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 On the nature and evidence of title to r 
 
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ON THE 
 
 NATURE AND EVIDENCE 
 
 OF 
 
 TITLE TO EEALTY. 
 
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EoniJon : C. J. CLAY and SONS, 
 
 CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, 
 AVE MARIA LANE, 
 
 AND 
 
 STEVENS AND SONS, Ltd, 
 119 AND 120, CHANCERY LANE. 
 
 ©laBsota: 60, WELLINGTON STREET. 
 
 3Lci?jia: F. A. BEOCKHAUS. 
 
 i^eto Soris: THE MACMILLAN COMPANY. 
 
 JSombaa: E. SEYMOUR HALE. 
 
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ON THE 
 
 NATURE AND EVIDENCE 
 
 OF 
 
 TITLE TO EEALTY 
 
 A HISTORICAL SKETCH, 
 
 BEING THE YORKE PRIZE ESSAY (1898), 
 UNIVERSITY OF CAMBRIDGE. 
 
 BY 
 
 RICHARD C. MACLAURIN, M.A., LL.M., 
 
 OF Lincoln's Inn, 
 
 PKOFESSOK OF MATHEMATICS, VIOTOKIA COLLEGE, WELLINGTON, NEW ZEALAND ; 
 FELLOW OF ST JOHn's COLLEGE, CAMBBIDGE. 
 
 LONDON: 
 
 C. J. CLAY AND SONS, 
 
 CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, 
 
 AVE MARIA LANE. 
 
 1901 
 
 \^All Rights reserved.^ 
 
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VI PEEFACE 
 
 an accurate history of title for the last thirteen centuries. 
 This essay makes no pretensions to satisfy the requirements 
 of such a history, being at best but a rough sketch as a 
 first approximation to the truth. The essay was written in 
 1898 for the Yorke Prize in the University of Cambridge, 
 and, fearing that no good thing could come out of a prize 
 essay, the author had intended to recast the whole before 
 publication. However, before anything could be done, he 
 had to undertake the duties of a professor in New Zealand, 
 and whatever the advantages of living in a land that is 
 " loneliest, loveliest, exquisite, apart " it cannot be said that 
 facility for writing the history of English law is one of them. 
 In fact, after much delay, the idea of reconstruction has been 
 abandoned for the present, and the essay is published in its 
 original form. 
 
 The value of some historical knowledge to the ordinary 
 legal practitioner is more widely recognised to-day than 
 formerly, and the change is reflected in modern text-books 
 of the better class. However it is not solely for its bearing 
 on actual practice that a conveyancer should know something 
 of the history of title. Perhaps a better reason for the study 
 is that the knowledge so acquired will give a human interest 
 to an otherwise dull and lifeless profession. The law on the 
 subject of title is a purely human structure whose foundations 
 were laid centuries ago, and in its different parts we can see 
 traces of the ideas and ways of life of the men of all the 
 intervening ages. We begin with a number of semi-barbarous 
 tribes whose needs are few and laws correspondingly simple, 
 and watch a slow development until we see before us the 
 highly complex system that suits the requirements of the 
 modern man. In the meanwhile the greatest currents in the 
 race are indicated by the changing language of the courts, 
 and the record of actual cases gives us an insight into daily 
 
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PREFACE Vll 
 
 life that could hardly otherwise be obtained. On all sides 
 we are met by struggle, the seal of life and means of progress. 
 We see struggles with kings and barons over villeinage, escheats, 
 wills, and uses ; with grasping lords over rights of common ; 
 with covetous ecclesiastics over gifts in mortmain ; and witness 
 throughout the whole stretch of history the great battle against 
 forms that have outlived their day. We see institutions slowly 
 yielding to the pressure of public opinion, and mark the various 
 means that are adopted to keep the law in pace with the 
 times. Judicial decisions make gradual changes, and at times 
 even go the length of nullifying Acts of Parliament, as happened 
 with the law of trusts and estates tail. Fictions, too, are freely 
 employed with the same end, and these we find in their most 
 extravagant form within the field of realty in Fines and 
 Recoveries. Such indirect ways of modifying the law are 
 supplemented from time to time by direct legislation, a method 
 that grows in favour, and, in the end, overshadows all the 
 rest. We see, too, that these methods of keeping in touch 
 with the spirit of the times are not without their defects. 
 The judges' alterations are of a patchwork character; and, 
 where fictions are prominent, the most cumbrous and ex- 
 pensive forms are used to effect what might be done quite 
 simply. Walton, in his Gompleat Angler [1653], speaks with 
 regret of the simple days " when there were fewer lawyers ; 
 when men might have had a lordship safely conveyed to 
 them in a piece of parchment no bigger than your hand, 
 though several sheets will not do it safely in this wiser age." 
 He would have had still more reason for regrets if he had 
 lived a century later, when many conveyances were attended 
 with such " mystic rites and solemnities that not even the 
 ministering officers could comprehend them." Nor is the 
 work of the legislature always a much greater success. When 
 a portion of the building of law has ceased to be of use, we 
 
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Vin PREFACE 
 
 cannot usually afford to leave it standing as a picturesque 
 example of an obsolete style of architecture. It may be 
 interesting historically, but it will be practically a nuisance. 
 In such circumstances the instinct of the practical man is to 
 knock the structure down, but in doing this he is apt to 
 overturn more than he intended, and to weaken the foundations 
 of much that is left standing. Thus the task of restoring an 
 ancient building requires knowledge and skill, and so the work 
 of carrying out reforms in the law can be safely conducted only 
 under the guidance of those who understand thoroughly the 
 complex structure that is undergoing repair. 
 
 My thanks are due to the Wellington Law Society for its 
 courtesy in allowing me to use its library and so to verify some 
 of the references. 
 
 R. C. M. 
 
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CONTENTS. 
 
 CHAPTER I. 
 
 PAGE 
 
 Introductory .... 1 
 
 CHAPTER II. 
 
 First Period. From the Saxon Invasions to the Norman 
 
 Conquest . ... 7 
 
 CHAPTER III. 
 
 Second Period. The Norman Conquest to Edward I. Cobpoeeals 27 
 
 CHAPTER IV. 
 
 Second Period continued. Incorpoebals and Villeinage . . 54 
 
 CHAPTER V. 
 
 Second Period concluded. Cases 76 
 
 CHAPTER VI. 
 
 Third Period. From Edward I. to Henry VIII. Statute op 
 
 Westminster I. to Statute of Uses 106 
 
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CONTENTS 
 
 CHAPTER VII. 
 
 PAGE 
 
 Fourth Period. From Henry VIII. to William IV. Statute 
 
 OF Uses to the Prescription Act 142 
 
 CHAPTER VIII. 
 
 Fifth Period. "William IV. and Victoria. Prescription Act 
 
 TO Land Transfer Act. Legislation 190 
 
 CHAPTER IX. 
 
 Fifth Period concluded. The Law as it stands To-day . . 227 
 
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CHAPTER I. 
 
 INTRODUCTOEY. 
 
 The advantages of studying the history of a subject Advant- 
 need not be set out to-day when the triumphs of the historical 
 historical method are among the commonplaces of the treatment, 
 schools. We have all learnt in a measure that " the roots 
 of the present lie deep in the past." Law grows with 
 society, and if we would understand its later development 
 we must know something of its youth. With this truth 
 before us we cannot fail to find a living interest in much 
 that would otherwise appear dead, and even the formalities 
 of law are clothed with new meaning. 
 
 In many pursuits the most serious obstacles are met 
 with at the outset, and this is specially true in the study 
 of legal history. The materials are usually most scanty 
 where the natural difficulties are greatest, and although 
 simplicity may be reached in the end, at the beginning we 
 can expect only the indefinite. The one safe method seems 
 to be to work backwards from the known to the unknown, 
 and from a careful stud^ of historic times to get a clue to 
 what has gone before. For institutions do not often pass 
 away without leaving some fossil remains that may serve 
 to restore a bygone age. Still even with this help the 
 task of reconstruction is far from easy, and although we 
 may get some further guidance from a survey of primitive 
 societies that still exist we cannot always rely on this, for 
 we have no right to assume that the order of progress has 
 been everywhere the same. 
 
 tX M. E. 1 
 
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2 INTRODUCTION 
 
 Our object in the present essay is to consider the 
 various modes of acquiring real property that have ob- 
 tained throughout English history. Men have not always 
 had private property in land, and the first question to 
 discuss is — when did our forefathers begin this practice 
 and what were their methods of acquiring such property ? 
 The problem of the origin of property has been discussed 
 Origin of for ages. The Roman jurists had much to say about the 
 ' natural ' modes of acquisition, chief among which was 
 Occupancy, " the advisedly taking possession of what at 
 the moment is the property of nobody, with the view of 
 acquiring property in it for oneself." In this process was 
 seen the first step towards private ownership, and the 
 theory was accepted with satisfaction by successive jurists 
 and popularised in England by Blackstone. " The earth 
 and all things therein were the general property of man- 
 Black- kind from the immediate gift of the Creator By the 
 
 account. ^^^ of nature and reason he who first began to use it 
 acquired therein a kind of transient property that lasted 
 so long as he was using it and no longer.... Thus the 
 ground was in common and no part was the permanent 
 property of any man in particular ; yet whoever was in 
 the occupation of any determined spot of it, for rest, for 
 shade, or the like, acquired a sort of ownership from 
 which it would have been unjust and contrary to the law 
 of nature to have driven him by force, but the instant 
 that he quitted the use or occupation of it another might 
 seize it without injustice... .When mankind increased 
 in number it became necessary to entertain conceptions 
 of more permanent dominion and to appropriate to 
 individuals not the immediate use only, but the very 
 substance of the thing to be used'." 
 Its insuf- There is, no doubt, an element of truth in what 
 
 fieienoy. glackstone says, but very little examination will show 
 that his statement is a poor explanation of the origin 
 of private property. Blackstone pictures us a man in 
 
 ' Blaokatone, Comm. ii. 3. 
 
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EARLY FORMS OF LAND TENURE 'i 
 
 the early stages of society acquiring a sort of ownership 
 "from which it would have been unjust and contrary to 
 the laws of nature to have driven him by force." We are 
 not acquainted with any " law of nature^ " that has a 
 bearing on the matter ; and as to its ' injustice ' we might 
 be agreed to-day, but the natural man in the earliest ages 
 may not have had so much respect for what we call 
 justice. In fact the whole theory clearly presupposes a 
 somewhat advanced conception of justice and morality on 
 the part of the community, and although it may explain 
 the function of ' occupancy ' at a later period of history 
 it can help us little at the beginning. 
 
 We shall examine the light that history throws on 
 the subject a little later ; but since the historical accounts 
 leave much to be desired it may be well to see what help 
 can be got from a study of existing primitive races. For 
 this purpose we may arrange these races under a number Property 
 of types. The lowest — represented by the Bushmen ofp^^^^g 
 South Africa, or some of the inhabitants of central races. 
 Borneo — consists of a primitive horde of wandering 
 hunters, with neither houses nor cattle. They have not 
 even regular hunting grounds (being in this matter less 
 advanced than many animals) ; they own only what they 
 actually hold. 
 
 A slightly higher type is met with in Australia and Clans, 
 other places where a clan system prevails. The members 
 of the clan are, or are supposed to be, akin. They have 
 advanced from the lowest type in so far as they have 
 a well defined hunting ground ; but this belongs to the 
 clan and not to the individual. However, already we see 
 the elements of private property, though not in land. 
 A few things are appropriated to individuals, the most 
 
 1 The phrase is a very ancient one and covers a multitude of 
 obscurities. Doubtless Blackstone here uses it for the precept of reason 
 to refrain from molesting others with a view to self-preservation. 
 Hobbes (Leviathan, i. c. 15) enumerates nineteen ' laws of nature ' and 
 adds " These have been contracted into one easie sum intelligible even to 
 the meanest capacity, Do not that to another which thou wouldest not 
 have done to thy selfe " — a negative statement of the Golden Rule. 
 
