 2, ^ 63 ; 1 Pres. Shep. T. 54, 56, 57. (i) 2 Bl. Com. 306; 1 Pres. Shep. T. 54. (ft) 1 Pres. Shep. T. 71. (I) i Cruise T. 32, c. 2, ? 67. (m) 4 Cruise T. 32, c. 2, § 68 ; 2 Bl. Com. 306. (n) Co. Litt. 36, a; 1 Pres. Shep. T. 57; 4 Cruise T. 32, 0. 2, ? 71. (0) 1 Pres. Shep. T. 57. (p) 1 Pres. Shep. T. 67. (g) 4 Cruise T. 32, c. 2, § 73. (r) See 3 Jarm. & Byth. by Sweet, 31 ; 4 Cruise T. 32, i;. 2, J 75. OF THE BEGISTRATION OF DEEDS. 465 writing, (s) Regularly, when a deed is delivered as an esorow, it ought to be delivered to a third person and in terms as an escrow, in such words as these : " I deliver this to' you as an escrow, to deliver to the party as my deed, upon condition, &o., or at such a time." And this mode of delivery should be noticed in the attestation. (A But in oppo- sition to some of the early authorities,(M) it is now clear, that even if the instrument is executed as the deed of the party in the usual manner, yet if it is delivered upon a condition or is accompanied by an agreement suspending its operation until some future time or event, this will con- stitute it an escrow, (k) The time of the delivery of a deed is presumed to be the time of its date, unless the contrary appears. (y) V. It is usual for witnesses to attest the acts of signing, sealing, and delivery, by the subscription of their names to a form of words to that effect written at the foot or on the back of the deed.(«) But neither the attestation itself, nor any kind of attestation clause, is essential to the validity of any deed, unless it is made in the exercise of a power which has prescribed that as a requisite circumstance.(a) But the practice is highly important as furnishing an evidence of authenticity. VI. The assent of the grantee, in the absence of evidence to the con- trary, is always presumed; so that, even where the grantee does not execute the deed, it transfers the estate to him. But he may disclaim it if he pleases ; in which case it becomes devested. (5) *Section III. [*712] Of the Registration of Deeds. I. By Stat. 2 & 3 Ann. c. 4, 5 Ann. c. 18, 6 Ann. c. 85, and 8 Geo. 2, c. 6, memorials of all deeds relating to hereditaments in the West, East, and North Ridings of the county of York, and the town and county of the town of Kingston-upon-Hull, except those relating to copyholds, leases at rack rent, and leases not exceeding twenty-one years where the actual occupation goes with the lease, may be registered, at the election of the parties, and have the registrar's certificate indorsed on them.(c) And by 7 Ann. c. 20, similar regulations are made for registering deeds in the county of Middlesex; but this act does not extend to chambers in Serjeant's Inn, or the inns of Court and Chan- cery, nor to any messuages, lands or tenements in the city of London. (cZ) Lord St. Leonards remarks, (e) that it is advisable to register such leases (s) 4 Cruise T. 32, c. 2, § 75 ; 2 Bl, Com. 307. [t) 1 Pres. Shep. T. 58, 59 ; 4 Cruise T. 32, c. 2, § 75, 79, 80 ; Co. Litt. 36, a. (m) See Co. Litt. 36, a ; 1 Pres. Shep. T. 58 ; 4 Cruise T. 32, c. 2, § 79, 80. (x) 3 Jarm. & Byth. by Sweet, 30 ; Nash v. Flyn, IJ. & L. 162. [y) 4 Cruise T. 32, c. 20, § 4. (z) Burton, g 445. (a) 4 Cruise T. 32, c. 2, ^ 81 ; Burton, ? 450. (b) 4 Cruise T. 32, c. 26, s. 2j Burton, ? 441. (c) 4 Cruise, T. 32, c. 28, § 2-B, 8 ; Sugd. Concise View, 581. \d) 4 Cruise T. 32, c. 28, § 7 ; Sugd. Concise View, 582. (e) Sugd. Concise View, 581. March, 1856.— 30 466 SMITH ON REAL AND PERSONAL PKOPEETT. of copyhold estates as would require registry if the estate were freehold ; and that if leases not exceeding twenty-one years, where the actual occu- pation goes along with the lease, are assigned by way of mortgage, it is always usual in practice to require them to be registered. A lease must be registered notwithstanding the registry of an assignment in which it is recited. But an assignment of a legacy charged on land does not require to be registered. (/) The memorials are to contain the date, the names and additions of the parties and witnesses, and the parcels, as or to the same effect as in the original instrument. (f?) But with respect to the parcels, it is provided that where there are more writings than one for making or perfecting r^n-in-T siny *conveyance or security which concerns the same estates, it L J shall be a sujKcient memorial thereof, if all the estates are only once named in the memorial of any one of the deeds or writings, with reference to such deed or writing in the other deeds or writings, and directions how to find the registering of the same. This provision has been unwarrantably extended in practice ; so that, for instance, it is usual in a memorial of an assignment of a lease to refer for the par- cels to the prior registry of the lease.(^) The acts require the memorial to be under the hand and seal of some or one of the grantors or grantees, his or their heirs, executors, administrators, guardians, or trustees^ attested by two witnesses, one whereof to be one of the witnesses to the execution of the deed; and he is to prove on oath both the execu- tion of the memorial and of the deed itself, (t) By the 18th sect, of the 6 Ann. c. 35, relating to the East Eidingand the town and county of the town of Kingston-upon-Hull, inrolment of deeds of bargain- and sale is to serve instead of registering a memorial thereof (/c) The effect of the Register Acts is merely to render a prior deed or judgment (except to the crown) fraudulent and void as to a purchaser or mortgagee under a subsequent deed, unless such prior deed is registered before such subsequent deed ;(?) or unless such purchaser or mortgagee has had actual notice of such prior deed.(«i) II. By the stat. 15 Car. 2, c. 17, s. 8, for settling the draining of Bedford Level, it is enacted, that all conveyances by indenture of the 95,000 acres contained within the said Level, or any part thereof, entered with the registrar of the corporation, in a book to be kept for that purpose, shall be of equal force to convey the freehold and inheritance thereof, as r*714.n '^^ ^^^ same conveyances by indenture were for ^valuable consid- <- J erations of money inroUed within six months in one of the king's Courts of Eeoord at Westminster; and no lease, grant, or conveyance of or charge upon the same, except leases for seven years or under in pos- session, shall be of force but from the time it shall be entered with the registrar ..(m) (/) Sugd. Concise View, 577, 578 ; 4 Cruise T. 32, c. 28, ? 13. (g) 4 Cruise T. 32, c. 28, ^ 4. (A) Sugd. Concise View, 580-1. (i) Sugd. Concise View, 579. (k) 4 Cruise T. 32, c. 28, g 6. (I) See 4 Cruise T. 32, c. 28, § 2, 10 ; Sugd. Concise View, 577. (m) See supra, p. 689, 690. (») 4 Cruise T. 32, c. 28, § 33. OF THE REGISTRATION OF DEEDS. 467 III. By the Stat. 17 & 18 Viot. c. 36, s. 1, « every bill of sal^ of per- sonal chattels made, after the passing of this act, either absolutely or conditionally, or subject or not subject to any trusts, and whereby the grantee or holder shall have power, either with or without notice, and either immediately after the making of such bill of sale or at any future time, to seize or take possession of any property and effects comprised in or made subject to such bill of sale, and every schedule or inventory which shall be thereto annexed or therein referred to, or a true copy thereof, and of every attestation of the execution thereof, shall, together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same, or in case the same shall be made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process shall have issued, and of every attesting witness to such bill of sale, be filed with the officer acting as clerk of the dockets and judgments in the court of Queen's Bench, within twenty-one days after the making or giving of such bill of sale, (in like manner as a warrant of attorney in any personal action given by a trader is now by law required to be filed,) otherwise such bill of sale shall, as against all assignees of the estate and effects of the person whose goods or any of them are comprised in such bill of sale under the laws relating to bankruptcy or insolvency, or under any ^assignment for the benefit of the creditors of such person and as r-^--. --. against all sheriff's oflicers and other person seizing any proper- L J ty or effects comprised in such bill of sale in the execution of any pro- cess of any court of law or equity authorizing the seizure of the goods of the person by whom or of whose goods such bill of sale shall have been made, and against every person on whose behalf such process shall have been issued, be null and void to all intents and purposes whatsoever, so far as regards the property in or right to the possession of any personal chattels comprised in such bill of sale, which at or after the time of such bankruptcy, or of filing the insolvent's petition in such insolvency, or of the execution by the debtor of such assignment for the benefit of his cre- ditors, or of executing such process (as the case may be,) and after the expiration of the said period of twenty-one days, shall be in the posses- sion or apparent possession of the person making such bill of sale, or of any person against whom the process shall have issued under or in the execution of which such bill of sale shall have been made or given, as the case may be." By s, 2, « if such bill of sale shall be made or given subject to any defeazance or condition or declaration of trust not contained in the body thereof, such defeazance or condition or declaration of trust shall for the purposes of this act, be taken as part of such bill of sale, and shall be written on the same paper or parchment on which such bill of sale shall be written, before the time when the same or a copy thereof respec- tively shall be filed, otherwise such bill of sale shall be null and void to all intents and purposes, as against the same persons and as regards the same property and effects, as if such bill of sale or a copy thereof had not been filed according to the provisions of this act." 468 SMITH ON REAL AND PERSONAL PEOPBRTT. By s. 6, " it shall be lawful for any judge of the said Court of Queen's Bench to order a memorandum of satisfaction to be written upon any r*71R1 ^^^^ of sale or copy thereof *respectively as aforesaid, if it shall L -I appear to him that the debt (if any) for which such bill of sale is given as security shall have been satisfied or discharged." By s. 7, " in construing this act the following words and expressions shall have the meanings hereby assigned to them, unless there be some- thing in the subject or context repugnant to such constructions; (that is to say,) The expression ' bill of sale,' shall include bills of sale assign- ments, transfers, declarations of trust without transfer, and other assur- ances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt, but shall not include the following documents : that is to say, assign- ments for the benefit of the creditors of the person making or giving the same ; marriage settlements ; transfers or assignments of any ship or vessel or any share thereof; transfers of goods in the ordinary course of business of any trade or calling ; bills of sale of goods in foreign parts or at sea ; bills of lading ; India warrants ; warehouse keepers' certificates ; warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorse- ment or by delivery, the possessor of such document to transfer or receieve goods thereby represented : The expression ' personal chattels' shall mean goods, furniture, fixtures, and other articles capable of complete transfer by delivery, and shall not include chattel interests in real estate, nor shares or interests in the stock, funds, or securities of any govern- ment, or in the capital or property of any incorporated or joint stock company, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement, or of the custom of the country, ought not to be removed from any farm where the same shall be at the time of the making or giving of such bill of sale : Per- P,^„w _-. sonal *chattels shall be deemed to be in the ' apparent possession' t- J of the person making or giving the bill of sale so long as they shall remain or be in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupied by him, or as they shall be used and enjoyed by him.in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person." By s. 8, " this act is not to extend to Scotland or Ireland." Section IV. Of the Inrolment of Deeds. Deeds are sometimes inroUed for safe custody, that is, they are trans- scribed upon the records of one of the Queen's Courts at Westminster or at a court of quarter sessions.(o) The inrolment of a deed does not make it a record, but it thereby becomes a deed recorded.(p) (o) 4 Cruise T. 32, c. 28, § 34. {p) 4 Cruise T. 32, o. 28, J 35. ATTESTED COPIES, ETC. 469 Deeds conveyiDg or affecting lands or tenements in London, or any interest therein, may be inrolled either in the Hustings of Pleas of Land or Common Pleas, the execution thereof being first acknowledged before the mayor or the recorder and one alderman, and proclamation thereof being made at one of these courts.(j) *Seotion V. [*718] Of the Possession and Transfer of Title Deeds. The immediate freeholder has, both at law and in equity, a prima facie title to the possession of the deeds. (»■) A jointress or dowress will not be compelled to deliver up title deeds, unless the party applying for them not only offers to confirm, but does absolutely confirm, the jointure or dower.(s) The right to title deeds, like that to other personal property when in actual possession, may be transferred either by deed or by delivery made with that intention ; but if not transferred, it descends with the land,(<) and passes with it by conveyance, without being named. (m) It is advis- able, however, to add a grant of the deeds, where the purchaser is entitled to the custody of them.(D) Section VI. Of attested Copies and Covenants for Production of Documents of Title. Where property is sold in lots or parcels, either at one time or at seve- ral times, or where only a part of the property is sold, and there are documents of title which relate to the whole, it is usual for the person who keeps the deeds to enter into a covenant with the owner or owners of the other part or parts for the production, at the expense of the cove- nantee or covenantees, of the documents of title so kept, whenever it shall be necessary for the manifestation or support of the title of the covenantee or covenantees. *Sometime3 the vendor retains r:ic7iQ-| the documents, and enters into this covenant with a purchaser L J or purchasers, especially where he retains the most valuable part of the estate. At other times, a purchaser, especially of the part of the greatest value, retains the documents, and enters into such a cove- nant with the vendor or with the other purchaser or purchasers. (a) A covenant for production of deeds should in most cases be by a separate deed.(y) (j) 1 Jarm. & Byth. by Sweet, 263. As to the inrolment of annuity deeds and deeds of bargain and sale, see supra, pp. 8, 9, 524-526. (r) 9 Jarm. & Byth. by Sweet, 90. • («) 1 Cruise T. 7, c. 2, § 12, 14. H) Burton, I 416. (m) Sugd. Concise View, 322. \v) Sugd. Concise View, 416. (x) 4 Cruise T. 32, c. 25, § 97; Burton, I 4Y5, 582 ; 9 Jarm. & Byth. by Sweet, 4,5. [y) Sugd. Concise View, 334. 470 SMITH O.N KBAL AND PERSONAL PEOPEETT. In the absence of a stipulation to the contrary, the purchaser is en- titled to attested copies and a covenant for the production of every docu- ment which the vendor is obliged to state in his abstract, and which is not delivered up to him, except documents on record, copies of court rolls (unless such copies are in the possession or power of the vender,) wills proved in the Ecclesiastical Courts, bargains and sales inrolled under the stat. 10 Ann. c. 18, and generally documents preserved in some general or quasi public repository, from whence copies may be obtained that will be admissible as primary evidence. (2) And this covenant, being real, will run with the land conveyed for the benefit of all future purchasers of it, without a fresh covenant on a resale. But if the deed containing such covenant be not delivered to a future purchaser, he will then be entitled to a new covenant from the vendor for the production of the title deeds, (a) Even assignees in bankruptcy are bound, at the expense of the estate, to furnish the purchaser with attested copies of the deeds which they re- tain, and to covenant for the production of the originals, so long as they remain in office. (J) r*79m Attested copies are useless as against strangers, and *cannot L J be used on an ejectment, unless perhaps as between the parties themselves. (c) Section VII. Of MistaJces in Deeds. If a man clearly purchases an estate by a particular of sale, and in the conveyance part of the land is left out, equity will relieve him. And, on the other hand, it will relieve a vendor, where more land has passed than was contracted ior.{d) Where by mistake an instrument inter vivos is not what the parties intended, or any acts necessary to give validity to the instrument have been omitted, and the mistake is clearly made out by admissible and satisfactory evidence, or is admitted by an answer to a bill, equity will rectify the mistake,(e) except as against a bona fide purchaser for valuable consideration without notioe,(/) or other person having an equity equal to that of the plaintifiF,(^) such as the issue in tail, or a remainderman in tail, where there is no equity to affect the conscience of such issue or remainderman. (7i) But where an instrument is substantially what the parties intended, although it does not carry out their designs, the court will not rectify the (2) 9 Jarm. & Byth. by Sweet, 69 ; Sugd. Concise View, 331-333. (a) 4 Cruise T. 32, c. 25, s. 9T. (b) 9 Jarm. k Bytli. by Sweet, 70 ; Sugd. Concise View, 334. (c) Sugd. Concise View, 334. (d) Sugd. Concise View, 231. («) Story's Eq. Jur. J 152, 157, 159, 166, 168, and see Sugd. V. & P. cli. 3, s. 11, pi. 2, ed. 10. (/) Story's Eq. Jur. ? 165 ; 2 Spence's Eq. Jur. ? 195. [g) Story's Eq. Jur. J 176. (A) Story's Eq. Jur. J 178. OF ALTBEATIONS IN DEEDS. 471 mistake, (i) A bond to leave or convey property has, however, been sometimes upheld in equity as an agreement defectively executed. (/<;) The Court of Chancery will not remedy a defect or *supply njn-i-i an omission in a deed in favour of a stranger, where there is no •- -' consideration, even in the plainest case, and even when it baa arisen from mere mistake, and though the correction would not be inconsistent with the deed.(?) Where the final instrument of conveyance or settlement differs from the preliminary contract, that very circumstance affords of itself some ground for presuming an intentional change of purpose, unless, from some recital in it, or from some attendant circumstances, it appears to have been intended to be merely in pursuance of the original con- tract, (m) As regards the admissibility of the evidence, it is a rule of the com- mon law, independently of the Statute of Frauds, that parol evidence is not admissible to disannul, substantially add to, subtract from, qualify, or vary a written instrument.fra^ But, upon principle, it would seem that cases of accident, mistake, and fraud, are to be deemed in equity exceptions to this rule.(o) Section VIII. Of Alterations in Deeds. A deed should not be in any way altered after delivery, but any alteration that may be requisite should be made before the execution of the deed. Any alteration made before the delivery of the deed, by whomsoever made, will not invalidate the deed ; for in that case the addition constitutes part of the deed as it originally began to operate. (j>) *An interlineation, if nothing appears to the contrary, will r^Yno-i be presumed to have been made at the time when the deed was L J executed, and iiot afterwards ; because a deed cannot be altered after it is executed without fraud or wrong, and the presumption is against fraud or wrong. (g) The modern practice is, when any alteration, interlineation, or erasure is made in a deed before it is executed, to take notice of it in the attes- tation. (r) It would seem, however, that at the present day no deed would be held void on account of any immaterial alteration, after execution, by whomsoever made.(s) (i) Story's Eq. Jur. | 113-115. (k) Story's Eq. Jur. § 136; 2 Spence's Eq. Jur. 886. (l) 2 Spence's Eq. Jur. 886. (m) Story's Eq. Jur. § 160. (n) See Story's Eq. Jur. § 153, 158 ; and see also Sugd. V. St P., ch. 3, sect. 8, pi. 2, 33, 36, &c., and sect. 11, pi. 5, lOth edit. (o) Story's Eq. Jur. § 155, 156, 161, notes. (p) 1 Pres. Shep. T. 69. (g) 4 Cruise T. 32, c. 26, J 14; Burton, § 443 ; Doe d. Tatum v. Catomore, 16 Ad. & E. (N. S.) 745. M 4 Cruise T. 32, c. 26, § 15. (s) 3 Jarm. & Byth. by Sweet, 18. But see 4 Cruise T. 32, c. 26, J 13. 472 SMITH ON REAL AND PERSONAL PROPERTY. An alteration, even in a material part, by a stranger or a mere spoliator, without the consent of the party benefited, would not invali- date a deed.(«) But any erasure or alteration made in a material part by the party benefited, at least if the alteration is in his own favour, will make a deed void as against the opposite party. («) Any alteration made after the execution of a deed by any one of the parties, leaves the deed valid as to him, provided the alteration has not affected the situation in which he stood. (d) [*723] *Section IX. Of the Construction of Deeds. I. General Rules of Construction of Deeds. (x\ I. All deeds shall be construed favourably, so as to support them and effectuate the apparent intention of the parties, as far as possible, con- sistently with the rules of law.(y) II. The intention must not be imputed by mere conjecture, but must be collected from the deed itself.(a) And, when there is no ambiguity in the words, no construction is to be made contrary to the words, (a) III. As a general rule, words are to be construed in their strict and proper sense. Thus, where a person agrees not to carry on a business or profession in London, the word London is taken in its primary and strictly correct sense of the city of London, and not in its popular and colloquial sense, although the party in whose favour such agreement is entered into is not carrying on that profession or trade in the city of London, but in another part of the metropolis ; at least, this is the case where that party, by describing the locality of his place of business as situate in the county of Middlesex, has shown that he knew that it was not in the city of London. (6) But wojrds are not to be construed accord- ing to their strict and proper acceptation, where, from the context of the instrument, they appear to be used in a different sense, or where they are incapable of being carried into effect in their strict sense, (c) for in such a case qui hasret in litera hseret in cortice.Tii) And hence, in a r*79in ^^^^> *^^ ^^^^ ^^ i"^ ^ ^^^^) " O""" ™^y ^^ construed to mean L -1 " and," and " and" may be construed to mean " or," if such a (t) See 4 Cruise T. 32, c. 26, § 12 ; 1 Pres. Shep. T. 69; Burton. J 443. (m) See Burton, § 443 ; 4 Cruise T. 32, c. 26, J 12, 13; 2 Bl. Com. 308. But see 3 Jarm. k Bvth. by Sweet, 18, 19. ^ (v) 4 Cruise T. 32, c. 26, § 12, n. (x) For other rules of construction of deeds and other iustruments inter vivos, the reader is referred to the specific heads to which they belong. (y) 4 Cruise T. 32, c. 19, § 2 ; 2 Bl. Com. 379, 380 ; Barton, 3 503 ; 1 Pres. Shep. T. 86, 253, n. (zj See Burton, § 504,510. (a) 2 Bl. Com. 379 ; 4 Cruise T. 32, c. 19, § 4. ' ib) Mallan v. May, 13 M. & W. 511. (c) Pollocli, C. B., in Mallan v. May, 13 M. & W. 517, 518 ; 1 Pres. Shep. T. 87 ; Key V. Key, 4 D. M. & G. 84, 85. (d) 2 Bl. Com. 379 ; 4 Cruise T. 32, c. 19, J 4 ; 1 Pres. Shep. T. 87. CONSTRUCTION OF DEEDS. 473 construction is necessary to give effect to the intention. (/) The mean- ing of a particular word may also be shown by parol evidence to be different in some particular place, trade, or business, from its proper and ordinary acceptation. (.g') And where it is necessary to effectuate the intention, words and clauses may be transposed ; the strict grammatical sense may be disregarded ; the word " same" though properly referring always to the last antecedent may, to avoid contradiction, be differently applied ;(A) and evident omissions and mistakes may be supplied and rectified, (j) IV. If words will bear two senses, one agreeable and another con- trary to law, that sense is to be preferred which is most agreeable to law. For example, if a tenant in tail makes a lease for life generally, it shall be construed for his own life only, and not for the life of the lessee, which is beyond his power to grant. (^^ And so, under a general conveyance of lands and tenements, copyholds are held not to be included. (Z) V. When there are general words, and these are followed by special words which are consistent with them, the deed shall be construed according to the special words. But when a deed first contains special words, and then concludes in general words, both the general words and the special shall stand.(m) For, in the first case, the general words may be considered as merely introductory ; whereas, in the latter case, they could only have been inserted with the view of enlarging the opera- tion of the deed. *VI. Where the words of a deed are so uncertain, that the in- ^^^^,-. tention of the parties cannot be discovered, the deed will be •- J void. (re) VII. The construction should be made, not merely upon particular parts of a deed, but upon the entire deed, so as to give effect, if possible, to every part and every word.(o) VIII. If there are two clauses in a deed so totally repugnant to each other, that they cannot be reconciled there, unless contrary to the appa- rent general intention, the first shall be received, and the latter re- jected. (p) But if in any part of an instrument there is or are any clause of words evidently repugnant to the other parts of it, and to the general intention apparent upon the whole instrument, such clause or words will be rejected. (j) IX. So far as the apparent intention and the rules of law will admit, (/) White T. Supple, 2 Dru. & War. 471 ; 4 Cruise T. 32, c. 19, § 19; Burton, ?510. (ff) Pollock, 0. B., in Mallan v. May, 13 M. & W. 517, 518. (A) 4 Cruise T. 32, c. 19, § 10-12 ; Burton, 509 ; 1 Pres. Shep. T. 87 ; 2 Pres. Shep. T. 253, n. (i) 4 Cruise T. 32, c. 19, ? 29, 31. (/c) 2 Bl. Com. 380; 4 Cruise T. 33, c. 19, ? 19 ; Burton, ? 1332. (l) Burton, ? 1332. (m) See 4 Cruise T. 32, c. 19, ? 9. (n) 4 Cruise T. 32, c. 19, ? 24. (o) 2 Bl. Com. 380 ; 4 Cruise T. 32, c. 19, § 6 ; Burton, J 504, 51 ; 1 Pres. Shep. T. 87. (p) 2 Bl. Com. 381 ; 4 Cruise T. 32, >:. 19, ? 8 ; Barton, | 512. (g) 4 Cruise T. 32, c. 19, § 25 ; 9 Jarm. & Byth. by Sweet, 85. 474 SMITH ON REAL AND PERSONAL PROPBRTT. the oonstruotion ought to be reasonable and agreeable to the common understanding of mankind. M And therefore a grant of common in a manor will extend to commonable places only, and not to gardens, or- chards, &o. And so a grant of a right to dig for metals, will not confer a right to dig under the grantor's house, so as to endanger it.(s) X. The words of an indenture are the words of either party. And although they are spoken as the words of the one party only, yet they are not his words alone, but may be applied to the other party, if they more properly belong to him, according to the intent of the parties. (<) XL Subject to all other rules of exposition, it is a rule that a deed r*72f>1 ^^ ^° ^^ construed most strongly against the *grantor, covenantor, L J or active party, and most favourably to the grantee, covenantee, or person intended to be benefited. For, the principle of self-interest will make men sufficiently careful not to prejudice themselves by using words of too extensive a meaning. And those who bind themselves by deed would always adopt ambiguous expressions, if they were afterwards at liberty to put their own construction on them.(«) And although this applies with more force to a deed poll than to an indenture, in which the words are deemed the words of both, yet the rule applies even in the case of an indenture, (x) XII. No averment founded on parol evidence, which tends to contra- dict, or vary, or, in general, even to explain a written agreement con- cerning lands, shall be admitted, except in certain cases of fraud, acci- dent, or mistake. (2/) But averments founded on parol evidence of col- lateral facts tending to support or explain a deed have in some cases been admitted ; as in the case of an averment of a consideration for a bargain and sale. (2) In the case of an ambiguitas patens, i. e. where the words themselves prima facie import an ambiguity, no parol evi- dence is admissible to explain it. But in the case of an ambiguitas latens, i. e. where there is no ambiguity on the face of the instrument, but an ambiguity can be made to appear from parol evidence, there parol evidence is admissible to explain as well as to raise it. Thus, if it appears by parol evidence that there are two persons or things of the same name, parol evidence may be resorted to to remove the ambiguity, P^».n„, by showing which was intended. (a) And parol evidence is *ad- L J missible whether in the case of a deed or of a will, to explain the situation of the parties or the state of the facts between them at the time, on which the extent of the operation of the deed or will must frequently depend. (6) XIII. Where a deed cannot operate in the way intended by the (0 2 Bl. Com. 379 ; 2 Pres. Shep. T. 253, n. (s) 1 Pres. Shep. T. 87. (t) 1 Pres. Shep. T. 53. (u) 2 Bl. Com. 380 ; 4 Cruise T. 32, u. 19, § 13 i 1 P™s. Shep. T. 88, and n. (81) ; Warde v. Warde, 16 Beav. 103. (2:) See Burton, | 511 ; Warde v. Warde, 16 Beav. 103. But see 2 Bl. Com. 380 ; 4 Cruise T. 32, c. 19, § 17 ; 1 Pres. Shep. T. 53. (y1 4 Cruise T. 32, c. 19, § 45, 48, 56 ; Burton, ? 508. (2) 4 Cruise T. 32, c. 19, § 49. (a) 4 Cruise T. 32, c. 19, | 53-55 ; Burton, ? 507 ; Sugd. Concise View, 115. (S) 9 Jarm. & Byth. by Sweet, 821 ; Sugd. Concise Tiew, 115, 116. CONSTRUCTION OF DEEDS. 475 parties, it will be construed in such a manner as to operate, in some other way, if it is possible, consistently with the rules of law and the general intention of the parties. Quando quod ago non valet ut ago, valeat quantum valere potest. (c) Thus, a deed which was intended to operate as a bargain and sale, but was void for want of a pecuniary consideration, has been held to operate as a confirmation. (li) And so, if a person having a power of appointment, but no estate, uses the language of conveyance appropriate to the transfer of estates, and not the language appropriate to the exercise of his power, it will be deemed an exercise of his power, (e) And, on the other hand, the words " limit and appoint" may operate by way of grant. (/) So the word "grant" will operate as a confirmation ; and the word " confirm" may operate by way of grant or release. ((7) So a conveyance in the form of and void as a grant, feoffment, release, bargain and sale, or surrender, may some- times take effect as a covenant to stand seised. (7i) And where here- ditaments may not pass by way of surrender, on account of the existence of an intervening estate, if there are sufficient words in the deed, it may enure and pass the property by way of grant, release, &e.(i) And where one thing is intended to be granted for another so as to operate in the nature of an exchange, but the *things cannot pass by way i-:(t79o-| of exchange^they may pass notwithstanding by way of grant. (Zu^ L J Again, a deed purporting to be an assignment of an old term, may, if that term has by any accident ceased, even operate as the creation of a new one.0 And where a conveyance would have some eileot, but not all the effect intended,, there, to the end that the main design of the parties may be accomplished, the estate shall pass in another way than that which was intended, (m) XIV. Where a deed may enure in different ways, the person to whom it is made shall have his election in which way to take it.(M) When a conveyance by the common law and one by the Statute of Uses concur, that by the common law shall be preferred ; and therefore, when the lands are conveyed by bargain and sale, and also by feoffment to the bargainee before inrolment, he shall take by the feoffment, unless the bargainor incumbers the estate between the execution of the bargain and sale and the feoffment; for'in that case the bargainee shall be in by the bargain and sale, and the inrolment shall relate back in favour of the bargainee. (0) Every alienation is the lease or grant of the person from whom the right of possession passes, and the confirmation of the other parties till their interest comes into possession ; and from that time it is their lease or grant, and the confirmation of the other person. If tenant in tail (c) 4 Cruise T. 32, c. 19, | 33 ; 1 Pres. Shep. T. 82, 81; 2 Pres. Shep. T. 308, 514 ; Burton, § 505 ; 4 Jarm. & Byth. by Sweet, 106. (d) 4 Cruise T. 32, c. 19. § 34; 3 Jarm. & Bytli. by Sweet, 591. (e) Burton, ? 505. (/) 2 Pres. Sliep. T. 514. (ff) 3 Jarm. & Byth. by Sweet, 591. (A) 3 Jarm. & Byth. by Sweet, 670-1 ; 2 Pres. Shep. T. 514. (i) 2 Pres. Shep. T. 308. (k) 2 Pres. Shep. T. 297. (I) Sugd. Concise View, 481. (m) 1 Sugd. Pow. 414. (n)'.4 Cruise T. 32, c. 19, § 42 i 1 Pres. Shep. T. 205. (0) See 4 Cruise T. 32, c. 9, J 39. 476 SMITH ON REAL AND PERSONAL PROPERTY. and the reversioner grant a renteharge in fee, it shall be taken to be the grant of the tenant in tail, and the confirmation of the reversioner; but when the tenant in tail dies without issue, it shall be taken to be the sole grant of the reversioner.(^) r*72Q1 *XV. When no time is fixed for the beginning of an estate, L J it shall begin immediately, (g') XVI. An instrument, of whatever kind it may be, must receive the same construction in every court. Whatever is its true meaning, must be its meaning everywhere. (»•) II. The Construction of particular Expressions in Deeds. [s") The word " begotten" extends to issue born after the execution of the deed or will, and the words " to be begotten" will extend to issue born before. (A Where an act is to be done within a certain number of days " from" a particular day, the day named is excluded from the computation unless there are special grounds for a different construction. (m) The expression " heir female" in a deed is deemed to designate such person as would be heir if females only were capable of being heirs ; so that a daughter may take by that designation, though, in consequence of the existence of a son, she is not very heir — at least if there are words showing that the word ' heir' is not used in the strict technical sense, as where the words " now living" are added. (x) The ordinary meaning of the word " insolvency" is an incapacity of paying one's just debts : unless restricted by the context, it is not limited to the condition of a party who has taken the benefit of the Insolvent Debtors Act.(y) The word " London," when used in articles of agreement, and unex- plained by express words in the context, is to be understood in its strict r*7^m ^°^ primary sense of " the *City of London ;" although, in its L J popular or colloquial sense, it denotes the cities of London and Westminster, and the borough of Southwark, and the adjacent streets and places within the bills of mortality ; and although, judging from the general scope and design of the instrument, it was intended to be under- stood in its popular or colloquial sense. This was decided in a ease where an assistant to two surgeon-dentists, who practised in Great Russell-street, Bloomsbury, but had never practised in the city, agreed not to practise in London, or in any of the towns where they had been practising, without their permission. He afterwards practised in Great Eussell-street, and yet it was held to be no breach of his agreement, (z) A " mine," in its general sense, is that out of which some metallic (p) 1 Pres. Shep. T. 84. (q) I Preg. Shep. T. .108. . (r) 2 Sagd. Pow. 182-3. (s) See Construction of Wills, infra, and the Index, as to certain specific heads under which the construction of other expressions is noticed. (i!) 6 Cruise T. 38, c. 10, § 48. (m) 9 Jarm. & Byth. by Sweet, 817. \x) Chambers v. Taylor, 2 My. & Cr. 376. (y) Parker t. Gossage, 1 Cr. M. & R. 617. (z) Mallan V. May, 13 M. & W. 511. OF ESTOPPEL. 477 substance is dug; but, in its strict sense, it includes a place out of which any other substance is dug. And " minerals" and " fossils" have cor- responding significations. So that the word " mine" may refer to a quarry, and minerals and fossils to stone dug out of a quarry. (a) In a contract at law, " month" means a lunar month, unless there is admissible evidence of an intention to denote a calendar month. (J) When a father covenants, that, in case he should give one daughter, on her marriage or otherwise, a greater portion than a specified sum in money or value, his executors would pay such further sum as would make the fortune of another daughter equal to the fortune given to the first ; a gift of a life interest in freehold and leasehold estate made to the first is an additional portion or fortune within the covenant. But the gift of furniture is not.(c) ^Section X. [*731] Of Estoppel. Estoppel or conclusion is the being stopped or debarred by a statement or an act from alleging anything contrary to that which such statement expresses or such act imports. Estoppels are of three kinds : by matter of record, such as a fine or recovery ; by deed ; or by some act, such as entry, acceptance of rent, ko.[d) Estoppels are not favoured by the law, but are deemed odious.(e) Hence, to create an estoppel, there must be an affirmation, precise and certain to every intent, and not taken by way of argument or inference. (/) A general recital does not work an estoppel. But if an indenture contains a recital of a particular circumstance as a fact, it works an estoppel or conclusion, that is, it stops and concludes the party or parties whose averment it is from averring anything contrary to such recital in any legal proceedings founded on that deed.(^) An estoppel must in general be reciprocal, that is, it ought to bind both parties. (A) Where a recital is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But when it is intended to be the statement of one party only, the estoppel is confined to that party. And the intention is to be gathered by construing the instrument. Thus, where in an indenture of transfer of securities from one lender to another, there was a recital that money advanced by the transferror was *owing, and a covenant to the r^rjnn-, same effect, this was held to be the statement of the transferror L J (a) Earl of Rosse t. Wainman, 14 M. & W. 859 ; 2 Exch. 800. (b) Sugd. Concise View, 184. (c) Eardley v. Owen, 10 Beav. 572. {d) Co. Litt. 352, a. (c) Co. Litt. 365, b. (/) Go. Litt. 352, b. {g) I Pres. Shep. T. 53 ; 4 Cruise T. 32, c. 20, I 24 ; Burton, § 631 ; Carpenter T. Buller, 8 M. & W. 209, infra. (A) Co. Litt. 352, a ; 2 Pres. Shep. T. 276, n. 478 SMITH ON EEAL AND PERSONAL PEOPBKTY. alone ; so that the transferree waa not precluded by it from suing on the covenant, on the ground that no money was owing to the trans- ferror, (i) Where a distinct statement of a particular fact is made in a recital, a party to the instrument is not estopped from disputing that fact in an action by another party to the same instrument, not founded on that instrument, and wholly collateral to it ; for such recital, though evidence of the fact, is not conclusive evidence ; so that evidence of the circum- stances under which such statement was made, is receivable, to show that the admission was inconsiderately made, and is not entitled to weight as a proof of the fact which it is used to establish. (^) Privies in blood, as the heir, except an heir in tail ; privies in estate, as the feoflfee, lessee, &c. ; privies in law, as the lord by escheat, tenant by the curtesy, tenant in dower, and others who come in by act of law or in the post, shall be bound and take advantage of estoppels by deed.(Z) But regularly, a stranger, or a feme covert, or an infant, shall not take advantage of an estoppel for want of mutuality. (m) Where by deed indented a man directly and unequivocally recites that he is owner of an estate, and affects to convey it for valuable consi- deration, when in reality he has only an interest under a limitation in favour of a person not yet ascertained, or a mere hope or chance of suc- cession as heir apparent, or no interest whatever, there, if by any means he afterwards acquires an interest in the estate, he is estopped, in any legal proceeding founded on that deed, from saying, as against the other r^joo-i party to the indenture, ^contrary to his averment in that recital, l '^ -1 that he had not such interest at the time of its execution. (re) Arid if a lease is made by indenture, by a person who at the time had no interest in the property, but that fact does not appear on the face of the deed, it is a good demise by way of estoppel, and a reversion in the lessor by estoppel is thereby created, which may be conveyed to another person ; and if a lease for a longer term is afterwards made to the lessor by the real owner, the first lease thereupon becomes a lease in interest, the estoppel created by the first lease being fed by the interest created by the second lease of the real owner, fo) But if a deed operates to any extent actually to pass an interest from the lessor, it shall not afterwards operate by estoppel, though the interest purported to be granted be really greater than the lessor at that time had power to grant : as if A., lessee for the life of B., makes a lease for years by indenture, and afterwards purchases the reversion in fee, and then B. dies, A. shall (i) StronghiU v. Buck, 14 Ad. & E. (N. S.) 781. (k) Carpenter v. BuUer, 8 M. & W. 209. h) Co. Liu. 352, a; 4 Cruise T. 32, c. 19, § 60 ; 1 Pres. Shep. T. 53. (m) Co. Litt. 352, a; 9 Jarm. & Byth. by Sweet, 81 ; 2 Pres. Shep. T. 276, n ; 4 Cruise T. 32, c. 19, § 60. (n) 2 Pres. Shep. T. 828 ; 4 Jarm. & Byth. by Sweet, 125-128 ; 9 Jarm. & Byth. by Sweet, 81, 82 ; Beasley t. Burdon, 2 S. & S. 519, affirmed on appeal, 8 L. J. 85. But see Stackpoole v. Stackpoole, 4 Dru. & War. 347 ; and Lloyd v. Lloyd, 4 Dru. & War. 354. (o) Sturgeon v. Wingfield, 15 M. & W. 224 ; 2 Pres. Shep. T. 53, 320, 321 ; 4 Jarm. & Byth. by Sweet, 122, 123, 126 ; Burton, J 850. OF CANCELLING DEEDS. 479 avoid his own lease, though the years expressed in the lease be not expired. (p) A deed poll cannot create an estoppel in point of estate. But if a deed poll of A. recites that A. by bond did, &o., A. cannot say that there is not any such bond.(j) ♦Section XI. [*734] Of Cancelling Deeds. To cancel a deed, it may either be delivered up for that purpose to the party who is bound by it, and cancelled by him accordingly, by tearing off the seals or otherwise defacing it, or the person who has the deed may cancel it by agreement with the other party.M If the seal, &o., were broken or destroyed by accident, or by a stranger, or by the obligor, the deed would remain in force, on proof that it was sealed and delivered, and accidentally or wrongfully cancelled. To destroy the deed, there must be a cancellation eo animo.(s) So far as regards the operation of an assurance in vesting an estate or interest in real or personal property, as distinguished from those opera- tions of the assurance which are merely accessory or incidental, it is im- material, except as to the evidence of original validity, whether the deeds continue in force or not, for their whole effect to this purpose is instan- taneous, and the estate which has once passed cannot be recalled, (i) And hence an estate or interest in real or personal property which has once vested by a deed, cannot be devested by cancelling the deed; be- cause, once vested, it exists, independently of the deed, in the person in ■whose favour it was created or to whom it was transferred. (m) So that any freehold estate or a money fund once absolutely vested by a settle- ment cannot be devested by merely cancelling the deed creating or transferring it ; nor can a lease for years be surrendered by cancelling the indenture of lease ; nor can a lease for years assigned be revested in the assignor by cancelling *the assignment. To accomplish the p^_„.-. purposes intended, the freehold estate must be conveyed, the L J benefit of the settlement must be released, the lease for years must be surrendered, and the leasehold estate must be assigned. But a mere contract or obligation of which the deed in the essence may be extin- guished by destroying the deed with that intent, (a;) {p) 4 Cruise T. 32, c. 19, ? 58 ; Burton, J 850 ; 1 Pres. Shep. T. 53. (q) 1 Pres. Shep. T. 53. (r) 2 Bl. Com. 308 ; 4 Cruise T. 32, c. 26, ? 18. (s) 1 Pres. Shep. T. 69 ; Burton, g 443. (i) Burton, § 444; 2 Jarm. k Byth. by Sweet, 285. («) 2 Jfirm. & Byth. by Sweet, 285 ; 4 Cruise T. 32, o. 26, J 18. {x) 2 Jarm. & Byth. by Sweet, 285. 480 SMITH ON EBAL AND PERSONAL PROPERTY. [*736] *TITLE XIII. OF ALIENATION BY MATTER OF RECORD. Assurances by matter of record are such as do not entirely depend on the act or consent of the parties themselves, but the sanction of a court of record is called in to substantiate, preserve, and be a perpetual testimony of the transfer of property from one man to another, or of its establishment, when already transferred. Of this nature are, I. Private Acts of Parliament. II. Royal Grants. III. Fines. IV. Common Recoveries. I. Of a Private Act. Private Acts are frequently resorted to as a mode of assurance, in cases where the object of parties can be effected in no other way : as to unfetter an estate, to give its tenant reasonable powers, or to assure it to a purchaser against the remote or latent claims of persons under legal disability. (o) Acts of this kind are not passed without great care to avoid any in- justice. Nothing is done without the consent, expressly given, of all parties in being and capable of consent, who have the remotest interest in the matter ; unless such consent appears to be perversely and without any reason withheld. And an equivalent in money or other property is r*7H7"l "S'^^l'y settled upon infants, or persons not in *esse, or not of L J capacity to act for themselves, who are to be concluded by this act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever, except those whose consent is so given or purchased, and who are therein particularly named ; though even if such saving is omitted, the act will bind none but the parties. (6) A law thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legis- lature.(c) Hence private acts are construed in the same manner as conveyances that derive their effect from the common law.(c?) The title of an Act of Parliament is no part of it, and ought not to be taken into consideration in the construction of it.(e) Before the stat. 33 Geo. 3, e. 13, an act took effect from the first day of the session in which it was passed.(/) But, by that statute, private as well as public acts commence their operation (unless it be otherwise provided) from the time of the royal assent being given. (gr) (a) See 2 Bl. Com. 344-5. \h) 2 HI. Com. 345 ; 5 Cruise T. 33, § 29 ; Burton, ? 482-3. (c) 2 Bl. Com. 346. (rf) 5 Cruise T. 33, \ 39. (c) Attorney-General T. Lord Weymouth, Ambl. 22 : Hunter t. Nockolds, 1 Mac. & G. 651. (/) 1 Jarm. & Byth. by Sweet, 94. {g) Burton, § 485. OF FINES. 481 Acts of Parliament of a local or private nature, if contrary to reason, or grounded on a false statement or recital in the preamble, or obtained by fraudulent suggestions, have been held to be void.(7i.) II. Of Royal Grants. These are contained in charters or letters patent, that is, open let- ters — literse patentes.(i) *1. A grant made by the sovereign, at the suit of the grantee, r,»qD-| is taken most beneficially for the crown, and against the party : L J ■whereas the grant of a subject is construed most strongly against the grantor. Wherefore, it is usual to insert in the royal grants, that they are made, not at the suit of the grantee, but " ex special! gratia, certa scientia, et mero motu reginse ;" and then they have a more liberal construction. 2. A subject's grant shall be construed to include many things besides what are expressed, if necessary for the operation of the grant.(Z) But a royal grant shall only enure to that which is pre- cisely expressed in the grant. 3. When it appears, from the face of the grant, that the sovereign is mistaken, or deceived, either in matter of fact or matter of law, as in case of false suggestion, misinformation, or misreoital of former grants, or if his own title to the thing granted is different from what he supposes ; or if the grant is informal ; or if he grants an estate contrary to the rules of law; in any of these cases the grant is absolutely void.(m.) And to prevent the sovereign from being deceived with regard to the value of the estate granted, it is particularly provided by the stat. 1 Hen. 4, c. 6, that no grant of his shall be good, unless in the grantee's petition for them, express mention be made of the real value of the lands. (?i) III. 0/Fines.(o) A fine (finis) was an amicable composition or agreement and termination of a suit, either actual or fictitious, whereby the lands which form the subject of such suit were acknowledged to be, and thereby became, the property of one of *the parties to whom the fine was levied. In i-^woq-i its original it was founded on an actual suit, commenced at law L J for recovery of the possession of land or other hereditaments ; and the possession thus gained by such corhposition was found to be so sure and effectual, that fictitious actions were commenced, for the sake of obtain- ing the same security, (p) The mode of levying a fine was this: — 1. The party to whom the (h) Burton, ? 