 1—2 
 
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4 INTRODUCTION 
 
 important being ornaments and weapons. What induced 
 the strong man to leave the weaker in undisturbed 
 possession of such objects is not so easily settled. It is 
 a question of fundamental importance if we are to explain 
 the origin of private property; but as with many funda- 
 mental questions we have little data to help us to a 
 decision and must leave the subject to those with a taste 
 for controversy. 
 
 The next type is represented by tribes from the 
 North American Indians or the Maories of New Zealand. 
 There is now a considerable amount of private property 
 in goods — in food, weapons, canoes, and most important 
 of all in slaves. Agriculture is beginning to receive 
 attention, although it is yet very primitive. The same 
 patch of ground is seldom cultivated continuously, but 
 after one piece has been exhausted a move is made to 
 another. The results are not very satisfactory and con- 
 sequently agriculture is looked upon with a certain 
 measure of indifference and contempt. It is fit only 
 for women and slaves ; the serious and dignified business 
 of life — hunting and war — is left for the free man. Such 
 as it is, however, agriculture is already a source of wealth 
 and its importance grows with the institution of slavery. 
 Slaves are obtained by fighting, and as their usefulness 
 increases the rewards of the successful warrior are mag- 
 nified. Wealth accumulates and leads to distinctions of 
 rank and power, and ere long chiefs begin to demand 
 special privileges and do much to develope the idea of 
 private ownership even in land. 
 Village The next stage is reached when we come to the 
 
 tie™™""^' village community, a type that has received special 
 attention from a number of jurists^ who have discussed 
 it as it exists in India and Russia to-day as well as in 
 Britain and other parts of western Europe in the past. 
 Each tribe is divided into a number of smaller groups 
 bound together by ties of kinship, real or imagined. 
 
 1 Von Maurer, Nasse, Maine, Haxthausen, Tengoborski, Vinogradoff, 
 Seebohm, Gomme, and others. 
 
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LAND SYSTEM OF THE EARLY GERMANS 5 
 
 Agriculture has now become ' intensive,' the great dis- 
 covery liaving been made that by proper treatment the 
 same piece of ground may be cultivated from year to 
 year. The arable land is distributed among the different 
 families, often by lot, but the pastures are held in 
 common by the clan. The chief has increased his privi- 
 leges since the last stage ; his land has in many cases 
 become hereditary, and as a rule he claims large powers 
 over all the territory that has not been allotted. 
 
 As time goes on the powers of the chief increase, and 
 to meet his growing demands the claims of the kindred 
 and the clan have to be set aside. The idea of private 
 ownership in land thus fostered by the head of the state 
 is disseminated by many forces — notably by the church 
 in Western Europe — until at length our present stage is 
 reached when private property seems simple and 'natural' 
 and we have a difSficulty in believing that any other 
 system could ever have prevailed. 
 
 Where in this scheme are we to place the Anglo- Place of 
 Saxons just before their descents on England? The g'^^^^g^^"' 
 question cannot be answered with certainty, but the 
 evidence we have tends to show that they were in the 
 stage of transition preceding that of village communities. 
 As far as land laws were concerned their state was like 
 that of the JVTaories or Ked Indians. On this subject 
 the sources of information from the side of history are 
 two — the writings of Caesar and of Tacitus. Caesar gives Caesar's 
 us two descriptions, one of the Germans generally, the tio^n"^ 
 other of a particular tribe, the Suevi. Speaking of the 
 Germans as a whole he says that no one has a fixed 
 quantity of land, but that each year portions are assigned 
 by the chiefs to groups of families united by ties of 
 kinship. The group occupies the land for a year and is 
 then moved elsewhere. So too of the Suevi " Privati ac 
 separati agri apud eos nihil est, neque longius anno 
 remanere uno in loco incolendi causa licet\" About a 
 
 ^ Caesar, de Bella Oallico, iv. 1. 
 
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6 INTRODUCTION 
 
 Taoitue. century and a half later Tacitus writes with fuller know- 
 ledge. We cannot be sure that he is describing the same 
 tribes as Caesar; but, if so, there has been a marked 
 advance. The old wandering life has been given up and 
 the tribe settled down in permanent villages. The arable 
 land is changed from year to year, being allotted among 
 the different members of the community in accordance 
 with their rank. "Agri pro numero cultorum ab universis 
 in vices occupantur, quos mox inter se secundum digna- 
 tionem partiuntur....Arva per annos mutant'." 
 
 It must not be thought, however, that private property 
 in land is unknown. There is a distinct touch of in- 
 dividualism, for each man has a homestead of his own 
 which is clearly marked off from that of his neighbours. 
 " Colunt discreti ac diversi....Vicos locant non in nos- 
 trum morem conexis et cohaerentibus aedificiis ; suam 
 quisque domum spatio circumdatl" 
 
 This is practically all we know from history of the 
 land system of these early days. Several centuries 
 elapsed from the time of Tacitus until the Saxons began 
 their invasions of Britain. What happened in the mean- 
 time can only be conjectured, and indeed, as we shall see 
 in the next chapter, it is long after the invasions were at 
 an end before we have anything very definite on which to 
 go. When, however, we do come again into the clear 
 light of history we find much to suggest that the methods 
 of which Tacitus wrote were employed by the invaders, 
 the most abiding witness being the open field system of 
 agriculture of which there are many traces even to-day'." 
 
 ' Tacitus, Germ. c. xxvi. The text is doubtful. Some read vicis. 
 - Tacitus, Germ. o. xvi. 
 
 ^ See Seebohm, English Village Communities ; Gomme, The Village 
 Community. 
 
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CHAPTER II. 
 
 FIRST PERIOD. FROM THE SAXON INVASIONS 
 TO THE NORMAN CONQUEST. 
 
 When we endeavour to construct a connected account Scarcity of 
 of the land laws in Anglo-Saxon times we are constantly 
 baffled by the scantiness of the materials at our disposal. 
 The period before Augustine's mission affords us practically 
 nothing of a trustworthy nature, and from that time till 
 Domesday Book appears we have to rely almost entirely 
 on the Charters — some 1200 in number. Now great as 
 is the value of these charters, we must not forget that 
 they are exotic in character. They give us but a one- 
 sided view of the land laws of the day, telling us nothing 
 (except by implication) of the laws that dealt with 
 folkland ; and so, while teaching us a good deal about the 
 property of the great people, they leave us almost entirely 
 in the dark as to the conditions on which the masses 
 held their land. 
 
 The uncertainty of our knowledge of Anglo-Saxon 
 customary law is well illustrated by the fact that scholars 
 who have devoted themselves to its study are far from 
 agreeing on the fundamental question as to whether that 
 law is Celtic or Roman or Teutonic in its origin. With- 
 out entering into a discussion of this question perhaps 
 we may be permitted to say that the better opinion is in 
 favour of the German origin'. 
 
 ' See Maitland, Domesday Booh and Beyond, p. 223. 
 
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FIRST PERIOD 
 
 invasions. 
 
 Teutonic We know that throughout the fifth and sixth centuries 
 
 England was exposed to a series of invasions and that the 
 old population was so completely crushed that but for the 
 Celtic fringe we should have scarcely any trace even of 
 its language. The land of the conquered country was, of 
 course, distributed among the victorious invaders. "As 
 an army they had obtained possession, and as an army 
 they disti'ibuted the booty that rewarded their valour'." 
 As to the mode of distribution we know little or nothing, 
 but as each share was originally called Hlyt (lot) and 
 afterwards Hid [contraction of Higid ; Higan = family 
 and so Hid = share of one household] we are naturally 
 led to suppose that the new settlers obtained their shares 
 by lot and that the family was regarded as the unit for 
 purposes of settlement. 
 
 If we are justified in applying Tacitus' description of 
 a German army to the invaders, we may picture them as 
 a regular army led by a chief and divided into a large 
 number of small groups, each group being bound together 
 by ties of kinship and ruled by the noblest of the band. 
 It seems natural to suppose that in the allotment of land 
 this arrangement would be maintained, so that each 
 group would have a district assigned to it and would 
 form the nucleus of a village community. 
 
 Village The organisation of these village communities has 
 
 been the subject of a great amount of learned investiga- 
 tion and not a little controversy. For our present 
 purpose it may be sufficient to say that the head of each 
 family in the village was a small 'peasant proprietor.' 
 His house and curtilage were strictly his own and he had 
 his strips of arable land, "subject however to certain 
 customary regulations as to common cultivation." Every 
 year the meadow land was allotted among the holders 
 of the arable. In addition to this these landholders 
 exercised certain common rights over the pastures and 
 woods, rights that were regulated by the village as- 
 sembly. 
 
 ' Kemble, Saxons in England. 
 
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 communi- 
 ties. 
 
MODES OF ALIENATION 9 
 
 This state of affairs has given rise to some rather 
 loose statements to the effect that communism was 
 practised in early Anglo-Saxon times. Now, to say that 
 the community ' owned ' the land seems to confuse owner- 
 ship with government and so does not make for clearness. 
 Each villager's rights over his arable land and his rights 
 of common over the waste were strictly his own — although 
 in the exercise of these rights he was bound to conform 
 to the regulations of the village assembly. Thus what- 
 ever may have been the case in other societies there 
 seems little doubt that the Anglo-Saxon village com- 
 munity was "strictly individualistic at the core." 
 
 Our knowledge of the modes of alienation of this Modes oJ 
 folkland — as it was called — is exceedingly scanty. Aliena- —inter 
 tion inter vivos was probably unheard of in the earliest ''"°^- 
 times. The villager would not often want to sell his 
 land, for on it his livelihood would depend, and if he did 
 want to sell there would, as a rule, be none to buy. 
 " Perhaps the very idea of a sale of land had not yet been 
 conceived. However, iii course of time as wealth amassed 
 there are purchasers for land ; also there are bishops and 
 priests desirous of acquiring land by gift and willing to 
 offer spiritual benefits in return'." Perhaps we may be 
 allowed to guess something of the mode of conveyance 
 from our knowledge of that in vogue among the Teutons 
 and of the ceremonies that attended the transfer of 
 copyholds in later times. " In all early legal systems " 
 says Pollock " the transfer of property, or of the more 
 important kinds of property, has to be effected by some 
 kind of public ceremony. Frequently this ceremony is 
 of a symbolic nature and is a substitute for the actual 
 abandonment of possession in favour of another which is 
 the most obvious way of putting that other in one's place 
 as owner. Thus the transfer of land is completed by the 
 delivery of a turf, a bough, or a straw taken off the land, 
 the part representing the whole of the soil itself or of 
 
 1 Pollock and Maitland, Hist. Engl. Law, ii. p. 247. 
 
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10 FIRST PERIOD 
 
 its produce. There is much reason to believe that in 
 England this was the manner in which the smaller 
 holders of land, who knew not the ecclesiastical innova- 
 tion of written charters or 'books,' were accustomed to 
 transfer it before the Conquest. Certain it is that 
 customs of this kind, long since dwindled to the emptiest 
 formality, still exist in many copyholds. The transaction 
 was proved by the witness of neighbours, who attended 
 for the purpose of keeping it in memory^" We should 
 add however that Sohm, Maurer, and Schmid deny that 
 symbolical transfers were used at all before the Conquest, 
 although it seems difficult to get over the references to 
 such methods in some of the charters^, 
 —wills. So far we have been speaking of conveyances of 
 
 folkland inter vivos. It has been usual to say that the 
 proprietor holding by folkright had no testamentary 
 power of alienation. It seems, however, that there is 
 nothing to support this statement except the well-known 
 passage in Aldorman Aelfred's will in which, speaking of 
 his son Aethelwald, he says, "And if the king will give 
 him the folkland to the bocland, then let him have and 
 enjoy it'*." From this it has been concluded that one 
 could not dispose of folkland by will ; but the suggestion 
 of Prof. Maitland'' that the legitimacy of the son was 
 dubious seems a much more probable explanation of the 
 clause. Indeed we have really uo ground for supposing 
 that all the land bequeathed in Anglo-Saxon ' wills ' had 
 been acquired by ' book.' The word folkland is used only 
 once in these wills — namely in the one just referred to ; 
 but there are several instances of heirland (aerfelond) 
 being contrasted with bookland, and this heirland we 
 should include under the general title 'folkland.' Now 
 we can point to several cases in which heirland was 
 
 ' Pollock, Land Laws, 2nd Edit. p. 72. 
 