482 ; 2 Bl. Com. 346. (i) 2 Bl. Com. 346 ; Burton, J 486. As to the course of proceeding with re- spect to the making out of a grant by letters patent, see 1 Steph. Com. 596. And as to the subject-matter of royal grants, see 1 Steph. Com. 598-9, and Stamp's Index to the Statute Law, tit. " Crown Lands," &c. (l) 2 Bl. Com. 3i1. (m) 2 Bl. Com. 347. (n) 2 Bl. Com. 348. (o) It was intended that alienation by matter of record should have been noticed before alienation by deed; but a circumstance connected with the printing rendered it necessary to postpone the subject to this place. (/) 2 Bl. Com. 349. March, 1856.— 31 482 SMITH ON KBAL AND PERSONAL PROPERTY. land was to be conveyed or assured commenced an action against the other, generally an action of covenant, by suing out a writ of praecipe, called a writ of covenant, the foundation of which was a supposed agree- ment or covenant that the one should convey the lands to the other, on the breach of which agreement the action was brought. 2. A lioentia concordandi, or leave to compromise the suit, was then obtained from the court. 3. Next came the concord or agreement itself, which was usually an acknowledgment from the deforciants, or those who kept the other out of possession, that the lands in question were the right of the complainant. And from this acknowledgment or recognition of right, the party levying the fine was called the cognisor, and he to whom it was levied the cognisee.(g) 4. The next part was the note of the fine, which was only an abstract of the writ of covenant and the concord, naming the parties, the parcels of land, and the agreement. This was to be inroUed of record in the proper office by direction of the stat. 5 Hen. 4, c. 14. 5. The fifth part was the foot of the fine or conclusion of it, which includes the whole matter, reciting the parties, day, year, and place, before whom it was acknowledged or levied. Of this there were indentures made or engrossed at the chirographer's office, and delivered to the cognisor and cognisee.(r) r*7J.fn *^^ ^^^ above proceedings a fine was complete at the common L -I law. But, by several statutes, still more forms were superadded. It is only necessary to mention, that, by 5 Hen. 4, c. 14, and 23 Eliz. c. 3, all the proceedings on fines were to be inrolled of record in the Court of Common Pleas. And by 1 Rio. 3, c. 7, 4 Hen. c. 24, and 31 Eliz. c. 2, fines were to be openly read and proclaimed in court, once in the term in which they were made, and once in each of the three suc- ceeding terms ; and these proclamations were to be indorsed on the back of the record. (s) Fines are of four kinds : 1. A fine sur cognizance de droit come ceo que il ad de son done, or a fine upon acknowledgment of the right of the cognisee, as that which he hath of the gift of the cognisor. This is the best and most usual kind of fine. It acknowledges a former gift or feofi'ment in possession to have been made by him to the plain- tifi^, and thereby virtually conveyed an estate, either of inheritance or at least of an absolute freehold, and gave the cognisee a seisin in law with- out any actual livery, and is therefore called a fine executed, whereas the others are but executory. 2. A fine sur cognizance de droit tan- tum, or upon acknowledgment of the right merely, not with the circum- stance of a preeeding gift. This was commonly used to pass a rever- sionary interest which was in the cognisor. For of such reversions there could be no feoffment or donation with livery supposed, as the possession during the particular estate, belonged to a third person. 3. A fine sur concessit is where the cognisor granted to the cognizee an estate de novo, usually for life or years, by way of supposed composition. And in this case there might be a reservation of a rent or the like ; for it operated as a new grant. 4. A fine sur done grant et render is a double fine, (q) 2 Bl. Com. 350. (r) 2 Bl. Com. 350-1. (s) 2 Bl. Com. 352. OF FINES. 488 comprehending the fine sur cognizance de droit come ceo,'&e., and the fine sur concessit ; the cognisee, after the right is acknowledged to *be in him, granting it back again, or rendering to the cognisor r^'jA-i -i or to a stranger some other estate in the premises. (<) ^ -^ By the stat. 3 & 4 Will. 4, c. 74, s. 2, fines are abolished. It enacts, " that, after the 31st day of December, 1833,, no fine shall be levied or common recovery suffered of lands of any tenure, except where parties intending to levy a fine or sufi'er a common recovery shall, on or before the 31st day of December, 1833, have sued out a writ of dedimus, or any other writ, in the regular proceedings of such fine or recovery ; and any fine or common recovery which shall be levied or suffered contrary to this provision shall be absolutely void." By s. 5 of the same statute, after an enactment as to fines and recove- ries of lands in ancient demesne,(M) it is enacted, " that in every other case where any fine or common recovery shall at any time before the passing of this act have been levied or suffered in a court whose jurisdic- tion does not extend to the lands of which such fine or recovery shall have been levied or suffered, such fine or recovery shall not be invalid in consequence of its having been levied or suffered in such court, and such court shall be deemed a court of sufficient jurisdiction for all the purposes of such fine or recovery ; and in every other case where persons shall have assumed to hold courts in which fines or common recoveries have been levied or suffered, and such courts shall be unlawful or held with- out due authority, the fines or common recoveries which at any time before the passing of this act may have been levied or suffered in such unlawful or unauthorised courts shall not be invalid in consequence of their having been levied or suffered therein, and such courts shall be deemed courts of sufficient jurisdiction for all the purposes of such fines or recoveries." *By s. 7 of the same statute, "if it shall be apparent, from r.^^n-i the deed declaring the uses of any fine already levied or here- L J after to be levied, that there is in the indentures, record, or any of the proceedings of such fine any error in the name of the conusor or conusee of such fine, or any misdescription or omission of lands intended to have been passed by such fine, then and in every such case the fine, without any amendment of the indentures, record, or proceedings in which such error, misdescription, or omission shall have occurred, shall be as good and valid as the same would have been, and shall be held to have passed all the lands intended to have been passed thereby in the same manner as it would have done if there had been no such error, misdescription, or omission." But by s. 12, it is provided " that where any fine or common recovery shall before the passing of this act have been wholly reversed, such fine or recovery shall not be rendered valid by this act ; and where any fine or common recovery shall before the passing of this act have been reversed as to some only of the parties thereto, or as to some only of the lands therein comprised, such fine or recovery shall not be rendered valid by this act so far as the same shall have been reversed ; (i) 2 Bl. Com. 352-3. («) See infra, p. 752. 484 SMITH ON REAL AND PERSONAL PROPERTY. and where any person who would have been barred by any fine or com- mon recovery if valid shall before the passing of this act have had any dealings with the lands comprised in such fine or recovery on the faith of the same being invalid, such fine or recovery shall not be rendered valid by this act ; and this act shall not render valid any fine, or com- mon recovery as to lands of which any person shall at the time of the passing' of this act be in possession in respect of any estate which the fine or common recovery if valid, would have barred, nor any fine or common recovery which, before the passing of this act, any court of com- petent jurisdiction shall have refused to amend; nor shall this act pre- P^^ .„-. judice or afiect any proceedings *at law or in equity, pending at L J the time of the passing of this act, in which the validity of such fine or recovery shall be in question between the party claiming under such fine or recovery and the party claiming adversely thereto ; and such fine or recovery, if the result of such proceedings shall be to invalidate the same, shall not be rendered valid by this act ; and if such proceed- ings shall abate or become defective in consequence of the death of the party claiming under or adversely to such fine or recovery, any person who but for this act would have a right of action or suit by reason of the invalidity of such fine or recovery shall retain such right, so that he commence proceedings within six calendar months after the death of such party." By the stat. 11 & 12 Vict c. 70, s. 1, after reciting that notwithstand- ing all fines levied in the Court of Common Pleas at Westminster were levied with proclamations, yet unnecessary trouble and expense were occasionally incurred by parties being required to procure evidence of such proclamations having been in fact made, it is enacted, that " all fines heretofore levied in the said Court of Common Pleas shall be con- clusively deemed to have been levied with proclamations." But by s. 3, it is provided, that " this act shall not extend to any fine heretofore levied of or concerning any lands, tenements, or hereditaments which at the time of the passing of this act shall be actually possessed or enjoyed by any person or persons under a title adverse to or inconsistent with the operation of such fine if levied with proclamations, but in all such cases it shall be necessary for all parties alleging that such fine was levied with proclamations to prove such allegation in the same manner as if this act had not been made." By the stat. 5 Vict. sess. 2, c. 32, intituled " An act for better re- cording Fines and Recoveries in Wales and Cheshire," fines in the lately abolished courts of those districts are made good, notwithstanding certain neglects or omissions in regard to them. By s. 1, " all fines levied in the lately abolished Courts of Great Sessions in the principality of Wales, or in the lately abolished court of session of the county pala- tine of Chester, of which the writ of covenant was duly returned and compounded, and of which the acknowledgment was before the judge or by commissioners duly taken and allowed, and of which the said writs and concords, with other proceedings, were lodged in the ofiBce of the protho- notary of the county in which the lands named in such writs are situated shall be holden good and firm in laws notwithstanding the misprision or OP FINES. 485 neglect of any prothonotary, deputy prothonotary, secondary, or other officer of any of the said courts, or their clerks, or any other public officer whatsoever, to file the same, or to engross the chirograph or foot of such fine, to indorse or record the proclamations thereof, or to inrol or docket the said fine, or do any other thing which by his office he r^-nAi-, *ought to have done after the acknowledgment of the said fine." L J And by s. 2, " where it shall be needful to prove that any fine which appears to have been duly acknowledged was levied with proclamations in any of the said courts, it shall be taken to have been so levied, and shall have all the force of a fine levied with proclamations, although no chirograph or foot of such fine be found indorsed with the proclamations, nor any entry of them or any of them appear on record, if such fine were duly inroUed or entered on the plea roll of the session in which it was levied, or docketed in the docket roll or docket book of such session, so as to set forth the names of the parties and the places in which the lands are situated of which such fine was levied ; or if within three years from the passing of this act, or such further time as the Court of Common Pleas shall in any case allow, such fine shall have been docketed, in such form as aforesaid, in docket rolls or docket books of parchment or vellum, by the several late prothono- taries of the said abolished courts, or in case of the death or inability of any such prothonotary by some person or persons appointed for that pur- pose by the master of the rolls ; or if within the said period of three years, or such further time as the Court of Common Pleas shall in any case allow, the writ of covenant, and the concord and all other proceed- ings of such fine, shall have been inrolled, with the allowance of the said court, in a book or books, roll or rolls of parchment or vellum, as hereinafter provided : Provided always, that any such fine may be reversed by writ of error issued within twenty years from the levying thereof." " Fines sur cognizance de droit come ceo, &c., without any qualifica- tion in the concord or elsewhere, pass a fee simple, without the word ' heirs.' But it might be so qualified by express words in the concord or even in some deed connected with it, as to pass an estate in tail or for *life. Pines of this sort vary in their efficacy, according to the r:^^^^!::-, ceremonies observed in completing them, the legal character of L J the parties, aiyi the conduct of the other persons whose rights were aifected by them. And it would seem that they might operate in the following ways : — 1. By way of conclusion or estoppel. 2. As an ordi- nary conveyance, by way of grant, release, surrender, or confirmation. 3. As an extinguishment of a right of entry or action. 4. As an ex- tinguishment of a power appendant or in gross. 5. As a revocation of a devise. 6. As a conveyance of the estate of a married woman, or as an extinguishment of her dower. 7. As a bar to the heirs in tail of the cognisor. 8. As an instantaneous bar of contingent remainders. 9. As a simple devestment, without causing any bar in case of non-claim. 10. As a forfeiture, 11. Both as a devestment, and as a bar in case of non-claim. 12. As a discontinuance, without causing any bar in case of non-claim. 13. Both as a discontinuance, and as a bar in case of non- 486 SMITH ON REAL AND PERSONAL PROPERTY. claim. 14. As a bar in case of non-claim, without causing a devestment or disoontinuance."(a;) IV. Of CoTnmon Recoveries.^ A common recovery is an action, either actual or fictitious, not com- promised, but carried on through every regular stage of proceeding, by means of which lands which were the subject of the action were reco- vered against the tenant of the freehold, and all persons were bound, as by an actual adjudication of the right, and an absolute fee simple was thereby vested in the recoveror.(2) The mode of sufifering a recovery with single voucher was this : the r*746T P^''^°'^ *° whom the land was intended to be conveyed, *the L -J demandant or recoveror, brought an action against the person who was to suffer the recovery, (the tenant or reooveree,) by suing out a writ called a praecipe quod reddat against him. The latter then vouched or called another person to defend the title, upon the alleged ground of such other person's having conveyed the land to him with a warranty. The person so vouched, who was generally the crier of the court, and was called the common vouchee, made default, and thereupon judgment was given for the demandant to recover the lands against the tenant, and the tenant had judgment to recover of the vouchee lands of equal value in recompense for the lands so warranted by him; but of course he recovered nothing, as the common vouchee had no lands of his own. It was more usual, however, to have a recovery with double voucher at the least. And, in the case of a double voucher, an estate of freehold was first conveyed to some other person against whom the prseoipe was brought, and then he vouched the tenant in tail, who vouched over the common vouchee. (a) By the stat. 3 & 4 Will. 4, c. 74, s. 2, no recovery was to be suffered after the 31st of December, 1833, unless upon a writ sued out on or before that day. (6) By s. 5 of the same statute, recoveries shall not be invalid in conse- quence of having been suffered in unlawful or unauthorized courts.(c) By s. 8, of the same statute, " if it shall be apparent, from the deed making the tenant to the writ of entry or other writ for suffering a com- mon recovery already suffered or hereafter to be suffered, that there is in the exemplification, record, or any of the proceedings of such recovery any error in the name of the tenant, demandant, or vouchee in such recovery, or any misdescription or omission of lands intended to have |-ji5_ ,^-, been passed by such *recovery, then and in every such case the L -• recovery, without any amendment of the exemplification, record, or proceedings in which such error, misdescription, or omission shall have occurred, shall be as good and valid as the same would have been, and shall be held to have passed all the lands intended to have been passed (x) See "A Succinct View of the Operation of Fines and RecoTeries," by the writer of these pages. (y) See note (o), p. 738, supra. (z) 2 Bl. Com. 35T. 'a) 2 BI. Com. 358-9. (i) See p. 741, supra. c) See p. 741, supra. OF RECOVEKIES. 487 thereby, in the same manner as it would have done if there had been no such error, misdescription, or omission." And by s. 10, " no com- mon recovery already suffered or hereafter to be suffered shall be invalid in consequence of the neglect to inrol in due time a bargain and sale purporting to make the tenant to the writ of entry or other writ for suffering such recovery, provided such recovery would have been valid if the bargain and sale purporting to make the tenant to the writ had been duly inrolled." And by s. 11 it is enacted, " that no common recovery already suffered or hereafter to be suffered shall be invalid in consequence of any person in whom an estate at law was outstanding having omitted to make the tenant to the writ of entry or other writ for suffering such recovery, provided the person who was the owner of or had power to dispose of an estate in possession, not being less than an estate for a life or lives in the whole of the rents and profits of the lands in which such estate at law was outstanding, or the ultimate surplus of such rents and profits after payment of any charges thereout, and whether any surplus after payment of such charges shall actually remain or not, shall, within the time limited for making the tenant to the writ for suffering such recovery, have conveyed or disposed of such estate in possession to the tenant to such writ ; and an estate shall be deemed to be an estate in possession, notwithstanding there shall be subsisting prior thereto any lease for lives or years, absolute or determinable, upon which a rent is reserved, or any term of years upon which no rent is reserved." But by s. 12, a recovery shall not be rendered valid by the act, 1. Where and so far as the same shall *be or shall have been reserved. rgfrAo-i 2. Nor where any person who would have been barred by it, if L J valid, shall, before the passing of the act, have had dealings with the lands on the faith of the same being invalid. 3. Nor as to lands of which any person shall at the time of the passing of the act be in possession in respect of any estate which the recovery, if valid, would have barred. 4. Nor if any court of competent jurisdiction shall have refused to amend it.^c?) By s. 3 of the stat. 5 Vict. sess. 2, c. 32, " for better recording Fines and Eecoveries in Wales and Chesire," " all recoveries suffered in any of the said abolished courts whereof the writ of entry was duly returned, and the appearance of the tenant and vouchee or vouchees duly recorded by the court, or the warrant or warrants of attorney duly executed and allowed, and of which the said writ and other proceedings (if any) was or were lodged in the office of the prothonotary of the county in which the lands named in the said writ are situated, shall be holden good and firm in law, notwithstanding the non-inrolment or non-exemplication of such recovery, or any other misprision or neglect of any prothonotary or other officer as aforesaid to do anything which by his office he ought to have done after the recording of the appearance of the tenant and vouchee or vouchees, or the execution and allowance of the warrant or warrants of attorney : Provided nevertheless, that, where no inrolment on the plea roll of the session in which such recovery was suffered, or (d) See supra, p. 742. 488 SMITH ON REAL AND PERSONAL PROPERTY. any exemplification of a pretended inrolment thereof, sealed with the judicial seal of the court, or any entry on the remembrance roll sufficient to prove the arraignment of the writ of entry, can be found or produced, no such recovery shall be holden good by virtue of this act, unless within three years after the passing of this act, or such further time as r*7/lQn ^^^ Court of Common Pleas shall in any case allow, *the writ L J of entry or other proceedings extant of record touching the said recovery shall be inrolled as hereinafter provided, or such recovery shall have been docketed in full and ample manner as aforesaid : Provided also, that any such recovery may be reversed by writ of error issued witbin twenty years from the suffering thereof." " Recoveries vary in their eflBcacy according to the mode in which they were suffered, and the legal character of the parties ; and they may operate in the following ways : — 1. By way of conclusion or estoppel. 2. As an ordinary conveyance. 3. As an extinguishment of a right of entry or action. 4. As an extinguisnment of a power appendant or in gross. 5. As a revocation of a devise. 6. As a conveyance of the es- tate of a married woman, or as an extinguishment of her dower. 7. As a forfeiture. 8. As a discontinuance. 9. As an instantaneous bar of contingent remainder. 10. As an instantaneous bar of an estate tail, and of the remainders and reversion expectant thereon, &c., and a crea- tion of a fee out of the estate tail."(e) [*750] *TITLE XIV. OP ALIENATION OF COPYHOLDS BY VOLUNTARY GRANT AND ADMIT- TANCE, BY SURRENDER AND ADMITTANCE, BY BARGAIN AND SALE AND ADMITTANCE, OR BY RECOVERY. Alienation of copyholds may be either by the lord of the manor, or by one tenant of the manor to another. We have already made some few observations upon alienation by the lord by way of voluntary grant.(o) With regard to alienation by one tenant to another, no ordinary assurance applicable to property of freehold tenure has any operation upon the legal estates in copyholds.(J) The ordinary mode of alienation of a copyhold by a tenant having an estate in fee simple is by surrender and admittance, that is, a surrender or yielding up of his estate by the tenant to the lord or his steward, to the use of the alienee, or for such purposes as in the surrender are expressed ; and an admittance of the alienee or person intended to take, to hold him and his heirs at the will (e) See "A Succiact View of the Operation of Fines and Recoveries," by the writer of these pages. It is scarcely necessary to obserye, that an accurate know- ledge of the operation of these assurances is still of the greatest practical impor- tance, as thousands of them, for many years to come, will continue to affect the title to real property. (a) Supra, p. IT, 79. (5) 2 Bl. Com. 367 | 1 Cruise T. 10, c. 3, § 17. OP ALIENATION OF COPYHOLDS. 489 of the lord, according to the custom of the manor. The surrender and admittance are entered on the court roll, and the new tenant receives a copy of this entry, (c) Before admittance it was necessary, until a re- cent enactment, that the surrender should be presented by the homage or jury, by way of giving the lord notice of the surrender, unless he chose to proceed without it. But by the stat. 4 & 5 Vict. c. 35, s. 90, pre- sentment is no longer necessary. We have seen (p. 76) that in the case of free copyholds, a deed of bargain and sale is sometimes employed, instead of a surrender. And sometimes, to avoid the necessity for an admittance of trustees for sale of copyholds, a mere power of sale is given them without any estate, and they then execute a deed of bargain of sale in favour of the purchaser, which gives him the right of claim- ing admittance from the lord. (ccj ♦Estates tail in copyholds are not capable of being discon- ^^-.^-. tinned ; nor could any assurance be made of them similar to a L J fine : but in all cases, previous to the abolition of recoveries by the stat. 3 & 4 "Will. 4, c. 74, s. 2,(c?) such estates might be enlarged into fees simple, either by some appropriate proceeding in the lord's court, (which was most commonly analogous to a common recovery, and called by that name,) or in the absence of a custom for that purpose, by a mere surrender, (e) By the stat. 3 & 4 Will. 4, c. 74, s. 4, no fine or recovery levied or sufi'ered in a superior court of lands of the tenure of ancient demesne shall be reversed as to any person except the lord of the manor ; and every such fine or recovery which may be reversed as to him shall still remain valid against and as binding upon the conusors or vouchees, and all persons claiming under them, as if not reversed : — " No fine already levied in a superior court of lands of the tenure of ancient demesne which hath not been reversed, and no fine hereafter to be levied of lands of that tenure, shall, upon a writ of deceit already brought by the lord of the manor of which the lands were parcel, the proceedings in which are now pending, or upon a writ of deceit which at any time after the passing of this act may be brought by the lord of the said manor, be reversed as to any person except the lord of the said manor ; and the court shall order such fine to be vacated only as to the lord of the said manor ; and every such fine which may be reversed as to the lord of the said manor upon such writ of deceit as aforesaid shall still remain as good and valid against and as binding upon the conusors thereof, and all persons claiming under them, as such fine would have been if the same bad not been reversed by such writ of deceit as aforesaid ; and no common reeovery already suffered in a superior *court of lands of the tenure of ancient demesne which hath not r) By the old law, a testament of chattels is good, if proved to be written in the testator's own hand, though without his name or seal to it, and without any witnesses present at its publication. And though written in another man's hand, and never signed by the testator, yet if proved to be according to his instructions, and approved by him, it is a good will of personal estate. (j) Where a will is written on several sheets of paper, it is the usual practice to sign each page. If the will is contained in one sheet of paper, it was sufficient by the old law if the testator's name were written by himself in any part of it.(r) By the old law, it was necessary that a devise should be published, that is, the devisor must have done some act from which it could be con- cluded that he intended the *instrument to operate as a will or r^rrgr-i devise. If, however, he executed the will, and the words L J " signed and published by him as and for his last will and testament" occurred, that was a sufficient publication. (s) And even an attestation of the testator's having signed or signed and sealed the will, without the mention of publication, is sufficient evidence of publication. (<) And publication was not necessary in the case of personal estate. (m) (n) 2 Bl. Com. 500. (o) Burton, J 260. Ip) 6 Cruise T. 38, c. 5, ? 2 ; 2 Bl. Com. 376. (?) 2 Bl. Com. 501. It) 6 Cruise T. 38, c. 5, § 7, 9. (s) 6 Cruise T. 38, c. 5, § 50, 51. (/) Mackinley v. Sison, 8 Sim. 56 ; Bartholomew v. Harris, 15 Sim. 78 ; Via- cent V. Bisliop of Sodor and Mann, 4 De G. & S. 294. (m) 1 Wms. Exors. 4th edit. 71. Maech. 1856.— 32 498 SMITH ON REAL AND PERSONAL PROPERTY. Where the testator owns his handwriting before the witnesses, it is sufficient, though thej do not see him sign his name. (a;) An attesta- tion, even of a devise, by the witnesses setting their marks to the will, is good within the Statute of Frauds. (y) It is not necessary to the validity of the execution of a will even of lands by a blind man, that it should be read over to him in the presence of the attesting witnesses. (z) And although the witnesses attested at different times it was suflBoient.(a) An infamous person (such as a person eonvicted of sheep-stealing,] is not a competent witness. (6) And formerly a devisee, legatee, or credi- tor was not a competent witness to a devise. This occasioned the stat. 25 Geo. 2, c. 6. By s. 1, "if any person shall attest the execution of any will or codicil which shall be made after the 24th day of June, 1752, to whom any beneficial devise, legacy, estate, interest, gift, or appoint- ment of or affecting any real or personal estate, other than and except charges on lands, tenements, or hereditaments for payment of any debt or debts, shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment, shall, so far only as concerns such r*7fifiT *PS''so'i attesting the execution of such will or codicil, or any L J person claiming under him, be utterly null and void ; and such person shall be admitted as a witness to the execution of such will or codicil, within the intent of the said act; notwithstanding such devise, legacy, estate, interest, gift, or appointment, mentioned in such will or codicil." And by s. 2, "in case, by any will or codicil already made or hereafter to be made, any lands, tenements, or hereditaments, are or shall be charged with any debt or debts; and any creditor whose debt is so charged, hath attested or shall attest the execution of such will or codicil, every such creditor, notwithstanding such charge, shall be ad- mitted as a witness to the execution of such will or codicil, within the intent of the said aot."(c) This statute does not extend to wills of personal estate only, the preamble relating only to real estate ; and a legacy to a person who is an attesting witness to such a will, is not void. (if) And the act does not extend to a devise of real property to the wife of one of the wit- nesses. So that, in such a case, the husband is not a credible wit- ness. (e) A person cannot empower himself to give lands by a will not duly attested. (/) All devises by which terms for years or other interests arising out of lands are created, or by which powers to sell or charge lands are given, are within the Statute of Frauds. But where a will duly executed contains a general charge of legacies on the testator's lands, such charge will extend to legacies given by a subsequent will or codicil not duly attested. But if a person by will duly attested charges his real estate with such legacies and annuities as he shall afterwards (x) 6 Cruise T. 38, c. 5, ^ 15. (a/J 6 Cruise T. 38, c. 5, § 19 ; Sugd. Concise View, 283. {z) 6 Cruise T. 38, u. 6, | 20 ; 3 Jarm. & Byth. by Sweet, 21. (a) 6 Cruise T. 38, c. 5, § 32. (A) 6 Cruise T. 38, ^. 5, § 48. (c) 6 Cruise T. 38, ,;. 5, § 44, 45. d) Emanuel t. Constable, 3 Russ. 436 ; Poster v. Banbury, 3 Sim. 40. e) Burton, § 265. (_/-j 6 Cruise T. 38, c. 5, § 53. EEQTJISITE FORMS, ETC. 499 give and charge upon that estate by will, whether *attested or r^^i-fjir-] not, a charge by an unattested codicil will not be good.((/) As L J terms for years already created were disposable by testament before the Statute of Wills, they are not comprehended within the Statute of Frauds, and might therefore be disposed of by any kind of will or tes- tamentary disposition, unless they became attendant on the inheritance, when they were considered as part of the inheritance, and not as chattels real, and could only be disposed of by such a will as would pass the in- heritance. (7i) An instrument may operate as a will, though it be in the form of a deed, especially where it cannot operate as a deed, or where it contains a power of revocation. But if, in order to give full effect to an instru- ment, it must be considered as an act inter vivos, it is generally a deed, and not a will, especially if there is no power of revocation, (r) Yet an instrument may operate as a will, though it be only partially testamen- tary, (/c) By the stat. 2 & 3 Ann. c. 4, and 6 Ann. c. 35, relating to the West Riding of Yorkshire, by the latter statute relating to the East Riding, by the stat. 8 Geo. 2, c. 6, relating to the North Riding, and by the stat. 7 Ann c. 20, relating to the county of Middlesex, wills are made void against a subsequent purchaser, unless a memorial be registered as directed by those statutes. (Z) Wills devising lands or tenements in the city and liberties of London, duly executed and attested may be inrolled either in the Hustings of Pleas of Land or Common Pleas ; the same being first proved in open court, on the oaths of two of the subscribing witnesses thereto, and pro- claimed at one of these courts, (m.) *A will of freehold hereditaments need not be proved in the r-^woo-. Ecclesiastical Court. But they are usually so proved, because L J most wills of land contain also a disposition of personal estate. And as terms for years or other chattels real vest in executors, like other per- sonal estate, wills thereof must be proved in the Ecclesiastical Court having jurisdiction where the lands lie. (re) No relief will be afforded to the legatees or devisees under a will de- fectively executed -Jo) for they being mere volunteers, have as little equity as the heir or next of kin, or even less, as it is a maxim that fortior et sequior est dispositio legis, quam hominis ;(p) and therefore the legal right which has vested in the latter will not be taken away ; for the maxim is, that where the equity is equal, the law must prevail. (ff) e Cruise T. 38, c. 5, § 55, 56, 59 ; 1 Rop. Leg. by White, 685. (h) 6 Cruise T. 38, c. 5, | 12, 74. (i) Attorney-General v. Jones, 3 Price, 368 ; Tompson t. Browne, 3 My. & K. 32 i Fletcher v. Fletcher, 4 Hare, 79 ; 9 Jarm. & Byth. 2nd edit. 508-524 ; 1 Sugd. Pow. 261, n. (k) Doe d. Cross v. Cross, 8 Ad. & E. (N. S.) 714. (l) 6 Cruise T. 38, c. 1, § 28-32 ; Sugd. Concise View, 577. (m) 1 Jarm. & Byth. by Sweet, 263. in) 6 Cruise T. 38, c. 1, § 25, 27, and c. 5, ? 73. (o) See Story's Eq. Jur. ^ 105, a, 106. (p) Co. Litt. 338y *. 500 SMITH ON REAL AND PERSONAL PKOPBKTY II. The alterations as to the Requisite Forms made hy the stat. I Vict, c. 26, and the Provisions of 'the stat. 15 Vict. c. 24. By the stat. 1 Vict. c. 26, s. 9, " no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned ; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. But by s. 11, it is pro- vided, " that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might r*7RQl ^^^® *^°°® before the makiag of this act." And by *s. 12, it is L -1 further enacted, "that this act shall not prejudice or affect any of the provisions contained in an act passed in the eleventh year of the reign of his majesty King George the Fourth, and the first year of the reign of his late majesty King William the Fourth, intituled ' An Act to amend and consolidate the Laws relating to the pay of the Royal Navy,' respecting the wills of petty officers and seamen .in the royal navy, and non-commissioned officers of marines, and marines, so far as relates to their wages, pay, prize money, bounty money, and allowances, or other moneys, payable in respect of services in her majesty's navy." By the stat. 15 Vict. c. 24, s. 1, the following enactment is made : "Where by an act passed in the first year of the reign of her majesty Queen Victoria, intituled ' An act for the Amendment of the Laws with respect to Wills,' it is enacted, that no will shall be valid unless it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction ; every will shall, so far only as regards the position of the signature of the testator or of the person signing for him as aforesaid, be deemed to be valid within the said enactment, as explained by this act, if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and that no such will shall be affected by the circum- stance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a blank space shall inter- vene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank P^_»„, space intervening, or shall follow or be after, or under, or *beside L J the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient EBQUIglTB FORMS, ETC. 501 space on or at the bottom of the preoeeding side or page or other portion of the same paper on which the will is written to contain the signature ; and the enumeration of the aboVe circumstances shall not restrict the generality of the above enactment ; but no signature under the said act or this act shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made." And by s. 2, it is enacted, " that the provisions of this act shall extend and be applied to every will already made, where administration or pro- bate has not already been granted or ordered by a court of competent jurisdiction in consequence of the defective execution of such will, or where the property, not being within the jurisdiction of the ecclesiastical courts, had not been possessed or enjoyed by some person or persons claiming to be entitled thereto in consequence of the defective execution of such will, or the right thereto shall not have been decided to be in some other person or persons than the persons claiming under the will, by a court of competent jurisdiction, in consequence of the defective execution of such will." By s. 3, " the word ' will' shall in the con- struction of this act be interpreted in like manner as the same is directed to be interpreted under the provisions in this behalf contained in the said act of the first year of her majesty Queen Victoria." And by s. 4, " this act may be cited as ' The Wills Act Amendment Act, 1852.' " By the Stat. 1 Vict. c. 26, s. 13, "every will executed in ^^-„,-. *manner hereinbefore required shall be valid without any other L J publication thereof." By s. 14, " if any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incom- petent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid." By s. 15, " if any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than except charges and directions for the payment of any debt or debts,) shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment, shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will." By s. 16, " in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a wit- ness to prove the execution of such will, or to prove the validity or in- validity thereof." By s. 17, " no person shall on account of his being an executor of a 502 SMITH ON REAL AND PERSONAL PROPERTY. will, be incompetent to be admitted a witness to prove the exeeution of such will, or a witness to prove the validity or invalidity thereof." By s. 21, " no obliteration, interlineation, or other alteration made in r*772n ^°^ ^'^' ^^'^"^ ^^^ execution thereof shall be *valid or have any L J elFect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will ; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the wit- nesses be made in the margin or on some part of the will opposite or near to such alteration, w at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some part of the will." Section III. WJiai may be Devised or Bequeathed. By the old law, a mere hope or chance of succession of an heir apparent or presumptive was not devisable. (g) Nor could an interest which at the time of making of the will was con- tingent, if the testator was not then ascertained as the person in whom or in whose heirs the interest must vest, if it vest at all.M And estates which were devested and converted into rights, whether at the time of making the will or only at the testator's death, were not devisable.(s) By the old law, in the case of a devise of a legal estate, the will could not take effect unless the devisor was not only seised at the date of the will, but was also seised at the time of his death. Hence, if a person devised his lands, and was afterwards disseised, and died before entry, r*77m ^^^ devise was void.(<) And where there was a tenant for life, L -I *with a vested remainder or a reversion immediately expectant thereon in another person, and such tenant for life levied a fine, it de- vested the remainder or reversion, and turned it to a right, leaving only in the remainderman or reversioner a mere right of entry, which was not devisable. (m) But where a person executed a conveyance which was voidable in equity, he had not a right of entry, but an equitable estate which he might devise, even before the Wills Act.(j)) If a mortgagee devised the lands mortgaged before the condition was broken, such devise was void, because a condition was not devisable. But an estate in mortgage may be devised after the condition is broken. And an equity of redemption being an equitable estate, is devisable.(x) By the old law, a devise only operated upon such real estates as the testator had at the time of executing and publishing his will. Lands (y) Burton, I 258. (r) Burton, § 257, 258 ; 2 Pres. Shep. T. 322. (s) Barton, § 259. {t) 6 Cruise T. 38, .;. 3, § 37. (u) 6 Cruise T. 38, c. 3, I 30. {v) Stump V. Gaby, 2 D. M. & G. 629. {x) 6 Cruise T. 38, c. 3, I 13, 14 ; 2 Pres. Shep. T. 242. WHAT MAT BE DEVISED OR BEQUEATHED. 503 purchased after that time would not pass, unless subsequent to the pur- chase or contract the devisor republished his will.(y) But where an agreement in writing was entered into for the purchase of lands, and before a conveyance of the legal estate was executed the purchaser devised the lands so contracted for, and died, such devise was held good in equity, (z) And even a parol agreement for the purchase of lands, which was admitted, so as to be binding on the parties notwithstanding the Statute of Frauds, would vest such an interest in the purchaser as he might devise by will. (a) A term for years, however, purchased by a testator after the execution of his will, passed by it even at law, because it is only a chattel real.(Z') *By 1 Vict. c. 26, s. '6, it is enacted, " that it shall be lawful r^jnA-, for every person to devise, bequeath, or dispose of, by his will L J executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which if not so devised, bequeathed, or disposed of would devolve upon the heir at law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator ; and that the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir,_devisee, or otherwise, to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in oonsec(uence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this act, if this act had not been made ; and also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained'as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under *any disposition rj^'jnF.-t thereof by deed or will ; and also to all rights of entry for con- <- J ditions broken, and other rights of entry ; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of bis death, not- withstanding that he may become entitled to the same subsequently to the execution of his will." (y) 2 Bl. Com. 378-9; Sugd. Concise View, 127; Burton, | 258. (z) 6 Cruise T. 38, c. 3, § 8 ; Sugd. Concise View, 125. (a) 6 Cruise T. 38, c. 3, | 11. (J) 6 Cruise T. 38, c. 3, § 43. 504 SMITH ON REAL AND PERSONAL PROPERTY. If a man possessed of a term of years contracts for the purchase of ' the inheritance, the term, by construction of equity, instantly attends the inheritance. And if the purchaser had previously to the purchase made his will by a general bequest in which the term would have passed, yet the legatee would not be entitled to it, although the bequest were not expressly revoked ; because the term in the construction of equity attended the inheritance immediately on the purchase of the fee.(c) An advowson appendant to a manor will pass by a devise of the manor. An advowson in gross is also devisable. And the next or any number of presentations may be devised ; and the devisee thereof may either present himself or any other person. (c^) Although crops on the ground are personal estate, and generally speaking pass to the executor, yet, as between the executor and the devisee, the devisee will take them with the land, unless the intention of the testator appears to be otherwise.(e) Section IV. Of the General Rules of Construction of Wills. I. The grand fundamental principle in the construction of wills, is, P^_w„-, to effectuate the intention of the testator at the *moment when L J he made his will, so far as such intention is consistent jvith the rules of law.(_/') A will should therefore be most favourably expounded, to effectuate, if possible, the intention of the testator. Hence, no technical words are necessary ; so that the law often dispenses with the want of words in wills that are absolutely requisite in all other instru- ments, and frequently gives effect to a mere implication, if it is a neces- sary or plain implication. (^) II. The intention must not be collected or imputed by mere conjec- ture, however probable ; nor is it to be evidenced by averment ; but it must either appear from express words or by plain implication. (7i) An exception, however, occurs in the case of an ambiguitas latens ; for an averment supported by parol evidence is admissible to explain such ambiguity, as well as to raise it.(^) And the particular situation of a testator, the number of his children, the different kinds of property whereof he was possessed at the time of making his will, are circum- stances from which arguments may be drawn respecting his intention. (Z) III. An express disposition, though probably involving an oversight or mistake by the testator, cannot be controlled by inference which is not necessary or indubitable.(m) IV. Whenever the intention is doubful, it must be collected not from [c] Sugd. Concise View, 125-6. (d) 6 Cruise T. 38, c. 3, g 15. (e) Vaisey v. Reynolds, 5 Russ. 12. (/) See Burton, § 603; 6 Cruise T. 38, c. 9, § 5. (g) 2 Bl. Com. 381 ; 6 Cruise T. 38, c. 9, § 2. [h] See observations of Lord Truro in Egerton v. Earl Brownlow, 4 H. L. Gas. 181 ; 6 Cruise T. 38, c. 9, § 40. (k) 6 Cruise T. 38, c. 9, § 43. {I) 6 Cruise T. 38, c. 9, I 8. (m) 2 Rop. Leg. by Wliite, 1461. CONSTRUCTION OF WILLS. 505 particular expressions or detached passages aloue to the exclusion of considerations to be derived from other expressions or passages, but from the scope of the whole will, compared with its several parts, in such a way that each word may have its own particular operation, and p^„„_, *not be rejected, if any construction can possibly be put upon L J it, consistently with the general intention. (n.) V. A codicil duly executed supersedes every part of the will to which it is contradictory. But so far as they are not absolutely inconsistent, both the instruments are to be considered as incorporated into one.(o) VI. In the case of trusts executed, " in a will, words, whether tech- nical or otherwise, are to be understood as used in the sense ordinarily and properly applied to them, unless from the whole context of the will it appears satisfactorily and clearly that the words to be construed have been used and were intended to be understood in some other sense. (p) And although in the case of trusts executory the courts, in certain cases, properly assume a greater freedom in effectuating what appears to be the presumable general intention of the author of the trusts, yet even in the case of trusts execjitory, the intention must in general be collected from the language of the will itself: and an intention must not be imputed by mere uncertain conjecture contrary to the express words ; and espe- cially where it is manifest that the will was drawn, not by a person who used expressions without knowing the meaning of them, but by a person skilled in the practice of conveyancing, (g) VII. Where the words of a will admit of two different constructions, the more probable of the two constructions is to prevail, unless the con- text requires a different construction. (r) As where the words used by the testator *are only applicable, in their strict technical sense, rijEirYo-i to a species of property which the testator has not ; in which L J case they shall be applied, if possible, to some other species of property which the testator has, in order to effectuate his intention. (s) And words strictly importing a future tense, may, in order to effectuate the intention apparent from the context, be construed to refer to the past.(<) VIII. The same words may have a different construction in the same will, especially when applied to different kinds of property. But in general where a testator uses the same words in different parts of the will, it is to be presumed he attaches to them the same meaning, unless a different intention can be collected from the context.(M) IX. Where there are words in a will whieh have no meaning or which are evidently contrary to the general intention of the testator, (n) 6 Cruise T. 38, c. 9, | 2 ; 2 Rop. Leg. by White, 1460; Egertou v. Earl Brownlow, 4 H. L. Cas. 181. (o) Burton, § 602; Hartley v. Tribber, 16 Beav. 510; 2 Rop. Leg. by Wliite, 1460. (p) Wilde, C. J., in Trevor v. Trevor, 1 H. L. Cas. 264. See also observations of Lord St. Leonard's in Egerton v. Earl Brownlow, 4 H. L. Cas. 208, 209 ; In re Crawford's Trusts, 2 Drew. 233 ; 6 Cruise T. 38, u. 9, | 6 ; Burton, § T98 ; 2 Rop. Leg. by White, 1461. (o) Egerton v. Earl Brownlow, 4 H. L. Cas. 1, 181. (V) 2 Rop. Leg. by White, 1462. («) 6 Cruise T. 38, c. 10, ^ 8V. It) 2 Rop. Leg. by White, 1517. (m) 2 Rop. Leg. by White, 1460-1462 ; 6 Cruise T. 38, c. 9, I 8. 