 = Kemble, Cod. Dip. : Nos 12, 37, 104, 114, 177, 1019 [referred to by 
 Pollock]. 
 
 3 Thorpe, Dipl. p. 482. 
 
 * Maitland, Domesday Book and Beyond, p. 246. 
 
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WILLS 11 
 
 disposed of by will. Thus in A.D. 837 we find Badanoth 
 Beothing making over his ' aerfelond ' to the convent at 
 Christchurch', and about the same time Lufa "a humble 
 handmaid of God " burdens her ' erfelond ' with an annual 
 gift to the brotherhood of Christchurch of " 60 ambers of 
 malt, 110 loaves, 50 white loaves, 120 alms loaves, one 
 ox, one swine, 4 wethers, 2 weys of bacon and cheese, 
 a mitta full of honey, 10 geese, and 20 hen fowls^" 
 Moreover in the wills we meet with numerous bequests 
 of isolated hides of land, and it is very improbable that 
 these had all been ' booked.' Thus in A.D. 1002 we find 
 Wulfric endowing the Abbey of Burton with a large 
 quantity of land, among the rest being that at " Oxton, 
 and Wingfield, and Snodesuic to Morton ; and that at 
 Tathwell and the land at Appleby that I bought with 
 my money, and at Weston, and at Burton ; and the hide 
 at Sharnford to Wigston ; and that at Hereburgebury, 
 and Aldsworth, and Alfreton, and Eccleshall, and at 
 Waddon, and one hide at SheenV' and so on. Again in 
 the will of Thurstan (A.D. 1045) we read "I give to 
 Thurgot my page half a hide on which Aelstan resides 
 at Ongar; and to Merwyn half a hide and the little 
 enclosure at Mereden and to Sweyn half a hide^" There 
 is nothing to suggest that these various lands had been 
 booked to Thurstan and it seems more than probable that 
 most of them were held by folkright. 
 
 However, even if this be so, it must not be thought 
 that title by will was a common one among the holders 
 of folkland. Practically all the ' wills ' that have come 
 down to us are those of very great people. Such people 
 might hold land by folkright, and in that case there may 
 have been nothing to prevent them disposing of it by 
 will. On the other hand as to the common landholder 
 it is perhaps somewhat improbable that he ever made 
 a written will; but he may have exercised a power 
 of disposition not unlike that of his greater neighbour 
 
 1 Thorpe, Dipl. p. 476. « lb. p. 475. 
 
 3 Thorpe, Dipl. p. 547. ■* lb. p. 575. 
 
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12 FIRST PERIOD 
 
 without the formality of writing. Perhaps he could 
 make a post obit gift of his lands, leaving only a life 
 estate to himself, and it is probable that in his last hours 
 he could make a verbal disposition of his property and 
 that this expression of his wishes would be respected. 
 At any rate the influence of the clergy would be in favour 
 of this power, as is illustrated by the question in Egbert's 
 dialogue, " Can a priest or deacon be witness of the verba 
 novissima that dying men utter about their property ? " 
 with the answer " Let him take with him one or two so 
 that in the mouth of two or three witnesses every word 
 may be established, for perchance the avarice of the 
 kinsfolk of the dead would contradict what was said by 
 the clei-gy were there but one priest or deacon presents" 
 
 Descent. The one mode of acquiring folkland that has not yet 
 
 been mentioned is title by inheritance. This indeed 
 would be the usual and in early times probably the only 
 method of acquisition. The rules of descent are very 
 dark to us, but we are not here concerned with them. 
 As a rule a man's land descended to his sons in equal 
 shares, and this fact has led some writers to suppose that 
 a form of ' birthright ' existed as an institution in the 
 England of these days. It is certain however that there 
 is no trace of this in any of our records^ 
 
 Summary So far we have been speaking mainly of folkland. 
 
 folkland. There has been too much guesswork, but with this oft- 
 repeated caution as to the insecurity of the path we are 
 following we may say that the titles to folkland were 
 these : — 
 
 (1) Original allotment after the invasion, witnessed 
 no doubt by the whole community. 
 
 (2) Inheritance from the original allottee. 
 
 (3) Conveyance inter vivos, evidenced probably by 
 some symbolic transfer of possession, the neighbours being 
 present to witness the ceremony and hand on the tradition 
 
 1 Haddan and Stubbs, Councih, iii. 404. 
 
 '■' On the subject of ' Family Ownership ' see Fioker, Untereuchungen 
 zur Erhenfolge. 
 
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GROWTH OF SEIGNORIAL POWER 13 
 
 of the transfer. In later times these ceremonies took 
 place in the lord's court so as to obtain the testimony of 
 a witness that never dies. 
 
 (4) Gift mortis caus^ — evidenced by the word of two 
 or more priests in attendance at the death bed. 
 
 (5) Possibly by will (cwide); but this somewhat 
 doubtful and used, if at all, only by the greater folk. 
 
 We have sketched rapidly the formation of a village Growth of 
 community and have tried to discover the land laws that ^^t^"'"'^'' 
 obtained there. But the country was much more than greater 
 a mere collection of village communities. In the original 
 partition of the land the leaders and great men among 
 the invaders naturally obtained larger shares than the 
 others, and time tended to increase rather than to diminish 
 their superiority. Soon they began to add to their large 
 estates large rights over the possessions of the common 
 folk. How all these rights were acquired we have not 
 documentary evidence to show, but it is not difficult to 
 imagine the outlines of the process by which the changes 
 were effected. 
 
 In the troublous days of early Anglo-Saxon history Commen- 
 the ordinary peasant proprietor must have found his 
 position far from secure and there would be much to urge 
 him to seek the protection of some greater man. In this 
 way probably began the process of 'commendation' of 
 which we find frequent mention in Domesday Book in 
 phrases such as these : " Pater Tori potuit ire quo voluit 
 sed pro sua defensione se commisit Hermanno episcopo 
 et Tori Osmundo episcopo similiter^" " quidam liber 
 homo banc terram tenens et quo vellet abire valens 
 commisit se in defensione Walterii pro defensione sua^" 
 This process of commendation did not always mean that 
 the proprietor put his land under the protection of the 
 lord, but that would usually be the case. In fact one 
 of the chief objects in view was to protect one's title to 
 the land, and the villager that could rely on the strong 
 
 1 Domesday Book, i. 58. ^ lb. i. 36. 
 
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14 FIRST PERIOD 
 
 arm and crushing oath of a great lord need have little 
 anxiety about defects in his title. Now what did the 
 lord get in return for this protection ? That he obtained 
 some ' valuable consideration ' is certain ; ' nothing for 
 nothing' was the rule in those days, and doubtless the 
 lord exacted more than the mere personal services of a 
 sworn retainer. Probably this was only the beginning of 
 a long series of encroachments on the part of the lord, 
 encroachments that left him at the time of Domesday 
 Book with a large number of valuable rights over the 
 villagers' land which were quite unknown in the earliest 
 times. 
 The King. In the course of time the country was brought under 
 the rule of a king. He was the greatest of th« land- 
 holders and his power over the lands of those beneath 
 him was correspondingly great. But it was not only by 
 a process like that of commendation that the king's 
 power grew. The village communities of which we have 
 spoken were far from exhausting all the land in the 
 kingdom. These communities were very much scattered, 
 and the waste and uncultivated land between different 
 villages was for long practically ownerless. However as 
 the king's power increased he claimed dominion over such 
 land and it soon came to be regarded as the king's land 
 (terra regis), at least the king's power of exercising many 
 rights over it was not disputed. 
 
 But the existence of this large extent of terra regis 
 was not the only evidence of the king's growing power 
 over land. Soon even the free villager owed many 
 services to the king. On all were imposed the triple 
 duty ('trinoda necessitas') of military service, repairing 
 bridges, and repairing strongholds. Not that men had 
 yet reached the theory that all land was the king's and 
 that the tenant merely ' held ' it 'of the king in con- 
 sideration of military service. As yet the freemen owned 
 their land, but the trinoda necessitas was imposed on 
 them all. In addition to this the landholder was bound 
 to provide the king and his suite with provender (pastus, 
 
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BOOKLAND 15 
 
 victus) and this must often have proved a heavy burden. 
 Another very important class of powers that the king 
 exercised over the landholders was that of jurisdiction. 
 In him was centred the national system of justice and 
 police. He had the benefit of ' sake and soke ' and into 
 his treasury the profits of justice were poured. In 
 addition to this, money taxes (tributum) were imposed 
 for various public purposes, chiefly under the guise of 
 ' defence.' Now these taxes must often have weighed 
 heavily on the struggling peasant proprietor and often in 
 his extremity he would be driven to take ' loans ' from his 
 lord. Every such loan would give the lord a fresh 
 opportunity of striking a bargain and so of obtaining 
 further exactions from the peasant in the way of increased 
 powers over his land. No doubt in many cases the 
 peasant would become so poor that the state would refuse 
 to deal with him save through the medium of the lord, 
 who would tend to become, in a way, responsible for 
 the general good conduct of his underling. It was 
 perhaps in this way that the lord began to exercise 
 certain powers of jurisdiction over the free villagers. 
 