506 SMITH 0^ REAL AND PERSONAL PKOPERTY. they will be rejected. And on the other hand if the meaning distinctly appears, words omitted by mistake, which are absolutely necessary to effectuate the general intention, will be supplied. /x) X. Courts of law and equity will transpose words where it is neces- sary to do so, to make sense of a will and give effect to it.(y) So that an estate will be transposed, and placed either before or after some other estate given by the will, if such transposiiion is necessary to fulfil the intent of the testator. (z) XI. Where there is a manifest general, primary, or paramount intent, the construction should be such as to effectuate it, though by that con- struction some particular, secondary, or subordinate intent may be de- feated. (a) P^„_q-. *XII. A testator must be presumed to know the law, whether L J as declared by decision or made by statute. (6) XIII. Mistakes in a will are never to be intended, if a reasonable construction can be found out.fc) XIV. If two parts of a will are totally inconsistent, and cannot pos- sibly be reconciled, the latter shall prevail, on the principle that the tes- tator may have changed his mmd.[d) XV. Where an estate or benefit is conferred in one part of an instru- ment, in terms which are free from all doubt, such estate or benefit cannot be taken away except by equally clear words in another part of the instrument.(e) XVI. Where it is impossible to discover from the words of a will what was meant to be given, or to whom, the will is void for uncer- tainty. But a reasonable degree of certainty will suffice. (/) XVII. Of two modes of construction, that will be preferred which will prevent intestacy. ((;) XVIII. Even under the old law, a will of personalty speaks at the testator's death. (A) And by the stal. 1 Vict. c. 26, s. 24, it is enacted, " that every will shall be construed, with reference to the real and per- sonal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." Thus, where in a devise in a will bearing a date and made subsequent to the year 1837, the testator uses the expression, " all the estates whereof I am now seised," he thereby shows his intention to confine the devise to property whereof he was (x) 6 Cruise T. 38, c. 9, | 15 ; 2 Eop. Leg. by White, 1461. (y) 2 Eop. Leg. hj White, 1460. (z) 6 Cruise T. 38, c. 9, § 25. (a) 6 Cruise T. 38, c. 9, | 4 ; 1 Pres. Shep. T. 87. (h) See judgment of Sir J. Wigram, in Buckell v. Blenkorn, 5 Hare, 144. But see remarks of Sir L. Shadwell, in Ware v. Rowland, 15 Sim. 535, apparently contra. (c) 2 Rop. Leg. by White, 1456. (d) 6 Cruise T. 38, c. 9, § 27 ; Burton, § 602 ; 2 Rop. Leg. by White, 1461-2. (e) Thornhill v. Hall, 2 CI. & P. 22, 36. (/) 6 Cruise T. 38, c. 8, § 38 ; Adams v. Jones, 9 Hare, 485. Iff) 2 Rop. Leg. by White, 1461, 1462. (/() Palin V. Hills, 1 My. & K. 484 ; Gosden v. Dotterill, Id. 59 ; 1 Eop. Leg. by White, 150. CONSTRUCTION OF WOEDS AND EXPRESSIONS. 507 seised at the *the date of his will, especially if he uses the word r^^oA-, " now" in other parts of his will in allusion to the period when •- -> he was making his will; so that the will in such case will not speak from his death. (i) XIX. The constructions of wills of immovable property is governed by the lex loci rei sitse, but the construction of wills of moveable pro- perty is governed by the law of the domicile. (A-) XX. In deciding on the validity and interpretation of purely personal legacies, Courts of Equity implicitly follow the rules of the civil law, as recognized and acted on in the Ecclesiastical Courts; but as to the validity and interpretation of legacies charged on land, they generally follow the rules of the common la,w.(l) XXI. When there is a substitution of legacies or an addition to them, and no times are appointed for the payment of the substituted or addi- tional bequests, nor any funds assigned out of which they are to be satis- fied, those legacies are to be paid out of the same property, at the same periods, and upon the same terms, as the legacies in lieu of or in addi- tion to which they are given. (m) Thus, where a testator gives a legacy by will out of a particular fund, and by a codicil revokes it, and gives a legacy of a different amount, without mentioning out of what it is to be paid, the legacy by the codicil will be deemed to be a meje substitution for the legacy by the will, in regard to the fund out of which it is to be paid, as well as in regard to the amount; so that if the particular fund fails, the legacy will not be paid out of the general assets, (m) And where a testator by his will gives an annuity to a feme covert for her separate use for life, and by a codicil he gives a certain sum "in i->jc7oi-| addition" thereto for her life, she will take the Additional sum L -1 for her separate use, as well as the sum given by will.(o) Section V. Of the Construction of particular Words and Expressions in Wills.{r)\ A direction that legacies be paid " clear," means that they shall be paid clear of legacy duty.^g) The general rule is, that where a fund is given to a class of persons, with a direction, that, on the death of any of them, their " shares" are to go over, the original shares only, and not the accruing shares, will go over. But this is not the case where the word " interest" is added, or even as it would seem, where it occurs alone. (r) (i) Cole V. Scott, 1 Mac. & G. 518. (k) 2 Eop. Leg. by White, 1462. (l) Story's Eq. Jur. I 602, 608. (m) 1 Rop. Leg. by White, 872. (») Bristow Y. Bristow, 5 Beav. 289. (o) Day v. Croft, 4 BeaT. 561. (p) This section only notices a few points, for which no more appropriate place could be found elsewhere. Where the points of construction could be distributed under specific heads, the writer deemed it most proper to do so. See, for in- stance, section vi., and chap, iii., section II. {q) Ford V. Buxton, 1 Coll. 403. (r) Douglas v. Andrews, 14 Beav. 347 ; Riokett v. Guillemard, 12 Sim. 88. 508 SMITH ON REAL AND PEESONAL PROPERTY. In the case of a limitation over to the survivors or survivor of a class of legatees, the word "survivors" or "survivor" is construed " others" or " other" vphere it was apparently the intention of the testator that the others or other should take, without reference to the contingency of his, her, or their surviving the person from whom the property is to go over. Thus, if a bequest is made to the testator's children, A. B. and C. to be paid at twenty-one; but if B. or C.die under age, then to the two survivors ; and if two of the legatees die before twenty-one, the , whole to the surviving child ; and if the three died under that age, the whole to go to D. and E. ; then, if B. die after attaining twenty-one, and r*7S91 ■^' ''fterwarda die under *that age, leaving C, although C, as L J the only surviving child at the death of A. would be literally entitled to the whole of it, yet the limitation over to survivors would be construed as if expressed " to the others of them," so that although B. died before A., his personal representative would take a half of A.'s share, (s) It has been held that a person attains his twen ty-fifth year on the day when he becomes twenty-four years old.(rt Where a bequest is immediate, and of the entire interest in a fund, the words "die unmarried" or "without being married" mean without ever having»been married ; and if to the words " should the legatee die unmarried," &c., be added " and without issue," or " without having issue," the latter words will be held to mean without ever having had any issue, and the copulative and will be changed into or.(M) Under a residuary devise and bequest to be equally divided between the testator's wife "and her children who have issues," the word " have" will not be construed " shall have," but those who have no issue at his death take nothing ; for, as a devise to her and her children would include only the children living at that time, the superadded de- scription of having issue is applicable to those children who then have issue, (x) Wliere real property is devised to a married couple and the survivor, for their lives, remainder to their children, "and in case they leave no children," to their heirs and assigns, the meaning is that in case there shall be no children of both of them living at the time of the death of the survivor; so so that the ultimate limitation will take eflFect, though r*7S!n ^^^ ^^^® *^'® '° ^^^ husband's lifetime leaving a *child, if that L J child dies in the husband's lifetime, whether leaving issue who survive him or not.(^) There is this distinction between testamentary disposition of estates in mortgage " subject to the incumbrances th^eon," and of the lease- hold estates " subject to the performance of the covenants" that the words "subject," &o., when used in reference to mortgages, are not mere useless surplusage, even when they are not construed to import that the party is to take cum onere ; for they may be intended to pre- {s) 1 Rop. Leg. by White, 638. (t) Grant t. Grant, 4 Y. & C. C. C. 25C. (m) See 1 Bop. Leg. by White, 616. (x) Doe d. Barton ¥. White, 1 Exch. 526. (y) Doe d. Nesmyth v. Knowla, 2 B. & Ad. 324. CONSTRUCTION OF WORDS AND EXPRESSIONS. 509 vent disappointment, and perhaps disputes or doubts, by showing at once that the estate is in mortgage, which might not otherwise be known to be so. But the words "subject" &c., when used with reference to property which has already been described as a leasehold, are mere use- less surplusage, unles.s they are used to signify that the bequest is to be subject to the performance of the covenant's to repair, in respect of dilapidations existing at the time of the testator's death ; and the court ought not, without some special reason, to construe words as mere sur- plusage which may fairly be employed for some useful purpose.(2) It is only natural, and in accordance with the presumable intentions of a testator who makes a specific bequest of leaseholds, that the legatee should take them subject to the burden of putting them in repair, where they are in a state of dilapidation at the time of the testator's decease; although the general personal estate is the natural fund for the payment of debts, and other kinds of property are commonly exonerated by that.(a) Where a testator provides that an estate shall go over from a person taking the same under the will, in case a certain other estate shall " devolve" upon him, he will be held to mean that the shifting clause shall take efi'ect in 'case such person should have the full bene- r-^noA-i ficial enjoyment of the latter estate : so that such estate will not L J be deemed to have " devolved" upon him, if he takes it subject to a charge. (6) And the expression "devolve upon her children, if she has any," denotes transmission to children living at the time when the devo- lution is to take place ; so that the representative of a child then dead will take nothing.(c) Where a testator gives a sum of money in trust for a person for life, and after her death for her children, and in case she shall happen to die without leaving a child, he directs that the trust fund shall be " con- sidered as part of his personal estate and effects, and, and be disposed of in a due course of administration" ; and after making some other bequests, he gives the residue of his estate and effects to the same person, her exe- cutors and administrators, to and for her and their own use and benefit, she and they paying thereout all the debts due from him at his decease, and testamentary and other incidental expenses ; and such person dies without leaving a child, the trust fund does not become undisposed of and belong to the next of kin, but forms part of the testator's residuary estate, and belongs, as such, to the same person to whom his residuary estate as well as that portion of it is given. (c?) The word " legacies" will often include annuities. (e) (2) Hickling t. Boyer, 3 Mac. & G. 643. (a) Hickling t. Boyer, 3 Mac. & G. 643. (b) Fazakerley v. Ford 1 Ad. & E. 897 ; 4 Sim. 390. (c) Parr t. Parr, 1 My. & K. 647. [d) Scott v. Moore, 14 Sim. 35. («) Cornfield v. Wyndham, 2 Coll. 184; Heath v. Weston, 3 D. M. & G. 601. 510 SMITH ON REAL AND PERSONAL PROPERTY. [*785] *Section VI. Of Devisees and Legatees. 1. Error or Defect in a Name or Description. Any words that are sufficient to denote the persons meant by the tes- tator, and to distinguish them from all others, operate as a good descrip- tion, (e) Where there is a mistake in the christian or surname, or in both names, it will be corrected, if the intention appears in any other part of the will or by parol evidence. (/) Parol evidence will be admitted to supply a blank for a christian name but not a blank for an entire name.((/) , If, however, a legatee is described by the initials of his name only parol evidence may be given to prove his identity.(A) But if a testator devises to certain persons by no other names or descriptions than by cer- tain letters of the alphabet arbitrarily chosen for the purpose, and refers to another paper signed by him, but not attested, as explaining who were intended by those letters, such a devise is void.('i) A misnomer in a bequest to a corporation is immaterial, if the body intended is pointed out with sufficient certainty.(^) Where the description of a legatee is erroneous, and there is no doubt as to the person intended to be described, the mistake will be rectified, unless the description imputes to the legatee a character which is the essence of the bequest, and it may reasonably be presumed that the tes- tator would not have made such a bequest if he had not been so mis- taken. r*7861 *II. Bequests to Parents and Children. In the ease of bequests in favour of a person and his or her children, at least in wills drawn by unprofessional persons, questions frequently arise as to the mode in which they are to take — whether the parent is to take for life, with remainder to the children; or whether the parent is to take the absolute interest : or whether parent and children are to take simultaneously, and, if so, whether as tenants in common or as joint tenants. All such questions should be excluded.(»i) Where personal property is bequeathed to a person for life, and on his death to another person and his children, he having none at the time or at the testator's decease, the children are neither joint tenants with him, (e) 6 Cruise T. 38, c. 18, § 23. (/) 1 Rop. Leg. by White, 164, 166 ; Burton, I 605. (g) 1 Rop. Leg. by White, 186. (A) 1 Rop. Leg. by White, 187. (i) Clayton v. Lord Nugent, 13 M. & W. 200. (k) 3 Jarm. & Byth. by Sweet, 265. {l) 1 Rop. Leg. by White, 169, 172 ; Story's Eq. Jur. § 182, 183. (m) For instances, see Lenden v. Blaclsmore, 10 Sim. 626 ; Vaughan v. Head- ford, Id. 639 ; Mason v. Clarke, 17 Beav. 126; Congreve v. Palmer, 16 Beav. 435 ; Ive T. King, Id. 46. OF DEVISEES AND LEGATEES. 511 nor intitled in remainder after his death, but the fund belongs to him absolutely. (m) Where a bequest is made to A., to be paid within six months, and in case it should happen that he should die not having received his legacy, his children to be entitled to his share, his children take nothing, if he predeceases the testator, (o) Where a testator gives his property to his wife for life, and after her decease he gives the residue to be equally divided between a class of brothers and sisters, and in case "any of ili&ti" that is, the brothers and sisters before spoken of, and not the brothers and sisters generally, should be dead at the time of the decease of his wife leaving issue, then such issue to stand in the place of their respective parents or parent : the issue of a brother or sister who died before the date of the will will not take by substitution ; because such brother or sister never had a capacity *to take, and yet the issue ^^^.„„-, were only to take in substitution for brothers and sisters whom L J the testator contemplated as having a capacity to take, and therefore were alive at the date of the will.(2) Where a testator bequeaths a sum of money to all the brothers and sisters of a person who shall be living at the decease of such person, and the children then living of any of his brothers and sisters who shall have previously died, but so that the chil- dren of such deceased brother or sister should take only the share which their parent would have taken if living, the children of a brother who was dead at the time of making the will cannot take, because the de- ceased brother himself was not an object of that bequest. (r) Where a person gives property to his wife or some other person for life, and after the decease of his wife or such other person to children who shall be then living and the issue then living of such of them as shall be then dead, it may happen that the prior taker may die in the testator's life- time, and that one of the children may also die in his lifetime after the decease of the prior taker; in which case the issue cannot take under the description by which they are designated, without struggling with the words used; and therefore care should be taken to avoid the difficulty by using words which will meet the contingency above mentioned.(s) Where a testator bequeaths personal estate to one for life, and after his death to others equally, and- in case any of them should happen to die before they become " entitled" to their shares, to the children of him, her, or them so dying, the word "entitle" does not mean " entitled in possession ;" but the gift to the children is merely a substitution in the event of the parent dying in the testator's lifetime : so that if one of the parents survives the testator, and dies before the tenant for life, the property vests in his ^representative, and does not go over r^^gg-i to his children.(<) And, under a bequest to A. or his children, L J he is absolutely entitled if he survives the testator : the children can (n) Scott V. Scott, 15 Sim. 47. (o) Smith t. Oliver, 11 Beav. 494 (?) Gray v. Garman 2 Hare, 268. (r) Waugh v. Waugh, 2 My. & K. 14. (s) See Gaskell v. Holmes, 3 Hare, 438. \t) Henderson v. Kennicot, 2 De G. & S. 492. 512 SMITH ON REAL AND PERSONAL PROPERTY. only take by substitution in case of the death of their parent in the testator's lifetime. (m) III. Devises and Bequests to Children. An infant unborn, but in ventre matris, may be a devisee.(a:) In the absence of indications to the contrary, where a legacy is given to a class of individuals, as to children, in general terms, and no period is appointed for the distribution of it, the death of the testator is the period of distribution, and none of the class but those who are born or in ventre matris at that period are entitled to participate in the bequest. And so, as a general rule, where a period is appointed for distribution, as the attainment of majority or the death of a parent, the fund is distributable among as many as are in existence at that time, and no child born afterwards can be admitted to a share. (y) In consequence of the leaning in favour of construing a gift to be vested, if there is a devise to children begotten or to be begotten, the words " to be begotten" refer only to children who may be born after the date of the will and before the death of the testator, and not to children born after his decease. (2) Where a legacy is given to each child that may be born to either of the children of either of the testator's brothers, a child born after the testator's death is not included ; for the words " may be born" may be considered to provide for the birth of children between the making of r+78QT ^^^ ^^^^ *and the death of the testator, and a different construc- L J tion would impute to the testator the inconvenient and improba- ble intention that his residuary personal estate should not be distributed until after the deaths of all the children of either of his brothers, (a) The word "children" will include children by a second or other sub- sequent marriage, unless it clearly appears that the testator only meant children of the first marriage. (6) The word "children" does not ordinarily comprehend grandchildren or issue generally ; but it will be construed in this more extensive sense where the will would otherwise be inoperative, or where the testator has clearly shown by other words that he used the word in the more exten- sive sense, (c) In general, even in the case of a will, the persons who claim must answer the description and character given of them in the will.(cZ) But sometimes they may not answer the description and character literally, and yet ihey may answer what was really intended by such description and character. Thus, in cases of provisions made by parents or persons in loco parentum for younger children, by will, or by way of executory trust, a younger brother becoming entitled to the family estate before (m) Penley v. Penley, 12 Bear. 547. {x) 6 Cruise T. 38, c. 2, § 16. (y) 1 Rop. Leg. by White, 38, 46, 53 ; 2 Spence's Eq. Jur. 418 ; Smith's Execu- tory Interests annexed to Fearne, J 227 — 230 — 234 ; Mann v. Thompson, 1 Kay, 638. (z) Butler v. Lowe, 10 Sim. 317. (a) Storrs v. Benbow, 2 My. & K. 46. (J) 1 Eop. Leg. by White, 48. \c) 1 Rop. Leg. by White, 68. [d] 1 Rop. Leg. by White, 66. OF DEVISEES AND LEGATEES. 513 the portions were payable, has been considered an eldest child, so as to exclude him from the benefit of the provision for the younger children. And, on the other hand, an eldest daughter destitute of a provision has been considered a younger child ; and an eldest son is entitled to claim a portion as a younger child, when the family estate is given from him, or he is otherwise unprovided for. But the court has considered a younger child as an eldest in those cases alone where the provision is made by the parent or a person who stood in loco parentis. (e) '"Begotten" will extend to the issue begotten afterwards r:^,^^^-! and the words " to be begotten" to the issue begotten before.(/) L J TV. Devises or Bequests to Issue. The word issue is used sometimes to denote all descendants, and at other times immediate descendants or some particular class of descend- ants living at a given time. And, in a will, issue is either a word of purchase or of limitation, as will best answer the intention of the devisor, though, in case of a deed, it is universally a word of purchase, (y) When used as a word of purchase, and unconfined by any indication of intention, it will comprise all persons who can claim as descendants from or through the person to whose issue a devise or bequest is made.(A) It may be used in different senses in the same will. But if in the first part of a will it is used equivocally, and there is nothing in the immediate context to aid in construing its meaning, but in another part of the same will the ambiguity is corrected and the word is used in a particular sense, the presumption is that the testator has always used it in that sense in which he himself has corrected the ambiguity. (i) If a testator speaks of " issue of such issue," it is plain that he uses the word issue in the first instance not in its comprehensive and prima facie sense, as including all the descendants, but in some restricted sense ; and if he speaks of the issue of such issue taking their parents' share, this expression " parents" applying to " such issue" limits the word " such issue" to one generation, and shows that they mean children of the ancestor whose issue is first spoken of.(A) *V. Devises to Heirs or Descendants. [*791'1 A devise in remainder to the right heirs of the testator for ever, his son excepted, is void.(m) A devise to the right heirs of husband and wife is a devise to such person as answered the description of heir to both, namely, a child of both, inasmuch as husband and wife are considered in law as but one person. (m) (e) 1 Rop. Leg. by "White, 59, 62, 65 ; 2 Spence's Eq. Jur. 412-3. (/) 2 Rop. Leg. by White,- 1513. (g) L. 0. J. Wilmot, in Roe t. Grew, 2 Willa. 322 ; and Lord Kenyon, C. J., in Doe d. Cooper v. Collis, 4 D. & E. 294. (A) 1 Rop. Leg. by White, 94; Leigh v. Norbury, 13 Ves. 344. (i) Edwards t. Edwards, 12 Beav. 100. {k) Pope t. Pope, 14 Beav. 591.. (m) 6 Cruise T. 38, c. 10, ? 40. [n) 6 Cruise T. 38, c. 10, J 39. Mahch, 1856.— 33 51i SMITH ON REAL AND PERSONAL PROPERTY. Where a testator devises real estate to a person and his wife for their lives, and after their decease to their son, his heirs and assigns, for ever, but in ease he should not survive his parents, and should die without an heir lawfully begotten, then to " the next heir" of the first takers, " their heirs and assigns for ever," " the next heir" means the person who should be the heir of the first takers in the technical sense of the word heir : so that, under the limitation over to the next heir, the estate will not vest ia a second son of the first takers dying in the lifetime of one of such first takers, but will vest in his son as he became the next heir in the technical sense of the word.(o) A devise to the heirs male of the devisor only extends to the heirs male of his body, and not to a collateral heir : so that if the devisor has not an heir male of his body, the devise is void.(p) The expression, " the first male heir of the branch of A.'s family," is not a definite and safe designation, but is one which may lead to per- plexing questions, if not to the total failure of the estate intended to be limited, on the ground of uncertainty. For, under some circumstances, it may be a matter of the most perplexing doubt whether the person intended must be an heir in the strict technical sense, by being the r*7Q'21 ''^'^'^ °^ ^ deceased parent *and heir general, or whether it is L J suiBcient if he is the child of a deceased person though not heir general, or whether " male heir" does not mean " male heir apparent" or " male descendant," and whether the word " first" refers to the seniority of the heir, or whether it refers to seniority and priority of the stock from which he springs, or whether the devise is not void for uncer- tainty. Thus, where A. has no son, but several daughters, who have issue, it may be doubted whether the son or grandson of the eldest daughter is to take, because the eldest daughter has for some purposes priority over the others ; or whether the son of a younger or even of the youngest daughter should take, on the ground that he was born before the children of the other daughters; or whether a son of a younger or even of the youngest daughter is to take, because his brother is dead at the time of the determination of the particular estate, while the other daughters are living, so that he is technically heir to her, while the children of the other daughters are not technically heirs to them; or whether, the devise is not void for uncertainty.(j) This case illustrates the care that is necessary in the use of the word " heir." In giving property to " male descendants," it is expedient to express whether or not the testator means persons claiming through males only.(r) A sister of the testator may be entitled under the description of his " nearest of kin in the male line," in preference to a son of the testator's paternal uncle. (s) Where a testator, seised of lands in common socage and of other lands in gavelkind, devises to his wife for life, and after her decease to (o) Doe d. Knight v. Chaffey, 16 M. & W. 656. (p) 6 Cruise T. 38, c. 10, ^ 37. (y) Winter v. Perratt, 9 CI. & P. 606. (r) See Bernal v. Bernal, 3 My. & Or. 559. («) Boys V. Bradley, 10 Hare, 389 ; 4 D. M. & G. 58. OF DEVISEES AND LEGATEES. 515 his " then male heir and his heirs in strict tail male," the lands in gavel- kind, as well as those in common socage, pass to his heir at common law.(<) *VI. Bequests to a Person and Ms Heirs, or to the Heirs of a p^YaQT Person. L J A legacy to a person an d his heirs is a bequest of the entire interest to him absolutely. But when money is bequeathed to the heirs of a person to whom no interest in it is given, or when money is bequeathed to a person with a limitation to his heirs if he die before the testator, and the contingency happens, then the next of kin of such person are entitled, unless the contents of the will show that by the word " heirs" the testator meant children, or that he meant the person who is heir to take. (if) VII. Devises or Bequests to Cousins or Relations, or a Family, or Next of Kin, or Persons claiming under the Statute of Distributions, or Executors, or Personal or Legal Representatives. Under a bequest to the testator's first and second cousins, first cousins twice removed were held to be entitled, as being within the degree of relationship mentioned in the will.(t)) But, under a bequest to " first cousins or cousins german," children or descendants of first cousins will not take, the designation " cousin german" being considered as synony- mous with and used in explanation of " first cousin."(M)) Where a devise or bequest is made to "relations" or " near relations," and there is nothing to show that more remote relations or that some only of the relations were intended, all of those and none but those are entitled, who, in case of intestacy, could claim by the Statute of Distri- butions. This construction is adopted as the best mode of setting bounds to the generality of the word " relations." If the bequest is confined to the testator's "poor" or *" necessitous" or "poorest" r;|;-q4^-i or "most necessitous" relations, those only will take who claim L -I by the Statute of Distributions, and are also in want of assistance. But when it appears from the will that a testator intended to appropriate a sum of money, not only for his then existing poor relations, but for those to succeed without limitation as to time, a court of equity will support the bequest as a charity, and admit all his poor relations without regard to the Statute of DistributioDS.(a;) When a testator has delegated a power to distribute the fund among his relations according to the discre- tion of the donee of the power, he may distribute the property among the testator's kindred, although they be not within the Statute of Distri- butions. And if such a power is not executed, the property will go to the next of kin at the death of the donee of the power.(y) But where [t) Thorp v. Gwen, 2 S. & G. 90. (m) 1 Rop. Leg. by White, 88, 89, 90, 93. {v) 1 Eop. Leg. by White, 145. (w) Sanderson T. Bayley, 4 My. & Cr. 56. (x) 1 Rop. Leg. by White, 101, 104, 105, 107, 112, 113; Tiffin v. Longman, 15 Beav. 275; 2 Sugd. Pow. 237. [y) 1 Eop. Leg. by White, 107, 108, 110. 516 SMITH ON REAL AND PERSONAL PROPERTY. a person is empowered to fix the amount of the shares to be taken by relations, but not to select the objects, the next of kin according to the Statute of Distributions, who are in existence at the death of the testator, take vested interests, subject only to be altered in amount by an exercise of the power. (a) And bequests to a person's "family" are to be con- strued by the same rules as bequests to "relations.'Ya) Under an ultimate limitation to the next of kin of the testator, his next of kin at the time of his death, and not at any subsequent time, are entitled, unless there is anything in the will to show the contrary. And the mere circumstance that the persons who happen to be the next of kin at the time of the testator's death are the objects of the prior limitations, will not be held to show that he meant next of kin at the time when such ultimate limitation should take effect, so as to exclude r^nQK-i those persons from *taking under the ultimate limitation as next L J of kin at the time of his death. And it was held, that under an ultimate trust " to assign personal estate unto and equally between the testator's next of kin," his two children were entitled as his next of kin at his death, although they were the objects of the prior trusts and died in infancy, and although the ultimate trust was only to take effect if all his children should die, and without leaving issue. For where, after specific limitations, a testator gives his property to his next of kin, much weight is not to be attached to that which i^ supposed to be the testator's intention in favour of or against particular persons as his next of kin, for infinite variations may take place in that class between his will and his death. (6) Where a testator uses in an ultimate limitation the words " next of kin of my own family," they mean the nearest or next of kin of those persons who, according to ordinary language, would be his family ; as, for instance, the next of kin of his daughter, where he had an only daughter.(c) The expression next of kin, uncontrolled by any other expression, does not mean " those persons who in case of intestacy would be entitled under the Statute of Distributions," but it means those persons who are nearest in degree of personal propinquity. And therefore, on the one hand, it excludes the children of a deceased brother or sister, where there is a brother or sister living ; and on the other hand, it includes the parents as well as the children of the party, as being all related to him in the first degree, or the brothers as well as the grandchildren of the party as being all related in the second degree, (d) r*7QRn *-^ widow, as such, cannot take under a limitation to the next L -I of kin of her husband according to the Statute of Distributions. (e) (2) 1 Eop. Leg. by White, 106. (a) 1 Rop. Leg. by White, 141. (6) SeifFerth v. Badham, 9 Beav. 370. See also Clapton v. Bulmer, 5 My. & Cr. 108 ; Gundry v. Pinniger, U Beav. 98, 1 De G. M. & G. 502 ; Withey v. Mangles, 4 Beav. 368, 10 01. & F. 215 ; Smith v. Smith, 12 Sim. 317 ; Pearce v. Vincent, 2 Keen, 230 ; Lasbury v. Newport, 9 Beav. 376 ; Butler T. Bushnell, 3 My. & K. 23 ; 1 Rop. Leg. by White, 123. (c) Clapton T. Bulmer, 10 Sim. 426. (d) Withey V. Mangles, 4 Bear. 358, 10 CI. & P. 215; Cooper r. Denison, 13 Sim. 290 ; Elmsley v. Young, 2 My. & K. 82, 780. (e) Cholmondeley v. Lord Ashburton, 6 Beav. 86. OF DEVISEES AND LEGATEES. 517 And the husband is not a person entitled under that statute to the per- sonal estate of his deceased wife. His right is independent of any statute, and therefore under a bequest " in trust for the person or persons who would at the time of the decease of a daughter or daughters, or of the decease or failure of her or their children respectively (whichever event should last happen,) be entitled, as next of kin or otherwise, to the per- sonal estate of such daughter or daughters respectively under the statutes made for the distribution of intestates' effects," the husbands of the daughters are not entitled. (/) A legacy to a person who is an executor, though given to him by name, is primS. facie given to him as executor, and as a renumeration or acknowledgment for his trouble ; and if he does not prove the will, he will not be entitled to his \ega,oj,(g\ even though he may have been physically incapable of so doing(A) And when bequests are made to individuals in the character of trustees, and not as marks of personal regard only, the legacies are held to be given upon an implied condition that such persons clothe themselves with that character. (i) The ordinary legal meaning of each of the terms " representatives," "legal representatives," and "personal representatives," as well as of the term " legal personal representatives," when used with respect to personalty, is not children or next of kin, but executors and adminis- trators. And that is the sense in which the testator must be considered to have used these terms, unless the will affords evidence sufficient to satisfy the court that he intended to use them *in a different ^^-„^-. sense ;(/) as where the word "next" is prefixed to the words L J legal representatives, as in Booth v. Vicars; (A;) or where the words "share and share alike" are added to those words, as in Smith v. Palmer ;(^) or where the testator frequently uses the very words execu- tors and administrators in other passages, where he intended to designate them, as in Walker v. Marquis of Camden ;(to) or where the legacy or gift is immediate as to A. or his representatives, as in Bridge v. Abbot^n) and Cotton v. Cotton, (o) and not after a previous life estate. (p) Under an ultimate limitation to the " next legal representatives" of a person, the property does not pass to bis executors or administrators, either beneficially or otherwise, but to the person or persons who, in case of intestacy, would, under the Statutes of Distribution, in right of consan- guinity, take his personal estate beneficially, whether such person or persons be next by personal proximity of relationship or next by repre- (/) Milne v. Gilbert, 2 D. M. & G. 715. See supra, p. 373. iff) CalTert t. Sebbon, 4 Beav. 222 ; 1 Rop. Leg. by White, 780. (A) Hanbury v. Spooner, 5 Beav. 630 ; 1 Bop. Leg. by White, 777, 780. (i) 1 Rop. Leg. by White, 777. (/) Kilner v. Leach, 10 Beav. 362 ; Smith t. Barneby, 2 Coll. 728 ; Minter v. Wraith, 13 Sim. 52 ; 1 Rop. Leg. by White, 124, 128 ; In re Crawford's Trusts, 2 Drew. 237, 239 ; Saberton v. Skeels, Taml. 383. (k) 1 Coll. 6. (0 7 Hare, 225. (m) 16 Sim. 329. But see HinchliflFe v. Westwood, 2 De G. & S. 216. («) 2 Bro. 0. C. 224. (o) 2 Bear. 67. (p) Judgment of Vioe-Chancellor Kindersley, In re Crawford's Trusts, 2 Drew. 240-3. 518 SMITH ON REAL AND PERSONAL PROPERTY. sentation.(5) The words " to or amongst such person or persons as would be the personal representatives," are inapplicable to executors or administrators, and denote next of kin.(r) The full expression com- monly employed, and the most unequivocal expression to designate executors or administrators, is " legal personal representatives." But the words legal and personal are not essential to the designation when applied to personal property. The word " legal," when added to repre- r*7Q81 s^ntatives, only *means the representatives recognised by law ; •- -I and the word- " personal," when added to representatives, only denotes the representatives in respect of personal property. (s) VIII. Testamentary Gifts to other Objects. A bequest to a parish church is a gift to the church-wardens of the parish named, to be applied in adorning and repairing the church, and not to the parson. A bequest to the " parish," without saying to what use, has been construed a bequest to the poor of the parish. (<) An uncertificated bankrupt may be a legatee, but the beneficial inte- rest will belong to his assignees in trust for his creditors.(M) A bequest of a year's wages to each of the testator's servants, over and above what may be due to them at the time of his decease, applies to such family servants only as are usually hired by the year, and not to an under gardener, who, though he had worked for the testator for some years, had received weekly wages, and had not resided in the house. (x) And where a testator gives to each person as a servant, in his domestic establishment at the time of his decease, a year's wages, beyond what may be due for wages, a head gardener who lives in one of the testator's cottages, and was not boarded by the testator, is not en- titled to a year's wages. The expression " servant in my domestic establishment," in such a case, denotes an indoor servant.(y) r*7Q0T *^^- Exclusion of Persons who would take as Heirs or under the L J Statutes of Distribution. A testator cannot exclude his heir or one of the persons who would take under the Statutes of Distribution in case of his intestacy, by mere words expressive of exclusion, without making any disposition of the property in favour of some other person. (z) (j) Booth T. Vicars, 1 Coll. 6. See also Smith t. Palmer, 1 Hare, 225. (r) Baines v. Ottey, 1 My. & K. 465. («) In re Crawford's Trusts, 2 Drew. 235. (() 2 Hop. Leg. by White, 1495. As to charitable beqnests, see supra, p. 216- 224. In Thornton v. Kempson, 1 Kay, 592, a bequest of money secured on rates, and In re Langham's Trust, 10 Hare, 446, a bequest of money secured on tolls, and on the estate of a canal company, were held to be within the Mortmain Act. In) 1 Rop. Leg. by White, 29. (x) Booth V. Dean, 1 My. & K. 560; Blackwell T. Pennant, 9 Hare, 551; 11 Jarm. & Byth. by Sweet, 505. , (y) Ogle V. Morgan, 1 De G. M. & G. 359. (z) Johnson t. Johnson, 4 Beav. 318 ; Pitch t. Weber, 6 Hare, 145, 152. OF DEVISEES AND LEGATEES. 519 Section VII. Of Implied Devises and Bequests. In many cases a devise or bequest may be made by plain implica- cation as well as by express words. And by plain implication is meant, not merely a possible or probable intention, but so strong a probability of intention that an intention contrary to that which is imputed to the testator cannot be supposed. (a) For example, in cases where a fund has been given upon trust for a person until the age of twenty-one or marriage, without any further bequest, or where a fund or a provision or partial interest out of a fund has been given to a person until he attain twenty-one or marry, with a limitation over if that event should not happen, but with no further bequest in case the event should happen, a bequest on that event has been implied. And so, where a fund is directed to be paid to an individual, for the purpose of making a partial application for the benefit of a third person, and there is no express gift of the surplus, the legatee takes the fund absolutely, subject to the trust for the partial purpose specified. (J) But the *application r:|;QAr,-| of the doctrine of implied gifts is often very difficult; for there L -I are cases in which the courts have refused to hold that a gift was im- plied, where there appeared to be strong grounds for such a construc- tion. Thus it has been held that where a bequest, even though it be a residuary bequest, is made to a person, but if he should die in the life- time of the testator without leaving children, then to another person, such children take nothing by implication. (aa) And where an estate is de- vised to a person (who is not the heir at law of the devisor) after the death of the devisor's wife, the wife does not take an estate for life by implication, because the testator may have intended that the estate should descend to his heir at law until the death of his wife. (16) But where a man devised his goods to his wife, and that after her decease his son and heir should have a certain house, it was determined that this was a good devise of the house to the wife for life by implication ; for by the express words of the will the heir was not to take it till after the death of the wife; so that if she did not take it, no one else could.(c) Section VIII. Of the Revocation of Devises and Bequests. I. Revocation under the Old Law. Although a person should declare his will to be irrevocable in the strongest terms, yet he may revoke it, because his own acts or words (a) 6 Cruise T. 38, c. 10, ? 18 ; 1 Rop. Leg. by White, 1439. (b) See 2 Rop. Leg. by Wliite, 1439-1450. (aa) Addison v. Busk, 14 Bear. 459, 2 D. M. & G. 810. \bb) 6 Crijise T. 38, c. 10, I 20. (c) 6 Cruise T. 38, c. 10, § 19. 520 SMITH ON REAL AND PERSONAL PROPERTY. cannot alter the disposition of the law, so as to make that irrevocable which in its own nature is revocable. (t^) r*80n *^^ ^' ^ °^ ^^^ Statute of Frauds, 29 Car. 2, o. 3, it is enact- L J ed " that no devise in writing of lands, tenements, or heredita- ments, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence and by his directions and consent ; but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt, cancelled, torn, or obliterated by the testator, or his directions, in the manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor signed in the presence of three or four witnesses, declaring the same ; any former law or usage to the contrary notwithstanding."(e) 1. Under this statute there are four express modes of revoking a will. 1. The first mode is by a subsequent will duly attested according to the statute.(/) A subsequent will operates as a revocation of a former one in all cases where it contains an express clause revoking all former wills, or where it makes a different and incompatible disposition. The inten- tion of a testator to revoke his will is the circumstance which consti- tutes the revocation ; and when that appears in a subsequent will, it is sufficient, though such subsequent will should not take effect from any disability of the devisee. Where a second will has not a clause of revo- cation of all former wills, and does not make any disposition inconsistent with a former will, it does not operate as a revocation of such former will, but both remain in force. (^r^ Where a testator has made a second will different from the first, but it is not known in what that difference consisted, but such second will does not revoke the former one. (A) Where there is a duplicate of a will, and the testator cancels the manuscript r*8ft9l ^'^'"'i '^ ™ ^^^ °^^ *possession, this operates as a revocation of L J the other ; for both being but one will, they must stand or fall together ; and it may not be in the testator's power to get possession of the other manuscript. (i) 2. The second mode of revocation is by a codicil duly executed accord- ing to the Statute of Frauds, and containing express words of revoca- tion, or making a different disposition from that contained in the will.(^) The gifts contained in a will are not affected farther than is absolutely necessary in order to give effect to the gifts contained in a codicil.(Z) If a devise in a will is clear, it is incumbent on those who contend it is not to take effect by a reason of a revocation in a codicil, to show that the intention to revoke is equally clear and free from doubt as the original intention to devise. For if there is only a reasonable doubt whether the clause of revocation was intended to include the particular devise, then such devise ought undoubtedly to stand, (m) Therefore, a devise (d) 6 Cruise T. 38, c. 6, § 1. (e) Burton, § 261. (/) 6 Cruise T. 38, c. 6, ? 3. (g) 6 Cruise T. 38, c. 6, ? 4, 5, 9. (A) 6 Cruise T. 38, c. 6, § 13. («■) 6 Cruise T. 38, c. 6, § 39. (k) 6 Cruise T. 38, c. 6, ^ 18. (Z) Sir J. Romilly, M. R., in Cleobury v. Beckett, U Beav. 586. (m) Cleobury v. Beckett, 14 Bear. 587. REVOCATION UNDER THE OLD LAW. 521 by will to the children of A. was held not to be revoked by parenthe- tical expressions in a codicil, that they were not intended to take any beneficial interest under the will or codicil, as it might refer only to the testator's view of the effect of his will, or to an intention of future revo- cation, (re) And where A. devised the remainder in fee in her lands to her grand-daughter, and by a codicil, which she directed to be annexed to and taken as part of her will, reciting her subsequent acquisition of other lands, and that she intended to dispose of all her estates for the benefit of her grand-daughter " for her life, with such limitation and in such manner" as thereafter expressed, "instead of the devise contained in her will," she thereby devised her estates in trust for her grand- daughter *forlife, and then for her children who should survive i-^icoAq-i her in fee, or if no children, for her brothers and sisters who ■- J should survive her in fee, but without limiting the estates over in case of the limitations to the children and the brothers and sisters (which event happened) never taking effect; there, as it was the manifest intention, both in the will and codicil, to make the grand-daughter the principal object of the testatrix's bounty, it was held that the words " instead of," &c., did not amount to a revocation, but meant "instead of so much only of the devise" in the will as was incompatible with the disposition con- tained in the codicil ; so that the gift of the remainder in fee was un- altered by the codicil. (o) 3. The third mode of revoking a will which is mentioned by the Statute of Frauds, is, by a writing declaring an intention of revoking such will, signed in the presence of three witnesses. And it is obser- vable, that the Statute of Frauds requires that in devises of lands the three witnesses should subscribe the will in the presence of the testator. But the clause relating to revocations only requires that the devisor should sign in the presence of three witnesses, without requiring that the witnesses should subscribe in the testator's presence. Upon the construction of this clause, it has been held, that, although a will may be revoked by a written declaration without being attested by three wit- nesses subscribing the will in the testator's presence, yet that a second will, though containing a clause revoking all former wills, shall not ope- rate as a revocation of the first will, unless it is executed in such a manner as to operate as a devise. (^) 4. The fourth mode of revoking a will which is mentioned by the Statute of Frauds, is, by burning, cancelling, tearing, or, obliterating the will with the intent to revoke it.(g') An obliteration or alteration of a part of a will does not *operate as a revocation of the i-^oq (-i whole will, but only of the parts obliterated, and the rest will re- L J main good.(r) II. Besides the different modes of revoking a will allowed by the Statute of Frauds, there are certain alterations in the situation of the (n) Cleobury v. Beckett, U Beav. 583, 588. (o) Doe d. March v. Marchant, 6 M. & Gr. 813. (p) 6 Cruise T. 38, c. 6, | 19. (?) 6 Cruise T. 38, c. 6, § 3, 25-27. (r) 6 Cruise T. 38, c. 6, § 34. 522 SMITH ON REAL AND PERSONAL PEOPERTT. testator or in the estate devised which have been held to operate as im- plied revocations of a devise. (s) Where a man made his will, and afterwards married and had a child, these events generally operated as a revocation of his will, where it had not expressly or virtually provided for these events ; because they pro- duced a complete change in the situation and in the duties of the tes- tator, for which he had not made provision. But neither of those cir- cumstances singly (as a subsequent marriage, or the subsequent birth. of a child) had that effect. And marriage and the birth of a child only afforded a presumption of an intent to revoke, which might be rebutted by other circumstances. («) But the will of a female was always re- voked by her marriage, on the ground that it would otherwise by her own act become irrevocable, which is contrary to the nature of the in- strument, though it may become so by the act of God, as by insanity supervening and continuing till death. (m) An actual alienation or disposition of an estate by the devisor after he made his will, generally operated as a revocation of a devise ; for in such cases his alienation was deemed undoubted evidence of an alteration of intention, and in some of these cases the devisor did not die seised. (u) Even an agreement or covenant to convey lands which have been pre- viously devised by will, whether in execution of a power or not, operates r)tQ(\K-i i° equity, though not at law, as *a revocation of such devise, as •- J well in cases before the stat. 1 Vict. c. 26, a in cases within \t.(w) And where the testator devises an estate and then contracts to sell it, the devisee is not entitled to the purchase-money.(a;). In cases where the will is revoked in equity, but not at law, the legal estate passes by the will to the devisee, but the Court of Chancery will compel him to con- vey it to the person entitled under the equitable agreement. Even an intended alienation of an estate previously devised, which fails of taking effect for want of some formality, has been held to ope- rate as a revocation of the devise. Thus a feoffment without livery and a bargain and sale not inrolled have been held to be revocations of prior devises; because such intended alienations were considered as proofs of an alteration of intention. (^) An alienation to a trustee, without any intention of parting with the estate, and though the alienor take back the old use, has been held to operate as a revocation of a prior devise.(z) Where a gerson who had devised his lands, afterwards levied a fine or suffered a recovery of them, these acts operated as a revocation of the devise, (a) Parol evidence is not admissible to prove that the testator meant that (s) 6 Cruise T. 38, i;. 6, ? 40; Burton, § 267. (t) 6 Cruise T. 38, i;. 6, § 41, 44-50: Burton, 3 269: Marston v. Roe d. Pox, 8 Ad. & E. 14. (u) Burton, § 270 ; 6 Cruise T. 38, c. 6, § 53 ; 2 Bl. Com. 498. («j) 6 Cruise T. 38, c. 6, § 55. (w) 6 Cruise T. 38, c. 6, ^ 58 ; 2 Sugd. Pow. 10; Sagd. Concise View, 131, 132. (x) 11 Jarm. & Byth. by Sweet, I9i. {y) 6 Cruise T. 38, o. 6, § 62, 63. [z) 6 Cruise T. 38, c. 6, J 65 ; Burton, g 267. (o) 6 Cruise, T. 38, c. 6, J 12. REVOCATION UNDER THE OLD LAW. 523 his will should remain in force and unrevoked by the subsequent con- veyance. (t) A conveyance of property contracted to be purchased, if made to the usual uses to bar dower, revokes a devise of the property by the pur- chaser, if there is no special contract that the property shall be conveyed to the usual uses to bar dower, and if the devise refers exclusively to the estate which the testator then had, and does not also refer to an *estate or interest which he might have at a future time ; because, (-,nnn-| at the date of his will, he is equitable owner in fee under the L J contract, and by the conveyance he acquires a legal estate of a diffe- rent character to his former equitable estate, which was the subject of the devise.(c) And in such case the testator's heir, if entitled to bene- fits under his will, is not bound to elect between those benefits and the property so conveyed. (cZ) Where a man has an equitable interest in fee in an estate, and after- wards takes a conveyance of the legal estate to the same uses, this is no revocation. (e) And so, where a person devises a copyhold estate, and is afterwards admitted to it, this does not operate as a revocation of the devise. (/) And the mere change of a trustee does not operate as a re- vocation of a preceding deviae.(g\ Nor does a partition of an estate be- tween tenants in common operate as a revocation of a prior devise made by one of the tenants of his share, even though such a partition be cor- roborated by a fine. (A) Where a person has an estate pour autre vie at the time of making his will, and afterwards purchases the inheritance, it is a revocation of any devise of the estate pour autre vie.(i) Where the owner of an estate limited to the usual uses to bar dower, mortgaged it in fee, and then devised the estate, and subsequently took a reconveyance from the mortgagee to the same uses to which it stood limited before the mortgage, and died before the Wills Act came into operation, the will was not revoked by the reconveyance, though, by the proviso for redemption, the estate was to be reconveyed *to the r^^on^-i mortgagor, his heirs, appointees, or assigns, or to such other per- L J son or persons, to such uses, and in such manner as he or they should direct; the Lords Justices, Sir J. L. Knight Bruce, and Lord Cran- worth (contrary to the decision of the Vice Chancellor Kindersley,)(A;) considering that, notwithstanding the form of the proviso for redemp- tion, the mortgage deed, being executed simply for the purpose of creating a charge, did not affect the estate of the mortgagor any further than by rendering that an equitable estate which was before a legal estate ; and it being clear that the mere bringing back the legal estate to the equitable estate by the reconveyance could not operate as a revo- (6) 6 Cruise, T. 38, c. 6, § 83. (c) Plowden t. Hyde, 2 Sim. (N. S.), 171 ; 2 D. M. & G. 684 j Bulliu T. Fletcher, 2 My. & Cr. 432. id) Plowden v. Hyde, 2 Sim. (N. S.), 111. (e) 6 Cruise T. 38, c. 6, ? 90; Bullln v. Fletcher, 2 My. & Cr. 432. (/) 6 Cruise T. 38, c. 6, ? 92. {ff) 6 Cruise T. 38, c. 6, § 94. (h) 6 Cruise T. 38, i;. 6, | 9? ; 6 Jarm. & Byth. by Sweet, 596. (i) 6 Cruise T. 38, c. 6, g 113. (k) 2 Sim. (N. S.), 171. 524 SMITH ON EBAL AND PERSONAL PROPERTY. cation, if the equitable estate existing after the mortgage was of a simi- lar kind to the legal estate which existed before the mortgage and was brought back by the reconveyance. (A A conveyance to have the effect of a total revocation of a prior devise, must be co-extensive with the disposition made by the will. For if it be but of a part of the property, it affects the will no farther than that part goes. And if it is of a particular estate or interest only, it will only operate as a revocation pro tanto. Hence a lease made of lands already devised by will only operates as a partial revocation or a revo- cation pro tanto of such will.(m) Although a mortgage in fee made after the lands mortgaged were devised is a revocation of such devise at law, yet in equity it is only a revocation pro tanto. But if lands are devised to a person in fee, and the testator afterwards mortgages them to the devisee, it will be a revo- cation in toto, being inconsistent with the devise. (?i) A conveyance in fee to trustees for raising money to pay debts, will r*80Sl °°^y operate as a revocation pro tanto of a prior *devise, so far L -I as relates to the payment of the debts, but no further, (o) But where a person, after having made his will, executed a conveyance in trust for payment of debts in a schedule, and instead of declaring the uses to himself in fee after payment of the debts, he declared that the trustees should convey to such uses and purposes as he by deed or will should appoint, and for default of appointment to himself in fee, this was held to be a revocation, (p) A surrender of a lease for lives and the taking a new lease will ope- rate as a revocation of a prior devise of it.(q\ And if a testator bequeaths a term for years of which he is then pos- sessed, and afterwards surrenders it and takes a new term, this will ope- rate as a revocation or ademption of the bequest. If however the words of the will show the testator's intention to dispose of all terms for years whereof he may die possessed, a renewed term will pass ; for a term of years being only a chattel, there is no necessity for a possession at the time when a will of it is made, or of a continuance of such possession till the testator's death. M A devise is revoked by a bankruptcy so far only as may be necessary for the purpose of paying the creditors. (s) The republication of aformer will revoked one of later date and estab- lished the first again. (<) II. The Law as to Revocation hy the Stat, 1 Yict. c. 26. By s. 18, "every will made by a man or woman shall be revoked by his or her marriage (except a will made in exeacise of a power of ap- pointment, when the real or personal estate thereby appointed would no, in default of such appointment pass to his or her heir, customary heirt (I) Plowden v. Hyde, 2 D. M. & G. 684. (m) 6 Cruise T. 38, c. 6, § 104. (n) 6 Cruise T. 38, c. 6, § 106. (o) 6 Cruise T. 38, c. 6, § 107. (p) 6 Cruise T. 38, c. 6, § 109. (q) 6 Cruise T. 38, o. 6, § 111. (r) 6 Cruise T. 38, c. 9, § 114, 116. (s) See 6 Cruise T. 38, c. 6, g 110. (t) 2 Bl. Com. 502. OF THE LAPSE OP DEVISES AND BEQUESTS. 525 executor, *or administrator, or the person entitled as his or her riKO/iq-i next of kin, under the Statute of Distributions.)" L J By s. 19, " no will shall be revoked by any presumption of an inten- tion on the ground of an alteration in circumstances." By s. 20, " no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is here- inbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same." By s. 23, " no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. Section IX. Of the Lapse of Devises and Bequests. With the exceptions noticed below, a devise or bequest lapses, that is, fails, by the death of the devisee or legatee in the lifetime of the testa- tor, (s) And though the devise be to a person and his heirs, yet, if he die before the testator, his heirs will not take the land ; because the mention of the heirs only denotes what estate he himself *should r^^oirv-i take, viz. a fee simple, if he were living at the time when the ^ J will must take effect.f<) And so, although a legacy be given to a person, his executors or administrators or personal representatives, it will lapse by his death before the testator; because the additional words may have been intended merely to denote the gift of the absolute interest, or to express to the legatee, that if he should survive the testator and after- wards die before the legacy would be payable, his personal representatives should receive it.{u) Where the testator releases and forgives a certain sum owing on a bond, and directs the bond to be delivered up to be cancelled, the will does not import a general release, but the benefit of the release lapses by the death of the legatee before the testatbr.(t)) If a devise or bequest is made to two or more persons as joint tenants, the share or shares of any one or more of them who may happen to die before the testator, or whose interest may happen to be revoked by the testator, will not lapse, but will go to the joint tenant or tenants who may survive the testator, because each joint tenant takes mie per et per tout. (a;) But in the case of the death of a tenant in common before the testator. (s) 1 Eop. Leg. by White, 463 ; Burton, § 275. {t) Burton, I lib. («) 1 Bop. Leg. by White, 467-8. " 11 Jarm. & Byth. by Sweet, 464. . Pres. Shep. T. 71 ; I Bop. Leg. by White, 482 ; Burton, I 276. a 1' 526 SMITH ON REAL AND. PERSONAL PROPERTY. or of his interest being revoked, there will be a lapse of his share, unless there is a limitation over,(y) or unless the devise or bequest is made to the tenants in common as a class of indefinite number, and not nominatim or in words denoting the precise number of the individuals intended to take. Thus, if a devise or bequest is made to " the children of A.," i. e. to B., C, D., and E., as tenants in common, or " to the four children r*8in °^ "^■'" ^® tenants in common, and one of them dies in the L J *lifetime of the testator, his share lapses. But if a devise or bequest is made " to the children of A.," as tenants in common, and one of them dies, or the interest of one of them is revoked, his share belongs to such of them as survive the testator ; because the devise or bequest is made to them as a class and not as individuals. fz) Where a legacy is given to a trustee for another person, and the trustee dies before the testator, the trustee's death does not prejudice the cestui que trust. And so if real or personal estate is devised or bequeathed to a person, charged with a legacy to another, the death of the devisee or legatee before the testator will not be allowed in equity to prejudice the charge. And where a testator bequeaths a sum to creditors in discharge of debts actually due, although the legal remedy for their recovery may be gone, if one of the creditors dies in the testa- tor's lifetime, yet his personal representatives will be entitled. (a^ By the old law, where a devise of lands in fee simple became lapsed by the death of the devisee in the lifetime of the testator, the estate devised would not go to the residuary devisee of the real estate, but descended to the heir at law of the testator.(6) But this is now altered. (c) If an estate is devised charged with legacies which fail, the devisee shall have the benefit of them. And where an estate is devised to a mere trustee, in trust to sell and pay particular sums of money which lapse, and no disposition is made of the extra produce, those lapsed legacies will sink into the land for the benefit of the heirJd) r*819n When a bequest which is not residuary lapses, it falls into L J *the general residue, and consequently belongs to the residuary legatee. (e) But if a residuary bequest or a share of a residuary bequest lapses, it belongs to the testator's next of kin.(/) By the stat. 1 Vict. c. 26, s. 32, " where any person to whom any real estate shall be devised for an estate tail or an estate in quasi entail shall die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear (2/) 1 Pres. Shep. T. 71 ; Burton, § 277 ; 1 Rop. Leg. by White, 485. (z) See 1 Rop. Leg. by White, 485-489 ; 11 Jarm. & Byth. by Sweet, 527, (a) ; Burton, ? 278 ; Leigh v. Leigh, 17 Bear. 605. (a) 1 Rop. Leg. by White, 474-5. (6) 6 Cruise T. 38, c. 8, J 35, 37 ; Burton, ? 279. (c) See infra, p. 815. (d) l Rop. Leg. by White, 499. (e) 1 Rop. Leg. by White, 496. (/) 1 Rop. Leg. by White, 498 ; Lloyd v. Lloyd, 4 Bear. 231. OF THE REPUBLICATION OP WILLS. 527 by the will." And by s. 33, " where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take eiFeot as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will." This section does not substitute for the predeceased devisee or legatee, the issue whose existence is the event or condition which excludes the lapse, but renders the subject of the gift the absolute property of the predeceased devisee or legatee, and therefore disposable by his will, notwithstanding his death before the death of the testator. (^) ^Section X. [*813] Of the Republication of Wills. By the old law, a republication of a will has a twofold effect : first, in general, to give it the effect of a will made at the time of its republica- tion ; and, secondly, to set up and re-establish a will that has been re- voked. (A) The first mode of republishing a will is by a re-execution of it.(i) Another mode is by a codicil duly executed and annexed or referring to a will. This operates as a republication of the will, so as to make it take effect from the time of the execution of the codicil. And hence, in the absence of any indication of a contrary intention, lands purchased after the execution of the will, and before the execution of a codicil, pass by the will, if they are either specified, or if the description in the will is suificiently general to include them. (7) And a codicil will have this effect, even though it relates to the testator's personal estate only.(^) But where a codicil is expressly confined to the lands devised by the will, it does not operate as a republication of such will, so as to make it pass after-purchased lands. (?) Where a testator, after having made a will before the stat. 1 Vict. c. 26, has since the act came into operation, executed a codicil, ratifying and confirming the will, though it was appa- rently made only for the purpose of appointing an additional trustee; this amounts to a republication of the will, so as to have the effect, by virtue of the stat. 1 Vict. c. 26, s. 24, 34, of passing real estate pur- chased by the testator after the date *of the will, and even after r^Q-i^-i the date of the codioil.(m.) But although a codicil confirming a L J will makes the will for many purposes to bear the date of the codicil, yet [g) Johnson v. Johnson, 3 Hare, 157. (A) Burton, | 271 ; 6 Cruise T. 38, c. 7, | 1. \i) 6 Cruise T. 38, c. 7, § 2. (/) 6 Cruise T. 38, c. 7, § 3 ; Sugd. Concise View, 127 ; Burton, g 271. (it) Burton, § 274; Sugd. Concise View, 127. (I) 6 Cruise T 38, c. 7, § 12; Moneypenny t. Bristow, 2 Euss. & M. 117. (m) Doe d. York v. Wallier, 12 M. & W. 591. 528 SMITH ON REAL AND PERSONAL PROPERTY. this is not the case where such a construction would defeat the intention of the testator. So that where a will contains a power of leasing at the ancient accustomed rent, and a codicil is made for some special purpose wholly unconnected with the power, a lease made after the date of the will, but prior to the codicil, will not be taken into account in deciding the question what is the ancient accustomed rent.(n) Where a person made his will, and afterwards revoked it by making another will, but did not actually cancel the first will, the cancelling of the second will operated as a republication of the first, (o) By the stat. 1 Vict. c. 26, s. 22, " no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived other- wise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same ; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown." [*815] *CHAPTER II. OjF devises SEPARATELY CONSIDERED. Section I. Of Devises generally. Tee proper and technical words of devise are " give and devise," but any other words which sufficiently show the intention of the testator to dispose of all or any part of his real estate will be sufficient for that purpose. (a) With respect to the words that are necessary to denote the nature of the estate or interest intended to be given by the testator to the devisee, the courts will carry the intention of the testator into effect, if sufficiently declared, however defective the language may be. (6) By the stat. 1 Vict. c. 26, s. 25, it is enacted, " that, unless a con- trary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will." (n) Doe d. Biddulph v. Hole, 15 Q. B. 848. (o) 6 Cruise T. 38, c. 1, § 15. (a) 6 Cruise T. 38, c. 10, I 2. (6) 6 Cruise T. 38, c. 11, § 1. OF THE DESCRIPTION, ETC. 529 A devisee takes all the income accruing from the subject of gift sub- sequently to the testator's decease. (c) A devisee may disagree to and disclaim a devise by deed; in which case the devise becomes void, and the lands descend to the heir at law.(cf) ^Section II. [*816] Of the. Description of the Parcels or Subject. Where there is a correct and specific description of the property de- vised, a mistake in any additional words will have no effect ; but where the first description is merely general, there additional words will be considered either as explanatory or restrictive, according to the intent of the testator, (e) " It is established by a long course of decisions" (observed a learned Judge) " that the word estate or estates, used in the operative part of the will, passes not only the corpus of the property, but all the interest of the testator in it, unless controlled by the context ; and that superadded words of local description more applicable to the corpus of the property, indicating its situation or the nature of its occupation, do not prevent it from passing the whole interest. Nor do words apparently explanatory of the meaning of the term, inserted in the devise itself, as where the testator leaves his real estate, that is, his land and buildings situate at A.(y) or his freehold estate, consisting of thirty acres of land.(gr) . . . But where the word ' estates' is not used in the operative clause of the devise itself, but is introduced into another part of the will referring to it, we find no decision or dictum authorising us to construe it as having the effect of extending the meaning of the operative clause, whether prior or subsequent, and to read the will as if the testator had said, by the devise of lands in another clause I mean to give my estate in these lands." (^) *Sometimes the word " estate," though apparently applicable (-^„^ „ to personalty alone, has been held also to apply to real property ; L J as where the word devise is not used, and there are no words of limita- tion to the heirs. (i) But in the absence of indications to the contrary, where the word " estate" follows an enumeration of particular parts of the personal estate, and it is clear that it was not used in such a com- prehensive sense as would include all the personalty, it will not pass real estate ; for then the principle on which that word is held to include real property, namely, the absolute generality of the expression, fails, (y) (c) 11 Jarm. & Bylh. by Sweet, 774. {d) 6 Cruise T. 38, c. 8, ? 41. U) 6 Cruise T. 38, c. 10, ? 80. (/) Deane T. "Wood, 7 Taunt. 35. \g] Gardner v. Harding, 2 Moore, 565. (A) Pollock, L. C. B., in Doe d. Burton v. White, 1 Exch. 534. The decision in this case was afBrmed by the Exchequer Chamber, 2 Bxch. 797. See also 6 Cruise T. 38, c. 10, I 62, and supra, pp. 98, 99. (i) D'Almaine T. Moseley, 1 Drew. 629 ; Patterson v. Huddart, 17 Beav. 210. U) Sanderson t. Dobson, 1 Exch. 141. Apkil, 1856.— 34 530 SMITH ON KEAL AND PERSONAL PROPERTY. In the ease of a will made before the year 1838, when a testator uses general words equally applicable to freehold and leashold property (such as " lands and tenements,") they are construed to apply to the freeholds only, if the testator has both freehold and leasehold property, unless a contrary intention appears ; but when the testator has leasehold but no freehold property to satisfy them, they are held to apply to the leasehold.(/i;) But by the stat. 1 Vict. c. 26, s. 26, "a devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a customary, copyhold, or leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copy- hold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will." r*S1Sl *^^ ^^ * ^^^^ there is a general devise in fee sufficiently com- L J prehensive to pass the legal interest to the devisee, who is a per- son Bui juris, and competent to convey, and the will does not charge the devised estate with debts, legacies, or annuities, and there is not in the whole will any other declared intention inconsistent with a devise of trust or mortgaged estates, then, although there is not in the will any declared intention of the testator to devise the trust or mortgaged estates, they will pass to the devisee, and in such a case the concurrence of the heir at law may be dispensed with.(?) The legal estate in property of which the testator is mortgagee in fee will pass under a gift of "securities for money ."(m) And it has been held, that where a testator willed his wife " to receive all moneys upon mortgage," these words passed the legal estate upon which the money was secured. (») Lands which are in mortgage, and whereof the devisor has only the equity of redemption, will pass by the same words as lands not mortgaged ; because a mortgage is only considered as a pledge for securing the repayment of a debt, and the lands remain in the mortgagor for every other purpose.(o) With respect to the words necessary to pass estates in reversion, wherever a testator shows an intention to dispose of all his property by his will, and uses words sufficient for that purpose, any estates to which he is entitled in reversion will pass.(p) CA) 6 Cruise T. 38, c. 10, ? 90 ; 2 Rop. Leg. by White, 1489 ; Hobson v. Blacli- burn, 1 My. & K. 5'79. (I) Coote, Mortg. 3rd edit. 549; Burton, § 611 ; Rackham v. Siddall, 16 Sim. 297 ; Doe d. Roylance t. Lightford, 8 M. feW. 553 ; Silvester v. Jarman, 10 Price, 78. But see Re Field's Mortgage, 9 Hare, 414, where mortgaged estates were held to pass, notwithstanding the expression " after paying my debts." (m) In re King's Mortgage, 5 De G. & S. 644. (n) Doe d. Guest v. Bennett, 6 Exch. 892. (o) 6 Cruise T. 38, u. 10, § 128. (p) 6 Cruise T. 38, o. 10, J 104. OF DEVISES OI" COPYHOLDS. 531 Money devised or contracted to be laid out in the purchase 1-^.010-, *of lands passes by the words " lands, tenements, and horedi- ^ -I taments."(j) The expression " my unsettled real estate" means, in common par- lance, that part of my real estate which is not in settlement. But in its technical sense the word " estate" refers to the interest which the testator has in his hereditaments as well as to the hereditaments them- selves ; and hence in the legal sense the expression " my unsettled real estate" comprises such interest in hereditaments which have been put in settlement as is not tied up by the settlement, but is at the disposal of the testator, as well as hereditaments which have never been put in settle- ment, (r) Under a devise of lands " purchased," lands which have been taken in exchange will pass,(s) Section III. Of Devises of Copyholds. The old statutes of wills have no connection with copyholds. And though that part of the Statute of Frauds which relates to the signature of wills(M) mentions lands " devisable by any particular custom," still it does not include copyhold estates. (a;) But by the general custom of all manors every copyholder has a right to surrender his estate to the use of his will.(^) But there are some customary estates in the north which were not devisable either directly or indirectly. (») *Formerly, copyholds could not be devised unless the testator rj|;Dom had previously surrendered them to the use of his will, and they L J were considered to pass rather by that surrender than by the will itself. The will operated as a declaration of the uses of the surrender, (a) A surrender to the use of a will could not be made before the admittance of the devisor : for till then he had no estate or interest in the copyhold. Where a copyholder surrenders to the use of his will, the estate still remains in him, and does not vest in the lord. (5) In the case of a surrender by a copyholder to the use of his will, and a devise of the copyhold under it, the devisee has no title till he is admitted ; but if a devise of this kind is to two persons, and one of them is admitted accord- ing to the purport of the will, this shall enure to both.(c) Where the legal estate in a copyhold was outstanding, the person entitled to the equitable interest might always devise it without a surrender ; for other- wise it could not be disposed of by will, as a person who has not the (q) 6 Cruise T. 38, c. 10, | 55; 2 Spence's Eq. Jur. 264. [r) Incorporated Society t. Richards, 1 D. & W. 258. (s) Doe d. Meyrick v. Meyrick, 1 C. & M. 820. (u) Stat. 29 Car. 2, c. 3, J 5. (z) Burton, ? 1287 ; 6 Cruise T. 38, c. 4, § 1. (y] 6 Cruise T. 38, c. 4, ? 2 ; 1 Cruise T. 10, c. 3, s. 17. (2) 1 Cruise T. 10, c. 3, g 17. (a) Burton, J 1288 ; 6 Cruise T. 38, c. 4, § 1. \b) 6 Cruise T. 38, c. 4, § 3, 4, 5. \c) 6 Cruise T. 38, u. 4, ^ H- 532 SMITH ON REAL AND PERSONAL PEOPEKTT. legal estate in a copjhold could not make a surrender. (cZ) And hence where a copyholder mortgaged his copyhold, and the mortgagee was admitted, the mortgagor, not having the legal estate of the copyhold in him, and no estate that he could surrender, and therefore might devise the copyhold premises without any surrender.(e) But as the mortgagor had the legal estate till the mortgagee was admitted, so until that time the mortgagor could not devise the copyhold without a surrender to the use of his will.(/) By Stat. 55 Geo. 3, c. 192, every disposition of copyhold tenements made by the last will of a person who should die after the 12th day of July, 1815, is to be as valid, though no surrender should have been made r*S9n *° ^^^ ^^^ °^ ^^^ ^''^' *^® ^^ ^"''^ surrender had been made.(^) L -I This act is repealed by the stat. 1 Vict. o. 26, s. 2,(^) but the necessity of a surrender is dispensed with by the enabling clause of the latter act.(i) By s. 4, of the same act, however, it is provided "that where any real estate of the nature of customary freehold or tenant right, or custo- mary or copyhold, might, by the custom of the manor of which the same is holden, have been surrendered to the use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to the use of the will, or in respect of presenting, registering, or inrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator : Provided also, that where the testator was entitled to have been admitted to such real estate, and might, if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of sur- rendering such real estate to the use of the will, or of presenting, regis- tering, or inrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of r*822T ^'® ^'^^ ' which stamp duties, fees, fine, or *sums of money L J due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid." Where a person having an estate tail in a copyhold, surrenders it to the use of his will, if entails by the custom of the manor are notbarrable (d) 6 Cruise T. 38, c. 4, § 21. (e) 6 Cruise T. 38, c. 4, § 25. (/) 6 Cruise T. 38, c. 4, J 8. (g) Burton, J 1288. (A) See supra, p. 760. (i) See supra, p. 774. OF DEVISES OF COPYHOLDS. 533 by recovery or fine, but by surrender, in such case the surrender to the use of his will not only effectuates the will, but operates as a bar to the entail. (y) By the old law, where copyholds have not been surrendered to the use of a will, they do not pass by general words, because the omission of a surrender renders it doubtful whether the testator intended to dis- pose of his copyholds or not.(^) But, as we have already seen,0 a general devise will now include copyholds, unless a contrary intention appears by the will. And even by the old law, where copyhold lands were surrendered to the use of a will, they passed by a general devise of all the testator's lands and tenements, notwithstanding there were freeholds to answer such devise. Even by the old law, if a man made a disposition by will of all his copyhold estates generally, and afterwards purchased other copyhold estates, and surrendered them to the uses declared by his will, or even to the uses declared by his will of and concerning the same, the after- purchased estates would pass under the general devise, although the will was not republished, (m) By the new law, such after-purchased estates would pass without any surrender.(ra) Even under the old law, where a person devised his manor, and, subsequent to the execution of his will, but *before his decease, pj^„f,„-. a copyhold escheated, it passed to the devisee, (o) L ■" J A surrender of copyholds made after the will and amounting to a partial alienation of the estate, does not operate aa a complete revocation of the will, which may still have its effect upon the reversion or other continuing interest of the testator. (») By s. 5 of the stat. 1 Vict. c. 26, " when any real estate of the nature of customary freehold or tenant right, or customary or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor ; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will ; and when any such real estate could not have been disposed of by will if this act had not been made, the same fine, heriot, dues, duties, and services shall be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall as against the devisee of such estate have the same remedy for recovering and enforcing such fine, heriot, dues, duties and services as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of a descent." (/) 6 Cruise T. 38, c. 4, J 19. (4) 6 Cruise T. 38, c. 10, § 129. 11) Supra, p. 817. (m) Sugd. Concise View, 128. (n) See supra, p. 11i. (o) 6 Cruise T. 38, o. 3, § 40. (p) Burton, J 1292. 534 SMITH ON REAL AND PERSONAL PROPERTY. [*824] *CHAPTEK III. OP BEQUESTS, SEPARATELY CONSIDERED. Section I. Of General, Specific, and Demonstrative Legacies. Bequests or legacies may be classed under three heads, G-eneral, Specific, and Demonstrative, (a) A general bequest is a legacy of personal estate by a general denomi- nation which does not necessarily designate any particular thing forming part of the testator's estate either at the date of the will or at the death of the testator, any more than something of the same kind not forming part of his estate; as where a bequest is made of goods and chattels, or of money or stock generally. (6) A specific bequest is a legacy of a particular thing forming part of the testator's estate either at the date of his will or at the time of his decease, and distinguished by him from all other things of the same kind : as in the case of a bequest of stock which a testator may have at the time of his decease, or of money in a bag, or of a certain piece of plate, or of a term of years, (c) A demonstrative bequest is a legacy of a sum of money, with reference to a particular fund for its payraent.((^) The terms "pecuniary legacies" and " general legacies" are sometimes used as synonymous; but every general legacy is not pecuniary, i. e. .„,-. relating to money; and one *species of specific legacy is of a L J pecuniary nature ; so that, in fact, there may be either a general pecuniary legacy or a specific pecuniary legacy. (e) The fact of a testator giving an amount of property of a particular kind, and of his having at the date of the will some property of that kind of the same amount, is not a ground upon which the court can con- clude that the legacies are specific, where such property can be bought, and where he has not in any way designated the property bequeathed as the identical property he had at the date of his will or should have at the time of his death. So that where he has a certain number of canal shares at the date of his will, which by Act of Parliament were to be deemed personalty, and he bequeaths that precise number of canal shares generally, this legacy is general, and amounts in effect to a gift of such an indefinite sum of money as will suffice to purchase so many shares as {a) See 1 Eop. Leg. by White, 1, 191-2, 198. (b) See 1 Rop. Leg. by White, 1, 191, 203. (c) See 1 Rop. Leg. by White, 1, 191, 203 ; Stephensoa r. Dowson, 3 Beav. 342. (d) 1 Rop. Leg. by White, 192, 198, 199 f Robiason v. Geldard, 3 Mac. & G. 735. (e) 1 Rop. Leg. by White, 191, n. OF GENBRAL, SPECIFIC, ETC. LEGACIES. 535 he has given. So that if at the testator's decease he has no shares, the legatee will be entitled to the value of them out of the general personal estate. But the word " my" preceding the words " stock," " annui- ties," or " shares," renders a legacy of stock, annuities, or shares spe- cific. (/) And where a certain amount of stock is bequeathed, with a direction, that, if the testator should not have sufficient stock to answer the legacy, his executors should, out of his residuary estate, purchase enough to make up the deficiency, such a bequest creates a specific legacy. (^) There is often great uncertainty whether a legacy is specific or demon- strative. Thus, where a testator made a bequest in these terms : " I give to M. D. the sum of 100?., *which said sum is owing to me rj^ooi^-, by bond from E. D.," it was held to be a specific and not a de- L J monstrative legacy. (A) But where a testator made the following be- quest : " I give to my son 10,000?. sterling, being my share of the capi- tal now engaged in the banking business of, &c.," it was held to be a de- monstrative and not a specific legacy. (i) The practical distinctions between these different kinds of legacies are these : 1. If, after payment of debts, there is a deficiency of assets for payment of all the legacies, a general legacy will be liable to abate, but a specific legacy will not, because the entire specific thing is given to the specific legatee. 2. On the other hand, if a specific bequest is made of a fund and it fails, the legatee will not be entitled to any compensa- tion out of the general personal estate of the testator ; because nothing but the specific thing is given to the legatee. (7i;) 3. A demonstrative legacy will not be liable to abate with general legacies upon a deficiency of assets. And if the fund pointed out for, its payment fails, the legatee is entitled to payment out of the general assets. (?) Thus, legacies directed to be paid or bequeathed out of a debt or security, are to be paid out of the debt or security in preference to general legacies ; and if the debt is not in existence at the testator's death, or if it is insufficient to pay the legacies, the legatees will be entitled to payment out of the general assets.(m) But when stock is specifically bequeathed, and it does not wholly or does only in part exist at the' testator's death, the legacy will either be wholly or partially adeemed, as the case may be.(«.) And if a debt specifically given is received by the testator, the bequest of it will be adeemed, *since the subject of the bequest no longer exists J for the debt is discharged, and the proceeds do not fall within the description of the bequest, (g') [*827] (/) Robinson t. Addison, 2 Beav. 515; Miller v. Little, 2 Bear. 259. And see 1 Rop. Leg. by White, 204, 205, 216. (g) Townsend v. Martin, 1 Hare, ill. (A) Davis v. Morgan, 1 Beav. 405. (t) Sparrow v. Josselyn, 16 Beav. 135. (k) 1 Rop. Leg. by White, 191-2. m 1 Rop. Leg. by White, 192, 198-9. (m) 1 Rop. Leg. by White, 237. (n) 1 Rop. Leg. by White, 329. {g) 1 Rop. Leg. by White, 334.' 536 SMITH ON REAL AND PERSONAL PROPERTY. Section II. Of the Description of the Things bequeathed. However general the words of bequest of a term may be, if they are satisfied by the interest which the testator had at the date of his will, the bequest will not pass a new estate acquired by the testator after the devise by renewal or otherwise ; at least where the legal estate in the term was vested in the testator himself, and not in some other person ia trust for him.fr) The word " money" will include notes payable to bearer, exchequer bills, and bills of exchange indorsed in blank ; because they are not to be considered as choses in action. (s) Generally, choses in action, such as government securities and promissory notes not payable to bearer, do not pass under the name of money or cash. (A The word "money" will not pass stock in the funds, unless its meaning is enlarged by the con- text. And the circumstance, that the amount of cash which the tes- tator had at the time of his death was very small, and yet the money was given to one for life, with a limitation over, is not of itself sufficient to extend the signification of the word money ; especially if there are other parts of the personal estate which neither that expression nor any others used by the testator would pass; so that there is nothing on the face of r*S9Rn ^^^ ^^^^ *° *show that he did intend to make a disposition of the L J whole personal estate.(u\ Freight under a charter-party executed after the date of a will, and in respect of a voyage not completed till after the testator's death, will not pass as "money which at the time of his decease should be due to him."(x) " Money in hand for current expenses" passes dividends due on stock in the funds and money in the hands of an agent, (y) A bequest of the testator's "ready money" comprehends money of the testator in the hands of his banker, but not debts due to him, how- ever safe or with w.hatsoever facility obtainable. (2) And it was held, that money of a testator which at the time of his death was in the hands of a salesmaster in Smithfield was not ready money within the meaning of a clause directing the payment of debts, by the application, in the first instance, of all his ready money and securities for money. (a) As stock in the funds is not money, so legacies of stock are not pro- perly " pecuniary legaoies."(6) The bequest of a certain specified sum due upon a particular security will not pass any part of the interest which may be owing at the testa- (r) 1 Rop. Leg. by White, 350, 352. (j) 1 Eop. Leg. by White, 282. (t) Marquis of Hertford v. Lord Lowther, 1 Beav. 1 ; 1 Rop. Leg. by. White, 282. (u) Lowe V. Thomas, 1 Kay, 369; Gosden v.Dotherill, 1 My. & K. 56. (2:) Stephenson v. Dowson, 3 Beav. 342. (y) 11 Jarm. & Bytb. by Bweet, 452. (z) Parker t. Marchant, 1 Y. & C. C. 0. 290; 1 PhiL 356. (a) Smith v. Butler, 1 J. & L. 692. (6) 11 Jarm. & Byth.by Sweet, 457. OF THINGS BEQUEATHED. 537 tor's death, or at the period when the will was made.(c) But a gift of a bond or of the money (generally) owing on a bond, will, unless re- restrained by the context, carry arrears of interest due at the testator's death. And a bequest of a mortgage seems to admit of the same con- struction. (f?) *A bequest of the interest of a sum of money passes the prin- p^ifonq-i cipal, although expressed to be for the sole use and benefit of a L J woman, free, &c., and her receipt alone to be a sufficient discharge, and although the word " absolutely" be used in a bequest of specific articles to the same person. (e) Where a testator directed the income of his residuary estate to be paid to his three children in certain proportions ; and that, after the decease of any one or two of them, until the decease of the survivor, the shares of the deceased should go to their children ; and that, after the decease of the surviving child, the capital of the residue should be divided amongst the children of his said children per capita; and one of the children had children, but they all died in her lifetime, and she her- self died before one of the other children, it was held that the children of the child so dying took vested transmissible interests in the income which accrued between the death of their mother and the death of the survivor of the testator's children, on the ground that the grandchildren were to take, not by way of substitution only in case they survived their parent, but that they took the gift of the dividends from the death of their parent, for the life of the survivor, as if it had been a simple gift of a principal sum equivalent to those dividends. (/) Under a bequest of a certain specified sum secured upon a policy of insurance, bonuses will pass, unless a contrary intention appears. (^r) The bequest of a debt due upon a particular security will only pass the capital, and not arrears of interest owing at the testator's death.(^) The word "debentures," occurring in a bequest of the *general r,or>rv-| mass of the testator's personal property, has been held by Sir E. L J Sugden, when lord chancellor of Ireland, to be sufficient to pass policies of life insurance, even though the testator has some debentures speci- fically so called. (i) Bills of exchange or promissory notes, bonds, and mortgage debts, will pass by the words securities for money. (A) Canal and railway shares will not pass under a bequest of property " vested in securities."(?) The word " goods" or chattels," or " effects" standing alone, will embrace all the personal estate of a testator : as bonds, notes, money, plate, furniture, &c.(»i) But when a testator only bequeaths goods and (c) 2 Rop. Leg. by White, 1484 ; 11 Jarm. & Byth. by Sweet, 461. (d) 11 Jarm. & Byth. by Sweet, 461. (e) Humphrey t. Humphrey, 1 Sim. (N. S.) 536. (/) Homer v. Gould, 1 Sim. (N. S.) 541. h) 1 Rop. Leg. by White, 296. (A) 1 Rop. Leg. by White, 285, 288. li) Phillips T. Eastwood, Lloyd & Goold, temp. Sugden, 270. (k) 1 Rop. Leg. by White, 284. h) Huddleston t. Gouldsbury, 10 Beav. 547; 11 Jarm. & Byth. by Sweet, 452. (m) 1 Rop. Leg. by White, 250, 280; Kendall t. Kendall, 4 Russ. 370. 538 SMITH ON REAL AND PERSONAL PROPERTY. chattels or effects in a particular situation, as " all his goods in his house at A.," those alone pass which may be regarded as then connected with that locality, rather than as independent of locality ; so that furniture not attached to the freehold, linen, plate, money, and bank notes, will pass ; but not things in action, as bonds, mortgages, receipt, &c.(n) So a specific legacy of all a testator's " property," " personal estate," or " things," in a particular place, will not pass choses in action there. (o) And when the word "goods," or "chattels," or "effects," is preceded and connected with words of narrower import, and the bequest is not residuary, it will be confined to property ejusdem generis with those pre- viously described by those words,(p) unless something is excepted out of the things enumerated, by words of narrower import, which is not ejusdem P^nq-i-i generis with those ^things.^j) But where a testator disposes of L -I all the residue of his estate and effects, adding, without any intervening words, an enumeration of certain specific articles, the gene- ral words are not limited to things ejusdem generis with the specific articles, but the words enumerating the specific articles are regarded as a defective enumeration. M If a bequest is made " of all the testator's goods, &c., in a particular house or place," without any words indicating that he refers to such only as are there at a particular time (as at the date of his will,) whatever personal chattels are found there at his death will be the property of the legatee. (s) And none but those which are in that place at the death of the testator will pass, except where the locality of them was referred to merely for the purpose of describing the articles. (i) A bequest of " household furniture, plate, house linen, and all other chattel property" does not include the general personal estate ; for the words " all other chattel property" must be construed by the other words with which they are associated, and mean all other chattel property ejusdem generis, at least where there is a distinct residuary clause. (m) Pictures placed as ornamental furniture of a house, and plate and linen, pass under the description of " all furniture belonging to a house." But, in general, books will not pass under that description, (a;) Where " fixtures and fixed furniture" are bequeathed to a person for life, and the household goods, furniture, and other property " not com- prehended under the term fixtures and fixed furniture" are bequeathed to him absolutely, the term " fixed furniture" includes looking-glasses r*R99l standing *on chimney-pieces and nailed to the wall, and bookcases L J standing on, but not fastened to, brackets, and screwed to the wall.(y) Under a bequest of household furniture, fixtures belonging to the tes- (n) 1 Rop. Leg. by White, 250; H Jarm. & Byth. by Sweet, 442; Marquis of Hertford t. Lord Lowther, 1 Beav. 1. (o) 1 Rop. Leg. by White, 259, 260 ; 11 Jarm. & Byth. by Sweet, 442. (p) 1 Rop. Leg. by White, 280; Re Wright's Trusts, 15 Beav. 367. (g) 1 Rop. Leg. by White, 261, 267. fr) Fisher t. Hepburn, 14 Beav. 626. (s) 1 Rop. Leg. by White, 248. (i) 1 Rop. Leg. by White, 343-4. (m) Lampier v. Despard, 2 D. & W. 59. (x) Cremorne v. Antrobus, 5 Russ. 312. (y) Birch V. Dawson, 2 Ad. & B. 37. WHERE TWO OK MORE LEGATEES TAKE. 539 tator in a leasehold house occupied by him will pass.(z) But books do not pass under the words " household furniture.'Va) The term « household goods" includes all articles of household which are neither fixtures nor things of such a n&ture that they are consumed in being eDJoyed,(6) but not articles used in the testator's trade, though contained in his house. (c) The term " household effects" is more extensive than household goods or furniture. (t^) Occurring after "household furniture" it comprises such things as wines.(e) The term " linen," without qualification, will comprise body linen, table and bed linen, and every article to which that general word can be applied.^/) Growing crops will not pass under the description of "farming stock."(^) ^ Section III. Of the Shares or Proportions in which two or more Legatees take. Under a bequest to the' persons who would have been entitled under the Statutes of Distribution, it should be *expressed whether r:coqqT they are to take in equal shares, or in the proportions fixed by L J the statute. (^) Where a testator bequeaths personal estate to several persons, as tenants in common, with a declaration, that, upon all or any of their deaths before a particular time, their respective shares shall be equally divided among their respective issue or descendants, and they die before the arrival of the period, some leaving children, and others more remote descendants, the issue of such deceased persons will take their shares, per stirpes, and the issue of any one of them so dying, whether they be his children or more remote issue, will divide his share among themselves equally per capita.(i) Under a bequest of a sum of money " unto and amongst J. C. and C. his wife and W. L. in equal shares," one moiety will go to J. G. and C. his wife, and the other moiety to W. L.(^) And so under a bequest to " A, his wife and children," where there are two children, each child takes one third, and the husband and wife the remaining third between them.(?) Under a bequest to be equally divided amongst the testator's next of kin, both paternal and maternal, the fund is divisible between the two classes per capita and not per stirpes. (m) And under a bequest to A. and B. and their several children, to be divided between thepi, in equal (z) Paton T. Shepherd, 10 Sim. 186. (a) 1 Rop. Leg. by White, 269. (6) See 1 Rop. Leg. by White, 253, 256. (c) 1 Rop. Leg, by White, 253. (rf) 11 Jarm. & Byth. by Sweet, 441. (e) Cole v. Fitzgerald, 3 Russ. 301. (/) 1 Rop. Leg. by White, 289. {g) 11 Jarm. & Byth. by Sweet, 455. (h) See Martin v. Glover, 1 Coll. 269 ; Richardson v. Richardson, 14 Sim. 526. (t) 1 Rop. Leg. by White, 163. {k) In re Wylde, 2 D. M. & G. 724. \l) Gordon v. Whieldon, 11 Bear. 170. \m) Dugdale v. Dugdale, 11 Beav. 402. 