 Meanwhile the church had not been idle. Her work 
 had not been confined to the lower classes, she had made 
 converts in high places and ere long had persuaded the Bookland. 
 king to dedicate some of his land and his ' superiority ' 
 over land ' to pious uses.' This the king did by charter 
 or ' book ' and hence the name ' bookland.' It differed 
 from folkland only in that it was always held by title of 
 ' book.' The practice once begun' it grew apace, and by 
 the time of Domesday Book a very large part of the 
 country was held by this title. Most of the charters 
 extant conveyed large tracts of land, or rather they 
 professed to convey such tracts ; but in most cases what 
 was really granted was a ' superiority ' over the land. 
 It is true that the grantor generally spoke of the land as 
 his own, but we must not expect too fine a choice of 
 
 1 The earliest charter dates from about the beginning of the seventh 
 century, see p. 19. 
 
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the 
 
 16 FIRST PERIOD 
 
 terms, especially in days when ownership and superiority 
 were not clearly distinguished and the charters were 
 drawn up after a foreign model and in a foreign tongue. 
 Thus when the king granted a large piece of land "to 
 God and the church of St X " he generally spoke of the 
 land as his own, and declared that in future it was to be 
 held "free from all manner of services" (the trinoda 
 necessitas, however, usually excepted). By this he meant 
 that his various rights over the land — his victus, pastus, 
 tributum, sake and soke etc. — were in future to belong 
 to the church of St X. The ordinary peasant proprietor 
 was not disturbed in his possession and ownership ; but 
 the various dues that he formerly owed to the king went, 
 after such a charter, to the church of St X. 
 Plan of We must now examine the general plan of these 
 
 book.' Latin 'books.' The document began with a short in- 
 vocation and went on to a pious effusion on the vanity 
 of temporal things in comparison with joys that are 
 eternal. " In course of time," however, " the piety of the 
 recitals became more and more perfunctory. It became 
 a philosophic reflection on the transitoriness of earthlj- 
 affairs and finally evaporated, leaving behind some com- 
 monplace about the superiority of written over unwritten 
 testimony'." After this effusion came the grant itself, 
 with an enumeration of the various lands conveyed. 
 Frequently the boundaries of the land were carefully 
 stated — this part of the charter being usually in Anglo- 
 Saxon. As a rule it was stated that the grantee was to 
 enjoy the land during his life and leave it on his death to 
 whomsoever he pleased. Then came the solemn sanction 
 with a fearful malediction on all who infringed or di- 
 minished the grant and a blessing on those that improved 
 it. Lastly we have the date and a long list of witnesses. 
 
 For our purposes the most important part of the 
 document is the grant. The actual granting words are 
 very varied. " It may be observed of them in general 
 
 ' Maitland, Domesday Book and Beyond, p. 243. 
 
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NATURE OF ESTATES 17 
 
 that they are much simpler than the corresponding forms 
 
 of the continent and especially that they show no such 
 
 strict and formal combinations as those met with in the 
 
 Roman documents. Do, dono, concedo, trado are the 
 
 most in use, sometimes singly, sometimes combined ; and 
 
 one noticeable peculiarity is that in place of the present 
 
 ' do ' we usually have the future ' dabo'.' " 
 
 The estate conveyed was usually equivalent to an Nature of 
 
 estate 
 unrestricted fee ; but the book could make the land granted. 
 
 descend in any way. " The book is the lex possessionis 
 
 of the land^" — a principle that is clearly laid down in a 
 
 law of Alfred. The following are a few specimens of the 
 
 wide powers given to the grantee : — 
 
 " Ita ut quamdiu vixerit potestatem habeat tenendi ac 
 possessendi, cuicunque voluerit vel se vivo vel certe post 
 obitum suum relinquendi^." 
 
 " liberam per omnia habeat potestatem ad habendum, 
 possidendum, profruendumque seu vendendum aut cominut- 
 andum, vel cuicunque ei heredi placuerit derelinquendum 
 perpetualiter habeat potestatem^." 
 
 This plan of giving unrestricted powers of alienation 
 to the grantee was the normal one, but several examples 
 of limitations are to be met with. Thus : — 
 
 "in jus possessionemque sempiternam sibimet ad haben- 
 dum quamdiu vivat, suoque relinquendum fratre germano 
 diutius superstes si fuerit ab omnibus liberam servitiis ali- 
 enigenarum exterarumque et sic semper in ilia sanguinitate 
 paternae generationis, sexuque virili, perpetualiter consistat 
 adscripta^" 
 
 Again we find that estates for life were not un- 
 commonly granted and it is well known that Bishop 
 Oswald of Worcester was in the habit of granting land 
 
 1 Kemble, Introduction to Cod. Dip., i. xxviii. 
 
 2 Brunner, Zur Eechtsgescliichte d. row,, und germ. Vrkunde. 
 
 3 Aethilbald, 736. K. Cod. Dip., i. 96. 
 
 * Uuiglaf of Meroia, 831. K. Cod. Dip., i. 294. 
 6 Burgred of Mercia, 869. K. Cod. Dip., ii. 94. 
 
 M. E. 2 
 
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18 
 
 FIRST PERIOD 
 
 Examples 
 of the 
 benefits 
 
 for three lives. There is a famous letter from him to 
 King Edgar explaining his policy in this matter. 
 
 The beneficial rights conveyed by these charters were 
 very numerous. They included common of pasture ; 
 pasture for a definite number of horses or swine ; rights 
 of felling and carrying away wood ; powers of jurisdic- 
 tion — sac and soc, infangethef etc. etc.^; rights of team 
 and of toll; and a large and important class of immunities 
 from burdens such as the pastas regis, the king's feorm, 
 opera and aedificatio regia, fines for crimes committed on 
 the land (wite), forfeiture to the king for crimes of a 
 deeper dye. 
 
 "We shall give an example of each of these benefits. 
 
 " Cum campis, pascuis, pratibus, silvis, saltibus, piscuosis, 
 
 niaritimis fretibus, paludibus, vallibusque, dulcis salsuginesque, 
 
 conveyed salisque stationibus, coctionesque et cum cunctis fructibus 
 
 books.' interius exteriusque, vel aliunde usque ad eas rite vel unquam 
 
 pertinentia^." 
 
 " Illi banc praenominatam terram traders curabo, ut 
 communem silbam, secundum antiquam consuetudinem, cum 
 caeteris hominibus abeat'." 
 
 " Et unam molinam in torrente qui dicitur Holanbeorges 
 burna, et in monte regis quinquaginta carratas lignorum, 
 adjeotis quattuor denberis, Hwetonstede, Heahden, Hese, 
 Helmanhyrsf." 
 
 " Insuper etiam animalibus illius cum armentis regis 
 pascuum donabo'." 
 
 "Ut omnium regalium tributum et vi exactorum operum 
 et penalium rerum principal! dominatione furisque compre- 
 hensione et cuncta seculari gravidine absque expeditione sola 
 et pontium struotura et arcium munitionibus secura et im- 
 munis permaneat*." 
 
 '■ Although these phrases do not occur in any authentic charter 
 before the time of Edward the Confessor, Kemble has collected seven 
 examples of similar grants of an earlier date. See his Introduction to 
 God. Dip., I. xlvi. 
 
 2 Coenuulf of Mercia, 811. K. Cod. Dip., i. 243. 
 
 3 CAthred of Kent, 805. K. Cod. Dip., i. 232. 
 
 4 Eogberht of Wessex, 838. K. Cod. Dip., i. 317. 
 ' Aetheluulf of Wessex, 845. K. God. Dip., ii. 26. 
 « Aethilberht of Kent, 858. K. Cod. Dip., ii. 65. 
 
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VARIOUS BENEFITS CONVEYED 19 
 
 " Et tibi Mildrithae abbatissae singulariter et ecclesiae 
 tuae, navis onustae transvectionis censum qui a theloneariis 
 nostris tributaria exactione impetitur, perdonans attribuo ; ut 
 ubique in regno nostro libera de omni regali fiscu et tribute 
 maneat^." 
 
 "nee rex suum pastum requirat vel habentes homines 
 quos nos dicimus festig-men, nee eos qui aocipitres portant, 
 vel falcones, vel caballos duount, sive canesl" 
 
 " et illam terram trium manentium in Beonotlege etiam 
 liberabo a pascua porcorum regis quod nominamus fearn- 
 leswe^" 
 
 " Et per pecuniam, piissimo jam turn domino meo rege 
 Merciorum, libertatem terrarum illarum conseoutus sum, id 
 est cc. solidis et ut postea in diebus meis vel successorum 
 meorum omni anno xxx. ut ab omnium fiscalium redituum, 
 operum, onerumque, seu etiam popularium consiliorum vin- 
 dictis, nisi tantum praetium pro praetio, liberae sint in 
 perpetuum." 
 
 " omnimodumque in dei omnipotentis nomine interdicimus, 
 ut si aliquis in banc praenominatam terram aliquid foras 
 furaverit, alicui solvere aliquid, nisi specialiter pro praetio, ad 
 terminum, ad poenam nihil foras^" 
 
 " Istarum autem v mansarum quantitas justo valde judicio 
 totius populi et seniorum et primatum ablata fuit ab eis qui 
 eorum possessores fuerunt, quia aperto crimine furti usque ad 
 mortem obnoxii inventi sunt^." 
 
 After this analysis of the contents of the charters a 
 few examples of complete charters may be useful to 
 illustrate what has been said about their general form. 
 The first charter is of special interest as being the earliest Some 
 that has come down to us. charters. 
 
 " f. Regnante in perpetuum domino nostro lesu Christo 
 salvatore ! Mense Aprilio, sub die iiii Kal. Maias, indic- 
 tione VII, Ego Aethilberhtus rex filio meo Eadbaldo admoni- 
 
 1 Aethilbald, 738. K. God. Dip., i. 101. 
 
 2 Cotouulf, 821. K. Cod. Dip., i. 269. 
 
 3 Burgred of Mercia, 855. K. Cod. Dip., ii. 59. 
 
 * Uhtred of the Hwiceas, 767. K. Cod. Dip., i, 144. 
 6 Aethelstan, 938. K. Cod. Dip., ii. 210. 
 
 2—2 
 
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20 FIRST PERIOD 
 
 tionem catholicae fidei optabilem. Nobis est aptum semper 
 inquirere qualiter per loca sanctorum, pro animae remedio vel 
 stabilitate salutis nostrae, aliquid de portione terrae nostrae 
 in subsidiis servorum dei, devotissima voluntate, debeamus 
 offerre. Ideoque tibi sancte Andrea, tuaeque ecclesiae quae 
 est oonstituta in civitate Hrofibrevi, uti praeesse videtur 
 lustus episcopus, trado aliquantulum telluris mei. Hie est 
 terminus mei doni : f ram suSgeate west, andlanges wealles, 
 oS norSlanan to straete and swa east fram straete oS dodding- 
 hyrnan, ongean bradgeat. Si quis vero augere voluerit banc 
 ipsam donacionem augeat illi dominus dies bonos. Et si 
 praesumpserit minuere aut contradicere, in conspectu dei sit 
 damnatus et sanctorum ejus, hie et in aeterna saecula, nisi 
 emendaverit ante ejus transitum quod inique gessit contra 
 christianitatem nostram. Hoc, cum consilio Laurencii episcopi 
 et omnium principum meorum, signo sanctae crucis confirmavi 
 eosque jussi ut mecum idem facerent. Amen\" 
 
 " t- In nomine domini dei salvatoris nostri Ihesu Christi! 
 Quamvis parva et exigua sint, quae pro amisis offerimus, 
 tamen pius omnipotens deus non quantitatem muneris, sed 
 devotionem oflferentium semper inquirit. Qua de re Ego 
 Sigeredus, rex dimidiae partis provinciae Cantuariorum, tam 
 pro animae meae remedio, quam pro amore omnipotentis 
 dei, terram aratrorum xx quae appellatur Aestingaham, tibi 
 reverentissimo episcopo Earduulfo sanctae Hrofensis ecclesiae, 
 cum universis ad se pertinentibus campis, silvis, pratis, 
 pascuis, paludibus et aquis, et cum omni tributo quod regibus 
 inde dabatur, in potestatem, cum consilio et consensu princi- 
 pum meorum, libenter in perpetuum perdono ; ut possidendi 
 vel habendi sive vendendi, vel etiam tradendi cuicunque 
 voluerit, liberam per omnia habeat potestatem. Sane quia 
 cavendum est, ne hodiernam donationem nostram futuri 
 temporis abnegare valeat, et in ambiguum devocare prae- 
 sumptio, placuit mihi banc paginam condere, et una cum 
 cespite terrae praedictae tradere tibi ; per quam non solum 
 omnibus meis successoribus regum sive principum, sed etiam 
 mihi ipsi penitus interdico, ne aliter quam nunc a me con- 
 stitutum est, ullo tempore de eadem terra quippiam agere 
 audeant. Quod si qui forte observare neglexerint, et absque 
 