540 SMITH ON EBAL AND PERSONAL PROPERTY. shares and proportions, the parents and their children take per capita, and not per stirpes. (m) [*834] *Seotion IV. Of the Priority and Abatement of Legacies. If the assets, after payment of debts, are insufficient for the payment of all the legacies and annuities, all the general voluntary legacies and annuities abate rateably : for, since they cannot all be paid in full, they shall all abate rateably, on the principle of the maxim " equality is equity," or " equity delighteth in equality." This rule is indeed sub- ject to exceptions ; for there are cases in which some annuities or lega- cies are to be paid in priority to others. But the onus lies on the party seeking priority, to make out that such priority was intended by the testator ; and the proof of this must be clear and conclusive. The reason is, that a testator, in the absence of clear and conclusive proof to the contrary, must be deemed to have considered that his estate would be sufficient ; and consequently not to have thought it necessary to pro- vide against a deficiency, by giving a priority in case of a deficiency to some of the objects of his bounty. (o) Hence, a difference in times of payment will not impart to any of the legatees such a preference as to exempt them from abating upon a deficiency of assets. Nor will abatement be prevented by words which may be merely expressive of the order in which the bequests are made in succession. (p) Thus, the words "after payment" may merely refer to the order of payment to be made, on the supposition that there was a sufficiency of assets to pay all the legacies, and do not necessarily or clearly import a preference in the event of a deficiency of assets. They (-^Qoc-i are *merely introductory to what follows; importing no more <- J than would have been implied without them.(j) And so where a testator, with reference to the different payments to be made by his executors, uses the words " in the first place," " and then," and " in the next place," these words, unsupported by others, will be construed to be mere introductory words of enumeration, and not words denoting' priority of payment.(r) And when there are no expressions manifesting an intent to give a priority to a general voluntary legacy, the character of the legatee or purposes to which the legacy is to be applied will not exempt it from abatement.(s) Hence legacies to the children of the testator will be subject to abatement as well as legacies to strangers. If the testator has thought fit to provide for other persons besides his children and his a Cunningham v. Murray, 1 De G. & S. 366. Miller t. Huddleston, 3 Mac. & G. 523 ; Thwaites v. Foreman, 1 Coll. 409 ; 1 Eop. Leg. by White, 421, 425 ; Story's Eq. Jur. i 554-'? ; 2 Spence'3 Eq. Jur. 314. (p) I Rop. Leg. by White, 426, 427. (q) Miller v. Huddleston, 3 Mac. & G. 525. (r) Thwaites v. Foreman, 1 Coll. 409. (s) 1 Eop. Leg. by White, 418. OF DOUBLE LEGACIES, ETC. 541 wife, if he has not made them the exclusive objects of his bounty in the case of the property being suflBcient, he might never have intended them to be the exclusive objects of his bounty even in the event of a defici- ency. He may have intended that the others should share with them in the latter case as well as in the former, and in the same propor- tion. (<) Upon the same principle bequests to charities are not privileged from abatement. Nor are legacies to executors for their trouble. (m) Nor are legacies bequeathed to creditors whose debts had been previously com- pounded.fjj) When a general legacy is given for a valuable consideration, as in consideration of a debt owing to the legatee, or of his relinquishing any right or interest, it will have priority over merely voluntary legacies. Hence legacies in lieu of dower do not abate. (?o) *As between specific legatees and general legatees, in case of r»oof.-i a deficiency of assets, the loss falls entirely on the latter ; so that L J the specific legacies are paid in preference to the general legacies. (aj) If a fund is not sufficient for both pecuniary and residuary legatees, and it was not of an ascertained amount or expressly assumed by the testator to be of a certain amount, but the amount of it was unknown to him, the loss will fall wholly on the residuary legatee. (y) Section V. Of Double Legacies and Residuary Legacies. Where, in form two legacies are given to the same person by the same will or the same codicil, if they are of the same amount, they are construed as only one bequest twice mentioned; but if they are of different amounts, they are held to be distinct legacies.(z) Where, in form, two legacies, even though of the same amount, are bequeathed to the same person by different testamentary instruments, namely, by a will and a codicil, or by different codicils, two distinct legacies are thereby given, unless the double coincidence occurs of the same motive expressed and the same sum in both instruments ; or un- less the instrument giving the second legacy furnishes intrinsic evidence that the second legacy was merely given in lieu of the former, (a) Where a residuary legatee is a general legatee, he is entitled to what- ever may be disposed of in terms or in event.(6) A residuary legatee of a partial residue will *be entitled to interests which were a r,g3y-i charge upon the partial residue, but lapse. (c) (t\ Miller v. Huddleston, 3 Mac. & G. 529. \u)*l Rod. Leg. by White, 417. (f) 1 Bop. Leg. by White, 418. \w) 1 Rop. Leg. by White, 431-2 ; 3 & 4 Will. 4, c. 105, =. 12. (xi 2 Spence's Bq. Jur. 343 ; 1 Rop. Leg. by White, 356. (y) Petre T. Petre, 14 Beav. 197. (2) 2 Rop. Leg. by White, 996, 998. ia) 2 Rop. Leg. by White, 999, 1008, 1012. (i) 2 Rop. Leg. by White, 1673. (c) 2 Rop. Leg. by White, 1683, 1684. 542 SMITH ON EBAL AND PERSONAL PROPERTY. Section VI. Of the Payment of Legacies. Legacies are to be paid in the currency of the country in which the testator is domiciled and the will is made. (if) The executor is not obliged to pay, nor can he in many cases safely pay, the legacies sooner than a year after the testator's decease, although the testator may have directed them to be discharged within six months after his death. (e) When there are contingent liabilities that may create demands upon the assets of the testator, a court of equity will not oblige the executor to part with the fund without a sufficient security for his indemnity against legal consequences. (/) Where a legacy is directed to accumulate for a certain period, or where the payment is postponed, the legatee, if he has an absolute indefeasible interest in the legacy, is not bound to wait until the expiration of that period, but may require payment the moment he is competent to give a valid discharge. (5') If a legacy is given to A., to be paid at twenty-one, and A. dies be- fore that period, his representative must wait for the money until A., if living, would have attained twenty-one, if intermediate interest is not given, but not if intermediate interest is given. (M [*838] *Sbotion VII. Of the Interest or Income of Property bequeathed. Specific legacies are considered as severed, for the benefit of the lega- tee, from the bulk of the testator's property from his death; and hence interest is computed on them from that time, even where the enjoyment of the principal is postponed, (i) General legacies out of personalty usually carry interest only from the period when they become payable.(Z;) Where no time of payment of a general legacy is named by the testator, then, in the absence of any contrary intention to be collected from the will itself, they shall be paid at the expiration of one year next after his death; and if the exe- ecutor then omits to pay them, the legatees will be entitled to interest from that period, though actual payment at that time may be impracti- cable. This rule applies even to legacies given for the purchase of mourning rings. (m) And a direction to pay " as soon as possible" (d) 1 Hop. Leg. by White, 856. (e) 1 Rop. Leg. by White, 863 ; 9 Jarm. & Byth. by Sweet, 834 ; 11 Jarfii. & Byth. by Sweet, 773. (f) 1 Rop. Leg. by White, 865. (g) Saunders t. Vautier, 4 Beav. 116 ; Rocke v. Kocke, 9 Beav. 66. (h) 1 Rop. Leg. by White, 868, 871. (i) 2 Rop. Leg. by White, 1245 ; 11 Jarm. & Byth. by Sweet, 774. {k) 11 Jarm. & Byth. by Sweet, 773. {I) 2 Rop. Leg. by White, 1245. (m) 11 Jarm. & Byth. by Sweet, 504. OF BEQUESTS GENERALLY. 543 does not exclude the application of the general rule.(n) And a general legatee of long annuities is not entitled to dividends accruing before the expiration of a year from the testator's decease. (o) Where a time of payment of general legacies is named by the testator, and such legacies are not of a residue, there, with some exceptions, the legacies will not carry interest before the arrival of the appointed time of payment, even though they be vested ; but when that period arrives, the legatees will be entitled, although the legacy be charged upon a dry reversion. (jo) *The rule which postpones a legatee's title to interest until the r^icooq-i end of a year, or any other prescribed period of payment, admits L J of exceptions, where there is an indication of a contrary intention in the will, or where legacies are bequeathed in satisfaction of debts, or where a legacy is given by a parent to his child, or by a person in loco parentis, and no provision is made by him for the child's maintenance. (g) Legacies charged primarily on real estate boar interest from the testator's death. (»•) Where there is no direction for accumulation, the tenant for life of a residue is entitled from the death of the testator to the income of all such parts of the residue as are in a state of investment in accordance with the directions of the will.(s) And where a residue is directed to be laid out in land, to be settled on one for life, with remainder over, and the testator directs the interest to accumulate in the mean time, the accumulation will cease at the end of the year from the testator's death, and from that period the tenant for life will be entitled to the in- terest.^^ Section VIII. Of Bequests generally .(u) Where a legacy is given, and the application of it is prescribed by the testator himself, or left by him to the discretion of some other per- son, if that discretion is not exercised, or an accident happens which prevents the employment of it in the way which is contemplated, the gift prevails. The mode of application may fail, but that will not ^interfere with the substance of the gift.(6) And if a bequest is rrcg^Q-. made to or in trust for a legatee to put him out apprentice or to L J advance him in a business or profession, it is an absolute bequest to him, so that he will be entitled to the payment of it before it is required (re) 11 Jarm. & Byth. by Sweet, 773. \o) CoUyer v. Ashburner, 2 De G. & S. 404. (p) 2 Eop. Leg. by White, 1253, 1316. (?) 11 Jarm. & Byth. by Sweet, 773 ; 2 Eop. Leg. by White, 1290 ; Donovan v. Needham, 9 Beav. 164 ; infra, p. 914. (r) 11 Jarm. & Byth. by Sweet, 773; 2 Bl. Com. 513. («) 2 Eop. Leg. by White, 1321-2. {t) 2 Eop. Leg. by White, 1336. (m) As to gifts to superstitious uses, see 1 Jarm. on Wills, 2nd edit., 170-173. \h) Lord Cottenhara, C, in afBrmance of the decision of Shadwell, V. C. B., Gough T. Bulk, 16 Sim. 54; 1 Rop. Leg. by White, 646. 544 SMITH ON REAL AND PBRSON'AL PEOPBKTT. for the purpose mentioned, and so that, if he dies before it be so applied, it will form part of his personal estate.(c) ^ When a certain and determinate period is appointed for the payment of a legacy, and it is given over upon the happening of a contingent event, the divesting clause is to be confined within the time when the legacy is payable ; for otherwise it could not operate until the money might have been received and spent, (c?) If personal estate is bequeathed to a person, his " executors and ad- ministrators," he has the absolute interest in the legacy, so that if he dies before the testator, the bequest cannot be claimed by the executors or administrators. And if an interest for life is given to a person, with an ultimate limitation, subject to prior dispositions, or to his appoint- ment, to his executors and administrators, or executors, administrators, or assigns, the absolute interest, so subject, vests in himself if he survives the testator.(e) Thus, under a bequest to females, whether married or single, for their separate use for their respective lives, and after their de- cease, to such persons as they should respectively appoint, and in default of appointment, to their respective executors, administrators, and as- signs, as part of their respective personal estate, each of them is enti- tled, without executing any formal appointment, to an immediate trans- fer or payment to themselves of the corpus of their shares of the fund.(/) [*84l] *PAET lY. OF CERTAIN PERSONS AND MISCELLANEOUS HEADS OF LAW CONNECTED WITH CONVEYANCINa. TITLE I. OF CERTAIN PERSONS CONNECTED WITH CONVEYANCING. CHAPTER L OF EXECUTOES AND ADMINISTRATORS, (a) An executor is the person to whom a testator commits the execution of his will. (c) 2 Rop. Leg. by White, 1496 ; 2 Spence's Eq. Jur. 462. (d) 1 Rop. Leg. by White, TDT, 822-3. (e) 1 Rop. Leg. by White, 134. (/) Holloway v. Clarkson, 2 Hare, 621. (a) On this subject the reader is referred to Mr. Justice William's celebrated ■work. or EXECUTORS AND AD M INIST R AT E S. 545 All persons are capable of being executors that are capable of making wills; and many others besides, as femes covert and infants, and even infants unborn or in venire sa mere. But by the stat. 38 Geo. 3, c. 87, s. 6, no person who is sole executor can act as such till the age of twenty- one years. (i) s The appointment of an executor may be made either by express words, or by plain implication. *If the testator makes his will without naming any executor, r^po^^o-i or if he names incapable persons, or if the executors named L J refuse to act, the ordinary must grant administration cum testamento annexo to some other person. (&6) When a sole executor is under age, or is out of the realm, or when the validity of the will is contested in the Ecclesiastical Court, an admi- nistrator is appointed durante minora state, or durante absentia, or pendente lite.(c) If the deceased died totally intestate, without making either will or executors, then general letters of administration must be granted to such administrator as the statutes 31 Edw. 3, c. 11, and 21 Hen. 8, c. 5, direct. And, 1. The ordinary is compellable to grant administration of the goods and chattels of the wife to the husband or his representatives, and of the husband's effects to the widow or next of kin, or to both, at his discretion. 2. Among the kindred, those or some of those are to be preferred who are the nearest in degree to the intestate according to the Civil Law mode of computation, (li) whether those of the paternal or maternal line, without distinction. Of persons in equal degree, there are some who are to be preferred; but subject to this, the ordinary may take which he pleases. Thus, in the first place, the children, or their lineal descendants, are entitled, or, if there are no issue, the father, or, if no father, the mother of the deceased is entitled. Then follow brothers or sisters, next grandfathers or grandmothers, then uncles or aunts or nephews or nieces, and, lastly, cousins. But the next of kin, in order to be entitled to administration, must have an interest in the property. 3. The half blood is admitted to the administration as well as the whole; for they are of the kindred of the intestate, and were only excluded from inheritances of land upon feudal reasons. r^^tQiq-i ♦Therefore, the brother of the half blood shall exclude the L J uncle of the whole blood, and the ordinary may grant administration to the sister of the half or the brother of the whole blood at his- own dis- cretion. 4. If none of the kindred will take out administration, a creditor may by custom do it. 5. If the executor refuses or dies intestate, the administration may be granted to the residuary legatee, in exclusion of the next of kin.(e) In default of all these the ordinary may commit administration (as he might have done before the statute of Edw. 3,) to such discreet per- son as he approves of, or may grant him letters ad colligendum bona (b) 2 Bl. Com. 503 ; 1 Wms. on Exors., 4th edit., 189. (bb) 2 Bl. Com. 503. (c) 2 Bl. Com. 503 ; Wms. on Exors. 4th edit. 189. (d) See supra, p. 325. (e) 2 Bl. Com. 504, 505 ; 1 Wms. Exors., 4th edit., 336-7. April, 1856 — 35 546 SMITH ON REAL AND PERSONAL PROPERTY. defuncti, which neither make him executor nor administrator, his only business being to keep the goods in his safe custody, and to do other acts for the benefit of such as are entitled to the property of the deceased. (/) If a bastard, who has no kindred, being nullius filius, or any one else that has no kindred, dies intestate and without wife or child, the usual course now is for some one to procure letters or other patent authority from th^ crown, and then the ordinary grants administration to such appointee of the crown. (^i) If all the goods of the deceased lie within the same jurisdiction, a probate before the ordinary or an administration granted by him are the only proper authority. But if the deceased had bona notabilia or chattels to the value of a hundred shillings in two distinct dioceses or jurisdic- tions, theu the will must be proved or administration taken out, once for all, to save trouble and also uncertainty to creditors and legatees, before the metropolitan of the province by way of special prerogative : whence the court where the validity of such wills is tried, and the oflB.ce where they are registered, are called the Prerogative Court, and the r*»d.d.n *P''erogative Ofl&ce, of the provinces of Canterbury and I ***J.York.(A) A testator may appoint several executors for different purposes, and in respect of different parts of his property. And in like manner, an administrator may have only a limited or special administration com- mitted to his care.(i) The executor of a sole executor or sole surviving executor who has proved, is the executor and personal representative of the first testator ; unless he refuses that ofl&ce, which he may do, while he accepts that relating to the property of his own immediate testator, though not vice versa. And so long as the chain of representation is unbroken by any intestacy, the ultimate executor is the representative of every preceding testator, because the power of an executor is founded upon the special confidence and actual appointment of the deceased, and such executor is therefore allowed to transmit that power to anotljer in whom he has equal confidence. But the administrator of an executor is not the represen- tative of the testator ; because he is merely the oflBcer of the ordinary or metropolitan, in whom the deceased executor has reposed no trust at all. Nor does the executor of a deceased executor at all represent the original testator, where such deceased executor has left a co-executor him surviving, whether such surviving executor has proved the will or has renounced. For, in such case, the representation devolves on the surviving co-executor, if he proved in the lifetime of the deceased exe- cutor. And if he has not proved in the lifetime of the deceased executor, and does not choose to prove after he becomes the survivor, as he may do, even though he had before renounced, or if a sole executor or sole surviving executor dies after probate, intestate, or if a sole or sole surviving administrator dies, whether testate or intestate, an admi- (/) 2 Bl. Com. 505. {g) 2 Bl. Com. 505. (A) 2B1. Com. 509, 510. (•) Burton, J 977-8; 2 Bl. Com. 506. OF EXECUTORS AND ADMINI S TR ATOE S. 547 nistration de bonis non *is granted, that is, an administrator of r^oAr-i the goods of the original testator or intestate left unadminis- L J tared. (^) An executor may do many acts before he proves the will, but an ad- ministrator may do nothing till letters of administration are issued; for the former derives his power from the will, and not from the probate, while the latter owes his entirely to the appointment of the ordinary.(A An executor, before probate of the will, may release a debt or duty due to the testator. But the release cannot be given in evidence until the will has been rendered authentic by probate or letters of administra- tion, (m) The whole personal property vests in the executor,rn) so that the de- mands of creditors and legatees are personal upon the executor; and though they exist in respect of the property, and are limited by the ex- tent of it, yet they are no lien upon it, whether in his hands or in the hands of his assignees,(o) where the assignees are not affected with fraud. A devise of land to executors to sell, passes the interest in it ; but a devise that executors shall sell the land, or that lands shall be sold by the executors, or a devise of land to be sold by executors, gives them a power only.(/)) Where executors take the residue in the character of executors, they take the same as joint tenants. And hence if one of them dies before the testator, the survivors will be entitled to the whole property, (j) But where there are several executors who all prove the will, they have not only a joint but also a several interest in all the goods and chattels of the testator. Hence, a sale or release by *one of them is good, r^n^n-i But it is otherwise in the case of administrators. (r) It is the •- -< usual practice, however, to require the concurrence of all the executors, in order to guard against the possible event of a sale having been made by any other executor, and, in the case of an assignment of a term, in order that the purchaser may have the benefit of a covenant from all the executors that they have not incumbered. (s) Executors and administrators represent the testator, and are entitled to all damages which accrue to the testator in his lifetime, and to the benefit of all covenants and duties belonging to the testator, except those duties which concern acts to be done to the testator personally in respect of his person, and which become impossible of performance by his death, or which are to be done for creating a title to be communicated to the heir.(^) An executor or administrator has a right to retain out of legal assets (k) Wms. on Exors., 4th edit., 207-209, 387-390 ; 2 Bl. Com. 506 ; Burton, J 962- 970 ; 3 Jarm. & Bytli. by Sweet, 709. (I) 2 Bl. Com. 507. (m) 2 Pres. Shep. T. 334; Co. Litt. 292, b. (n) 1 Wms. on Exors., 4th edit., 546. (0) See Co. Litt. 290, b, n. 1, xiv., 1. (») 1 Sugd. Pow. 131-134; Doe d. Hampton v. Shotter, 8 Ad. & E. 905. (o) 1 Eop. Leg. by White, 484 ; 1 Wms. on Exors., 4th edit., 208. (r) 1 Cruise T. 8, c. 1, | 27 ; 2 Pres. Shep. T. 303, 335 ; 9 Jarm. & Byth. by Sweet, 802; 2 Bl. Com. 510. (s) 9 Jarm. & Byth. by Sweet, 138. (t) 1 Pres. Shep. T. 175. 5-18 SMITH ON EEAL AND PERSONAL PROPERTY. the amount of a debt due to him, either beneficially or as trustee, as against creditors of equal degree. («) As the law vests all the chattels real and personal of a testator in the executor, to be applied by him, in the first place, in payment of debts ; so every legatee must obtain the executor's assent to his legacy before his title as legatee can be complete.(«) So that, whenever a term for years is devised, the consent of the executor is necessary to complete the title of the devisee, as in the case of any other legacy, (w) Any expression or act done by the executor which shows his concur- rence or agreement to the thing bequeathed will amount to an assent. fee) r*8d.71 *One executor is competent to assent to a legacy, (y) L J If an executrix is a married woman, the assent of her hus- band to a legacy will be sufiScient ; as the law authorises him to adminis- ter in right of his wife.(2i) Where a legacy is limited'to several persons in succession, the execu- tor's assent to the first taker will be considered an assent to the quasi remainder or remainders. And, on the other hand, his assent to a quasi remainder will enure to the benefit of any person taking a prior interest in the property bequeathed. (o) It is the duty of executors to assent as soon as all the debts and ex- penses attending the administration have been satisfied, and there is a sufficient residue to pay all the legacies. (J) By assent, the legal interest which the executor had in the fund ceases, and the entire property legal and equitable becomes vested in 'the legatee. (c) If an obligee or creditor makes an obligor or debtor his executor, or one of his executors, the obligation or debt is released at law, but not in equity as against creditors. So if a debtor makes his creditor execu- tor, and he proves the will or acts as executor, the deb.t is extinguished at law, though not in equity as against creditors. ((Z) The granting of letters of administration to one or more of the obligors is no discharge of the obligation. And if an obligor make an obligee his executor, this is no discharge of the obligation. (e) , It is a rule without exception, that, to authorise executors to carry on a trade, or to permit it to be carried on, with the property of the testator r*Sd8n ^^^^ ^y them in trust, *there ought to be the most distinct and L J positive authority and direction given by the will for that pur- pose.(/) Sales or mortgages by executors of the personal property of their tes- tator, whether specifically bequeathed or not, are ordinarily valid, not- (m) 2 "Wms. on Exors., 4th edit., 894-904. (v) 2 Wms. on Exors., 4th edit., 1175, 1176. [w) 6 Cruise T. 38, c. 3, § 6. {x) 1 Jarm. & Byth. ty Sweet, 185 ; 2 Wms. on Exors, 4th edit., 1178 ; 1 Rop. Leg. by White, 846. {y) 9 Jarm. & Byth. by Sweet, 138 ; 1 Rop. Leg. by White, 844-5. (z) 1 Rop. Leg. by White, 846. (a) 1 Rop. Leg. by White, 849 ; 6 Cruise T. 38, c. 3, I 6. lb) 1 Rop. Leg. by White, 854. (c) 1 Rop. Leg. by White, 844. (d) 2 Pres. Shep. T. 334-5, 395 ; 2 Bl. Com. 511. (e) 2 Pres. Shep. T. 395. (/) Kirkman v. Booth, 11 Beav. 280. OF EXECUTORS AND ADMINISTRATORS. 549 withstanding it may be affected with some peculiar trust or equity in the hands of the executor; for the purchaser cannot be presumed to know that the sale may not be required in order to discharge the debts of the testator, to which they are legally liable before all other claims. But if the purchaser knows that the executor is converting the estate into money for an unlawful purpose, the purchase will be set aside. ((/) And the purchase of a particular chattel specifically bequeathed cannot be recom- mended without the concurrence of the legatee, because the executor may have assented to the bequest. (A) Testators not unfrequently appoint executors, without making any ex- press disposition of the residue of their personal estate, and executors so appointed become by law entitled to the whole residue of such personal estate ; and before the stat. 1 Will. 4, c. 40, courts of equity so far fol- lowed the law as to hold such executors to be entitled to retain such residue for their own use, unless it appeared to have been their testators' intention to exclude them from the beneficial interest therein ; in which case they were held to be trustees for the person or persons (if any) who would be entitled to such estate under the Statute of Distributions if the testator had died intestate. By the stat. 1 Will. 4, c. 40, after reciting these circumstances, and that it was desirable that the law should be ex- tended in that respect, it is enacted, " that when any person shall die after the 1st day of September next after the passing of *this act r«D4Q-i (July 16, 1830,) having, by his or her will, or any codicil or L J codicils thereto, appointed any person or persons to be his or her execu- tor or executors, such executor or executors shall be deemed by courts of equity to be a trustee or trustees for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions in respect of any residue not expressly disposed of, unless it shall appear by the will or any codicil thereto that the person or persons so appointed executor or executors was or were intended to take such residue bene- ficially." But by the 2nd section it is enacted, " that nothing herein contained shall affect or prejudice any right to which any executor, if this act had not been passed, would have been entitled in cases where there is not any person who would be entitled to the testator's estate under the Statute of Distributions in respect of any residue not expressly disposed of." The onus probandi, therefore, is on the parties opposing the executor in cases not within the stat. 1 Will. 4, c. 40, just as it is now thrown on the executor in cases within that act. In the former class of cases there must appear to be an intention to exclude the executor from the beneficial - interest; in the latter, to confer that interest upon him. But it must not be inferred from this, that the position of an executor in the former class of cases is analogous to that of an heir at law of real estate, who takes what is undisposed of. An heir at law is the person whom the law so far as it is uncontrolled by testamentary disposition, designates as the proper object of succession to the inheritance, and the maxim is melior est dispositio legis quam hominis. But the executor takes the (g) Story's Eq. Jur. ? 422, 423, 580, 581 ; 1 Rop. Leg. by White, 434-5. (h) Sugd. Concise View, 526-7. 650 SMITH ON REAL AND PERSONAL PROPERTY. legal interest by virtue of an express appointment to the ofiSce of exe- cutor, and the beneficial interest attaches to the legal interest in him, unless the will affords sufficient evidence of an intention that he is to r*fi'im ^"'^^ ''^ ^ fiduciary character; in *which case the beneficial L J interest has a separate and independent existence, and, instead of attaching in him, stands apart from his legal interest, and vests in the persons whom the testator has designated as the objects of his bounty, and who might be termed testamentary cestuis que trust, or, in default of those, then in the persons who have a statutory right grounded on the relationship to the testator, and who may be considered as the statu- tory cestuis que trust, (t) With regard to what is sufficient evidence of such intention to exclude the executor, " necessary implication or violent presumption" is not requisite: if there is a plain implication or a strong presumption of such an intention, the executor will be deemed a trustee. So that where a testator gives all his estate to A., his executors, administrators, and assigns, to and for certain uses, intents, and purposes, which he specifies, and then appoints A. his executor, there, although the trusts do not exhaust the whole property, yet A. is invested with a fiduciary character as to the whole, and therefore he is excluded from taking beneficially as to any part of it. (A) By the stat. 7 & 8 Vict. c. 76, s. 9, " when any person entitled to any freehold or copyhold land by way of mortgage has or shall have departed this life, and his executor or administrator is or shall be entitled to the money, secured by the mortgage, and the legal estate in such land is or shall be vested in the heir or devisee of such mortgagee, or the heir, devisee, or other assign of such heir or devisee, and possession of the land shall not have been taken by virtue of the mortgage, nor any action or suit be depending, such executor or administrator shall have power, upon payment of the principal money and interest due to him on j-^or-i-i the said mortgage, to convey by deed or surrender (as the *case L J may require) the legal estate which became vested in such heir or devisee ; and such conveyance shall be as effectual as if the same had been made by any such heir or devisee, his heirs or assigns." But this act, which took effect on the first day of January, 1845, was repealed by the stat. 8 & 9 Vict. c. 106,. s. 1, as from the 1st day of October in the same year. [*852] *CHAPTEE II. . Oi" TRUSTEES. (a) All persons excepting aliens, so far as regards real estate, and except- (i) Ellcock V. Mapp, 3 CI. & P. 501-8. {k) EUcock T. Mapp, 3 CI. & P. 492. (a) On this subject the reader is referred to the very valuable works of Mr. Lewin and Mr. Hill. OE TRUSTEES. 551 ing persons attainted, but not excepting femes covert and infants, may be trustees. (6) It is a rule in equity, -which admits of no exception, that, where a trust exists, a court of equity never wants a trustee. For, wherever a perfect trust, as opposed to a trust resting in contract or in fieri, or even an imperfect trust, if supported by a valuable consideration has once attached, whether it is an express, an implied, or a constructive trust, and it is not extinguished by the countervailing equity of a bong, fide purchaser for valuable consideration without notice, or other person having a conflicting equity, nor has otherwise ceased to subsist, equity will follow the legal estate, and decree the person in whom it is vested to execute the trust. (c) And the lapse of the legal estate never has the least influence on the trusts to which it is subject: if the individuals named happen to fail, by death, incapacity, or refusal, the court will provide a trustee : if no trustees are appointed at all, the court assumes the oiEce in the first instance. (c?) If a man appoints a trustee of real or personal estate, without naming his heir or personal representative, the heir or personal representative does not become a trustee, on the decease of the person so appointed, although the *property may vest in the heir or representative, j-^ncq-i And where two or more persons, and the survivor, and the heirs, ^ J executors, or administrators of the survivor are appointed trustees, and the word " assigns" is not introduced, the sole or surviving trustee can- not delegate the trust either by act inter vivos, or by devise ; for although he may thereby pass the legal estate, yet the person in whom it is thereby vested will not be clothed with the character of trustee. (e) Hence, where a testator gives leaseholds to two trustees, their executors and administrators, and the surviving trustee devises and bequeaths all trust estates to trustees, and appoints them and another person his executors, neither the trustees nor the executors of such surviving trustee can execute the trusts, but new trustees must be appointed; because by the devise and bequest made by such surviving trustee, he has taken away the legal estate from his executors, who ought otherwise to have been the trustees. (/) And where a testator devised estates to trustees, their heirs and assigns, upon trust to sell, and provided that "the receipts of his trustees or the survivors should be sufficient," and the surviving trustee devised the estates upon the same trusts, the cestuis que trust were entitled to have new trustees appointed of the original will.(5') A trustee cannot, without the consent of the cestui que trust or of the court, denude himself of the character of trustee until he has performed the trust. If without such consent he assigns the trust, or delegates the performance of its duties to a stranger, he will be answerable for the (J) 2 Spence's Eq. Jur. 32. fc) See Story's Bq. Jur. § 976, 1159, 1162; 1 Spence's Eq. Jur. 501; 2 Id. 51, 62, 369, 875, 876; Co. Litt. 113, a, n. 2, 290, b, n. 1, VI. ; 1 Cruise T. 12, c. 4, ? 60. (d) 2 Spence's Eq. Jur. 876. (e) 2 Spence's Eq. Jur. 38 ; Cooke v. Crawfurd, 13 Sim. 191. (/) In re Burtt, 1 Drew. 319. (ff) Ockleston-T. Heap, 1 De G. & S. 640. 552 SMITH ON REAL AND PERSONAL PROPERTY. breaches of trust committed by the assignee or stranger. (^) But where a testator devises and bequeaths real and personal estate, on certain r^oF,A-\ trusts, to be performed by the *trustees named, and the survi- L J vors and survivor, and by the heirs and assigns, or the executors or administrators of the survivor, and the will contains no power to ap- point new trustees, and the surviving trustee devises and bequeaths the trust estates and moneys to certain persons, upon the trusts of the first will ; this is a valid devise and bequest to them upon those trusts. For, as some rational and legal efiect must if practicable be ascribed to the word " assigns," and as it cannot, consistently with the rules of the court, be considered to mean assignees by deed, it may fairly be deemed to mean persons who may be made assignees by devise and bequest, (i) Courts of equity are in the habit of directing property in their own possession to be invested on real security or in the 31. per cents. ; and it has become an established duty, on the part of trustees, to invest on such security or in those funds.(&) 31. per cent, consols is the fund which is usually selected by the court for investment ; but 31. per cent, reduced is frequently resorted to for convenience, as when quarterly payments have to be made. (A According to the general understanding of the profession, and the general practice of the courts, where trustees are authorized to invest on mortgage of real estate, they are not justified in advancing more than two-thirds of the value of agricultural freeholds, or one half of the value of freehold houses ; and if the value depends upon fortuitous circumstan- ces — for instance, if the property consists of a mill or factory, or other buildings used for purposes of trade, or houses situate in a watering-place, or the like — the trustees run the risk of having the mortgage thrown upon themselves, and of beiijg made answerable for the money advanced. In such cases, the burden of proof as *to sufficient value lies L J upon the trustees. (m) And an authority to invest trust moneys on real securities does not authorize an investment on London Dock Stock, Road Bonds, or Sewer Bonds. (ra) And if trustees are empowered to lend money, even on personal security, and one lends a sum of money to the other, upon a mortgage of his real estate, and the latter becomes bankrupt, and the estate when sold is insufficient, the trustee lending the money is liable for any loss occasioned by such an investment, because trustees ought not to lend to one another.(o) Where a discretion is given to executors and others to invest money on securities generally, unless personal security is expressed or clearly implied, they ought not to invest the funds in personal security. And even where trustees are authorised to lend on such personal security as (h) 2 Spence's Eq. Jur. 920. (t) Titley v. Wolstenholme, 7 Bear. 436. (k) See Story's Eq. Jur. § 1269, note, 1273, 1274, note ; 2 Spence's Bq. Jur. 923, 926, 934. U) 2 Spence's Eq. Jur. 552, n. (a). (m) 2 Spence's Eq. Jur. 925 ; Coote, Mortg. 3rd edit. 162 ; remarks of Sir J. Romilly, M. R., in Macleod v. Annesley, 16 Beav. 605 ; Stickney v. Sewell, 1 My. & Cr. 15 ; Stratton t. Ashmed, 3 Drew. 9. (n) Robinson v. Robinson, 11 Beav. 371. (o) Stickney v. Sewell, 1 My. & Cr. 8. OF TRUSTEES. 553 they shall think sufiScient, they are not enabled to lend trust money to a trader or trading ooneern.(^) And an indemnity clause, declaring that they shall not be liable for the insufficiency of any security, will not ex- onerate them from liability if they lend on palpably inadequate secu- rity.(j) By the stat. 4 & 5 Will. 4, c. 29, s. 1, it is enacted, that, from and after the passing of the act, " it shall be lawful for any person or persons who, under or by virtue of any direction, trust, or power already given, created, or reserved, or hereafter to be given, created, or reserved as afore- said, is or are or shall be authorized or directed to lend money at interest on real securities in England, Wales, or Great Britain, to lend the same or any part thereof at interest on real securites in Ireland, in the same manner in all respects *as if such investment had been expressly [-,snr/^-| authorized in or by such direction, trust, or power as aforesaid," L J &c. But by s. 2, it is provided, " that all loans of money on real secu- rities in Ireland under this act, in which any minor or unborn child or person of unsound mind is or may be interested, shall be made by the direction and under the authority of the Court of Chancery or Exchequer in England, such direction or authority being obtained in any cause upon petition in a summary way." And by s. 5, it is further provided " that tbe provisions of this act shall not apply to any case in which such direc- tion, trust, or power as aforesaid doth or shall or may contain any ex- press restriction against the investment of such money as aforesaid on securities in Ireland." And by s. 6, " that nothing contained in this act shall relieve or be construed to relieve any person or persons intrusted or clothed with such direction, trust, or power as aforesaid from any re- sponsibility as to title, security, or otherwise, either at law or in equity, save that [of] having lent and advanced such money as aforesaid on real securities in Ireland instead of having invested such money on real securities in England, Wales, or Great Britain." Trustees cannot act separately, but must all join both in convey- ances and receipts. But although two trustees join in a receipt, where the money is in fact paid to one of them only, yet the trustee who actually received the money will in general be alone accountable. (r) Where, however, several trustees sell, although there is the usual clause that each shall be liable only for his own receipts and defaults, yet if they allow one of them to receive and retain the purchase money, they will be answerable for any loss occasioned by his dishonesty or insol- vency, fs) Trustees, executors, directors of private companies, and other persons standing in a similar situation, are not allowed, *even with the r:)cg5y-i consent of their co-trustees, co-executors, or coadjutors, to take L J any remuneration by way of commission, or brokerage, or salary, with- out some express or implied provision for that purpose in the instrument Tinder which they claim. (A But trustees are entitled, without any ex- « (p) 2 Rop. Leg. by White, 1500, 1501 ; 2 Spence's Eq. Jur. 296, 926. fg) Drosier v. Brereton, 15 Beav. 221. (r) 1 Cruise T. 12, c. 4, § 36. (s) Sugd. Concise View, 45. (() Story's Eq. Jur. ^ 466, a, 1268 ; 2 Spence's Eq. Jur. 945, 946. 551 SMITH ON REAL AND PERSONAL PROPERTY. press provision, to defray out of the trust funds expenses legitimately and properly incurred.(M) The Court of Chancery will not in any case permit a trustee or other person standing in a fiduciary relation to derive any benefit from his oflBce. If a trustee or other person standing in a fiduciary relation ac- quires property, or makes a profit by means of transactions within the scope of his agency or authority, or if a person employs another's pro- perty in any trade or speculation, there will be a constructive trust as to the property so acquired or the profits thereby made, for the benefit of the cestui que trust, principal, owner, or other person standing in the opposite relation. (a) Therefore, if a trustee compounds a debt for less than is due he shall not derive any advantage to himself from the trans- action. (y) And if a trustee purchases a lien or mortgage on a trust estate at a discount, he will not be allowed the benefit of the difi^erence, but the purchase will be a trust for the cestui que trust. So, if a trus- tee or a partner renews a lease of the trust or partnership estate, he will be a trustee of such renewed interest for his cestui que trust or co- partner, even though the lessor may have refused to grant a renewal to the cestui que trust or copartner.(«) So, if an agent, who is employed |.,n^„-. to purchase for another, purchases in his own *name, or on his L J own account, he will be held to be a trustee for the principal, at the option of the latter.(a) In general, whenever property of one kind has been wrongfully con- verted into property of another kind, by a trustee or agent, if the pro- perty which has been so substituted can be ascertained to be such, it will be liable to the rights of the cestui que trust or principal, to which the property converted was subject. (6) If the trustee conveys the trust property to a bona fide purchaser for valuable consideration, who has paid his purchase money, and had no notice of the trust at the time of paying the same, the trust is extin- guished. But if the trustee should afterwards repurchase or otherwise become entitled to the same property, the trust would be revived by con- struction of equity.(c) And if a trustee conveys or assigns the trust property for valuable consideration, in violation of the trust, to a person who is aware of that circumstance, or conveys or assigns it without valuable consideration, even to a person who has no notice, such person will be treated as a trustee for the cestui que trust. And an executor is deemed a trustee of the assets of his testator.(c?) («) 2 Spence's Eq. Jur. 938. (x) 1 Cruise T. 12, c. 4, ? 38. See Story's Eq. Jur. § 1211, 1211, a, 1261 ; 1 Spence's Eq. Jur. 512 ; 2 Spence's Eq. Jur. 208, 299, 300. (i/) 1 Cruise T. 12, c. 4, § 38. (z) Story's Eq. Jur. ? 1211 ; 1 Spence's Eq. Jur. 512 ; 2 Spence's Eq. Jur. 208, 299, 300; 1 Cruise T. 12, c. 1, § 61. (a) Story's Eq. Jur. § 1211, a. As to purchases by trustees, see supra, p. 6'76-'7. (J) See Story's Eq. Jur. J 1158, 1560; 2 Spence's Eq. Jur. 203. (c) See Story's Eq. Jur. ? 1264, and note; 2 Spence's Eq. Jur. 40, 195, 196; 1 Cruise T. 12, c. 4, J 10, 12, 13. [d) Story's Eq. Jur. § 1257; 1 Spence's Eq. Jur. 512; 2 Id. 40, 195, 298; 1 Cruise T. 12, c. 4, § 13. OF TEUSTEES. 555 If a cestui que trust is in possession, that would be constructive notice of the trust to a purchaser from the trustee. (e) A trustee may bind the estate by a bong, fide mortgage, or other specific lien, without notice of the trust. But the trust property will not be bound by any judgment or other claim of creditors against the trustees. (/) *By the stat. 7 & 8 Vict. c. 76, s. 10, it was enacted " that (-^okq-, the bona fide payment to and the receipt of any person to whom L J any money shall be payable upon any express or implied trust or for any limited purpose, or of the survivors or survivor of two or more mortgagees or holders, or the executors or administrators of such sur- vivor, or their or his assigns, shall efiectually discharge the person pay- ing the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security." This enactment, which only took effect on the 1st day of January, 1845, was repealed by the Stat. 8 & 9 Vict. c. 106, s. 1, as from the 1st day of October in the same year.((7) When all the duties of a trustee are at an end, and this is clearly shown to him, and he has no notice of any disposition or incumbrance made by the cestui que trust, he must, on demand, convey the legal estate to his cestui que trust, at the peril of paying the costs of any suit occasioned by his refusal. In cases of real doubt or difficulty, a trustee, before he parts with his estate, is fully justified in requiring an indem- nity from his cestui que trust, or in seeking the direction and indemnity of the court. (^) Where the beneficial occupation of a trust estate by the person entitled to it has given reason to suppose that there was a conveyance of the legal estate to the person who was equitably entitled to it, a jury may be directed to presume such a conveyance. (?') Where there is an assignment to two trustees, and one assents and the other dissents, the property passes to the assenting trustee. (^) A disclaiming trustee should not convey the estate to his *oo- r:);DeA-i trustee j for according to Crew v. Dicken,(Z) if a trustee refusing L J to act, reconveys his interest to his co-trustee, he thereby accepts the trust, though he conveys away the estate. (?re) But, according to Neilson V. Wordsworth, (n) a release, with intent to operate as a disclaimer, will be held to amount to a disclaimer in equity.(o) By the stat.(^) 13 & 14 Vict. c. 60, s. 3, " when any *luna- p^j^oej-i tic or person of unsound mind shall be seised or possessed of L J (e) 2 Pres. Shep. T. 507, n. (8). (/) Story's Eq. Jur. ? 977. (ff) See supra, p. 460-463. (A) 2 SpeDce's Eq. Jur. 48. (i) 1 Cruise T. 12, c. 2, J 39. (/c) 2 Spence's Eq. Jur. 351. (l) 4 Ves. 97. (m) 3 Jarm. & Byth. by Sweet, 698; 1 Cruise T. 12, c. 4, § 59. (n) 2 Swanst. 365. (o) See 3 Jarm. & Byth. by Sweet, 700-702. (p) By s. 2 it is declared, "that the sereral words hereinafter named are hereia used and applied in the manner following respectively ; (that is to say,) The word 'lands' shall extend to and include manors, messuages, tenements, and heredita- ments, corporeal and incorporeal, of every tenure or description, whatever maybe the estate or interest therein ; The word ' stock' shall mean any fund, annuity, or 556 SMITH ON REAL AND PERSONAL PROPBRTT. any lands upon any trust or by way of mortgage, it shall be lawful for the lord chancellor, intrusted by virtue of the queen's sign manual wilh the care of the persons and estates of lunatics, to make an order that such lands be vested in such person or persons in such manner and for such estate as he shall direct ; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a con- security transferable in books kept by any conapany or society established or to be established, or transferable by deed alone, or by deed accompanied by other for- malities, and any share or interest therein : The word 'seised' shall be applicable to any vested estate for life or of a greater description, and shall extend to estates at law and in equity, in possession or in futurity, in any lands : The word ' pos- sessed' shall be applicable to any vested estate less than a life estate, at law or in equity, in possession or in expectancy, in any lands : The words ' contingent right,' as applied to lands, shall mean a contingent or executory Interest, a possibility coupled with an interest, whether the object of the gift or limitation of such inte- rest or possibility be or he not ascertained, also a right of entry, whether imme- diate or future, and whether vested or contingent : The words ' convey' and ' con- veyance,' applied to any person, shall mean the execution by such person of every necessary or suitable assurance for conveying or disposing to another lands whereof such person is seised or entitled to a contingent right, either for the whole estate of the person conveying or disposing, or for any less estate, together with the performance of all formalities required by law to the validity of such convey- ance, including the acts to be performed by married women and tenants in tail in accordance with the provisions of an act passed in the fourth year of the reign of his late Majesty King William the Fourth, intituled An Act for the Abolition of Fines and Recoveries, and the Substitution of more simple modes of Assurance, and including also surrenders and other acts which a tenant of customary or copyhold lands can himself perform preparatory to or in aid of a complete assurance of such custo- mary or copyhold lands: The words 'assign' and 'assignment' shall mean the exe- cution and performance by a person of every necessary or suitable deed or act for assigning, surrendering, or otherwise transferring lands of which such person is possessed, either for the whole estate of the person so possessed or for any less estate : The word ' transfer' shall mean the execution and performance of every deed and act by which a person entitled to stock can transfer such stock from himself to another: The words 'Lord Chancellor' shall mean as well the Lord Chancellor of Great Britain as any Lord Keeper or Lords Commissioners of the Great Seal for the time being : The words ' Lord Chancellor of Ireland' shall mean as well the Lord Chancellor of Ireland as any Keeper or Lords Commissioners of the Great Seal of Ireland for the time being : The word ' trust' shall not mean the duties incident to au estate conveyed by way of mortgage ; but, with this excep- tion, the words ' trust' and ' trustee' shall extend to and include implied and constructive trusts, and shall extend to and include cases where the trustee has some beneficial estate or interest in the subject of the trust, and shall extend to and include the duties incident to the ofiice of personal representative of a de- ceased person : The word ' lunatic' shall mean any person who shall have been found to be a lunatic upon a commission of inquiry in the nature of a writ de lu- natico inquirendo: The expression 'person of unsound mind' shall mean any per- son, not an infant, who, not having been found to be a lunatic, shall be incapable from infirmity of mind to manage his own affairs : The word ' devisee' shall, in addition to its ordinary signification, mean the heir of a devisee and the devisee of au heir, and generally any person claiming an interest in the lands of a deceased person, not as heir of such deceased person, but by a title dependent solely upon the operation of the laws concerning devise and descent : The word ' mortgage' shall be applicable to every estate, interest, or property in lands or personal es- tate which would in a court of equity be deemed merely a security for money : The word ' person' used and referred to in the masculine gender shall include a female as well as a male, and shall include a body corporate: And generally, un- less the contrary shall appear from the context, every word importing the singu- lar number only shall extend to several persons or things, and every word im- porting the plural number shall apply to one person or thing, and every word importing the masculine gender only shall extend to a female." OF TRUSTEES. 557 veyance or assignment of the lands in the same manner for the same estate." *By s. 4, " when any lunatic or person of unsound mind r^j-ofjo-i shall be entitled to any contingent right in any lands upon any L -I trust or by way of mortgage, it shall be lawful for the lord chancellor, intrusted as aforesaid, to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or per- sons as the said lord chancellor shall direct 3 and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a deed so releasing or disposing of the contingent right." By s. 5, "when any lunatic or person of unsound mind shall be solely entitled to any stock or to any chose in action upon any trust or by way of mortgage, it shall be lawful for the lord chancellor, intrusted as aforesaid, to make an order vesting in any person or persons the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof; and when any person or persons shall be entitled jointly with any lunatic or person of unsound mind to any stock or chose in action upon any trust or by way of mortgage, it shall be lawful for the said lord chancellor to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons together with any other person or persons the said lord chancellor may appoint." By s. 6, " when any stock shall be standing in the name of any deceased person whose personal representative is a lunatic or person of unsound mind, or when any chose in action shall be vested in any lunatic or person of unsound mind as the personal representative of a deceased person, it shall be lawful for the lord chancellor, intrusted as aforesaid, to make an order vesting the right to transfer such _j|.„„„-. *stock or to receive the dividends or income thereof, or to sue L -■ for and recover such chose in action or any interest in respect thereof, in any person or persons he may appoint." By s. 7, " where any infant shall be seised or possessed of any lands upon any trust or by way of mortgage, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or per- sons in such manner and for such estate as the said court shall direct ; and the order shall have the same effect as if the infant trustee or mort- gagee had been twenty-one years of age, and had duly executed a con- veyance or assignment of the lands in the same manner for the same estate." By s. 8, " where any infant shall be entitled to any contingent right in any lands upon any trust or by way of mortgage, it shall be lawful for the Court of Chancery to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said court shall direct; and the order shall have the same effect as if the infant had been twenty-one years of age, and had duly executed a deed so releasing or disposing of the contingent right." 558 SMITH ON REAL AND PERSONAL PROPERTY. By s. 9, " when any person solely seised or possessed of any lands upon any trust shall be out of the jurisdiction of the Court of Chancery, or cannot be found, it shall be lawful for the said court to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct ; and the order shall have the same effect as if the trustee had duly executed a conveyance or assign- ment of the lands in the same manner and for the same estate." By s. 10, " when any person or persons shall be seised or possessed of any lands jointly with a person out of the jurisdiction of the Court of Chancery, or who cannot be found, it shall be lawful for the said court to make an order vesting the lands in the person or persons so r*Sfi4.n J°^'^''^y seised *or possessed, or in such last-mentioned person or L J persons together with any other person or persons, in such man- ner and for such estate as the said court shall direct ; and the order shall have the same effect as if the trustee out of the jurdisdiction, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same manner for the same estate." By s. 11, " when any person solely entitled to a contingent right in any lands upon any trust shall be out of the jurisdiction of the Court of Chancery or cannot be found, it shall be lawful for the said court to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said court shall direct ; and the order shall have the same effect as if the trustee had duly executed a conveyance so releasing or disposing of the contingent right." By s. 12, " when any person jointly entitled with any other person or persons to a contingent right in any lands upon any trust shall be out of the jurisdiction of the Court of Chancery or cannot be found, it shall be lawful for the said court to make an order dis- posing of the contingent right of the person out of the jurisdiction, or who cannot be found, to the person or persons so jointly entitled as aforesaid, or to such last-mentioned person or persons together with any other person or persons ; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance so releasing or disposing of the contin- gent right." By s. 13, "where there shall have been two or more persons jointly seised or possessed of any lands upon any trust, and it shall be uncer- tain which of such trustees was the survivor, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall r»sftf;n direct; and the order shall have the same effect as if the L -I *survivor of such trustees had duly executed a conveyance or assignment of the lands in the same manner from the same estate." By s. 14, "where any one or more person or persons shall have been seised or possessed of any lands upon any trust, and it shall not be known as to the trustee last known to have been seised or possessed, whether he be living or dead, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such OF TRUSTEES. 559 manner and for such estate as the said court shall direct ; and the order shall have the same effect as if the last trustee had duly executed a cou- veyance or assignment of the lands in the same manner for the same estate." By s. 15, "when any person seised of any lands upon any trust shall have died intestate as to such lands without an heir, or shall have died and it shall not be known who is his heir or devisee, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct ; and the order shall have the same effect as if the heir or devisee of such trustee had duly executed a conveyance of the lands in the same manner for the same estate." By s. 16, " when any lands are subject to a contingent right in an unborn person or class of unborn persons who upon coming into existence would in respect thereof become seised or possessed of such lands upon any trust, it shall be lawful for the Court of Chancery to make an order which shall wholly release and discharge such lands from such contin- gent right in such unborn person or class of unborn persons, or to make an order which shall vest in any person or persons the estate or estates which such unborn person or class of unborn persons would upon coming into existence be seised or possessed of in such lands." But by s. 20, " in every case where the lord chancellor, *in- r*Qpp-i trusted as aforesaid, or the Court of Chancery, shall under the L J provisions of this act, be enabled to make an order having the effect of a conveyance or assignment of any lands, or having the effect of a release or disposition of the contingent right of any person or persons, born or unborn, it shall also be lawful for the lord chancellor, intrusted as afore- said, or the Court of Chancery, as the case may be, should it be deemed more convenient, to make an order appointing a person to convey or assign such lands, or release or dispose of such contingent right ; and the conveyance, or assignment, or release, or disposition, of the person so appointed, shall, when in conformity with the terms of the order by which he is appointed, have the same effect, in conveying or assigning the lands, or releasing or disposing of the contingent right, as an order of the lord chancellor, intrusted as aforesaid, or the Court of Chancery, would in the particular case have had under the provisions of this act; and in every case where the lord chancellor, intrusted as aforesaid, or the Court of Chancery, shall, under the provisions of this act, be enabled to make an order vesting in any person or persons the right to transfer any stock transferable in the books of the governor and company of the Bank of England, or of any other company or society established or to be established, it shall also be lawful for the lord chancellor, intrusted as aforesaid, or the Court of Chancery, if it be deemed more convenient, to make an order directing the secretary, deputy secretary, or accountant general for the time being of the governor and company of the Bank of England, or any officer of such other company or society, at once to transfer or join in transferring the stock to the person or persons to be named in the order," &c. By s. 21, " as to any lands situated within the duchy of Lancaster or 560 SMITH ON REAL AND PERSONAL PROPERTY. the counties palatine of Lancaster or Durham, it shall be lawful for the r*Rfi7n *'°"'^'' °^ ^^^ duchy chamber of *Lancaster, the Court of Chancery L -I in the county palatine of Lancaster, or the Court of Chancery in the county palatine of Durham, to make a like order in the same cases as to any lands within the jurisdiction of the same courts respectively as the Court of Chancery has under the provisions hereinbefore contained been enabled to make concerning any lands ; and every such order of the court of the duchy chamber of Lancaster, the Court of Chancery in the county palatine of Lancaster, or the Court of Chancery in the county palatine of Durham, shall, as to such lands, have the same effect as an order of the Court of Chancery : Provided always, that no person who is anywhere within the limits of the jurisdiction of the High Court of Chancery shall be deemed by such local courts to be an absent trustee or mortgagee within the meaning of this act." By s. 22, " when any person or persons shall be jointly entitled with any person out of the jurisdiction of the Court of Chancery, or who can- not be found, or concerning whom it shall be uncertain whether he be living or dead, to any stock or chose in action upon any trust, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last- mentioned persooior persons together with any person or persons the said court may appoint ; and when any sole trustee of any stock or chose in action shall be out of the jurisdiction of the said court, or cannot be found, or it shall be uncertain whether he be living or dead, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in any person or persons the said court may appoint." r*8fi81 *^^ ^' ^^' " ^^^^^ ^"y ^°1® trustee of any stock or chose in L J action shall neglect or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the person absolutely entitled thereto, it shall be lawful for the Court of Chancery to make an order vesting the sole right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the said court may appoint." By s. 24, " where any one of the trustees of any stock or chose in action shall neglect or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action according to the directions of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him or her by such person, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to OPTEITSTEBS. ♦ 561 sue for and recover such chose in action, in the other trustee or trustees of the said stock or chose in action, or in any person or persons whom the said court may appoint jointly with such other trustee or trustees." By s. 25, " when any stock shall be standing in the sole name of a de- ceased person, and his or her personal representative shall be out of the jurisdiction of the Court of Chancery, or cannot be found, or it shall be uncertain whether such personal representative be living or dead, or such personal representative shall neglect or refuse to transfer such i-,|iQf;q-i stock, or receive the dividends or income ^thereof, according to the L J direction of the person absolutely entitled thereto, for the space of twenty- eight days next after a request in writing for that purpose shall have been made to him by the person entitled as aforesaid, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said court may appoint." Sections 26, 27, define the effect of an order vesting the legal right to stock or the legal right to sue for a chose in action or any interest in respect thereof. By s. 28, " whensoever, under any of the provisions of this act, an order shall be made, either by the lord chancellor, intrusted as aforesaid, or the Court of Chancery, vesting any copyhold or customary lands in any person or persons, and such order shall be made with the consent of the lord or lady of the manor whereof such lands are holden, then the lands shall, without any surrender or admittance in respect thereof, vest accordingly ; and whenever, under any of the provisions of this act, an order shall be made either by the lord chancellor, intrusted as aforesaid, or the Court of Chancery, appointing any person or persons to convey or assign any copyhold or customary lands, it shall be lawful for such person or persons to do all acts and execute all instruments for the pur- pose of completing the assurance of such lands ; and all such acts and instruments so done and executed shall have the same effect, and every lord and lady of a manor, and every other person, shall, subject to the customs of the manor and the usual payments, be equally bound and compellable to make admittance to such lands, and to do all other acts for the purpose of completing the assurance thereof, as if the persons in whose place an appointment shall have been made, being free from any disability, had duly done and executed such acts and instruments." *By s. 29, " when a decree shall have been made by any r»gYQ-i .Court of Equity directing the sale of any lands for the payment L J of the debts of a deceased person, every person seised or possessed of such lands, or entitled to a contingent right therein, as heir, or under the will of such deceased debtor, shall be deemed to be so seised or possessed or entitled, as the case may be, upon a trust within the mean- ing of this act J and the Court of Chancery is hereby empowered to make an order wholly discharging the contingent right, under the will of such deceased debtor, of any unborn person." By s. 30 " where any decree shall be made by any court of equity for the specific performance of a contract concerning any lands, or for the partition or exchange of any lands, or generally when any decree shall April, 1856.— 36 662 SMITH ON EBAL AND PERSONAL PROPBETT. be made for the conveyance or assignment of any lands either in cases arising out of the doctrine of election or otherwise, it shall be lawful for the said court to declare that any of the parties to the said suit wherein such decree is made are trustees of such lands or any part thereof, with- in the meaning of this act, or to declare concerning the interests of un- born persons who might claim under any party to the said suit, or under the will or voluntary settlement of any person deceased who was during his lifetime a party to the contract or transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who, upon coming into existence, would be trustees within the meaning of this act, and thereupon it shall be lawful for the lord chan- cellor, intrusted as aforesaid, or the Court of Chancery, as the case may be, to make such order or orders as to the estates, rights, and interests of such persons, born or unborn, as the said court or the said lord chan- cellor might under the provisions of this act make concerning the estates, rights, and interests of trustees born or unborn." r*S7n *^^ ^' ^^> " w'lSDever it shall be expedient to appoint a new L J trustee or new trustees, and it shall be found inexpedient, diffi- cult, or impracticable so to do without the assistance of the Court of Chancery, it shall be lawful for the said Court of Chancery to make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees." By s. 33, " the person or persons who, upon the making of such order as last aforesaid, shall be trustee or trustees, shall have all the same rights and powers as he or they would have had if appointed by decree in a suit duly instituted." By s. 34, " it shall be lawful for the said Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order, to direct that any lands sub- ject to the trust shall vest in the person or persons who upon the ap- pointment shall be the trustee or trustees, for such estate as the court shall direct; and such order shall have the same effect as if the person or persons who before such order were the trustee or trustees (if any,) had duly executed all proper conveyances and assignments of such lands Tor such estate." By s. 35, " it shall be lawful for the said Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order, to vest the right to call for a transfer of any stock subject to the trust, or to receive the dividends or^ income thereof, or to sue for or recover any chose in action, subject to the trust, or any interest in respect thereof, in the person or persons who upon the appointment shall be the trustee or trustees." By the stat. 15 & 16 Vict. c. 55, intituled " An act to extend the Provisions of ' The Trustee Act, 1850,' " s. 1, it is enacted, " that, when any decree or order shall have been made by any Court of equity r*«79n directing the sale of any *lands for any purpose whatever, L J every person seised or possessed of such land, or entitled to a contingent right therein, being a party to the suit or proceeding in which such decree or order shall have been made, and bound thereby, or being OF TRUSTEES. 563 Otherwise bound by such decree or order, shall be deemed to be so seised or possessed or entitled (as the case may be,) upon a trust within the meaning of the trustee act, 1850 ; and in every such case, it shall be lawful for the Court of Chancery, if the said court shall think it expedient for the purpose of carrying such sale into effect, to make an order vesting such lands or any part thereof, for such estate as the court shall think fit, either in any purchaser or in such other person as the court shall direct ; and every such order shall have the same effect as if such person so seised or possessed or entitled had been free from all disability, and had duly executed all proper conveyances and assign- ments of such lands for such estate." By s. 2, the 17th and 18th sections of the trustee act, 1850, are re- pealed, and in lieu thereof it is enacted, that, " in every case where any person is or shall be jointly or solely seised or possessed of any lands or entitled to a contingent right therein upon any trust, and a demand shall have been made upon such trustee by a person entitled to require a conveyance or assignment of such lands, or a duly authorised agent of such last-mentioned person, requiring such trustee to convey or assign the same, or to release such contingent right, it shall be lawful for the Court of Chancery, if the said court shall be satisfied that such trus- tee has wilfully refused or neglected to convey or assign the said lands for the space of twenty-eight days after such demand, to make an order vesting such lands in such person, in such manner and for such estate as the court shall direct, or releasing such contingent right in such manner as the court shall direct; and the said order shall *have the same r^Q^q-i effect as if the trustee had duly executed a conveyance or assign- L J ment of the lands, or a release of such right, in the same manner, and for the same estate." By s. 3, " when any infant shall be solely entitled to any stock upon any trust, it shall be lawful for the Court of Chancery to make an order vesting in any person or persons the right to transfer such stock, or to receive the dividends or income thereof; and when any infant shall be entitled jointly with any other person or persons to any stock upon any trust, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, either in the person or persons jointly entitled with the infant, or in him or them together with any other person or persons the said court may appoint." By s. 4 " where any person shall neglect or refuse to transfer any stock, or to receive the dividends or income thereof, or to sue for or recover any chose in ' action, or any interest in respect thereof, for the space of twenty -eight days next after an order of the Court of Chancery for that purpose shall have been served upon him, it shall be lawful for the Court of Chancery to make an order vesting all the right of such person to transfer such stock, or to receive the dividends or income thereof or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the said court may appoint." By s. 5 " when any stock shall be standing in the sole name of a deceased person, and his personal representative shall refuse or neglect 564 SMITH ON EEAL AND PERSONAL PKOPEBTT. to transfer such stock or receive the dividends or income thereof for the space of twenty-eight days next after an order of the Court of Chancery for that purpose shall have heen served upon him, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said court may appoint." r*R7(n *^^ ^' ^' "^^^° ^'^y person is or shall be jointly or solely L J seised or possessed of any lands or entitled to any stock upon any trust, and such person has been or shall be convicted of felony, it shall be lawful for the Court of Chancery, upon proof of such conviction, to appoint any person to be a trustee in the place of such convict, and to make an order for vesting such lands, or the right to transfer such stock, and to receive the dividends or income thereof, in such person to be so appointed trustee ; and such order shall have the same effect as to lands as if the convict trustee had been free from any disability, and had duly executed a conveyance or assignment of his estate and interest in the same." By s. 9, " in all cases where it shall be expedient to appoint a new trustee, and it shall be found inexpedient, difficult, or impracticable so to do without the assistance of the Court of Chancery, it shall be law- ful for the said court to make an order appointing a new trustee or new trustees, whether there be any existing trustee or not at the time of making such order." By s. 12, it is enacted, " that this act shall be read and construed according to the definitions and interpretations contained in the second section of the Trustee Act, 1850, and the provisions of the said last- mentioned act (except so far as the same are altered by or inconsistent with this act) shall extend and apply to the cases provided for by this act, in the same way as if this act had been incorporated with and had formed part of the said Trustee Act, 1850." And by s. 13, " every order to be made under the Trustee Act, 1850, or this act, which shall have the effect of a conveyance or assignment of any lands, or a transfer of any such stock as can only be transferred by stamped deed, shall be chargeable with the like amount of stamp duty _ „_,, as it would have been chargeable with if it had been *a deed L -I executed by the person or persons seised or possessed of such lands, or entitled to such stock; and every such order shall be duly stamped for denoting the payment of the said duty." Where the Court of Chancery appoints new trustees, it does not give them a power to appoint other new trustees, even though the testator empowered the original trustees to appoint new trnstees.(g') A power of appointing new trustees of a will does not authorise the filling up of a vacancy occurring in the testator's lifetime, unless there are words showing an intention to provide for such a vacancy, as well as for vacancies occurring after his decease. (?•) A power to appoint any person or persons to be a trustee or trustees, in the place or stead of a trustee or trustees dying or desiring to be (j) Holder t. Durbin, 11 Beav. 594. (r) Winter v. Radge, 15 Sim. 596. OF TRUSTEES. 565 discharged, does not authorise the appointment of a greater number of trustees than the original number, in case of the decease or resignation of all the original trustees. (s) By the stat. 10 & 11 Vict. c. 96, s. 1, "all trustees, executors, admi- nistrators, or other persons, having in their hands any moneys belonging to any trust whatsoever, or the major part of them, shall be at liberty, on filing an affidavit, shortly describing the instrument creating the trust, according to the best of their knowledge and belief, to pay the same, with the privity of the accountant general of the High Court of Chancery, into the Bank of England, to the account of such accountant- general in the matter of the particular trust (describing the same by the names of the parties, as accurately as may be, for the purpose of distin- guishing it,) in trust to attend the orders of the said court ; and that all trustees or other persons having any *annuities or stocks stand- f^o^f.-, ing in their name in the books of the governor and company L J of the Bank of England or of the East India Company, or South Sea Company, or any government or parliamentary securities standing in their names, or in the names of any deceased persons of whom they shall be personal representatives, upon any trusts whatsoever, or the major part of them, shall be at liberty to transfer or deposit such stocks or securities into or in the name of the said accountant-general with his privity, in the matter of the particular trust (describing the same as aforesaid,) in trust to attend the orders of the said court;" &c. And by the stat. 12 & 13 Vict. c. 74, it is enacted " that if upon any petition presented to the lord chancellor or master of the rolls in the matter of the said act it shall appear to the Judge of the Court of Chancery before whom such petition shall be heard that any moneys, annuities, stocks, or securities are vested in any persons as trustees, executors, or adminis- trators, or otherwise, upon trusts within the meaning of the said recited act, and that the major part of such persons are desirous of transferring, paying, or delivering the same to the accountant-general of the High Court of Chancery under the provisions of the said recited act, but that for any reason the concurrence of the other or others of them cannot be had, it shall be lawful for such judge as aforesaid to order and direct such transfer, payment, or delivery to be made by the major part of such persons without the concurrence of the other or others of them ; and where any such moneys or government or parliamentary securities shall be deposited with any banker, broker, or other depositary, it shall be lawful for such judge as aforesaid to make such order for the payment or delivery of such moneys, government or parliamentary securities, to the major part of such trustees, executors, administrators, or other per- sons as aforesaid, for the purpose of being paid or delivered to the said accountant-general as to the said judge shall seem meet." (j) Ex parte Davis, 2 T. & C. C. 0. 468. 566 SMITH ON REAL AND PERSONAL PROPERTY. [*877] *CHAPTEE III. or MARRIED WOMEN.(a) At the common law, the being or legal existence of the wife, for almost all purposes, is considered as merged in that of the husband. (6) But courts of equity, in many respects, treat husband and wife as dis- tinct persons, (c) In treating of this subject, let us consider, I. The legal disability of married women. II. The powers which husband and wife have, in equity, of contract- ing with, and giving and granting to, each other. III. The interest of the husband in the wife's property. IV. The wife's pin-money and paraphernalia. V. The wife's separate estate. VI. The equity of the wife to a settlement or maintenance out of her own property. VII. Some points respecting deeds of separation. VIII. Some miscellaneous points. Section I. The Legal Disability of Married Women. A married woman might, with her husband, make an effectual assur- ance by fine or recovery, and, in order to this, she might join with him in the declaration of uses of such fine or recovery. (cZ) And as we have seen, married women are now enabled to dispose of their real property, r*87S1 *^°'^ "f money subject to be invested in the purchase of real L J property, or may release or extinguish powers relating thereto, by an assurance, under the stat. 3 & 4 Will. 4, c. lAL.{dd\ A married woman may also execute a power, in the absence of words to the con- trary, whether such power is given to her before or after marriage, or upon her marriage, and even without the concurrence of her husband.(e) And by the custom of London and of several other cities, a married woman may bind herself by a deed inrolled, after being privately examined : and this custom was confirmed in the reign of Hen. 8, by a positive statute. (/) But with the exceptions presently noticed, all other deeds executed by married woman, except a queen consort, by which they might be deprived of any right or charged with any duty, are absolutely void at law, not merely voidable. (^) They are also void in equity, except in certain (a) The reader is referred to the works of Mr. Bright, Mr. Macqueen, and Mr. Bell, for further information on this subject. (A) See Story's Eq. Jur. | 1367. (c) Story's Eq. Jur. § 1368. {d) Burton, J 206 ; 4 Cruise T. 32, c. 12, ? 30, 35. {dd) See supra, p. 641-644. [e] 1 Sugd. Pow. 181-2. (f) 4 Cruise T. 32, c. 2, § 33. [g) 2 Bl. Com. 292-3 ; 4 Cruise T. 32, c. 2, I 29; Burton, I 206. THE LEGAL DISABILITY OF MAREIED WOMEN. 567 cases where they relate to or affect her separate estate, and no act of the wife after the death of her husband, except in the case of a lease, will in general operate as a coniirmation of theni.(^) But the acknowledgment of a deed executed by a woman during her marriage after the death of her husband, may in some cases amount to a redelivery of it, and so render it valid. (i) By the stat. 1 Will. 4, c. 65, s. 12, where a feme covert is entitled to any lease, she, or any person appointed by the order of a court of equity in her place, may by such an order be enabled to surrender such lease ~ and take a new one. By s. 14, expenses attending renewals are to be charged on the estates. And by s. 15, the new leases are to be to the same uses. By s. 16, 20, where a feme covert might in pursuance *of any rjKoyQ-i covenant or agreement, if not under disability, be compelled to L J renew any lease, such feme covert, by the direction of the Court of Chancery, may accept a surrender of such lease, and execute a new one. By the stat. 8 & 9 Vict. c. 106, s. 7, it is enacted, " that, after the 1st day of October, 1845, an estate or interest in any tenements or heredita- ments in England, of any tenure, may be disclaimed by a married woman by deed ; and that every such disclaimer shall be made conformably to the said provisions of the said act for the abolition of fines and recoveries and for the substitution of more simple modes of assurance." A married woman is incapable of making a testament of chattels, without the license of her husband ; except of property to which she is entitled in autre droit, as executrix, or of property settled to her separate use, or property over which she has a power of appointment by will. And the husband's license or assent must be given to the particular will, and can only give validity even to that, in the event of his being the survivor. And he may revoke such assent at any time during his wife's life, or after her death before probate. After her husband's death, however, she may recognize her will made during coverture, and thereby cause it to operate as a new will. (A;) Married women were expressly disabled by the old statute of wills from devising their lands. And by s. 8 of the stat. 1 Vict, c. 26, it is enacted, that « no will made by a married woman shall be valid, except such a will as might have been made by a married woman before the passing of this act." But married women are frequently enabled to dispose of lands by wills operating as appointments under powers con- tained in conveyances to uses.0 *A surrender may be made by husband and wife of the wife's r«ggQ-i copyhold land, she being first examined as to her consent by the L J steward, without any special custom ; but a custom for the wife to sur- render alone cannot be supported. (»i) A power to a married woman to appoint by deed or will, notwith- Ih) 4 Cruise T. 32, c. 2, | 29. (i) 4 Cruise T. 32, c. 2, § 31. (k) Wms. Exors., 4th edit., 45-52 ; Ex. parte Fane, 16 Sim. 406 ; 2 Bl. Com. 498. (l) 6 Cruise, T. 38, o. 2, § T. (m) Burton, I 1275. 568 SMITH ON REAL AND PEKSONAL PROPBETT. standing her coverture and as if she were sole, does not restrict her to an execution during coverture. (m) Married women are capable of purchasing, but their husbands may disagree to their purchases, unless made with their separate property, and thereby divest the whole estate, and maintain an action for the pur- chase money. If a husband neither agrees nor disagrees to a purchase by his wife, it is effectual during the coverture. But after his death she may waive a purchase by herself, without giving any reason for so doing, even though her husband may have agreed to it. And if after her hus- band's death she does not agree to it, her heirs may waive it.(o) If she has separate property she may contract as if she were a feme sole for the purchase of an estate, and her separate property will be bound by the contract, although she do not refer to it. And she may purchase lands pursuant to an authority given her by her husband, and he cannot avoid it afterwards, (p) * An agreement by a married woman for the sale of her estate cannot be enforced, either at law or in equity, unless the estate is settled to her separate use.(g') When an exchange is made by the husband or husband and wife of the wife's land, the wife after the husband's death, or the heir of the r*88n ^'^® after her death, and no other *person, may avoid it.(7') L -I If the husband and wife exchange the lands of the wife, and she, after her husband's death, agrees to it, and enters into the lands taken in exchange, the exchange is hereby made good against her and her heirs ; but if the husband alone makes an exchange of his wife's land, and she after his death agrees to this, and enters into the land, it seems this will not make the exchange good ; because her entry into the lands received in exchange is without any title, and the grant by the husband alone was not effectual against her.(s) If a married woman makes a feoffment and letter of attorney to make livery, and the attorney does so, this livery is void ; because she cannot make a valid deed, and therefore cannot have an attorney by force of the letter of attorney. (<) And a woman cannot even constitute an attorney to do an act relating to her estate, though it be such as she herself might lawfully do, unless she particularly reserved a power for that pur- pose before her marriage. («) If an estate is made to a married woman upon condition, she will be bound to perform it : because this does not charge her person, but the land.Ta;) When bequests are made to the separate use of married women, they alone can give a good discharge for them, because their husbands have no interest in the funds. (3/) But the gift of an immediate absolute legacy to a married woman operates in effect as a legacy to the husband, (n) 1 Sugd. Pow. 183, 333. (0) Sugd. Concise View, 541 ; 4 Cruise T. 32, c. 26, 3. Y ; 2 Bl. Com. 293 ; 1 Prea. Shep. T. 70 ; 2 Pres. Shep. T. 235. (p) Sugd. Concise View, 148, 541. {q) Sugd. Concise View, 147. (r) 2 Pres. Shep. T. 299. (s) 2 Prea. Shep. T. 299, 300. (t) 1 Pres. Shep. T. 217. (u) 3 Jarm. & Byth. by Sweet, 29. (x) 2 Cruiae T. 13, e. 2, | 17. (y) 1 Rop. Leg. by White, 887. POWERS OF HUSBAND AND WIFE. 569 who is entitled to receive it, subject indeed to the right of the executors to insist on a settlement in her favour, which, however, is rarely done, unless called for by the embarrassed circumstances or bad conduct of the husband. (z) So that *unless the wife acts as his agent r^oun-i with due authority, and the legacy is paid to her in that character, L J payment of it to her alone is void against him, and he may recover it against the executors, (a) A married woman cannot forfeit her copyhold by any act of her own, because she is not sui juris, sed sub potestate viri. But she may incur a forfeiture by an act done by her husband. (6) Section II. The Powers which Smhand and Wife have of Contracting with, and Giving and Granting to, each other. I. At law, contracts made between husband and wife before marriage, are extinguished by the marriage, if they are for debts or things due in prsesenti, or at or on a future time or event which may occur during, and not after the determination of, the coverture. But courts of equity, although they generally follow the same doctrine, will enforce such contracts, where it would be in furtherance of the manifest intention and object of the parties to do so ; as in the case of an agreement on the marriage, by husband and wife, for the mutual settlement of their estate, or of the estate of either of them, on the other, even without the intervention of trustees. (c) II. Contracts made between husband and wife after marriage, are a mere nullity at law ; but, under particular circumstances, they will be enforced in equity, where they are of a reasonable nature. Thus, if the husband should contract with his wife, for good reasons, that she should separately possess and enjoy property bequeathed to her, *the r5(i) even though the property is under 200?,(m) unless the wife and children are already amply provided for under a prior aettle- ment,(o) or the right to the settlement is waived or lost.(p) If the husband does'not choose to make a settlement or provision for the wife, the court will not ordinarily take from him the income and interest of his wife's fortune, so long as he is willing to live with and maintain her, and there is no reason for their living apart. Under such circumstances, the court secures the fund, so as to give her the chance of taking it by survivorship, allowing the husband, under its order, to receive the income and interest, or a part of it at least.(g') II. The assignees in bankruptcy or insolvency of a husband, and also his assignees for payment of debts due to his creditors generally, are bound to make a settlement on the wife out of her immediate choses in action, and immediate, absolute, equitable interests in chattels personal assigned to them, in the same way, and under the same circumstances, («') Vaughan v. Venderstegen, 2 Drewry, 165. (k) Travers T. Travers, 2 Beav. 179. (I) Story's Eq. Jur. ? 1404, 1405, 1410, 1418 ; 2 Spence's Eq. Jur. 482, 484. (ml Story's Eq. Jur. J 1406 ; 2 Spence's Eq. Jur. 488. {n) la re Cutler, 14 Beav. 220 ; Be Kincaid's Trust, 1 Drewry, 326. (0) Story's Eq. Jur. ? 1416. (p) Story's Eq. Jar. ? 1418, 1419, infra. (j) Story's Eq. Jur. g 1415 ; see 2 Spence's Eq. Jur. 490, 491. 580 SMITH ON REAL AND PERSONAL PROPERTY. as he would be bound to make one; for it is a general principle that such assignees take the property subject to all the equities which affect the bankrupt or insolvent or general assignor. Such assignees also take r*QOm *'^® *property subject to the wife's right of survivorship, in case L J the husband dies before the assignees have reduced her choses in action and equitable interests into possession. (r) And even a specific assignee or purchaser from the husband, for valuable consideration, of her choses in action and equitable interests, is bound to make such a settlement. And no assignment of them will convey any right to the assignee or purchaser against the wife, if she survives her husband, and they are not reduced into possession in his lifetime. (s) There is this distinction, however, between the case of the husband himself and his specific assignees for valuable consideration on the one hand, and the case of his assignees in bankruptcy or insolvency, or assig- nees for payment of debts generally, on the other hand: — in the case of the former, it is only necessary that the provision for the wife should commence from the death of her husband. But in the case of the latter, it is necessary that the provision should commence immediately, because the general assignment of his property renders him incapable for a time, and perhaps for ever, of affording her a suitable support. (<) If the assignees in bankruptcy, or other general assignees claiming title under the husband, refuse to make a settlement on the wife, the like doctrine applies to them, as to the husband himself, where he re- fuses to make a settlement. (m) III. Whenever the wife, as defendant, would be entitled to an equity for a settlement, out of her equitable interest, against her husband or against his assignees, she may assert it in a suit, as plaintiff, by bringing a bill in the name of her next friend.(a;) r*Qnn *I^- The court has a full discretion as to the amount to be L J settled, according to the circumstances of each case. But, at the same time, in the absence of special circumstances, the general rule or the common course has been to settle about one-half on the wife and her children. (■^) But where particular reasons have occurred, the court has frequently settled the whole : as in Marshall v. Fowler,(2;) where the husband had taken the benefit of the Insolvent Debtors' Act, and was moreover almost entirely dependent on charity ; In re Kincaid's Trust,(ci) where the husband was a bankrupt, and the fund was under 200?. — so small a sum that it would not have been worth while to have made any settlement at all, unless the whole had been settled ; In re Cutler,(6) (r) Story's Eq. Jur. ? 1411, 1421; 2 Spence's Eq. Jur. 476. (s) Story's Eq. Jur. § 1412 ; 2 Spence's Eq. Jur. 476; Scott v. Spashett, 3 Mac. & Gord. 604. (<) Story's Eq. Jur. § 1421. (u) Story's Eq. Jur. ^ 1415 ; supra, p. 899. (x) Story's Eq. Jur. | 1414; 2 Spence's Eq. Jur. 482, 484, 485. (y) Napier v. Napier, 1 Dru. & W. 410 ; Bagshaw t. Winter, 5 De G. & Sm. 466 ; M'Cormick v. Garnett, 2 Sm. & G. 37 ; 2 Spence's Eq. Jur. 485 ; 1 Bright, Husband and Wife, 241. (z) 22 L. J. 213, and 16 Jur. 1128, (M. R.) (a) 22 L. J. 395, (V. C. K.) (b) 14 Beav. 220. THE WIFE'S EQUITY TO A SETTLEMENT. 581 and in Watson v. Marsliall,(c) where the husband was an insolvent debtor; in Scott V. Spashett,(<^) where, besides other special circumstances, the husband had received about double the amount of the wife's property under a previous order, and no settlement had ever been made ; and in Dunkley v. Dunkley,(e) Vaughan v. Buck,(/) and G-ent v. Harri3,(^) where the husband had become bankrupt, and had deserted his wife. V. Where a settlement is made to give effect to a wife's equity to a settlement, in the absence of special circumstances the limitations in the event of her predeceasing the husband and of there being no issue of the marriage who should attain a vested interest, ought not to be upon such trusts as the wife should appoint, and, for want of appointment, rstann-i *for her next of kin; for the husband's right is only subject to L ^ J the equity of the wife herself and her issue, (i) VI. To avoid the expense of a settlement, where the fund allowed to the wife is small, it will sometimes be ordered to be brought into court, or, if already in court, it will be retained there, and the dividends directed to be paid to the wife for her life.(7i;) VII. The court will not insist on a settlement on the wife, if, at any time before a settlement under the decree is completed, or at least before proposals are made under the decree, the wife, by her consent given in open court or under a commission, agrees that the absolute fund shall be wholly and absolutely paid over to her husband, except in the case of a female ward of the Court of Chancery who has married without its authority. (?) The equity of the wife to a settlement may be lost or suspended by her own misconduct. Thus, if the wife (not being a ward of court mar- ried without its consent,) should be living in adultery, apart from the husband, a court of equity will not direct a settlement, on her own ap- plication, as it otherwise would ; because by such misconduct, she has rendered herself unworthy of the protection and favour of the court. In the case, however, of a female ward of court married without its consent, the court will insist on a settlement, as a punishment to the husband for contempt of its authority. On the other hand, in such a case, a court of equity will not decree such equitable property to be paid over to the hus- band, on his application; for when the wife is living apart from him, he is at no charge for her maintenance ; and it is only in respect to his duty to maintain her, that the law gives him her fortune.(OT) But we must *be careful to distinguish an application which is grounded r^KQQg-i merely on general principles of equity, and an application L J grounded on positive vested rights under a settlement, or under a valid contract for a settlement made before marriage. In the latter case, courts of equity cannot refuse to protect or support those vested rights, on account of any misconduct in the wife, (raj (c) 1 Weekly Reporter, 523. (d) 3 Mac. & Gord. 599. (e) 16 Jur. 767. (/) 1 Sim. (N. S.), 284. (g) 10 Hare, 383. li) Carter v. Taggart, 1 D. M. & G. 286. (k) Bacshaw v. Winter, 5 De G. & Sm. 466. m Story's Eq. Jur. i 1418 ; 2 Spence's Eq. Jur. 486, 488. (m) Story's Eq. Jur. § 1419, and note, and 1419, a ; 2 Spence's Eq. Jur. 486. (n) Story's Eq. Jur. J 1420. 