 1 Aethilberht of Kent, April 28, 604. K. Cod. Dip., i. 1. 
 
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CfiAETERS 21 
 
 digna satisfactions praesentis vitae impleverint infelices dies, 
 audiant vocem aeterni judicis sub fine mundi dicentis ad 
 impios : Discedite a me, maledicti, in ignem aeternum, qui 
 praeparatus est diabolo et angelis ejus. Qui vero curaverint 
 custodire nihilque inrogarint adversi, audiant vocem clemen- 
 tissimi arbitri, inquientis ad pics : Venite, benedicti patris 
 mei, percipite regnum quod vobis paratum est ab origine 
 mundi. Adjectis mi daenberis in commune saltu, hoc est 
 Uuealdseuuesha, Billincgden, Cealcbyras, Meosden, Rindigsel. 
 
 t. Ego Sigeredus rex banc donationem a me factam, 
 signum sanctae crucis propria manu scribendo, firmavi coram 
 Bregouuino Archiepiscopo. 
 
 f. Ego Bregouuinus Archiepiscopus ad petitionem dona- 
 toris ante praedicti, consensi et subscripsi. 
 
 f . Signum manus Hereberhti Abbatis. 
 
 f. „ ,, Baere Abbatis. 
 
 t. ,, ,, Bruno Abbatis. 
 
 f. ,, „ Aescuualdi presbyteri. 
 
 t- ,, ,, Ecgbaldi oomitis atque praefecti. 
 
 f. „ ,, Ealdliuuni. 
 
 t. „ „ Esne. 
 
 t. ,, „ Badohardi. 
 
 f. ,, ,, Aethelnothi. 
 
 f. Ego Eanmundus rex banc piam donationem supra- 
 scriptam propria manu roborandam hoc signaculo sanctae 
 crucis expressi, in loco cujus vocabulum est Godgeocesham ; 
 praesente venerabile archiepiscopo Bregouuino et consentiente 
 consilio quippe atque consensu omnium optimatum et prin- 
 cipum gentis Cantuariorum. 
 
 t. Ego laenberhtus abbas consentiens testis afferi et 
 subscripsi. t- Ego Huuaetred abbas consensi et subscripsi. 
 f. signum manus Eges nobilis. f. signum manus Balthardi. 
 t. signum manus Aldhuni. f. signum manus Uda. f. signum 
 manus Puda^" 
 
 It is useless to multiply examples, and enough has Advaut- 
 been given to illustrate the general nature of the ' book.' ^^^^ °^ 
 Clearly there would be many advantages in such a title ' book ' : 
 
 to land, not the least being that disputes as to ownership creasing 
 
 use. 
 1 Sigiraed of Kent, 760. K. Cod. Dip., i. 139. 
 
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22 FIRST PERIOD 
 
 would be much more easily settled by the written 
 evidence of a charter than by the oral testimony of 
 neighbours. All the earlier grants were to pious uses, 
 but as time went on kings began to book lands to their 
 thegns without mentioning any such uses. Still the 
 charter did not cease to be ecclesiastical in tone and to 
 be witnessed by a bishop or two for the purpose of giving 
 force to the sanction of the anathema. In all cases the 
 witnesses were great men and in later times the grant 
 was usually said to be made '' with the consent of the 
 witan." Much has been made of this phrase by writers 
 who have maintained that folkland was a sort of 'ager 
 publicus' belonging to the community and not to be 
 alienated without the consent of the witan as repre- 
 sentative of the community. This theory held almost 
 undisputed sway for more than half a century ; but it 
 has been practically disposed of in quite recent times^. 
 Difference It seems clear now that the two names folkland and 
 folHand bookland did not represent different kinds of land, but 
 and merely different kinds of title. It should be remembered 
 
 however that the term bookland was used rather widely 
 not only for land, but even more commonly for rights over 
 land; and further that it was always held by the churches 
 and great men, never by the poor. 
 Alienation We have seen how it was originally acquired and have 
 land. ^^^ several indications of the methods of alienating it. 
 The grantee's powers of disposition were subject strictly 
 to the terms of the ' book,' but he was usually given the 
 freest powers of alienation both inter vivos and by will. 
 He could sell, exchange, give or bequeath his land, but as- 
 a matter of expediency he generally obtained the consent 
 of the king and witan before making any such dis- 
 position". 
 
 As to the actual ceremony of conveyance inter vivos 
 we are much in the dark. Kemble'' and Pollock* incline 
 
 ' Vinogradoft, Eng. Hist. Review, viii. 1. 
 
 2 See Kemble, God. Dip., ii. 273 ; ii. 379 ; v. 246, 378. 
 
 -' Kemble, Introduction to Cod. Dip., i. * Pollock, Land Laws. 
 
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WRITS 23 
 
 to the view that some symbolic transfer took place even 
 with the original grant. Others however are of the 
 opinion that a mere transfer of the 'hook' (the title deed) 
 was all that was required ; although in some cases the 
 old book was handed over to the king and a new one 
 obtained, while in others a written statement of the 
 transference was appended to the original document^- 
 
 Perhaps we have delayed long enough over the Other 
 'book'; but we must not leave the subject with the i^t^u" 
 idea that the formal charter of which specimens have ™ents : 
 
 1 . . , , . . 1 , • • , the writ. 
 
 been given was the only written instrument dealing with 
 the conveyance of land and of rights over land. The 
 charter, as has been seen, was a very solemn document 
 and nearly always in Latin. In later times however 
 another written instrument came into fashion, what is 
 sometimes called the ' writ.' A few specimens of this 
 from Cnut are extant, but the form did not become a 
 common one until the reign of Edward the Confessor. 
 The writ is much less formal than the charter. It is 
 nearly always in Anglo-Saxon and has little of the 
 solemnity of the Latin document. In place of the 
 invocation there is a greeting, the anathema is often 
 omitted and the witnesses, if any, make no crosses. 
 Further it differs from the charter in being evidential 
 rather than dispositive in form, it declares that a gift 
 has been made, it is not actually a gift. A few specimens 
 will be a sufficient illustration : — 
 
 " I Cnut king greet amicably my bishops and my earls 
 and all my thanes in the shires where my priests of St Paul's 
 monastery possess land. And I make known to you that 
 I will that they be worthy of their sake and soke, toll and 
 team, within hide and without hide as fully and as freely as 
 they most fully had in any king's day, in all things within 
 town and without. And I will not consent that any man in 
 any things misuse them. And of this are witness : Aegelnoth 
 archbishop, and Aelwi bishop and Duduc bishop and Godwin 
 
 1 See Brunner, Geschichte d. rom. und germ. Urhunde, p. 175. 
 
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24 FIRST PERIOD 
 
 earl and Leofric earl and Osgod Clapa and Thored and others 
 enough. May God curse him that shall pervert this'." 
 
 " I King Eadward greet bishop Wulfing and earl Gyrth 
 and all my thanes in Oxfordshire amicably and I make 
 known to you that I have given to Christ and St Peter in 
 Westminster the village in which I was born, by name Islip, 
 and a half hide at Marsh, scot-free and rent-free, with all the 
 things that thereto belong in mead and in water, with church 
 and with church soon, as full and as complete and as free as 
 they stood in my own hand, and so as Aelfgifu Emma, my 
 mother, on my birthday gave it to me for a first gift and 
 naturally bequeathed it. And I give them thereover sake 
 and soke, toll and team, and infangenetheof, and bl6dwite, 
 and wardwite and hamsoke, and forsteall, grithbryce, and 
 mundbryce and all the rights that belong to me. I now greet 
 my beloved kinsman Wigod at Wallingford and I enjoin thee 
 that in my stead thou give these lands into the possession of 
 the saint : for I will on no account allow that any man have 
 any authority there in any things, or at any times, save the 
 abbot and the brothers for the monastery's necessary require- 
 ments. And whoso shall faithfully hold this alms, may God 
 and God's mother hold him in everlasting bliss. And whoso 
 avert it, be he averted from God to the rigid torture of hell's 
 inmates, unless he on this earth the more rigidly make 
 amends. God and St Peter's favour preserve you^." 
 
 Wills. Only one more title in which a written instrument 
 
 was used remains to be noticed. This is the so-called will 
 (cwide). It has already been mentioned when dealing 
 with folkland; but although its use there was doubtful 
 there is no uncertainty as to its employment in the 
 disposition of bookland. Indeed numerous examples have 
 come down to us and of these we shall append a few. 
 It should be noted that the will is invariably in the 
 Anglo-Saxon language and is drawn up without any 
 regard to form. 
 
 "I Aelfred, king of the West Saxons, with God's grace 
 and with this witness, declare how I will with regard to my 
 
 1 Cnut (1023). Thorpe, DipL, p. 319. 
 
 2 Edward the Confessor, 1053. Thorpe, Dipl, p. 368. 
 
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WILLS 25 
 
 inheritance after my day. First to Eadward, my elder son, 
 I give the land at Shallon in Oornwal], and Hartington and 
 all the bookland that Leofheah holds. ... [After further bequests 
 to this son he proceeds to give land to Winchester ; to his 
 younger son ; to his daughter ; to his nephews — and then 
 various bequests of money and other chattels.]... And I will, 
 if to any man I have not paid any money, that my kinsmen 
 at all events pay it. And I will that the men to whom 
 I have bequeathed my booklands give them not from my kin 
 after their day ; but I will that after their day it go to the 
 next of kin to me, unless any of them have children ; then 
 it is to me most desirable that it go to the one begotten on 
 the male side, while there shall be any worthy of it...\" 
 
 " Here is made known that Brihtric Grim gives the land 
 at Rempton to the old monastery, after his day, with the hide 
 that he afterwards acquired to that land, and gives up the 
 charter that King Eadred chartered to him to the old 
 monastery in addition to the charter that King Aethelstan 
 previously chartered ; on the condition that he have the 
 usufruct of the land [Jjone bryce J^es landes] as long as his 
 time may be ; and let it afterwards go to that place so 
 provided as it stands, with meat and with men, and with 
 everything for his soul's comfort. 
 
 And of this are to witness : Dunstan archbishop and 
 Aethelwold bishop, and Aelfstan bishop and Aethelgar abbot 
 and the convent of Glastonbury and the two convents at the 
 old monastery and at the new monastery in Winchester^." 
 
 We have now examined the principal parts of the Gradual 
 legal machinery by means of which the greater folk ^^'^'^'^ °^ 
 acquired the extensive rights that they exercised over peasant, 
 those beneath them. Before leaving the subject, how- 
 ever, it may be well to call attention to the gradual 
 degradation of the peasant. At the Conquest he fell 
 suddenly, on being handed over to the tender mercies of 
 a foreign lord^ but he had been going down for long. 
 We have seen that many of the rights of the lord had 
 
 1 Will of King Alfred (880—885). Thorpe, Dipl., p. 487. 
 " Brihtric Grim (964—980). Thorpe, Dipl., p. 518. 
 3 See Domesday BooIj, x. 13 ; i. 141 ; ii. 1 ; ii. 282 b. 
 
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26 flKST PE&IOD 
 
 been obtained in the process of ' commendation ' as con- 
 sideration for protection, others had their origin in direct 
 grants from the crown'. At first these grants might not 
 have been adverse to the poorer people, they were merely 
 placed under a new set of rulers. However, as has been 
 noted, there were many other forces at work that tended 
 to bring the peasant under the power of his lord. Once 
 the poor man was in a position of dependence, the royal 
 grants gave the lord greater opportunities of oppression, 
 and we are not left to speculation alone for the suggestion 
 that many of the rights that the lord came to exercise 
 were obtained by the great title — might. 
 