582 SMITH ON REAL AND PERSONAL PROPERTY. We have seen that the court, in making a settlement on the wife, pro- perly attends to the interests of the children. But it must be observed, that the court attends to their interest only upon the supposition, that, in so doing, it is carrying into effect her own desire to provide for her offspring. They have no independent equity of their own ; for although the husband is under a moral obligation to provide for them, yet he is not bound to provide for them in any particular way or out of any parti- cular fund. They have only a claim to the consideration of the court constituting part of the equity of their mother, and capable of being either expressly given up by her before the amount is ascertained, or tacitly waived by her dying without having asserted it. The right of the children to the benefit of a settlement attaches, however, on the wile's filing a bill for the purpose, or at any rate on an order directing proposals to be made ; and if she dies pending the proceedings, without waiving the right to a settlement, the children may enforce their claim. (o) By the law of Scotland, a married woman has no equity to a settle- ment ; and if husband and wife are domiciled in Scotland, she has no equity to a settlement out of the produce of real estate in England directed to be sold.(p) VIII. Although courts of equity do not claim any general jurisdic- tion to decree a suitable maintenance for the wife, out of her husband's r*Qftd.T property, when he has deserted *or ill-treated her, yet, when- L J ever the wife has any equitable property, even though it be only for her life, within the reach of the jurisdiction of courts of equity, and the husband has deserted or ill-treated or refused to maintain her, they will decree a suitable and immediate maintenance out of such equitable property, or, if it has passed into the possession of a bonti fide purchaser without notice, out of other property of the husband ; because the obli- gation of maintaining the wife is the ground on which the law gives her property to the husband. (§) And where the wife has an equitable in- terest for life only, and the husband is a bankrupt or insolvent, and therefore, as a general rule, is deprived, for a time at least, of the means of duly maintaining her, she is entitled to an allowance for maintenance out of such life interest, as against the assignees. (?•) But a married wo- man, even though her husband does not maintain her, is not entitled, as against a particular assignee for valuable consideration of the husband, to an allowance for maintenance out of the income of real or personal estate to which she is entitled in equity for her life only ; because, if she were, purchasers would be involved in inquiries respecting the relations between husband and wife, and their other property and sources of main- tenance ; and the life interests of married women would become incapa- ble of being dealt with, whatever might be the exigencies of the case.(s) (o) See Story's Eq. Jur. § 1417; 2 Spence's Eq. Jur. 488-492. Ip) Hitchcock t. ClendineD, 12 Beav. 534. (j) Story's Eq. Jur. ? 1408, 1408, note, 1422-1424, 1426. (r) Story's Eq. Jur. § 1408, n. 1412. (s) Tidd V. Lister, 10 Hare, 151, 153. DEEDS OF SEPARATION. 583 Section VII. Some Points respecting Deeds of Separation. Where, in a separation deed, the wife covenants to save and keep in- demnified the husband against the debts which *she had con- |-»QnK-i traoted at the time of making the indenture, or which she should L ^'^ J thereafter during the separation contract, this covenant includes debts previously contracted by the wife for necessaries while living with the husband. (<) A deed of separation containing no covenant on the part of a trustee to indemnify the husband against the wife's debts, is not void on that account.(rf) And if a deed of separation contains a covenant by the husband to pay an annuity to a trustee for the wife, but no covenant to indemnify the husband against the wife's debts, the husband's covenant may be enforced against him or his executors, but, being voluntary, not against his creditors. (a;) When a deed of arrangement is entered into between husband and wife, by which, in consideration of the discontinuance of a suit against the husband for a divorce, and of certain proceedings for obtaining a provision for the wife and her children, it is agreed that the wife is to have an income independent of her husband, for maintaining an estab- lishment for herself and her children, of which the husband is enabled to partake, and for educating and clothing her children ; such a deed is not contrary to the policy of law, or otherwise void, but is one which a court of equity will enforce. (^) As a deed of separation cannot dissolve the marriage, it does not relieve the wife from any of the ordinary disabilities of coverture. (z) A deed of separation entered into between the husband and wife alone, without the intervention of a trustee, is utterly void. (a) A covenant for separation, whether immediate or future, or for pre- cluding the parties from any future suit for the ^restitution of |-;^Qn/.-i conjugal rights, is utterly void. But it would seem that if a L J deed for immediate, and not for future separation contains a covenant by the husband to maintain his wife, and a covenant by the trustees to exonerate him from any debts contracted for her maintenance, such cove- nant will be enforced so long as the separation lasts ; but it will not be enforced for a longer- period, even as to past separation. (5) A contract in a separation deed cannot affect the property of the wife, if not settled to her separate use, or reduced into possession during the coverture, (c) The court will not directly or indirectly enforce a separation against the parties personally. But the court will interfere to prevent the doing {i) Summers v. Ball, 8 M. & W. 596. (m) Frampton v. Frampton,4Beav. 28T. (x) Clough T. Lambert, 10 Sim. 174. [y) Jodrell t. Jodrell, 9 Beav. 46. (z) Story's Eq. Jur. § 1428. (a) Story's Eq. Jur. § 1428. (S) Story's Eq. Jur. \ 1428 ; 2 Spence's Eq. Jur. 528. (c) 2 Speuce's Eq. Jur. 532. 584 SMITH ON REAL AND PERSONAL PROPERTY. of any personal acts which, if done, would be in violation of an agree- ment respecting property entered into on the separation. (cZ) Eeconciliation puts an end to a deed of separation, as it must not be permitted to parties to make agreements for themselves to hold good whenever they choose to live separate. (e)j Section VIII. Some Miscellaneous Points. Where a lady's fortune, by the advice of her friends, has been settled upon trust for her, " her executors, administrators, and assigns," until the marriage, and afterwards for her, her husband and children, the intended husband and wife cannot revoke the settlement without con- r*Qn7n ^'^^''''g *^^^ friends, so as to entitle him after the marriage to L -I the fund so settled.(/) A woman may be barred, by the express words of her settlement, of her share of the personal estate of her husband under the Statute of Distributions in the event of his intestacy. And where a certain sum was settled in trust for an intended wife, "as and for her jointure, in full, lieu, bar, and satisfaction of any dower or thirds which she could or might claim at common law out of all or any of the estates, real, personal, or freehold," of her intended husband, and he died intestate and without issue, it was held that this barred her claim to a moiety of his personal estate under the Statute of Distributions ; the words " com- mon law," meaning the general law, and not the common law as opposed to the statute law.(^) [*908] *CH AFTER IV. OF INFANTS. By the stat. 12 Car. 2, o. 24, s. 8, a father of a legitimate child may by deed or will appoint any person, in possession or remainder, except a Popish recusant, to be a guardian, until such child shall attain the age of twenty-one years, or for any less time. And by s. 9, the authority of the guardian is to extend to the custody of the profits of the real estate, and the custody, tuition, and management of the personal estate, of the ward. But a mother cannot appoint a guardian. Nor can a father make a valid appointment of a guardian to his natural child. If, (d) 2 Spence's Eq. Jur. 532 ; Wilson v. Wilson, 1 H. L. Cas. 538 ; Saunders v. Kodway, 16 Beav. 207. (e) 2 Spence's Eq. Jur. 532. (/) Page T. Home, 11 Beav. 227. Iff) Gurly V. Gurly, 8 CI. & Fin. 743. Much of this Chapter is taken from the writer's " Manual of Equity Jurisprudence," 4th edit. ACTS AN INFANT MAT OE MAY NOT DO. 585 however, he does nominate a person to be guardian, the Court of Chan- c,ery will appoint such person to that office. (a) Section I. Of the Acts which an Infant may or may not do. If a conveyance, &c., is made to an infant, the deed becomes void, in case he, when adult, disagrees to it, or in case his heir disagrees after his death, where he died during his minority, or died after he came of age without having agreed to it. (5) Infants may, even at law, bind themselves by contracts for necessaries suitable to their degree and quality, or by acts which the law requires them to do.(c) But, in general, where a contract may be either for the benefit or to the *prejudice of an infant, he may avoid it, as well r^qnq-i at law as in equity. Where it can never be for his benefit, it is L J utterly void.(c?) An infant may purchase real property, because it may be for his benefit J yet upon his attaining his full age, he may either agree or dis- agree to it without showing any cause, and so may his heir if he dies under age or without having agreed to it.(e) And if an infant enters into a contract for the purchase of an estate, he cannot enforce it in equity, because the remedy is not mutual. (/) An infant cannot, at common law, alien his estate, unless by force of a custom. f^) But the owner of gavelkind land may alien by feoffment at the age of fifteen years. (A) By the stat. 17 Geo. 3, c. 26, it is enacted, that all contracts for the purchase of any annuity with an infant shall be utterly void.(i) An infant, like a feme covert, may at common law do any act where he is a mere instrument, and his interest is not concerned. (^) Thus an infant is capable of executing a bare authority. But where a power is given to an infant relating to his own estate, it must be inserted in the deed that he may execute it duripg his infancy, otherwise his execution of it will have no effect. (Z) An infant of the most tender age may present to a benefice. (m) If a fine or recovery by an infant was once admitted (except in the case of a recovery sufi"ered by attorney), it could not be reversed without a personal examination of the party by the court during the continuance of his minority, (re) [*910] *lf an infant makes a feoffment and gives livery of seisin in person, it is not void, but only voidable, (jj) And even a deed (a) Jarm. & Byth. by Sweet, 431, 432. (5) 1 Pres. Shep. T. 70. (c) Story's Eq. Jur. ^ 240; Burton, J 199. id) Story's Eq. Jur. I 241 ; Burton, I 199. \e) 4 Cruise, T. 32, c. 26, | 6; 2 Pres. Shep. T. 235, 285 ; Sugd. Concise View, 541 ; 2 Bl. Com. 292. (/) Sugd. Concise View, 149. (g) 1 Sugd. Pow. 211. )h\ 2 Bl. Com. 84. (») 4 Cruise T. 32, c. 2, g 16. (k\ 1 Sugd. Pow. 211. [I) 4 Cruise T. 32, c. 13, § 28. )m) 3 Cruise T. 21, c. 2, ^ 24; Burton, ? 200. (n) Burton, g 198. \p) i Cruise T. 32, c. 4, | 23; Burton, J 199. 586 SMITH ON REAL AND PBESONAL PROPERTT. which takes effect by delivery, without an additional ceremony, if exe- cuted by an infant, is voidable only, and not void, at least if it is for his benefit.(5) By the Stat. 1. Will. 4, c. 65, s. 3 — 8, infants may be admitted to copyhold estates, by their guardians or attorneys. And by s. 9, no for- feiture is to be incurred by an infant for not coming to be admitted to a copyhold estate, or for not paying the fine on admittance. By ss. 12 and 15 of the same act, infants or their guardians may, by order of the Court of Chancery, surrender leases, and take new leases, to the same uses, and liable to the same trusts, charges, incumbrances, dispositions, and conditions as the leases surrendered. By ss. 16, 18, 20, and 21, infants, or, if they are out of the jurisdic- tion, some other person, by order of the Court of Chancery, may accept surrenders of leases, and execute new leases. By s. 17, by direction of the Court of Chancery, an infant, or his guardian in his name, may grant leases of any land belonging to him, when it is for his benefit ; but no fine or premium is to be taken ; and the best rent that can be obtained is to be reserved; and the leases are to be settled and approved of by a master, and a counterpart executed by the lessee, and deposited in the master's office, until the infant attains his majority. But no lease is to be made of the capital mansion-house and the park and grounds held therewith for any period exceeding the infant's minority. And the Court of Chancery has no jurisdiction under this statute to lease an infant's estates, unless the infant is indefeasibly seised either in fee or in tail in possession. (?•) r*Qin 'Independently of this act, it was a rule that an infant could L -I not make a lease of his lands, unless it was evidently beneficial to him.(s) Hence, if an infant is seised of land in fee simple, and he makes a lease for years of it, rendering no rent, this lease is void, unless the lease is for the purpose only of trying the title by ejectment. But if there is a rent reserved upon the lease, then the lease is but void- able, and may, by the acceptance of the rent after his full age, be made good.(i!) By s. 26, the guardian of any infant, with the approbation of the Court of Chancery, may enter into agreements for or on behalf of such infant. By the stat. 18 & 19 Vict. c. 43, s. 1, it is enacted, that, " from and after the passing of this act, it shall be lawful for every infant upon or in contemplation of his or her marriage, with the sanction of the Court of Chancery, to make a valid and binding settlement or contract for a settlement of all or any part of his or her property, or property over which he or she has any power of appointment, whether real or per- sonal, and whether in possession, reversion, remainder, or expectancy ; and every conveyance, appointment, and assignment of such real or per- sonal estate, or contract to make a conveyance, appointment, or assign- ment thereof, executed by such infant, with the approbation of the said [q] Allen t. Allen, 2 D. & W. 307. [r] Ex parte Legli, 15 Sim. 445. {s) 4 Cruise T. 32, o. 5, § 66 ; Burton, § 199. {t) 2 Pres. Step. T. 268. OP PORTIONS AND LEGACIES TO INFANTS. 587 court, for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty-one years: Provided always, that this enactment shall not extend to powers of which it is expressly declared that they shall not be exercised by an infant." But by s. 2, it is provided, " that, in case any appointment under a power of appointment or any disentailing assurance shall have been executed by any infant tenant in tail under the provisions of this *act, and such infant shall afterwards die 1-1,019-1 under age, such appointment or disentailing assurance shall L -^ thereupon become absolutely void." And by s. 4, it is further provided, " that nothing in this act contained shall apply to any male infant under the age of twenty years, or to any female infant under the age of seven- teen years." By s. 3, the sanction of the court may be given upon a petition. Before this enactment a male infant could not bind himself by a set- tlement of his real or personal estate ; nor could the property of a female infant be bound, except so far as regards a settlement of personal estate not given for her separate use.(M) An infant cannot execute a letter of attorney.(a;) An exchange made between an infant and another of corporeal here- ditaments is not void, but voidable only; for the infant, at his full age, or, if he dies under age or without having agreed to it, his heir, may either aflBrm or avoid it as he may choose.(y) Under the old law, males of the age of fourteen years and females of the age of twelve might make a will of personal property. (z) But real estate could not be devised by an infant, unless by special custom. (a) And by the stat. 1 Vict. c. 26, s. 7, it is enacted " that no will made by any person under the age of twenty-one years shall be valid." If an estate is made to an infant upon an express condition, the infant will be bound to perform it. (6) *Seotion II. [*913] Of Portions and Legacies to Infants. A portion is a sum of money secured or given to a child by a parent or person standing in loco parentis. A legacy by a parent to a child is presumed to be a portion, although it be not so expressed, because providing for a child is a duty which the relative situation of the parties imposes upon the parent may be assumed by any other person, who for any reason thinks proper to place himself in that respect in the place of the parent; and when that is so, the same presumptions will arise as in the case of a legacy or gift by a parent. (m) Macpherson on Infants, 519-527 ; 4 Cruise T. 32, c. 2, § 21; 1 Cruise T. 7,0.1, I 31. (x) 1 Pres. Shep. T. 217 ; Burton, § 201. (y) i Cruise T. 32, c. 6, | 9 ; 2 Pres. Shep. T. 291, 299. (2) 2 Bl. Com. 497. [a] 6 Cruise T. 38, 0. 2, J 5. (6) 2 Cruise T. 13, c. 2, s. 17. 588 SMITH ON REAL AND PERSONAL PROPERTY. There are many doctrines applicable to portions, which would not be applied to a gift as between strangers, (c?) If there is a limitation to the parent for life, with a term to raise portions at twenty-one or marriage, and the interests are vested, the portions must be raised at that age or on marriage, by sale or mortgage of the reversionary term, unless there is something to indicate an inten- tion that the portions should not be raised until the term falls into pos- session. (e) If portions or legacies charged on land are made payable on an event personal to the party to be benefited, and such party dies before that event happens, the portion or legacy is not to be raised out of the land. But it is otherwise if the payment is postponed until the happening of an event not referable to the person of the party to be benefited, but to the circumstances of the estate out of which the portion or legacy is to be paid.(/) r*Q14.n *Where a portion is charged on land, and no particular time is L -I fixed for the vesting, if the child dies before the time when the portion is needed, the portion shall not be raised ; for it is reasonable that the land should be eaSed of the charge when the only motive for making the same is at an end.(5') An executor cannot, without personal risk, pay the whole or any part of a legacy directly bequeathed to an infant, either to the child or to any person for his use.(^) But by 36 Geo. 3, c. 52, s. 31, an executor may pay the legacy of an infant into the Court of Chancery, after de- ducting the duty, without suit, and when the legatee attains twenty-one he may petition for it.{i\ Section III. 0/ Maintenance. Where a legatee is under age, and is a child of the testator, or one towards whom he has placed himself in loco parentis, and no maintenance or interest is given, there, even though the legacy is contingent, interest will be allowed to such legatee from the time of the death of the testa- tor,(^) or from the birth of the legatee, if the legatee was in ventre sa mere at the time of the father's decease. (Z) Where the legatee is a child of the testator, and maintenance or interest is given by the will, and the amount or rate is specified, the legatee will not in general be entitled to claim more than the maintenance or interest specified. (to.) r*Qi M Where, however, the amount specified is insufficient, and *the L -I legacy is vested, the court will allow a reasonable maintenance, even though the surplus interest be directed to accumulate. (?i) (d) 2 Spence's Eq. Jur. 394. (e) 2 Spence's Eq. Jur. 405 ; Coote, Mortg., 3rd edit., ? 131. (/) 2 Spence's Eq. Jur. 396. (ff) 2 Spence's Eq. Jvr. 398. (h) 1 Rop. Leg. by White, 883. (i) 1 Rop. Leg. by Wliite, 882. (4) 2 Rop. Leg. by White, 1257, 1270, 1348. h) 2 Rop. Leg. by White, 1260. (m) 2 Rop. Leg. by White, 1261. (») 2 Rop. Leg. by White, 1262. OF MAINTENANCE. 589 Where legacies are given to grandchildren of the testator, or to any class of infants who are strangers to the testator, upon a future or con- tingent event, and the will is silent as to interest or maintenance, and there is a limitation over to others, the court will allow interest in the shape of maintenance, if those other persons oonsent.(o) And where there is no limitation over, and all or some of the class of legatees must absolutely take the fund, there, all having an equal chance of taking, the court will allow interest in the shape of maintenance, if the father of the legatees is not of ability to maintain them.(j3) ^ Where a legacy is vested, but no maintenance is directed, the court will order it, though the interest is directed to be accumulated. (g') Though a sum be directed to be paid periodically for maintenance, until the time for the payment of the portion, the child will be entitled to a proportionate part during the interval between the last periodical payment and that time.(r) The court is governed by a regard to the circumstances and state of the family to which the infant belongs, in respect to the allowance of any maintenance at all, and to the amount of such allowance. And if the father is able to maintain the infant out of his own property, the court will ordinarily withhold all allowance from the property or income of the infant for the maintenance of the latter, even though there may be a power (as distinguished from a trust,) in the settlement or will, at the discretion of the trustees, to appoint part of the income for the pur- pose of *his maintenance and education. (s) But if there is a con- r-^^-. „, tract on marriage, amounting to a trust, that property shall be L J applied for the maintenance and education of the children, the property must be applied, without reference to the ability of the father, to main- tain and educate them ; because the father has thereby contracted for such a benefit or relief to himself. (<) And an allowance will not be withheld, though the father be of ability to maintain the children, if it would be a hardship upon him and injurious to others of his children who take no benefit under the will, and are dependent on the father, by diminishing his means of maintaining them.(M) And where the in- terest of children's legacies is given to a parent, to be applied for or towards their maintenance and 'education, there, in the absence of a con- trary intention, the parent takes the interest subject to no account, pro- vided only that he or she discharges the duty of maintaining and edu- cating the children in a competent manner. And the reference to " the accumulations, if any," will not afi'ord an indication of a contrary intention, if it is capable of being referred to the case of the trustees themselves applying the income for the maintenance and education of the (o) 2 Rop. Leg. by "White, 12T9. ' (p) 2 Rop. Leg. by White, 1283. (q) 2 Spence's Eq. Jur. 462. (r) Story's Eq. Jur. § 479 ; 2 Spence's Eq. Jur. 462. (s) Story's Eq. Jur. | 1354, a, and note ; 2 Spence's Eq. Jur. 462, 466 ; 2 Rop. Leg. by White, 1292. (t) 2 Rop. Leg. by White, 129'r ; 11 Jarm. & Byth. by Sweet, 662 ; 2 Spence's Eq. Jur. 466-468. (m) 2 Rop. Leg. by White, 1293; 590 SMITH ON REAL AND PERSONAL PROPERTY. children, instead of paying it over to the parent for that purpose. (cc) But if the fund is given to the parent in trust for the maintenance of his children, though he is entitled to apply it for that purpose whatever may be his ability, he must account for the application, like any other trustee, (y) If the infant is an eldest son, and the younge rchildren have no pro- vision made for them, an ample allowance will be decreed to the infant, so r*Ql7T *'^^*' tte younger children may *be maintained; and the court L J will act in a similar way where the father or mother of the infant is in distress or narrow circumstances. («) In the case of devises and bequests to a woman, in terms or in effect, for the support or benefit of her children or of herself and her children, there is often a question whether she is to take a part of the beneficial interest j or, on the other hand, whether she is to take the beneficial interest, subject to a trust for her children, and what is the duration of such trust ; or whether she is to take the whole without any trust. All such questions should be excluded, (a) In general, when the income of property is given to the mother of a family, for the maintenance of herself and her children, what is intended, is, that she shall receive the whole of the income, and shall maintain the children out of it, so long as they form part of her family. But in such a case, when a daughter marries, she loses the right to maintenance. (6) A direction by will that the tes- tator's widow shall receive all the income of his real and personal estate, and pay and apply the same to and for the use of herself and the children of their marriage, agreeable and according to her own discretion, during her life, confers upon the wife a discretionary power, which the court will not disturb, so long as it is reasonably and honestly exercised. (c) In the absence of indication to the contrary, the words " maintenance, -education, and bringing up," standing together, have reference to mino- rity only. But where the interest of a fund is directed to be applied for the " maintenance" or " the maintenance and education" of a person, r*Ql8T t^o^g^ ^^ ^^^ ''™^ ^^ infant, he is, generally speaking, entitled L -I to *the interest during his life. " Education" includes main- tenance. But a legacy given to a mother for " maintenance" of her children is not by the terms of the bequest, applicable to their educa- tion. Where maintenance is given during minority, as a general rule it does not cease on the marriage of the child. (c?) Where a testator be- queaths personal estate to trustees, amongst other things, to pay and apply a certain sum in and upon the education of a child, this is an absolute legacy to the child, and he is entitled to have the whole at once [x) Browne T. Panll, 1 Sim. (N. S.) 92; 11 Jarm. & Byth. by Sweet, 662. (y) 11 Jarm. & Byth. by Sweet, 662. (z) Story's Bq. Jur. § 1355; 2 Spence's Eq. Jur. 461,462; 2 Rop. Leg. by White, 1296. (o) For instances, see Gilbert t. Bennett, 10 Sim. 371 ; Jubber t. Jubber, 9 Sim. 503 ; Thorp v. Owen, 2 Hare, 601 ; In re Harris, 7 Exeh., 344. (6) Bowden t. Laing, 14 Sim. 113 ; 2 Spence's Eq. Jur. 461, and see cases re- ferred to in n. (a). (c) Costabadie v. Costabadie, 6 Hare, 410. [d] 2 Spence's Eq. Jur. 460 ; 2 Kop. Leg. by White, 1496. OF ILLEGITIMATE CHILDREN. 591 > severed from the testator's estate, with interest from the end of the first year after the death of the testator, and invested for his benefit.(e) And where a testator devised estates to trustees, in trust to pay, out of the rents, 300?. a year for the maintenance, clothing, and education of his son's children, during his son's life, and the son had three children, all of whom attained twenty-one, and then one died, it was held that the whole of the fund was not to be applied for the maintenance, clothing, and education of the survivors, but that the personal representative of the deceased child was entitled to one third of the 3001. a year during the parent's life; the words "maintenance, clothing, and education" being considered equivalent to '< the benefit" of the children.(/) *CH AFTER V. [*919] OF ILLEGITIMATE CHILDREN. Bastards, or natural or illegitimate children, that is, such children as are not born either in lawful wedlock or within a competent time after its determination, being regarded in law as nullius filii, are incapable of inheriting either the father's or mother's estate. (a) But when a man has an illegitimate son, and afterwards marries the mother, and has by her a legitimate son, and the illegitimate son (bastard eigne) on his father's death enters upon the land, and dies seised thereof, whereby the inheritance descends to his issue, in this case the legitimate son and all other heirs, though minors, femes covert, or under any incapacity what- ever, are totally barred of their right. (6) We have seen that bastards cannot have any heirs, except the children or remoter issue of their own bodies.(c) If a bastard, who, as nullius filius, can have no kindred, or any other person having no kindred, dies intestate without wife or child, his effects, subject to his debts, belong to the king, as ultimus, hseres ; who, with the exception of a small part, usually grants them by letters patent or otherwise : and then such grantee becomes entitled to the administration, and consequently to the sole enjoyment of the property. (c?) Where a bastard or other person having no kindred dies intestate, leaving a widow, but no children, the widow is entitled to one moiety only, and the crown to the other, (ee) *No provision can be made for illegitimate children until they r^qori-i are in essc.(_^) But an illegitimate child in the mother's womb L J is capable of taking by a proper description. (^r) Natural children unborn at the date of a will cannot take, however, under the description of child- ren or issue of the testator or of another man, whether to be born of a particular woman or not, since the questiou whether in truth the grantor, (e) Noel V. Jones, 16 Sim. 309. (/) Lewes v. Lewes, 16 Sim. 266. la) 2 Bl. Com. 247. (6) 2 Bl. Com. 248. (c) Supra, p. 328. Id) Wms. Exors., 4th edit., 35T, 1300. (ee) Wms. Exors., 4th edit., 358. Iff) 2 Pres. Shep. T. 235. (ff) 2 Pres. Shep. T. 235. 592 SMITH ON REAL AND PERSONAL PROPERTY. settlor, testator, or other person were or were not the real father, is one which can only be ascertained by evidence that public policy forbids to be admitted ; although, if the child en ventre sa mere be merely described as a child with which its mother is enoiente, without mentioning its putative father, then the child will be capable of taking. (A) The law will never allow an illegitimate child, though born, to take by deed or will, merely under the general denomination of a child, or a son or daugh- ter, or issue, unaided by anything else in the deed or will itself. And an illegitimate son will not take under the description of first born son of his mother, though the testator well knew that her son was illegitimate. Evidence cannot be received to prove that they were intended by the testator to be included in that description. The only testimony admissi- ble in those cases is that the children had acquired the name and character of children by reputation, (t) [*921] *CHAPTER VI. 01' PERSONS or UNSOUND MIND. In the case of contracts or other acts, however solemn, of persons who are idiots, lunatics, or otherwise of unsound mind or of weak under- standing, wherever, from the nature of the transaction, there is not evi- dence of entire good faith, or it is not seen to be just in itself, or for the benefit of those persons, courts of equity will set it aside, or make it subservient to their just rights and interests. But where there is entire good faith, and the contract or other act is for the benefit of such per- sons, as to provide them with necessaries, there courts of equity will uphold it, as well as courts of law. (a) A person is not allowed to allege his own insanity to avoid a convey- ance made by him when insane. But his heir or other person interested may after his death take advantage of his incapacity and avoid the grant. And so, if a person purchases when insane, he cannot avoid the purchase himself; but if he dies insane, or does not afterwards, upon recovering his senses, agree to the purchase, his heir may either waive or accept the estate at his option. (6) And after a person is found a lunatic by inquisition, his committee may vacate the purchase. And as the king has the custody of idiots upon office found, he may annul a purchase by an idiot.(c) When, however, a person apparently of sound mind and not known to be otherwise by the vendor, enters into a contract for the r^Qon-i purchase *of property, which is fair and bona fide, and which is L -I executed and completed, and the property, the subject matter of (h) 1 Rop. Leg. by White, 80; 2 Pres. Shep. T. 235. (t) 2 Pres. Shep. T. 237 ; 1 Rop. Leg. by White, 80 ; Durrant r. Friend, 5 De G. & S. 343. (a) Story's Bq. Jar. ? 22'7-229, 234-238. h) 2 Bl. Com. 291-2; Sugd. Concise View, 642 ; 4 Cruise T. 32, c. 25, ?.8. (c) Sugd. Concise Tiew, 542. OF PERSONS OF UNSOUND MIND. 593 the contract, has been paid for and fully enjoyed, such contract cannot be afterwards set aside either by the alleged lunatic or those who repre- sent him ; especially where the property cannot be restored so as to put the parties in their original position. ((^) It may here be remarked, that, before a person is found a lunatic by inquisition, the presumption of law is in favour of his sanity; but after that the presumption is against his sanity. The finding of insanity by the jury therefore shifts the burden of proof, but it is not conclusive on third persons. (e) Madmen and lunatics, except during a lucid interval, idiots, or natural fools, and persons grown childish by reason of old age or disease, are incapable of making a will.(/) But if a person of sound mind makes his will, it is not revoked or affected by his subsequent insanity. (y) Neither a lunatic nor his committee can present to a church. But the lord chancellor, by virtue of the general authority delegated to him by the crown, presents to all livings whereof lunatics are patrons. (^) By the statute 16 & 17 Vict. c. 70 (by which so much of the statute 1 "Will. 4, c. 65, as relates to persons of unsound mind, and parts of certain other acts mentioned in the schedule, are repealed,) certain enactments are made for the admittance of lunatics to copyhold property, by their committees, or by attorneys appointed by the lord, and for the payment of the fines due thereon (s. 108 — 112.) The committees may surrender leases and accept renewals (s. 113 3) and the expenses of renewal may be charged on *the leasehold property (s. 114;) and r^jsono-i every lease renewed shall " operate and be to the same uses, and L J be liable to the same trusts, charges, incumbrances, dispositions, devices, and conditions, as the lease surrendered was subject to, or would have been subject to if the surrender had not been made" (s. 115.) The property of lunatics may also, by order of the lord chancellor, be sold, mortgaged, or otherwise disposed of, for payment of debts, or for future maintenance, or for other expenses therein mentioned (s. 116, 117.) The expenses of improvements may be charged on the lunatic's estate (s. 118 ;) and the surplus of moneys to be raised under the previous sec- tions shall be of the same nature and character as the estate sold, mort- gaged, charged, or disposed of (s. 119.) Committees may, by order of the lord chancellor, sell, mortgage, let, divide, exchange, or otherwise dispose of land, in performance of contracts entered into prior to the lunacy (s. 122 ;) and may, on a dissolution, by order of the lord chan- cellor, convey partnership property (s. 123 ;) and committees, by order of the lord chancellor, may also sell undivided shares of land, or make partition or exchanges (s. 124;) may sell lands for building purposes (s. 125;) may dispose of business premises (s. 126;) may dispose of unde- sirable leases or underleases (s. 127;) may enter into certain agreements on behalf of lunatics (s. 128 ;) may make leases and underleases (s. 129 — 135;) and may exercise powers vested in lunatics (s. 136 — 138.) (d) Molton V. Camroux, 2 Exch. 503 ; Sugd. Concise View, 542. (e) Snook T. "Watts, 11 Beav. 105. (/) 2 Bl. Com. 497. (g) 1 Wms. Exors., 4th edit, 18, n. (p). (A) 3 Cruise T. 21, c. 2, J 44. April, 1856.— 38 591: SMITH ON REAL AND PERSONAL PROPERTY. [*924] ^CHAPTER VII. OF ALIENS. With certain exceptions, (a) a person born out of the queen's domi- nions is an alien, until naturalized or made a denizen, unless such per- son's father is not attainted of treason, nor liable to its penalties if he should return home, nor in the actual service of any hostile prince or state, and is either a natural born subject,(6) or is the son of a natural born subject, having the three other above-named qualifications,(c) or unless such person is the wife of a natural born subject or naturalized person. (d') By the common law, an alien may purchase, but he cannot hold any real estate or chattel real ; for if he purchase any real estate or chattel real, it will be forfeited to the crown. A lease for years of a house for convenience of merchandize is an exception to this ; and though the Stat. 32 Hen. 8, c. 16, s. 23, makes void all leases' of houses or shops to an alien artificer or handicraftsman, yet in favour of aliens this enact- ment has been construed very strictly.(e) And further exceptions are created by the stat. 7 & 8 Vict. c. 66. By s. 3 of that act, " every person now born, or hereafter to be born, out of her majesty's dominions, of a mother being a natural-born subject of the United Kingdom, shall be capable of taking to him, his heirs, executors, or administrators, any estate, real or personal, by devise, or purchase, or inheritance, or suc- r*Q9'il cession." And after enacting, *by the 4th section, that "every L J alien, being the subject of a friendly state, shall and may take and hold, by purchase, gift, bequest, representation, or otherwise, every species of personal property except chattels real," it is by s. 5 enacted, " that every alien now residing in, or who shall hereafter come to reside in, any part of the United Kingdom, and being the subject of a friendly state, may, by grant, lease, demise, assignment, bequest, representation, or otherwise, take and hold any lands, houses, or other tenements, for the purpose of residence or of occupation by him or her, or his or her servants, or for the purpose of any business, trade, or manufacture, for any term of years not exceeding twenty-one years, as fully and efi"ec- tually to all intents and purposes, and with the same rights, remedies, exemptions, and privileges, except the right to vote at elections for members of parliament, as if he were a natural-born subject of the United Kingdom." Aliens may take under a will the produce of real estate thereby devised to trustees to be sold.(/) (a) See Stamp's Index to the Statute Law, tit. "Alien." lb) Stat. 4 Geo. 2, c. 21. , (c) Stat. 13 Geo. 3, c. 21 ; Burton, 2 193 : 3 Cruise T. 29, u. 2, 3 13, 14. (d) 1 &8 Vict. c. 66, § 16. (e) Sugd. Concise View, 540; 2 Pres. Sbep. T. 232, n. (12); 4 Cruise T. 32, c. 2, 2 38 ; 2 BL Com. 249 . Burton, g 192, (/) Hourmelin v. Sheldon, 4 My. & Or. 625. OF ALIENS. 595 Aliens cannot be seised to a use ; and therefore, if a conveyance is made to an alien and a natural born subject to uses, the moiety of the alien, upon office found, becomes vested in the crown. ((?) An alien may be naturalized by Act of Parliament or (since the stat. 7 & 8 Vict. c. 66, s. 6 — 12) by a certificate by the secretary of state, or may be made a denizen by royal letters patent ; in either of which cases he becomes capable of holding real property purchased after that time. (A) And if an alien purchases lands, and before office found the sovereign makes him a denizen by letters patent, and confirms his estate, the con- firmation will be good.(i) *An alien cannot protect himself by taking the conveyance in rii:Qna-i the name of a trustee. (^) It is common, however, to limit lands L J ■ to an alien from and after his naturalization, and it seems that on being naturalized he is capable to take and to hold them. But aliens gene- rally purchase in the names of their wives or children by way of ad- vancement to them.(Z) An alien cannot take by law, as by descent, curtesy, dower, or guar- dianship ; because he cannot hold, et lex nihil facit frustra.(»i) And so, if the husband is an alien, he will not acquire any right to a term of years belonging to his wife.fn) If, however, an alien is made a denizen, and afterwards has issue, he may be tenant by the curtesy in respect of such issue, though he would not be entitled on account of issue had before. (o) And though an alien was generally not dowable, yet, 1. The queen consort is dowable, though she be an alien. (^) 2. An act of parliament was made in 8 Hen. 5, not printed among the statutes, by which all alien women who from thenceforth should be married to Englishmen, by license from the king, are enabled to have dower.(g') 3. If an alien woman is naturalized by act of parliament, she then becomes entitled to dower out of all the lands whereof her husband was seised during the coverture. 4. Where an alien women is created a denizen, she becomes entitled to dower out of all the lands whereof her husband was seised at and after the time when she was created a denizen, but not out of any lands whereof he was seised before, and which he had aliened. (r) And 5. By the stat. 7 & 8 Vict. c. 66, s. 16, " any woman married or who shall be married *to a natural born subject or person naturalized r^QoiT-i shall be deemed and taken to be herself naturalized, and have all L J the rights and privileges of a natural born subject." An alien is not capable of transmitting by descent. If an alien be made a denizen by royal letters patent and then purchases lands, his son born before denization shall not inherit those lands ; for the father (a) 1 Cruise T. 11, c. 3, ? 10. h) Burton, g 194; 1 Cruise T. 1, ? 35 ; 3 Cruise T. 29, c. 2, § 19; 4 Cruise T. 32, c. 2, J 38 ; 2 Pres. Shep. T. 235 ; Sugd. Concise View, 540. (i) Sugd. Concise View, 640. {k) Sugd. Concise View, 540. (l) 2 Pres. Siiep. T. 235. (m) 2 Pres. Shep. T. 232, n (12) ; 1 Cruise T. 5, c. 1, a. 26. \n] 1 Cruise T. 8, c. 1, 5 33. (o) 1 Cruise T. 5, c. 1, § 26. (p) 2 Bl. Com. 131. (?) 1 Cruise T. 6, c. 1, } 30. (r) 1 Cruise T. 6, c. 1, § 31. 596 SMITH ON REAL AND PERSONAL PROPERTY. before denization had no inheritable blood to communicate to his eldest son. But a son born afterwards may, even though his elder brother be living. And if the father were naturalized by act of parliament, such eldest son might then have inherited; for that has a retrospective force. (s) By the old law an alien's sons born here may inherit to each other, because the descent was immediate. (A By the stat. 11 & 12 Will. 3, c. 6, all persons, being natural-born subjects of the king, may inherit and make their titles by descent from any of their ancestors, lineal or collateral, although their father, or mother, or other ancestor, by, from, through, or under whom they de- rive their pedigrees, were born out of the king's allegiance. But incon- veniences were afterwards apprehended, in case persons should thereby gain a future capacity to inherit, who did not exist at the death of the person last seised. As, if Francis the elder brother of John Stiles is an alien, and Oliver the younger is a natural-born subject, upon ■John's death without issue his lands will descend to Oliver the younger brother ; now, if afterwards Francis has a child born in England, it was feared that, under the statute of King William, this new-born child might defeat the estate of his uncle Oliver. Wherefore it is provided, by the statute 25 Geo. 2, e. 39, that no right of inheritance shall accrue by virtue of the former statute to any persons whatsoever, unless they are in being and capable to take as heirs at the death of the person last r»q9«i seised; with an exception, however, *in the case where lands L J shall descend to the daughter of an alien ; which descent shall be divested in favour of an after-born brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual rule of descents by the common law.{u) It may be here observed, that, in addition to the other disabilities already mentioned, Roman Catholics, by the statute 11 & 12 Will. 3, c. 4, were disabled from purchasing any land, rents, or hereditaments ; and all estates made to- their use or in trust for them were void. But by the stat. 18 Geo. 3, c. 60, stat. 31 Geo. 3, c. 32, and stat. 43 Geo. 3, c. 30, they were enabled to qualify themselves by taking a special oath of allegiance. And by the stat. 10 Geo. 4, o. 7, any special oath is declared unnecessary for enabling Eoman Catholics to enjoy real or personal property. (t;) [;l 2 Bl. Com. 249, 250. t) 2 Bl. Com. 250. See snpra, 332, 338, rule III. («) 2 Bl. Com. 251. (v) Burton, Ith edit., by Cooper, ? 209 ; 2 Bl. Com. 293. OF CORPORATIONS. 597 ^CHAPTER VIII. [*929] OF CORPORATIONS. Corporations are either aggregate, as the mayor and burgesses of a town, the master and fellows of a college, &o. ; or sole, as a bishop or a parson and his successors. If land is given by deed to a person who is a corporation sole, and it is intended that it should vest in him in fee simple in his corporate capa- city, it must be expressed to be given to him and his successors. The word successors, however, is not necessary to pass an estate in fee simple to a corporation aggregate, as it never dies.(a) And an estate in fee will pass to the sovereign without the words heirs or successors, partly on account of his or her prerogative, and partly because in judgment of law the sovereign never dies.fS) The name of a corporation in grants or conveyances need not be lite- rally correct, so long as it is substantially correct in signification. (c) With some exceptions, corporations sole or aggregate, either ecclesi- astical or temporal, cannot hold lands without license. (c?) Except under acts of parliament for particular purposes, the parish- ioners or inhabitants of any place, or the church-wardens, are incapable of purchasing lands by those names. But it seems that in London the parson and churchwardens are a corporation to purchase lands. (e) All lay civil corporations may alien their lands as freely as individuals ; but ecclesiastical and eleemosynary corporations *are restrained r^^goQ-i by statutes 1 Eliz. c. 19, and 13 Eliz. c. 10, from every mode L J of alienation except that of ]casing.(/) By stat. 1 Eliz. c. 19, archbishops and bishops, and by stat. 13 Eliz. c. 10, colleges, deans and chapters, hospitals, parsons, and vicars, are prohibited from alienation (beyond the life, it must be understood, of the incumbent or head of the corporation for the time being,) except by way of lease for twenty-one years or three lives (or a less period) " where- upon the accustomed yearly rent or more shall be reserved and payable yearly during the said term." And the leases to which the last of these two statutes refers are further restricted by stat. 18 Eliz. o. 11, which requires, that, where any former lease for years is in being, it must be expired, surrendered, or ended within three years next after the making of the new lease. The stat. 14 Eliz. c. 11, as to houses in towns, which are affected by 18 Eliz., extends the term to forty years, but prohibits leases in reversion, and requires the burthen of repairs to be imposed upon the lessee. It also allows of absolute alienation by way of exchange. By stat. 18 Eliz. c. 6, as to leases by colleges in the universities, and (a) 2 Bl. Com. 108 ; 4 Cruise T. 32, c. 21, § 9 ; Burton, § 130. (b) 2 Bl. Com. 209; 4 Cruise T. 32, o. 21, § 10. (c) 3 Jarm. & Byth. by Sweet, 263. (d) Sugd. Concise View, 541 ; supra, p. 418. (e) Sugd. Concise View, 540. (/) 4 Cruise T. 32, c. 2, ? 11. 598 SMITH ON KBAL AND PERSONAL PROPERTY. those of Winchester and Eton, one third of the whole rent is to be re- served in corn, viz. " in good wheat after the rate of 6s. 8d. the quarter or under, and good malt at '5s. the quarter or under."(5r) It is to be observed, that, by the common law, archbishops and bishops, although they were held to be seised in fee simple in right of their churches, could make no assurance to bind their successors without the concurrence of the dean and chapter ; and that parsons and vicars, though not properly said to be seised in fee simple, but for their lives only, might bind their suc- cessors with the assistance of the patron and ordinary ; and as the above statutes are merely restrictive, they do not enable the parties to dispense with the necessary consent.(A) r*fmn *^^ '^^^^' ^ *■ ^ Wills. 4, c. 80, archbishops and bishops L J of the several dioceses, and the deans, and deans and chapters, archdeacons, prebendaries, and canons, and other dignitaries and ofl&oers of the several cathedral and collegiate churches and chapels, and the masters or other heads and fellows and scholars, or other societies of the several colleges and halls in the Universities of Oxford and Cambridge, and of the colleges of Winchester and Eton, are authorised to settle by arbitration disputes or doubts as to the boundaries of their property. A corporation, whether sole or aggregate, may convey by feoffment, and appoint an attorney to give livery. And as a corporation cannot be seised to a use, feoffments have been commonly used by corporations to create freehold estates.(i) But a conveyance by a corporation was also made by a lease at common law, perfected by an actual entry, a memo- randum of which was indorsed on the lease, and followed by a release, enuring by way of enlargement, so as to be independent of the Statute of Uses.(y) But, it is presumed that corporations will now convey by statutory grant.(/i;) Generally speaking, a corporation cannot do any act except by writing under seal;(Z) which ought to be its common seal. But a corporation may seal with any other seal besides their common seal.(m) The deed of a corporation does not need any delivery ; for the apposi- tion of their common seal gives perfection to it, without any further ceremony.(») A dean without the chapter, a mayor without his commonalty, the master of a college or hospital without his fellows, cannot purchase, or r#QQOi g'"*°'') °^ make any contract *that will bind the corporation.(o) L -1 So, on the other hand, a bond or contract entered into by the body, in the absence of the head, will not bind ; except that a corporation, even during a vacancy, is capable of a grant of a remainder ; and such re- mainder may vest in case, and only in case, the corporation shall be complete during the continuance of the particular estate.(p) Where there is no provision to the contrary by the constitution of a corporation, the whole are (g) Burton, ? 