 ' Domesday Book gives us examples of the grantees from the crown 
 disposing of the right of jurisdiction (or more strictly the right of 
 presiding in Court and taking the profits of justice). See D. B. ii. 313. 
 Such a right ' ran with the land,' so that if the land were alienated the 
 new holder came under the old lord's soke, though he might be ' com- 
 mended ' to some other lord. 
 
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CHAPTER III. 
 
 SECOND PERIOD. THE NORMAN CONQUEST 
 TO EDWARD I. 
 
 It is a trite remark that long before the Conquest Tendency 
 there were many forces at work making for feudalism, ism be- 
 lt would be foreign to our purpose to trace this process ^°™ ^^^ 
 in detail, but even from the brief sketch in the last 
 chapter we cannot fail to gather some suggestions on the 
 subject. In addition to what has been said of the growth 
 of seignorial powers it should be noted that ' bookland ' 
 and ' loanland ' did much to bring men near the funda- 
 mental idea of feudal times. ' Bookland ' usually came 
 from the king and naturally returned to him if anything 
 went wrong. Thus as early as A.D. 82.5 we find a case of 
 escheat — the grantee having died heirless and intestate \ 
 At the same time escheat in the case of felony was pro- 
 bably regarded as one of the profits of justice, and these 
 naturally went to the king or his grantee. Loanland 
 too must have done much to familiarise men with notions 
 of dependent tenure. For services were always rendered 
 in return for a loan, a common service in Oswald's time 
 being " to fulfil the law of riding " — a close approximation 
 to the duties of a tenant by knight's service. The loan 
 shaded off gradually into the gift and so men must have 
 got used to holding land apparently freely and yet owing 
 rents etc. to other people. 
 
 All this, however, must not lead us to minimise the 
 
 1 Kemble, God. Dip., v. 76. 
 
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28 SECOND PERIOD. CORPOREALS 
 
 Influence influence of the Conquest on the development of our 
 Conquest. ^B^d laws. Its chief effect — as far as we are here con- 
 cerned — was to alter the theory on which all land was 
 held. In future there was to be nothing in the nature 
 of absolute ownership for a subject, everything was to be 
 looked upon as originating from the king. In addition 
 to this great change of principle there were startling 
 changes of ownership. Forfeitures were the order of the 
 day, the English magnates being replaced by Frenchmen 
 according to the will of the king. Only one object did 
 the Conqueror respect, and that was the Church. The 
 large rights that ecclesiastical bodies had acquired over 
 various lands before the Conquest were generally con- 
 firmed^; but with this exception practically all the great 
 landowners had to make way for Norman successors, and 
 no one's title was secure unless supported by the grant, 
 re-grant, or confirmation of the king. 
 
 Although, however, the change of ownership was so 
 complete, the discontinuity in the land laws was not so 
 great as might be imagined. William claimed to be the 
 rightful king of England, and the lands that he parcelled 
 out to his favourites were to be held in accordance 
 with the old laws — the Norman lord being nominally the 
 representative of his Saxon ' antecessor.' 
 
 We have no reason to believe that the original 
 allotment of lands by the Conqueror was made by means 
 of written instruments, and indeed it seems highly im- 
 probable that this was the case. Most of the documents 
 dealing with land which have come down to us from the 
 times of the Norman kings and which are not merely 
 records of disputes about title are confirmations of grants 
 made in earlier times to religious houses and grants of 
 powers of a seignorial kind very similar in form to those 
 that preceded the Conquest. To take a single example 
 of each of these classes of documents from the reign of 
 William we have : — 
 
 1 See e.g. Bigelow, Placita Anglo-Normannica, pp. 13, 22 (Ely); 
 31 (Abingdon) ; 34 (St Andrews). 
 
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CONFIRMATION AND WRIT 29 
 
 (A) Confirmation by the Conqueror of former grants •*■ oonfir- 
 of a manor and church made to the monks of West- the Con- 
 minster : lueror. 
 
 " WillehBus Rex Angl., Lanfranco Archiepiscopo & Odoni 
 Episcopo Baiocensi & Comiti de Kent & omnibus ministris 
 & fidelibus suis Francis & Anglis de Kent, salutein. Sciatis 
 quod ego concede & firniiter praecipio, ut Ecclesia Sancti 
 Petri Westmonasterii &, Vitalis Abbas & monachi ejusdem 
 ecclesiae, perpetuo habeant manerium Leosne ife ecclesiam 
 suam in eadem villa & cum omnibus rebus quae ad praediotum 
 manerium pertinent in terra & in aqua, in boaco et piano, 
 & in omnibus rebus & consuetudinibus & legibus & cum 
 omnimoda libertate, ita honor'iiice & quiete, sicut Aedsenus 
 Sanctum Petrum & fratres ejusdem Ecclesiae Westmonasterii 
 inde haereditavit pro salute animae suae & sicut Rex 
 Aedwardus cognatus meus melius & plenius & liberius ilia 
 praedicto concessit Sancto : Et defendo super hoc, ne ullus 
 eis aliquam ullo tempore injuriam sive calumniam vel torturam 
 faciat ; quia nolo ut aliquis de elemosina mea ullam intro- 
 missionem ullo tempore habeat nisi Abbas & monachi ad 
 usum monasterii. 
 
 T. Petro episcopo Cestrensi <fe Willelmo filio Osteni & 
 Roberto filio Wimarc^" 
 
 (B) Writ of WiUiam — saying that he has granted Writ of 
 ^. • + Q^. T V, /t3 1 theCon- 
 
 certam powers to bt John at Beverley. queror. 
 
 "t. I King William greet all my thanes in Yorkshire, 
 French and English, amicably. And I make known to you 
 that I have given to St John at Beverley sake and soke over 
 all the lands that were given in the day of King Edward to 
 St John's monastery, and also over those that Archbishop 
 Ealdred has since acquired for it, in my days. In ' witword ' 
 or in ' caupland ' be it all free, as regards me and every 
 man, save the bishop and the monastic priests. And let no 
 man be so bold as to undo what I have declared to Christ and 
 St John. And I will that there ever be monastic life and 
 canonical congregation while any man lives. God's blessing 
 be with all Christian men that promote the honour of the 
 saint. Amen^." 
 
 1 Madox, Formulare Anglicanum, lxii. p. 37. 
 
 ' Thorpe, Dipl., p. 438. [The original is in Anglo-Saxon.] 
 
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30 SECOND PERIOD. CORPOEEALS 
 
 The grants from this early period vary somewhat in 
 form, at one time they appear to be ' dispositive,' at 
 another merely ' evidentiary,' although soon the latter 
 form predominates. However it would serve no useful 
 purpose to follow out the varying forms of these docu- 
 ments throughout the early middle ages. It will be 
 better to turn at once to a later time when legal practice 
 has settled down and we are enabled to take a general 
 Plan survey of its outline. Under Bracton's guidance much 
 
 adopted. '^^^ be learned about our subject at a time when feudalism 
 had reached its greatest stature. By following this great 
 authority and illustrating what he tells us by documents 
 from different reigns we should have little difficulty in 
 obtaining a fairly clear view of the various forms of title 
 from the Conquest to Bracton's day. This done we may 
 turn with profit to the records of disputes about title 
 that have come down to us from the period under 
 consideration. 
 Import- In the first place it must be noted that every title to 
 
 seisin. l^nd has its root in seisin. The claimant of a freehold^ 
 will be called upon to show either that he himself has 
 been seised of the land or that he is the representative 
 by descent of some one that had seisin. Further, as 
 evidence of this seisin, he will be required to prove that 
 he, or the ancestor through whom he claims, enjoyed the 
 fruits of the land by taking ' esplees.' Of all this we shall 
 have ample evidence when considering some of the cases 
 in Bracton's Note-Book and elsewhere. 
 
 The titles to freehold during the period may be 
 
 divided into two great classes — title by inheritance (of 
 
 which hereafter), and title by gift (including, of course, 
 
 Feoffment sale Or exchange). Now a gift must be made by "feofif- 
 
 y J ment with livery of seisin.'' For the feoffment a written 
 
 seisin. instrument was not absolutely indispensable, indeed even 
 
 up to the end of this period "words of mouth" would 
 
 ' We are not here speaking of tenure in villeinage, at will, or for term 
 of years. Tenure in villeinage will occupy us later, the other two forms 
 of holding land are outside the limits of our discussion. 
 
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LIVERY OF SEISIN 31 
 
 suffice. But there were obvious advantages in a written 
 document and so we find numberless instances of charters 
 of feoffment, some of which will be given immediately' 
 We have already laid stress on the fact that a real 
 delivery of possession was insisted on to give a good title. 
 In Bracton's time this livery was often accompanied by Modes of 
 
 ffiviiig 
 
 ceremonies of various kinds. These were usually of the Uvery of 
 nature of symbolic delivery, and it is probable that in s^'^™- 
 earlier times this symbolic delivery was employed in 
 certain cases as a convenient substitute for actual transfer 
 of possession and was even recognised by law as sufficient. 
 Writing of the modes of giving livery of seisin Madox 
 
 " There were divers ways of giving seisin : as per f ustem, 
 per baculum, per haspam, vel annulum and by other symbols 
 either proper in their own nature or accommodated by use or 
 designation of the parties to signify a transferring of the 
 possession or seisin from the feoffor to the feoffee. Jubell 
 Fitz-Alured (tempore Will. I.) gave the monks of Toteneis the 
 church of St Marie etc. 'in manu Domini Tetbaldi qui 
 ibidem praesentialiter erat loco omnium fratrum : — ecclesiam 
 ei tradidit per clavem monasterii et cordam, signi et cum ipsius 
 cultello donum super altare misit.' Gunter, abbot of Tliorney 
 (tempore Will. I.), was seised of the church of Giveldane, 
 per clavem ecclesiae. King William II. gave the abbot of 
 Tavistock seisin of the manor Wlurinton per cultellum 
 ehurneum, which knife was laid up in a shrine at that abbey 
 and had inscribed on its haft words signifying that donation. 
 William of Albini gave the monks of Wymundham seisin of 
 a manor by a silver cross. William Peverell granted and 
 released to the abbot of Thorney the church of Bolehirst — 
 abhati per quandam virgam in m,anu tradidit^" and so on. 
 
 In some cases we find the charter of feoffment treated 
 as a symbol of the land itself and handed over in place 
 of delivering the land. Thus when Sewhal son of Joseph 
 
 1 Seep. 33. 
 
 ' Madox, Formulare Anglicanum, p. ix. 
 
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32 SECOND PEEIOD. CORPOREALS 
 
 enfeoffed Thomas de Nevill of certain land he delivered 
 to him the charter of feoffment — 
 
 "dedit et carta sua confirmavit Tomae de Nevill at fidelitatem 
 recepit illius coram baronibus de Scaccario coram quibus carta 
 praedicta leota fuit in haec verba omnibus audituris et visuris 
 has litteras : — ' Et ut haec in perpetuum rata sint et incon- 
 cussa, ea tam praesenti soripto quam sigilli mei appositione 
 confirmavi et coram baronibus de Scaccario praesentem cartam 
 saepe dido Tomae manu projyria liberavi^.' " 
 
 Ceremony Sometimes the ceremony was performed in Court — 
 sometimes probably with the object of obtaining an undying witness, 
 performed Thus Geoffrey de Ferdis enfeoffed Benet de Blakeham of 
 
 in Court. "^ 
 
 certain land before Richard, bishop of London, Walter 
 Fitz-Robert, William de Warenne, and Reginald de 
 Argentom — justices errant in Norfolk and Suffolk ^- 
 Again we find that Oliver de Argentom gave the king 
 half a mark 
 
 " ut scribatur in Magno Rotulo quod Reginaldus de Halfwurd 
 patruus suus dedit et concessit ei coram baronibus regis ad 
 scaccarium apud Westmonasterium totam terram suam de 
 Halfwurd quam dedit ei jure hereditario tenendaai de Regin- 
 aldo de Argentom patre ipsius Oliveri, per servitium xvi. d. 
 partis feodi l militis praeter terram de Walhage et quod 
 praedictus pater ipsius recognovit coram praedictis baronibus 
 quod recepit homagium ipsius Oliveri de praedicta terra cum 
 pertinentiis et ei inde cartam suam fecit ^." 
 
 Object of The object of these various ceremonies was doubtless 
 
 monies *° obtain clear evidence of the donor's intention in making 
 the gift. Livery of seisin was always regarded as a sine 
 qud non to the validity of the feoffment, but the examples 
 given above show that a symbolic delivery was often 
 deemed sufficient. In Bracton's time many of the 
 practices peculiar to these symbolic transfers were still 
 maintained ; but they were no longer allowed to take the 
 place of real delivery of possession, and when used at all 
 
 ' Madox, Form. Ang. p. xi. ; Mag. Rot. 6. 
 2 Ibid. p. xi. 
 ' Ibid. p. xi. 
 
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CHARTERS OF FEOFFMENT 33 
 
 were merely subsidiary to actual delivery and by way of 
 further assurance. 
 
 Of the charter of feoffment we have already remarked^ IL™™ °^ 
 that its form after the Conquest was somewhat unsettled, charter of 
 However by the end of the twelfth century a common f^o^™®!^*- 
 form was reached and throughout the thirteenth century 
 there were few departures from this standard, except that 
 a clause about ' assigns ' crept in and ' warranty ' became 
 prominent. Some examples of these charters will be more 
 useful than a lengthy description : — 
 
 (A) Grant of lands by the Bishop of Bayeux (half- 
 brother of the Conqueror) with the king's licence. 
 
 " Willelmus rex Anglorum Lanfranco archiepiscopo Can- 
 tuariensi et Hamoni vicecomiti, et R. filio comitis G. et 
 Haimoni vicecomiti et omnibus tamnis de Kent, Prancigenis 
 et Anglicis, salutem. Sciatis episcopum Baiocensem fratrem 
 meum pro amore Dei et pro salute animae meae et suae 
 dedisse Sancto Augustino quicquid habet Fordivicum, tam 
 in terris et pratis et domibus et consuetudinibus, quam in 
 aliis rebus, et quod dedit licentia mea sciatis ilium dedisse^." 
 
 (B) A.D. 1107— 1118. Grant of lands to Lewes Priory 
 by William, Count of Surrey. 
 
 " Ego Willelmus Comes suthrei§ done 9o & scis aptis ejus 
 petro 7 paulo ad locum sci Pancratii pro anima patris mei & 
 matris me§ & pro anima mea & fratris mei rainaldi tres [hidas 
 in mulis] scumba & quicquid ricoardus Archidiaconus de 
 patre meo & de [me ubicumque tenjebat. Hijc omnia tam 
 libera & quieta ab omnib} causis dono sicut [est tra de falje- 
 mella. 
 
 Testib3 his quoa nomina subscripta st. 
 
 S. t WiHmi comiti ; S...; t S. Rotbti de pet'ponte 
 
 t §. WiHmi filii godefredi de pef-ponte... ; 
 
 §. Radulfi filii radulfi ; t §• Godefredi de pet^ponte. 
 
 t S. Nigelli generi godefredi. t §• Hunfredi^" 
 
 1 See p. 30. 
 
 ' Bigelow, Placita Anglo-Normannica, p. 13. 
 
 ' Round, Ancient Charters, No. 5. 
 
 M. E). 
 
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34 SECOND PEKIOD. COBPOREALS 
 
 We have given this charter in its original (unexpanded) 
 form. It should be noted that the instrument appears to 
 be ' dispositive.' 
 
 (C) Grant by Henry I. to Walter de Gloucester of all 
 the land of Eadric. A.D. 1123. 
 
 " H. rex Anglorum. T. Uigorn Episcopo & R. comiti 
 Gloce & omnibus Baronibus & fidelibus suis de Gloecester- 
 scira salutem. Soiatis me dedisse & concessisse Waltero de 
 Gloecester in foedum & in hereditate totam terrain Edricii 
 filii Chetelli. Et vole et firmiter praecipio ut bene & honori- 
 fice & quiete & libere teneat cum omnibus consuetudinibus 
 suis siout praedictus Edricius vel Chetellus pater ejus unquam 
 melius & honorabilius & quietius & liberius tenuerunt. 
 
 Testibus Pag. filio lohannis & Willelmo de Pirov. & 
 Hugone Bigoto & Waltero de Bello Campo apud Portes- 
 mudam. In fns fretatioe mea'." 
 
 As Round remarks, the importance of this charter 
 lies in the parallel it must present to the grants made 
 by the Conqueror. The grantee does not receive any 
 estate by name. He is merely placed in the shoes of 
 Chetel, who thereby becomes, in the language of Domesday 
 Book, his ' antecessor.' 
 
 (D) [Circa A.D. 1170.] Grant to Bel voir Piiory by 
 John de Aincurt of a carucate of land out of his demesne 
 in Granby (Notts.) with other pieces of land and common 
 pasture. 
 
 "Notu sit omib} fidelib} in dno tam present... go Jobs de 
 Ainc... concede ao...de Belveeir 7 monaohis ibidem flo ser- 
 vientib3...mg meg 7 p animab5 patris 7 matris mei...anima 
 Oliver! fris mei cuj' corp' ibidem requies...animab5 omniin 
 pdecessos meoa un...ta trg de dominico meo in villa grenesti 
 7 unam tophtam cu tophta Osberti presbiti 7 tantu...q^ntii 
 ptinet ad carrucata terr§ Ricardi de Criviel 7 comunem 
 pasturam in ppetua elemosina possidendam soluta 7 quieta 
 ab ofni impediment© 7 seoulari servicio. 
 
 Huj' donationis testes sunt... [Here follow twenty-five 
 witnesses]^." 
 
 1 Bound, Ancient Charters, No. 10. 
 
 2 Ibid. No. 43. 
 
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CHARTERS OF FEOFFMENT 35 
 
 (E) A feoffment in fee-simple of a messuage made by 
 the master of the Templars to the monks of Bruere. 
 
 " Universis Christi fidelibus praesentibus et futuris, frater 
 Aimericus de sancto Mauro, Miliciae Templi in Anglia 
 magister humilis, salutem. Noverit universitas vestra, nos 
 de communi consilio & assensu totius capituli nostri in festo 
 S. Martini apud Dineste concessisse & liao praesenti carta 
 nostra confirmasse Deo & Beatae Mariae & monachis de 
 Brueria, mesuagium situm juxta Molendinum nostrum de 
 Flieta quod Willelmus de Salerna de nobis tenuit ; Haben- 
 dum et tenendum cum omnibus pertinenciis suis & jure 
 hereditario perpetue possidendum libere solute & quiete : 
 solvendo inde singulis annis Domui Templi sex solidos pro 
 omnibus serviciis & consuetudinibus ad duos terminos scilicet 
 ad Paacha tres sol. & ad Festum S. Micbaelis tres solidos. 
 Et ut concessio nostra firma & stabilis futuris temporibus 
 permaneat, earn tarn praesenti scripto quam sigillo nostro 
 confirmavimus. His testibus [seven witnesses]'." 
 
 (F) A feoffment in fee of a garden, 
 
 " Sciant praesentes & f uturi quod ego Hugo filius Roberti 
 Ligeri dedi & concessi & praesenti carta confirmavi, Roberto 
 filio presbiteri de Brum ore, pro homagio & servicio suo, 
 Gardinum meum in Brumore & Floddam inter domum Rogeri 
 Bum & domum Willelmi Rufi : Tenendum sibi & heredibus 
 suis de me & heredibus meis per liberum servicium sex 
 denariorum per annum, ad festum Sancti Michaelis pro 
 omni servicio. Et si ego vel heredes mei praedictum Gardi- 
 num cum Floda warentizare non poterimus, ego vel heredes 
 mei dabimus dicto Roberto vel heredibus suis Escambium ad 
 valenciam saepedicti Gardini cum Floda, scilicet quattuor 
 acras de hereditate nostra in Middelfurlang. Et pro hao 
 donatione <fe concessione dedit mihi praedictus Robertus duas 
 marcas argenti. His testibus [seven witnesses ' cum toto 
 hundredo '] ^" 
 
 In this charter the clause of warranty should be noted, 
 a clause that — like the mention of assigns^ — became usual 
 
 1 Form. Ang. cccvii. p. 185. 
 
 2 Ibid, cccxxn. p. 193. 
 
 8 As to assigns see e.g. Form. Ang. Nos. 308, 312, 313, 327. 
 
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charters. 
 
 36 SECOND PERIOD. COEPOREALS 
 
 from the beginning of the thirteenth century. It will be 
 observed also that the consideration for the feoffment is 
 mentioned in the charter^ 
 Void Before leaving the subject of charters we must con- 
 
 sider the grounds on which they might be disputed. 
 Bracton" enumerates the following : — (a) the charter was 
 forged, (6) the donor was of unsound mind when he drew 
 up the document or had lost his memory through an 
 illness that afterwards proved fatal, (c) the donor was 
 an infant, (d) the charter was obtained through duress, 
 or (e) through deceit or (/) through mistake — provided 
 this were not due to the donor's negligence. If an 
 attempt were made to upset the charter on any of these 
 grounds the question was decided by a jury composed of 
 the witnesses to the charter " et preterea xii tam milites 
 quam alios legales, liberos et discretes'." These men 
 were enjoined to inquire into the dispute and appear 
 before the court on a certain day to settle the difficulty. 
 As has been so often said, proof of livery of seisin was 
 essential, and if this were forthcoming ' hearsay ' evidence 
 as to the making of the charter would be sufficient*. 
 
 To prove a charter it was not sufficient for the 
 witnesses to say merely that they were " asked to be 
 witnesses " of the charter, and it went much against the 
 validity of that document if the witnesses could not 
 declare that they were present either when it was made 
 or when it was read. Moreover presence at the confir- 
 mation of a charter was not deemed sufficient, though 
 it would seem that to have been at the making of the 
 preliminary agreement was considered satisfactory. But 
 the charter could be proved otherwise than by witnesses, 
 for example by comparing the signatures on the deed 
 with others produced and approved in court and acknow- 
 
 ' Most of the charters given above pass the fee simple. But con- 
 ditional fees are frequently met with in this period, see e.g. Mag. Rot. 
 5, 13. 
 
 = Braoton, f . 396 b. 
 
 ' Ibid. f. 396. 
 
 * Ibid. f. 398. 
 
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RELEASES 37 
 
 ledged as those of the donor. Such a proof was completely 
 satisfactory unless there was something obviously sus- 
 picious about the instrument, e.g. an erasure in a narration 
 of fact^. The seal could be proved genuine by comparing 
 it with acknowledged seals of the donor. 
 
 We have said that the most usual mode of conveying 
 a freehold inter vivos was by feoffment with livery of 
 seisin. This however was not the only method employed 
 and we must turn now to the alternatives and say 
 something of releases, quit-claims, surrenders and es- 
 pecially of fines. 
 