211. (It) Burton, ? 218. (i) i Cruise T. 32, c. 4, § 25. (/) 3 Jarm. & Byth. by Sweet, 242-3 ; 1 Pres. Shep. T. 205. (k) See supra, p. 580. (l) 3 Jarm. & Byth. by Sweet, 263. (m) 1 Pres. Shep. T. 56, 57. (n) 4 Cruise T. 32, c. 2, ? 70. (o) 3 Jarm. & Byth. by Sweet, 263 ; 4 Cruise T. 32, c. 2, § 10. Ip) 1 Pres. Shep. T. 205 ; 3 Jarm. & Byth. by Sweet, 263. OP WASTE. 599 bound by the acts of the major part of those who are present at a regular corporate meeting. So, though a particular constitution requires the presence of a majority of the whole number, yet it is sufficient that a majority of the number present concur. So, where a number less than the majority of the whole are by a particular constitution competent to do a corporate act, the act of a majority of that smaller number is bind- ing, (g) The head of a corporation, aa a dean or mayor, cannot take by a grant of the corporation. An individual who is a member, and not the head of a corporation, may be the grantor to or a grantee or lessee of a corpo- ration. And a feoffment by an individual who is a member of a corpora- tion might, by the old law, before the stat. 7 & 8 Viot. c. 76, and 8 & 9 Vict. c. 106, be effectual as a tortious and wrongful alienation, though it would be ineffectual as a conveyance by the corporation. (r) =TITLE II. [*933] OF SOME MISCELLANEOUS HEADS OP LAW CONNECTED WITH CON- VEYANCING. CHAPTER I. OF WASTE. Waste is that which tends to the permanent depreciation of the value of the inheritance. It is either voluntary, which is an offence of com- mission, as by pulling down a house, or it is permissive, which is an offence of omission only, as by suffering it to fall for want of necessary .repairs, (a) I. Different Kinds of Waste. Voluntary waste chiefly consists in these things: — 1. Felling or de- stroying trees. 2. Destroying or injuring houses. 3. Opening mines or pits. 4. Changing the course of husbandry. 5. Destroying heir- looms.(6) 6. Destroying certain kinds of living creatures which are re- garded as part of the inheritance. 1. A tenant for life may cut down timber trees for the ordinary re- paration of houses or fences ; but he cannot cut down timber to build new houses or to repair those that he himself has improperly suffered to fall into decay.(c) Timber trees are those which serve for building or (a) 3 Jarm. & Byth. by Sweet, 263. (r) 1 Pres. Shep. T. 205. (a) Co. Litt. 53, a; 2 Bl. Com. 281 ; Burton, § 718. \b) 1 Cruise T. 3, c. 2, ? 1. (c) 1 Cruise T. 3, o. 1, § 19; Co. Litt. 53, b. 6U0 SMITH ON REAL AND PERSONAL PROPERTY. r*Q^4T "reparation of houses ; such as oak, ash, and elm, of the age of L J twenty years and upwards. ((^) !By the custom of some countries certain trees not usually considered as timber are deemed to be such, being there used for building. (e) If tenant for life suffers the young germins or shoots to be destroyed, or cuts down willows, birch, &o., standing in the defence and safeguard of a house, or fruit trees standing in a garden or orchard, or suffers a quickset fence of white thorn to be stubbed up or destroyed, it is waste.(/) Estates for life are usually given " without impeachment of waste,"(^) that is, without the liability to be sued for waste. Where this is the case, the tenant for life has a right to fell timber and convert it to his own use,(A) and he is entitled to the property of all timber trees blown down, and to the timber in a building which has been blown down. But he is not entitled to the timber cut during the existence of a prior es- tate ; for that vests in the owner of the inheritance. (»') And he cannot delegate his right of cutting down timber to another person, so as to enable such person to exercise it after the death of the tenant for life. (7) And the Court of Chancery will also restrain a tenant for life without impeachment of waste from cutting down timber serving for shelter or ornament to a mansion-house, as also timber not fit to be felled. (^) But in cases of this kind, the court will not give any satisfaction to the re- mainderman for timber actually cut down.(?) The Court of Chancery has in some cases directed the timber growing on an estate whereof a person was a tenant for life to be cut down, for P^Qor-j the purpose of *paying debts and legacies charged upon the in- L J heritanee.(m) The court has also directed timber which was in a state of decay, to be cut down, for the benefit of the person who was tenant for life without impeachment of waste, subject to a long term, and was in a state of indigence, or in favour of the person entitled to the inheritance, where enough was left for botes, and the trees were not needed for the shelter or ornament of the house. (») Where a tenant for life has also the next existing state of inheritance, subject the inter- mediate contingent remainders in tail, the Court of Chancery will not allow him to take advantage of that circumstance by cutting down tim- ber, but will preserve it for the benefit of the intermediate contingent remaindermen, (o) The above restrictions apply with even greater force to tenants for years. And where the clause without impeachment of waste is inserted in a lease for years, it will have the same effect as where it is inserted in the conveyance of an estate for life.(p) And the Court of Chancery (d) 1 Cruise T. 3, c. 2, J 5 ; 2 Bl. Com. 281 ; Co. Litt. 53, a. (e) 1 Cruise T. 3, c. 2, § 6 ; 2 Bl. Com. 281 ; Co. Litt. 53, a. (/) 1 Cruise T. 3, u. 2, § 8, 9 ; Co. Litt. 53, a. (g) 1 Cruise T. 3, c. 2, | 51. (A) 1 Cruise T. 3, c. 2, § 51, 54. (i) 1 Cruise T. 3, c. 2, § 54. (/) 1 Cruise T. 3, u. 2, J 56. (k) 1 Cruise T. 3, c. 2, | 61 ; Co. Litt. 220, a, n. (1). (I) 1 Cruise T. 3, c. 2, J 64. (m) 1 Cruise T. 3, c. 2, ? 46. (n) 1 Cruise T. 3, c. 2, § 49, 50. (0) 1 Cruise T. 3, c. 2, § 43. (p) 1 Cruise T. 8, c. 2, g 12. OF WASTE. 601 will not permit a tenant for years, though without impeachment of waste, to fell timber just before the expiration of the lease, (j) 2. Waste may be done in houses by pulling them down or by suffer- ing them to be uncovered, whereby the timbers become rotten. If, however, a house is uncovered when the tenant comes in, it is no waste to suffer it to fall down ; but it would be waste to pull it down, unless it be rebuilt. (r) If a lessee for life razes a house, and builds a new one which is not so large as the former, it is waste. (s) It is waste to convert one kind of edifice into another, even though it is improved in value; because it affects the evidence of the estate. (<) If glass windows, though *put in by the tenant himself, are broken or carried rj^qqe-i away, it is waste. So it is of wainscot benches, doors, floors, L J furnaces, and the like, annexed or fixed to the house either by the re- versioner or the tenant, (m) A tenant for life, though without impeachment of waste, is obliged to keep tenants' houses in repair, unless the charge is excessive. (a;) It is a general rule, that waste which ensues from the act of God is excusable. So that, if a house falls in consequence of a tempest, the tenant will be excused. But yet where a house is uncovered by a tem- pest, the tenant is bound to repair it within a reasonable time before the timbers grow rotten. (y) In consequence of the stat. 6 Ann. c. 31, s. 7, tenants for life and others are not responsible for accidental fire, unless they covenant to repair without excepting cases of accidental fire. (2;) 3. A tenant for life cannot dig for gravel, lime, clay, brick-earth, stone, or the like, unless for the reparation of buildings or manuring of the* land. Nor can he open a new mine. But he may work those already opened for his own use. (a) And if a lease is made of land and all mines therein, the lessee may dig for them ; for otherwise he can de- rive no advantage from the mines. (6) 4. The conversion of one kind of land into another, as the changing of meadow into arable, is also waste, because it not only changes the course of husbandry, but also effects the evidence of the estate. (c) 5. The destruction of heir-looms is waste. (c?) 6. Waste may also be committed in ponds, dove-houses, *war- r^cio>j-\ rens, and the like, by so reducing the number of creatures there- <- -I in that there will not be sufficient for the reversioner. (e) (q) 1 Cruise T. 8, c. 2, § 14. (7-) 1 Cruise T. 3, c. 2, | U ; Co. Litt. 53, a. (s) 1 Cruise T. 3, c. 2, | 12. (t) 2 BI. Com. 281-2 ; 1 Cruise T. 3, c. 2, § 18. (u) 1 Cruise T. 3, c. 2, § 13 ; 2 Bl. Com. 181 ; Co. Litt. 53, a. (x) 1 Cruise T. 3, c. 2, | 58. (y) 1 Cruise T. 3, c. 2, | 23 ; 2 Bl. Com. 181. (z) 1 Cruise T. 3, c. 2, § 80, 81. (a) 1 Cruise T. 3, c. 2, | 14; 2 Bl. Com. 282; Co. Litt. 53, b. (b) 1 Cruise T. 3, u. 2, ? 16. (c) 1 Cruise T. 3, c. 2, § 18 ; 2 BI. Com. 182 ; Co. Litt. 53, b. (d) 1 Cruise T. 3, c. 2, § 20. [e) 2 Bl. Com. 281 ; Co. Litt. 53, a. 602 SMITH ON BEAL AND PERSONAL PROPEETY. II. Who may and who may not commit Waste. Tenant in tail has a right to commit every kind of waste, so that even a bond to restrain him from committing waste is void.(/) Tenants for life, whether their estates are created by deed or devise, or by the operation of law, are punishable or liable to be impeached for waste, both voluntary and permissive, unless their estates are made without impeachment for waste,r^) or unless they are granted with par- tial' powers to do waste. (A) The court of Chancery will not permit ten- ant for life without impeachment of waste to commit waste upon an es- tate which is decreed to be sold in order that the money should be invested in the purchase of another estate to the same uses ; because in that case he would have the benefit of double waste. (j) Bishops, parsons, vicars, and other ecclesiastical persons, being con- sidered in most respects as tenants for life of the lands which they hold jure ecclesise, are disabled from committing any kind of waste. (A;) By the Stat. 35 Edw. 1, it is declared that parsons shall not presume to fell trees growing in the churchyard, but when the chancel or the body of the church requires reparations. (Z) Tenant for years may not commit any kind of waste, unless his lease is made without impeachment for waste ;(m) and he is obliged to do re- pairs. But if a house is ruinous at the time when the lease is made, and falls, the lessee is not bound to repair it.(ra) r*Q^8l *Tenants at will may not commit any kind of voluntary waste. L -I But they are not punishable for permissive waste ; for thoy are not bound to repair.(o) Every copyholder may, of common right, as incident to the grant, take housebote, hedgebote, and ploughbote upon his copyhold. But this right may be restrained _by custom, namely, that the copyholder shall not take it unless by assignment of the lord or his bailiff. The lord cannot, therefore, cut down all the timber trees on a copyhold estate, but must leave suf&cient for the reparation of the houses and for plough- bote, &e.(/)) But a copyholder cannot commit any kind of waste, un- less there is a particular custom to warrant it; for, by the general custom of most manors, timber is the property of the lord.(2) A copy- holder for life is punishable for permissive waste. (?•) (/) X Cruise T. 2, c. 1, § 32, 35 ; 2 Bl. Com. 115. (g) 2 Bl. Com. 283, 122. (h) 1 Cruise T. 3, c. 2, § 68. (i) 1 Cruise T. 3, c. 2, § 65, 66. (k) 1 Cruise T. 3, c. 2, | 71. (l) 1 Cruise T. 3, o. 2, § 72. (m) 1 Cruise T. 8, i;. 2, | 2, 12. {n) 1 Cruise T. 8, c. 2, § 3. (o) 1 Cruise T. 9, c. 1, | 10. (p) 1 Cruise T. 10, c. 3, ^ 3, 7. (?) 1 Cruise T. 10, c. 3, J 7. (r) 1 Cruise T. 10, c. 3, g 15. OF MERGER. 603 *CH AFTER II. [*939] OE MERaER.(a) Merger is the absorption of the less estate in the greater, where two estates meet in the same person subsequent to their creation, without any such estate between them as will prevent them from coalescing. Estates tail are not subject to merger; so that a man may have at the same time, and in his own right, both an estate tail, and the immediate reversion in fee in the same land;(6) because, the object of the statute De Donis being to render estates unalienable, if they were allowed to merge in the fee simple, tenants in tail might have destroyed them by purchasing the fee simple. (c) If an estate for life, and a greater estate immediately expectant upon it, whether in fee, in tail, or only for life, meet in the same person, the first estate is generally merged. And, for this purpose, an estate for the party's own life is considered greater than an estate for another's life, or one for the joint life of himself and another.W) And if an estate in tail or in fee in the same lands descends upon a tenant in tail after possi- bility of issue extinct, the estate tail after possibility of issue extinct is merged. (e) A grant of the reversion to the tenant for life, though it be only conditional, causes an irrecoverable merger ; but when a surrender has been made upon condition, an entry for condition broken revives the estate.(/) *Term3 of years were anciently very short, and hence they r^itn^Q-i were then, and still are, deemed in the eye of the law of less <- J magnitude than an estate of freehold ; and, therefore, if the same person has a term of years and a freehold estate immediately succeeding it, and both in the same right, the term is merged. (51) But a term at common law cannot be merged by surrender till the tenant has entered; for, be- fore entry, there is no reversion in which the term can merge. If, how- ever, the lessee for years enters, and afterwards assigns his estate to another, the assignee may merge the term by surrender before entry ; because, by the entry of the lessee, the possession was severed and divi- ded from the reversion. (7i) A term of years will merge in the immediate reversion, though that be a chattel interest, and even of shorter duration than the former,(i) because a term in reversion, though for a less num- ber of years, is accounted the higher estate. A court of equity will in some cases relieve against the merger of a term, and make it answer the purposes for which it was created. (7i;) (a) The whole of the third volume of Preston's Conveyancing relates to this ^"(4^1 Cruise T. 2, c. 1, ? 31. (c) 1 Cruise T. 2, c. 1, § 38. (d) Burton, ^ HI ; 1 Cruise T. 3, c. 1, ? 14, 15 ; 1 Cruise T. 4, § 9. (e) 1 Cruise T. 4, ^ 9. (/) Burton, ? 764. (g) Burton, ^97; 1 Cruise T. 8, c. 2, § 41. (A) 1 Cruise T. 8, c. 2, | 41. li) Burton, J 899 ; 4 Cruise T. 32, c. 7, ? 13 ; Sugd. Concise View, 480. (k) 1 Cruise T. 8, c. 2, § 42. 604 SMITH ON REAL AND PERSONAL PEOPERTT. If a tenant of an estate by statute, recognizance, or elegit acquires the immediate reversion in fee of any part of the same land, whether by pur- chase or descent, his former estate in the whole land is extinguished. (Z) It would seem, 1. That where two estates meet in the same person in different rights, merger will not take place where an injury would thereby be occasioned, and where the concurrence of the two estates in the same person is entirely caused by the act of law, as by a descent ; because actus legis nemini facit injuriam. 2. That where two estates r*Q4.1 ^ ™®®*' '° ^^^ ®*'^® person in different rights, merger will not take L -1 place, even though the concurrence of the two estates *is caused by the act of the owner of one of such estates, if an injury would thereby be occasioned to the owner of or the parties interested in the other estate. Thus, if a woman is tenant for life, with remainder to a man in tail, and they intermarry, the estates after marriage remain distinct,(TO) because otherwise the wife might be injured. And, if the husband is tenant for life, with reversion to his wife in fee, there is no merger,(ra) for that might be an injury to the husband. But if the wife is tenant for life, and the reversion in fee is conveyed to the- husband and wife, the estate for life is merged ; for in this case both estates are vested in husband and wife : but if the wife survives her husband, she may revive it by expressing her dissent to the conveyance.(o) If a man, who is a lessor, intermarries with a woman who is lessee for years, the term is not extinct, but the husband is possessed of the term in right of his wife during the coverture, because he has not done any act expressly to destroy the term, and it is cast upon him by the act of law, which would not be allowed to prejudice the wife. So, if a lessee grants the term to the wife of the lessor it will not merge, for that would be allow- ing the lessee to prejudice the husband. (p) If a man is seised in right of his wife, and a term is assigned to him, it is not merged ; for that would be an injury to him.(g) And so, if a termor for years marries, and afterwards the inheritance descends on his wife, the term is not merged, for the same reason. (r) The husband's term will not merge in the wife's freehold, unless one or the other be acquired by purchase after the marriage, or unless (perhaps) the husband becomes entitled by the birth of a child to a future tenancy by the curtesy, in which case both r*q/t9n ^^*'^''®^ would be in him in his own *right.(s) If a man has a L J term in right of his wife, and purchases the freehold, the term is not merged, because the wife would thereby be prejudiced. (<) If a lessee makes his lessor executor, the term is not merged ; for that would be an injury to the lessee's estate, and might injure the lessor also.(M) If a person having a term of years as executor, purchases the inheritance, the term is not merged, because that would prejudice creditors and others (l) Burton, § 926. (m) Burton, § 15i. (n) Burton, ? T55. (o) Burton, § T56. (p) Sugd. Concise View, 480; 1 Cruise T. 8, c. 2, § 30, 37. (g) 1 Cruise T. 8, c. 2, § 30. (r) 1 Cruise T. 8, c. 2, ? 32 ; Sngd. Concise View, 478. (s) Barton, § 902 ; Sugd. Concise View, 6, 7. (t) 1 Cruise T. 8, c. 2, § 37, 38. («) 1 Cruise T. 8, c. 2, § 39; Sugd. Concise View, 480. OF MERGE E. 605 who are interested in the testator's estate, or, if merged, it is only so far as the executor's own interest is concerned. (a;) And in consequence of the 3rd section of the Statute of Uses no term for years or other interest, whereof a person to whom lands are cpnveyed to uses is possessed in his own right, will be merged or destroyed by such conveyance. (y) If a person is joint tenant of the first estate, and sole tenant of the second, his share only will be merged. (2) Nor will even this partial merger take place, unless the two estates are vested in him by several conveyances.(a) On the other hand, if the party is sole owner of the first estate, and joint tenant of the second, his estate will be merged either for the whole or a part only of the tenement, according to the apparent intention with which the two estates were brought together. Thus, if A. and B., being joint tenants in fee, make a lease for life to C, and C. afterwards sur- renders the tenement to A., this will cause the estate for life to be entirely merged. (6) But if C. were to convey his estate to A. by the same means as he might to a stranger, there, the intention being appa- rently not to destroy the estate, the merger would take place so far only as *it must of necessity, that is, for one moiety; in consequence r^^q^o-i of which A. would be seised of that moiety of the tenement L -I in fee simple, and of the other moiety for the life of C, with reversion in fee to B.(c) If in any case the estate which is merged were, either previously to the transaction which caused the merger, or by that transaction, charged with a rent or other incumbrance, or if an estate were created out of it, this charge or derivative estate would still subsist as long as the merged estate might have continued if it had not been merged ; for it is a maxim that actus legis nemini facit injuriam.(c?) Where a tenant in fee or in tail of an estate becomes entitled to a charge upon the same estate, the general rule is, that the charge merges, unless it is kept alive by the party entitled to it. And where the merger of the charge would have let in other charges in priority, so that it would be the interest of the owner of the estate to keep alive his charge, the court will presume that such was his intention, (e) A vested remainder for years interposed between the freehold and the inheritance, does not prevent their consolidation ;(/) because it is not an intervening portion of the seisin of ownership, but only confers a possessory right. ((?) And, a fortiori, a mere interesse termini cannot hinder the merger of any estate.(A) And yet, if a person has a term for years, and a freehold estate, but there is a second term interposed between them, no merger will take place.(i) If any freehold interest by way of contingent remainder is interposed between two estates, which (x) See Sugd. Concise View, 481; 1 Cruise T. 8, c. 2, § 34-36 ; Burton, §903. (y) 1 Cruise T. 11, c. 3, § 37 ; 1 Cruise T. 8, c. 2, g 40 ; Burton, g 758; Sugd. Concise View, 480. ■ (s) Burton, § 748. (a) Burton, § 749. (b) Burton, ? 750. (c) Burton, | 752. (d) Burton, § 756 ; 4 Cruise T. 32, c. 7, | 3. (e) Grice v. Shaw, 10 Hare, 76, (/) Burton, ? 762. (a) See Smith's Executory Interests annexed to Fearne, § 50 (A) Burton, ? 907. («') Burton, § 898. 606 SMITH ON EEAL AND PERSONAL PEOPEBTT. in their creation are given to one person, the absolute coalition of them r*Q4.4.1 l^y ™6rger in *his hands is prevented j because otherwise the L J first estate would be created and destroyed in the same instant, which would be absurd. (^) And for the same reason if a person is made tenant for life by will, with a contingent remainder to another, and the reversion in fee descends from the testator to his devisee for life, no merger will take place. (^) In all cases, however, where a contingent remainder is the only obstacle to merger, there is such a coalition between the estates, that, if the second is of inheritance, and the first is in possession, the right of dower and most other incidents of a fee in possession will attach. (m) And if two estates capable of coalition by merger become by any act or event subsequent to their creation vested for the first time in one person, a merger will take place, and by the old law, prior to the stat. 8 & 9 Vict. c. 106, s. 8, the contingent remainder was destroyed, (m) Merger was never favoured in courts of law, and still less in courts of equity. (o) [*945] *CHAPTEK III. OP CONVERSION. Where property which wears out by effluxion of time (such as long annuities and leaseholds) or property invested on securities, which, though yielding a high rate of interest, the Court of Chancery does not adopt, (such as bonds, shares in a company, or Dutch bonds,) is given to be enjoyed by two or more persons in succession, it is a rule, that in order to accomplish the object of the testator, it must be converted into permanent annuities, and the dividends paid to each person in succes- sion, unless the party contesting the application of this rule can show that the will contains some suificient indication of intention that the property is to be enjoyed in specie. This is for the benefit of the person or persons in remainder. And if reversionary property is made the subject of successive interests, the same rule applies for the benefit of the first taker.(a) As it is often made a point of dispute, whether an intention of enjoyment in specie is sufficiently indicated, it is desirable to exclude all doubt by express words. (6) (k) Burton, § '759. [l) Burton, § 160. (m) Burton, ? Y6I. (n) Burton, § 760. See Smith's Executory Interests annexed to Fearne, ^ Ill- ISO, a; and supra, p. 237-8. (o\ Co. Litt. 338, b, u. 4. (a) Lewin on Trusts, 283, 2nd edit. ; 2 Spence's Eq. Jur. 42, 552-557 ; 2 Rop. Leg. by White, 1343 ; Morgan v. Morgan, 14 Beav. 82, 83 ; Sutherland t. Cooke, 1 Coll. 498 ; Johnson v. Johnson, 2 Coll. 441 ; Chambers v. Chambers, 15 Sim. 183 ; Pickup v. Atkinson, 4 Hare, 624 ; Thornton t. Ellis, 15 Beav. 193 ; Blann v. Bell, 5 De G. & S. 658 ; 2 D. M. & G. 775. (4) For instances, see Lichfield t. Baker, 2 Beav. 481 ; Goodenough v. Trema- mondo, 2 Beav. 512 ; Pickering v. Pickering, 2 Beav. 31 ; Pickup v. Atkinson, 4 Hare, 624 ; Blann v. Bell, 5 De G. & S 658 ; 2 D. M. & G. 775. OF CONVERSION. 607 Land articled, contracted, conveyed, or devised to be sold and turned into money, is reputed as money ; and money *articled, cove- [-#q4«t nanted, or bequeathed to be invested in land, has in equity L J many of the qualities of real estate, and in particular is descendible and devisable as such.((7) And where the specific execution of a contract respecting land would have been decreed between the parties, it will be decreed between all persons claiming under them in privity of estate, representation, or title, unless other controlling equities have intervened. (A) And where the heir of the purchaser comes into equity for a specific performance, he may in general require the purchase-money to be paid out of the per- sonal estate of the purchaser in the hands of his personal representa- tives. (i) But if upon the death of the vendor a title cannot be made, or there was not a perfect contract, or the court should think the contract ought not to be executed, there is no conversion of real estate into personal ; and therefore the estate will go to the heir-at-law of the vendor. And so if upon the death of the purchaser a title cannot be made, or there was not a perfect contract, his heir or devisee will not be entitled to the money agreed to be paid for the lands, or to have any other estate bought for him. (A) And where the conversion has not taken place, and the interest has vested absolutely, whether in land or money, in one person, he may elect to take the property in its unconverted state, and any act or decla- ration of his, indicating an option in which character he takes or dis- poses of it, will determine the succession as between his real and per- sonal representatives. (Z) ' *A stranger (such as the crown or the lord claiming in default r^qj^^-i of heirs) is not entitled to call for a conversion. (ra) L J In general, courts of equity do not incline to change the quality of the property as the testator or intestate has left it, unless there is some clear act or intention by which he has unequivocally fixed upon it throughout a definite and difi'erent character.(o) Where the intention in marriage articles is plain, that a conversion should be made, but consents of the parties interested to the actual pur- chase cannot be obtained as required by the instrument, by reason of their deaths or for some other cause, if any convenient purchase could have been obtained, the court will take upon itself to judge whether such consents ought to have been given, and the conversion being the paramount object, it will be considered as made; else the parties to con- sent would have the option of determining whether the property should be real or personal, which, unless it be clearly given to them, will not be permitted. An equitable conversion of land into money or of money {g) Story's Eq. Jur. TSS-^QO, 1214, a; 2 Spence's Eq. Jur. 256-258, 264; Bar- ham V. Earl of Clarendon, 10 Hare, 126. (h) Story's Eq. Jur. I 788 ; see 2 Spence's Eq. Jur. 268-9. \i) Story's Eq. Jur. § 790. (k) Sugd. Concise View, 134. (I) Cookson T. Cookson, 12 CI. & Fin. 121; Story's Eq. Jur. § 793, 1213; 2 Spence's Eq. Jur. 270, 271. (n) 2 Spence's Eq. Jur. 266. (o) Story's Eq. Jur. § 1214. 608 SMITH ON REAL AND PERSONAL PROPERTY. into land takes place by force of the direction, notwithstanding the con- version or investment is directed to be made with the approbation of certain parties j and legatees of legacies out of a property directed to be converted with the consent of the tenant for life in writing, are entitled to their legacies, whether the property be converted or not; and the residuary legatees of the proceeds are entitled, subject to the legacies, to the estate itself, if not converted, (p) Where personalty is directed to be converted as soon as conveniently may be, there, as between the executors and the persons interested in the estate, the personalty is to be considered as converted within a year ; that being considered as the time within which, in the generality of P q .„-. cases, *it may be converted with ordinary diligence. (g') And L J where a sale of real estate is directed to be made with all con- venient speed, twelve months is to be considered as the time within which a sale might reasonably be made, as regards the rights of a party who is to take a beneficial interest on the conversion of the property. (?•) An absolute direction to sell real estate in any event, by converting it into personalty renders it liable to the legacy duty, even though the beneficial donees should elect to take it in an unconverted state. But a mere trust for sale for payment of debts, or a discretionary power to sell, does not render the estate liable to legacy duty, at least if it is not sold.(s) Where, in the events that happen, the contemplated object for which a conversion of land into money or money into land was to be made, does not exist at all, the court will not vary the property from that state in which it was found at the death of the testator ; for where the pur- pose fails, the intention fails.(<) But if any event has happened on which the conversion ought to have taken place, though the object for the conversion afterwards may have ceased to exist, the property will be treated as if converted, (m) Where real estate is directed to be sold for certain purposes, so much of the real estate or the produce thereof as is not effectually disposed of by the will at the testator's death, from silence, or from the invalidity of the testamentary disposition,- or from subsequent lapse, will not go to the next of kin or to a residuary legatee, but will result to the heir, unless the testator has sufficiently declared his intention that the produce of the real estate should be deemed personalty, whether such purpose is r*Qd.QT *'' ^® effected *or not.(y) If the testator directs expressly or by L J necessary implication that the proceeds of the real estate shall be considered as having been converted into personalty before his death ; and a fortiori if he directs that it shall be treated as personal estate for every purpose, whether disposed of by his will or not, and whether as regards legatees or next of kin, such a direction operates to give the (p) 2 Spence's Eq. Jur. 260, 261. (g) 2 Spence' Eq. Jur. 42, 565, n. (c). (r) Vickers t. Scott, 3 My. & K. 500. (s) 11 Jarm. & Byth. by Sweet, 612, (5) ; 2 Spence's Eq. Jur. 267. (() 2 Spence's Eq. Jur. 234, 261. (m) See 2 Spence's Eq. Jur. 262. (i>) 2 Spence's Eq. Jur. 233 ; 1 Eop. Leg. by White, 5lT, 533 ; Taylor v. Tay- lor, 3 D. M. & G. 190 ; Robinson v. The Governors of the London Hospital, 10 Hare, 19. OF CONVERSION. 609 next of kin, as against the heir, any portion of the proceeds that may lapse or not be effectually disposed of. (a;) And where a conveyance is made of the equity of redemption of real estate to trustees for sale, for the benefit of the creditors of the author of the deed, and upon trust, if there should be any surplus, to pay the- same to him, his executors, administrators, and assigns, to and for his and their own absolute use and benefit, there is a conversion of the real estate into personalty, as between the real and personal representatives of the author of the deed. (3/) But where it is possible to construe words of exclusion of the heir, or words expressive of an intention that the property should be considered as personal estate, as merely expressive of an intention that there should be a conversion for the purposes of the will, or that the exclusion of the heir was only intended for the accomplishment of the purposes of the will, and there is any purpose, however limited, as pay- ment of costs, for which the conversion may have been directed, the heir will take, and not the next of kin. And no words, however strong, expressive of an intention to exclude the heir, will be sufiScient for that purpose, unless there is a gift to the next of kin, either by express words or by plain implication. Hence a mere direction that the proceeds shall be deemed part of the personal estate, or a reference *to a mixed (-:)cqcA-| fund by the name of personal estate, or even a direction that L J proceeds shall be " considered to all intents and purposes part of the personal estate," will not be sufficient to give the surplus of the real estate to the next of kin. And it was even held that the heir took, notwithstanding a declaration that the trustees should stand possessed of the proceeds as " a fund of personal and not of real estate," followed by the words, " for which purpose I declare that such proceeds or any part thereof shall not in any event lapse or result for the benefit of my heir at law. "(a) If however there appears to have been no particular motive for changing the nature of the real fund, and the testator has declared or shown an intent that he meant to dispose of his real as personal estate, then the land will pass under a residuary personal bequest as per- sonal estate, (a) If a testator converts his real estate for all the purposes of his will, so as to affect the character of the property as between the real and personal representatives of persons taking under the will, that will not prevent the heir from taking by way of resulting trust any part which is undisposed of, or not effectually disposed of; as where it is the subject of limitations which are too remote. (J) But what he so takes will vest in him as personal estate,(c) unless the other parts are devoted to the payment of charges, and he chooses to pay them off, and thereby prevent a sale, and take the estate. (t^) The question whether the surplus (x) 2 Spence'a Eq. Jur. 237; 1 Rop. Leg. by White, 517. (y) Griffiths v. Ricketts, 7 Hare, 299. (z) See 2 Spence's Eq. Jur. 237-8 ; Johnson v. Woods, 2 Beav. 409' ; Flint v. Warren, 16 Sim. 124 ; Taylor v. Taylor, 3 D. M. & G. 190 ; Robinson t. Governors of London Hospital, 10 Hare, 19; Fitch v. Webber, 6 Hare, 145. (a) 1 Rop. Leg. by White, 523, 537. (b) 2 Spence's Eq. Jur. 234 ; Burley r. Eyelyn, 16 Sim. 290. (c) 2 Spence's Eq. Jur. 242 , Burley v. Evelin, 16 Sim. 290. (d) 2 Spence's Eq. Jur. 234. April. 1856.— 39 610 SMITH ON REAL AND PERSONAL PROPEETT. proceeds of the trust property belong to the real or personal representa- tive, is not affected by the state — whether of realty or personalty — in r*95n ^^'"^ ^""'^ surplus is found, *although the state of the property L J might affect the character in which such surplus would go to the one or the other of such representatives. (e) Where real estate is not made a subsidiary fund, but a testator creates from real and personal estate a mixed or general fund, and directs the whole of that fund to be applied for certain purposes, as for the payment of debts and legacies, he does in effect direct that the real and personal estates, which have been converted into that fund, shall answer the stated purposes pro rata, according to their respective values. If any of those purposes fail, then the part of the fund which upon this principle would otherwise have been applicable to those purposes, is undisposed of. So far as this part of the fund has been composed of real estate, the heir is to have the benefit of it, as so much real estate undisposed of, whether the estate be eventually sold or not ; and so far as this part of the fund has been composed of personal estate, it is personal estate undisposed of, for the benefit of the next of kin.(/) Where money is bequeathed to be laid out in land, the same principle applies as where land is directed to be converted into money; the con- version will operate only so far as the will disposes of the land into which it is to be converted, so that if the land is devised for a limited estate only, the produce of the fund, or the fund itself, if unconverted, beyond the interest so given, will result to the testator's next of kin, unless it be given away to some other person. (^) Where a testator directs his personal estate to be converted into real estate for certain purposes, some of which fail, there, after the purposes which can take r*Qfi9l ^^^'^^ ^""s satisfied, *the heir is not entitled to the unconverted L -I personalty as impressed with the character of realty. (A) But if there is a residuary legatee he is entitled to it. And if it has not been converted, he may elect to take it either as realty or personalty. But if he dies without indicating his election, it will go to the person or persons entitled to his personal estate. (i) [*953] *CHAPTER IV. OF ELECTION. Election is the choosing between two rights, by a person who derives one of them under an instrument in which a clear intention appears that he should not enjoy both. The principle of election is, that no one shall claim under and in op- (e) Griffith v. Ricketts, 7 Hare, 299. (/) 2 Spence's Eq. Jur. 235 ; Johnson v. Woods, 2 Beav. 409. (g) 2 Spence's Eq. Jur. 235. (A) Hereford v. Ravenhill, 1 Beav. 481. (i) Hereford v. Ravenhill, 5 Beav. 51. OF ELECTION. 611 position to the same instrument. There is a tacit condition annexed to all provisions of this nature, that the person taking do not disturb the disposition which his benefactor has made. (a) Election arises in equity in cases where a grantor, or, more commonly, a testator, gives away, either knowingly or by mistake, that in which he has no interest, or the whole of that in which another person besides himself has an interest, and in the same instrument makes a gift to the owner of the property so given away, or to the person entitled to such interest. In such oases the owner of such property, or the person enti- tled to such interest, cannot both take the gift and retaia his own pro- perty or interest ; but if he takes the gift, he must resign his own pro- perty or interest. On the other hand, if he should elect to hold his own property or interest, or, as the phrase is, if he should elect against the instrument, he cannot have the gift; or at least he cannot have the entire gift withoul compensating the party whom he has disappointed by electing to take his own property. In such case, equity, in not suffer- ing the disposition by which such gift is made to enure to the benefit of the person so electing against the instrument, will not render that dispo- sition inoperative, *but will make it the means of effectuating _^p^ ... that intention of the author of the instrument which such person L J has frustrated by so electing to retain his own property or interest : for equity, will treat such gift, or at least a part of it, as a trust in the donee or devisee, the person so electing, for the benefit of the party dis- appointed by such person's refusing to give up his own property or inte- rest. (i) Indeed, the doctrine of election can never be applied where an election is made contrary to the instrument, unless the interest that would pass by it is of that freely disposable nature that it can be laid hold of to compensate the party who suffers by the exercise of such election against the instrument. Thus, where there is a fund subject to the appointment of a father amongst his children, and the father appoints a part to some of his children, and the other part to persons not objects of the power, any child who is an appointee may both take his appointed share, and also claim his share of the improperly appointed portion, as in default of appointment. But if there is a power to appoint to two, and the donee of the power appoints to one only and gives a legacy to the other, he cannot claim the legacy and also dispute the validity of the appointment.(c) So where a man, having a power to appoint to A. a fund which in default of appointment is given to B., exercises the power in favour of C, and gives other benefits to B., alihaugh the exe- cution is merely void, yet if B. will accept the gifts to him, he must con- vey the estate to C. according to the appointment. Again, where a father authorised his wife to execute a power vested in himself, and gave the objects of the power other benefits, although the father could not delegate the power, yet it was held, that any person who should defeat (a) 2 Sugd. Pow. 144-5. (b) See Story's Eq. Jur. ? lon, note, 1081-1084, 1086, 1088, 1089, 1093: 2 Spence's Eq. Jur. 586, 58Y, 588, 601-604; 2 Sugd. Pow. 155. (c) 2 Spence's Eq. Jur. 590 ; 2 Sugd. Pow. 148-9. 612 SMITH ON EEAL AND PERSONAL PEOPEKTY. r«Qfi^n w'^^'' '^^ mother had done by *what was in truth no power, L -I should have no benefit under the father's will.((^ But where a testator bequeaths his own property to persons who are objects of a power, and also appoints to them the fund over which he has the power of appointment, in terms which per se would give the absolute interest, but then adds a request that they would leave the appointed fund to their children, who are not objects of the power, the precatory words do not create a case of election, either to accept a limited appointment, leaving the remainder for their children, or else to relinquish the lega- cies, but the words relating to the appointed fund amount to an abso- lute appointment to the objects of the power, with a condition inconsis- tent with the power, which is simply void j and therefore tiey are entitled to both funds. (e) The doctrine of election applies even where, in a will not within the wills act (1 Vict. c. 26,) a devise of an estate is made to the testator's heir, and the heir, according to the old rule, takes such estate by descent, and not by purchase, and, by the same will, the testator devises to ano- ther person an estate belonging to the heir, over which the testator has no disposing power. (/) And the doctrine is equally applied to all interests, whether immediate or remote, vested or contingent, of value or of no value, and whether in real or personal estate. (^) The same doctrine of election also arises in cases where it was appa- rently a testator's intention to dispose of all the property he might have at the time -of his death, and the heir, who is a devisee under the will, claims property which was purchased subsequently to the will, and which, consequently, under the old law, did not pass by the will, but r*QfiRi *'^^^ intended to pass to another person under the general words L J of the will. (A) But where a will, made before the year 1838, is void as a dSvise of land, either from the incapacity of the devisor or from its not being duly executed, and is good as to personal estate, the heir may take a legacy under it, without relinquishing his right by descent ; because, as to the land, there is in fact no disposition of it, and consequently no election. Ti) But although the will were not duly executed according to that statute, still if it contained an express con- dition that any legatee who might not comply with its terms should for- feit all benefit under it, there the heir would, by force of the condition, be obliged to make his election. (^) According to the preponderance of authority and principle, a person electing against a will does not forfeit the whole of the benefit intended for him, where the value of the gift exceeds that of his own property or interest; but he is only obliged to compensate in value the claimant whom he has disappointed by his refusing to give up his own property or (d) 2 Sugd. Pow. 148-9. (e) Blacket v. Lamb, 14 Beav. 482. (/) Story's Eq. Jur. § 1094 ; 2 Spence's Eq. Jur. 589 ; 2 Rop. Leg. by White, 1595 ; Schroder v. Schroder, 1 Kay, 678. {g) Story's Eq. Jur. § 1096 ; 2 Spence's Eq. Jur. 588. (A) Story's Eq. Jur. | 1094; Schroder v. Schroder, 1 Kay, 578; 6 Cruise T. 38, c. 2, J 28 ; Sugd. Concise View, 127. (t) 6 Cruise T. 38, c. 2, J 26 ; 2 Rop. Leg. by White, 1595. (A) 2 Eop. Leg. by White, 1595. OF SATISFACTION. 613 interest. (Z) For a court of equify interfering to control his legal rights, for the purpose of executing the intention of the testator, is justified in its interference so far only as that purpose requires. The heir prevent- ing the effectuation of the testator's intention in the prescribed form, it is executed by approximation, or, as it is technically called, cy pres.(m) If the party has mortgaged the interest he takes in his own right, and then is suffered to elect to take under the will, the mortgage must be satisfied out of the interest provided for him by the will.(ra) *A person may decline one benefit given him by a will, such r^q^rj-, as a legacy charged with a portion, without being precluded L J from taking another benefit by the same will : unless it is fairly inferable, from the nature of the different benefits, that the party should either take all or reject all.(p) The party is not bound to make an election till all the circumstances are known. And if he should make a choice in ignorance of the real state of funds, or under a misconception of the extent of the claims on the fund elected by him, it will not be conclusive on him. And he is entitled, in order to make an election, to maintain a bill in equity for a discovery, and to have all the accounts take'n to ascertain the real state of the fund.(j) An election may be presumed from a long acquiescence, or from other circumstances, (r) The doctrine of election is not applied in the case of creditors. They may take the benefit of a devise for payment of debts, and also enforce their legal claim against other funds disposed of by the will ; for a credi- tor claims not as a mere volunteer, but for a valuable consideration, and ex debito justitia3.(s) Where the party bound to elect labours under any disability, as in- fancy or coverture, the court will consider whether it will be most bene- ficial for such party to take under or against the will or deed, and will decree accordingly.^^ *CH AFTER V. [*958] OF SATISPAOTION.(a) Satisfaction may be defined to be, the making of a donation with fl) Story's Eq. Jur. § 1085; 2 Spence's Eq. Jur. 601-604. (m) Story's Eq. Jur. 1085, note. {«) 2 Sugd. Pow. 154. (o) Story's Eq. Jur. § 1081 ; see 2 Spence's Eq. Jur. 591. (g) Story's Eq. Jur. § 1098 ; 2 Spence's Eq. Jur. 598 ; 2 Sugd. Pow. 154 ; 2 Rop. Leg. by White, 1591-2. (r) Story's Eq. Jur. § 1097 ; 2 Spence's Eq. Jur. 598-600; 2 Sugd. Pow. 154. (4 Story's Eq. Jur. | 1092; 2 Spence's Eq. Jur. 592. (t) 2 Spence's Eq. Jur. 587. As to election between dower or free bench, and benefits given by will, see supra, pp. 149, 150, 154. (a) This chapter is almost entirely taken from the writer's Manual of Equity Jurisprudence, 4th ed. ; but with the addition of references to Eoper's Legacies. \ 614 SMITH OS REAL AND PERSONAL PROPERTY. the express or implied intention that it shall be taken as an extinguish- ment of some claim which the donee has upon the donor.(&) Satisfaction implies that something has been done in lieu of that which was contracted or intended to be done. But performance implies that the identical act which the party contracted to do, has been done.(c) Equitable questions of satisfaction usually arise in three classes of cases : — I. In cases of portions secured by a marriage settlement. II. In cases of portions given by a will, and an advancement of a donee afterwards in the testator's lifetime. III. In cases of legacies to creditors, (c?) It is advisable to observe in this place, with reference to all these classes of cases, that where the satisfaction is a matter of presumption, that presumption may be rebutted either by intrinsic evidence derived from the will itself, or by extrinsic evidence, as by declarations of the testator or written papers. (e) i-^„cQ-i *I. Where a portion or provision is secured to a child by a L J marriage settlement or otherwise, and the parent or person stand- ing in loco parentis — that is, a person meaning to stand in the place of a parent as regards providing for a relation's child — afterwards by will gives the same child a legacy, whether particular or residuary, without expressly declaring it to be in satisfaction of such portion or provision, in such case, if the legacy is substantially the same in its value, in its nature, in time of payment, in certainty, and in benefit, with the portion or provision, and if it is not given for a different purpose, it will, in the absence of evidence to the contrary, be deemed a full satisfaction, as the presumption is against double portions. If the legacy is less in amount than the portion or provision, or if it is payable at a different period, then (looking to the weight of authority) it may be deemed a satisfaction pro tanto, or in full, according to the circumstances.(/) A testamentary provision has been considered an advancement in the lifetime of the parent, in full or part satisfaction of the portion provided by a settle- ment which contains a declaration that advancement by the parent in his lifetime shall be considered in full or part satisfaction, unless the con- trary is expressly declared in writing, (gr) II. Where a parent or other person standing in loco parentis bequeaths to his own or his relation's child a legacy (not being a residuary legacy, which is always changing in amount,) and afterwards, by an act inter vivos, makes a provision for the same child, of equal or greater amount, ef equal certainty, and substantially the same in kind and in degree of benefit, without expressing it to be in lieu of the legacy, or for other objects than those for which the legacy was given, — in such case, in the (b) See Story's Eq. Jur. § 1099-1101, 1106, and infra. (c) 2 Rop. Leg. by White, 1109. [d) Story's Eq. Jur. ? 1109. (e) Story's Eq. Jur. § 1 102 ; 2 Spence's Eq. Jur. 441-455 j 1 Rop. Leg. by White, 391. (/) Story's Eq. Jur. § 1109, 1110,1103,1104; 2 Spence's Eq. Jur. 42Y-430, 432, 433, 438-440 ; Lady E. Thynne v. Earl of Glengall, 2 H. L. Cas. 153 ; 2 Rop. Leg. by White, 1071 ; Sir J. Romilly, M. R., 15 Bear. 572. (ff) 2 Rop. Leg. by White, 1098. OF SATISFACTION. 615 absence *of evidence to the contrary, it will be deemed a satisfac- r«qf