 Release and quit-claim were used when the donee was Release 
 already in possession, as when he was a tenant for life or claim." 
 years or merely a disseisor. In such cases if the donor 
 wished to pass the fee simple he did so (at least in the 
 13th century) by means of a sealed instrument or by a 
 court record, although it is probable that at an earlier 
 date an 'abjuration' of claims — sometimes accompanied 
 by a symbolic transfer to the donee ^ — was all that was 
 necessary. 
 
 (A) Release from Richard de St Denis of a hide of 
 land to the church of Battle. 
 
 " Sciant omnes quod ego Ricardus de Sancti Dionisio cum Examples 
 uxore et heredibus meis clamamus quietam omnem calumniam i^Jfa^ 
 de hida de Janglentuna quani Tiedbertus ecclesiae Belli dedit 
 & Willelmus de Braiosa per cartam suam concessit ut sic bene 
 earn ecclesia teneat sicut illi melius data fuit & sicut eam 
 unquam melius tenuit vel tenere debuit. Et die qua hoc 
 concessum super altars posui, effecti sumus participes societatis 
 Ecclesiae &, xxx sol. a monachis accepi : praesente Rotberto 
 filio meo ife his testibus [eleven names and ' aliis multis '] ^." 
 
 (B) A.D. 1233. Release of a messuage in fee to the 
 nuns of Newcastle. Common seal of the town of New- 
 castle affixed. 
 
 " Omnibus hoc scriptum visuris vel audituris, Petrus filius 
 
 ' Braoton, f. 398. 
 
 ' See e.g. Guisiorough Cartulary, p. 71. 
 
 * Form. Ang. dolvii. p. 368. 
 
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38 SECOND PERIOD. dORPOKEALS 
 
 Hawysiae de Pert, Mautilda & Wincey sorores ejusdem 
 Hawysiae, salutem. Sciatis nos relaxisse &, quiete cJamasse 
 Deo & Sancto Bartholomeo & monialibus de Novo Castro 
 totum jus & claniium quod nos vel heredes nostri unquam 
 habuimus vel habere poterimus in uno mesuagio cum per- 
 tinentiis in Novo Castro, quod petebamus de Johanne Molen- 
 dinario & de Emma uxore sua per breve Domini Regis de 
 Recto in Curia Novi Castri quod quidem mesuagium dicebant 
 se tenere de sanctimonialibus de Novo Castro. Pro hac autem 
 quieta clamacione praedictae Sanctimoniales dederunt nobis 
 XX sol. sterlingorum. Et in hujus quietae clamationis &, ad 
 majorem securitatem praesens scriptum communi sigillo Novi 
 Castri signatum fieri fecinius. Actum in curia Novi Castri 
 ad festum Sancti Michaelis anno gratiae mcc tricesimo tertio, 
 Hugone de Bedeford, Willelmo de Hexhild, Rogero filio 
 Willelmi, Henrico de Karliolo, tunc praepositis : multis aliis 
 tunc praesentibus'." 
 
 Sur- In case a tenant surrendered his land to his lord, livery 
 
 of seisin could be dispensed with, as the lord was already 
 seised ' in service.' Still even in this case deeds of 
 surrender were not uncommon. Here is an example : — 
 
 " Ego [Walterus] de Inflrmari reddidi et quietam clamavi 
 dominis meis. Priori et Can. de Gyesburne toftum cum crofto 
 ei adjacente quod in villa de Gyesburne per eorum sufferentiam 
 tenui de eisdem. His testibus..."." 
 
 Fines. Tui'ning next to the consideration of the most impor- 
 
 tant alternative to the charter of feoffment — the 'final 
 concord ' or ' fine ' — we cannot introduce the subject more 
 fitly than by a quotation from Cruise ; — 
 
 " When property first became the subject of alienation it 
 was found necessary to adopt some authentic mode of transfer, 
 which might secure the possession and evince the title of the 
 purchaser. By the ancient common law a charter of feoffment 
 was in general the only written instrument whereby lands 
 were transferred or conveyed. But although this assurance 
 derived great authenticity from the number of witnesses by 
 whom it was usually attested and from the solemn and public 
 
 ' Form. Ang. eolxxvii. p. 375. 
 
 ^ Guisborough Cartulary, oxiv. p. 50. 
 
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Pines 39 
 
 manner in which livery of seisin was formerly given, yet still 
 it may be supposed that inconveniences would frequently arise 
 either from the loss of the charter itself or from the difficulty 
 of proving it after a lapse of years. These circumstances 
 probably induced men to look out for some other species of 
 assurance which should be more solemn, more lasting and 
 more easy to be proved than a charter of feoffment. Ex- 
 perience must soon have discovered that no title could be so 
 secure and notorious as that which had been questioned by an 
 adverse party and ratified by the determination of a court of 
 justice ; and the ingenuity of mankind soon found out the 
 method of drawing the same advantages from a fictitious 
 process. 
 
 To effect this purpose the following plan was adopted ; a 
 suit was commenced concerning the lands to be conveyed and 
 when the writ was sued out and the parties appeared in court, 
 a composition of the suit was entered into with the consent of 
 the judges, whereby the lands in question were acknowledged 
 to be the right of one of the contending parties. This 
 agreement being reduced to writing was enrolled among the 
 records of the court where it was preserved by the public 
 officer, by which means it was not so liable to be lost or 
 defaced as a charter of feoffment and would at all times prove 
 itself ; and being substituted in place of the sentence which 
 would have been given in case the suit had not been com- 
 pounded, it was to be held of equal force with the judgment 
 of a court of justice \" 
 
 To avoid a misconception perhaps we should add that 
 a ' fine ' was a substitute only for the charter of feoffment, 
 it did not transfer the ownership of the land and thus was 
 not complete as a conveyance until the grantee had 
 obtained actual seism under the sheriff's writ. Further 
 it must be remembered that we are speaking of land and 
 of the period before the fourteenth century. 
 
 We have already'-*, when dealing with feoffments, seen a 
 feoffee paying money to have an account of the feoffment 
 entered on the rolls, but it was not till late in Henry II.'s 
 
 1 Cruise, Essay on Fines and Becoveries, 
 ■' p. 32. 
 
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40 SECOND PERIOD. CORPOREALS 
 
 reign that the ' final concord ' appeared. Soon, however, 
 this method of obtaining evidence of title became popular 
 and an enormous number of records of fines have been 
 Form of a preserved^ The earliest fines were in the form of inden- 
 "''■ tures^ one part being retained by each party to the suit. 
 
 After 1195 three chirographs became usual, one of the 
 number going as a permanent record to the treasury. 
 The document usually began with a statement of the 
 place at which the fine was levied, of the time^ and of 
 the persons composing the court. Then came the names 
 of the parties to the suit and a specification of the subject 
 of transfer. Next the plea and the concession made by 
 one of the parties and finally the consideration — the name 
 of the county being subscribed. 
 
 We shall give an example from each reign from 
 Henry II. to Henry III. 
 
 Examples (A) " Haec est finalis Concordia facta in curia Domini 
 Regis apud Westmonasterium, die Veneris proxima post 
 Ascensionem Domini Anno xxxi Regni Regis H. secundi, 
 Coram J. Norwicensi Bpiscopo, Rannulfo de Glanvilla Jus- 
 tioiariis Domini Regis & Ricardo Thesauricario & Godefrido 
 de Luci & Huberto Walteri <fe Willelmo Basset & Nigello filio 
 Alexandri & aliis fidelibus Domini Regis ibi tunc praesentibus, 
 inter Walterum Abbatem de Westmonasterio <fe Ricardum & 
 Willelmum fratres de Padinton de toto tenemento quod ipsi 
 tenuerunt in Padinton de Ecclesia de Westmonasterio. Unde 
 plaoitum fuit inter eos in Curia Domini Regis scilicet quod 
 praefati Ricardus & Willelmus clamaverunt quietum in per- 
 petuum de se & omnibus suis successoribus & heredibus totum 
 & praefatum tenementum & quicquid juris in eo habebant, 
 sine ullo retinemento praefatae ecclesiae de Westmonasterio & 
 Abbati & terram cum omnibus pertinentiis suis ei reddiderunt: 
 & pro hac resignatione praefatus Abbas dedit eis xl maroas 
 argenti & quattuor conredia in ecclesia de Westm. quorum 
 
 ' In 1809 ten cartloads (about a ton each) of transcripts of fines were 
 removed to the Record Office. 
 
 ' A facsimile is given in Hunter's collection, p. xxviti. 
 
 ' In this it differed from the charter of feoffment, which was usually 
 undated in the present period — before Edward I. 
 
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FINES 41 
 
 duo sunt ad opus praedicti Ricardi & Willelmi usque in xil 
 annos sequentes ; et alia duo ad opus uxorum praedicti 
 Ricardi & Willelmi cum caritatibus et pitanciis quamdiu 
 ipsae mulieres vixerint^." 
 
 (B) " Haec is finalis concordia facta in curia Domini 
 Regis apud Westm. die Dominica proxima post festum S. 
 Hilarii, anno regni regis Ricardi sexto, coram H. Cantuar. 
 archiepiscopo & Hereberto Saresberiensi episcopo, Osberto filio 
 Hereri, magistro Thoma de Husseburn, Ricardo de Heriert, 
 Hugone Peverell, justiciariis domini regis & aliis fidelibus 
 domini Regis ibidem tunc praesentibus, inter Gaufridum 
 Abbatem & monachos de la Briuwyre tenentes <fc Rogerum de 
 Sanford petentem de duabus hidis terras in Middleton, quas 
 Robertus de Witefeld dedit praefatis Abbati & monachis in 
 puram & perpetuam elemosinam ; unde placitum f uit inter eos 
 in curia domini regis : scilicet quod praefatus Rogerus de 
 Sandford quietum clamavit de se & heredibus suis totum jus ife 
 clamium quod habuit in praefata terra, praedictis Abbati ife 
 monachis in perpetuuni : et pro hac quieta clamatione & 
 concordia, praefati abbas & monachi dederunt ipsi Rogero tres 
 marcas argenti^." 
 
 (C) " Haec est finalis concordia facta in curia domini 
 regis apud Westm. a die sancti michaelis in tres septimanas 
 anno regni regis Johannis nil coram G. de Insula, Reginaldo 
 de Cornhull, Waltero de Grepsing, Reginaldo de Argentein, 
 justiciariis & aliis baronibus domini regis tunc ibi praesentibus, 
 inter Robertum de Sap petentem, et Willelmum Priorem de 
 Suthiwerke tenentem, de lili acris prati cum pertinentiis in 
 Tadelewe, unde placitum f uit inter eos in praefata curia : 
 scilicet quod praedictus Robertus remisit & quietum clamavit 
 praedicto Priori & successoribus suis, totum jus & clamium 
 quod habuit in praedicto prato de se & heredibus suis in 
 perpetuum : et pro hac quieta clamantia fine & concordia, 
 praedictus Prior dedit praedicto Roberto unam marcam 
 argenti^." 
 
 (D) "Haec est finalis concordia facta in curia domini 
 regis apud Goventriam a die Sanctae Trinitatis in quindeoim. 
 
 1 Form. Ang. ocolviii. p. 217. 
 ' Ibid. oocLx. p. 218. 
 3 Ibid. oooLxiii. p. 220. 
 
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42 SECOND PERIOD. COEPOREALS 
 
 dies, anno regni regis Henrioi filii regis Johannis vicesimo, 
 coram Roberto de Lexinton, Olivero de Vallibus, Johanne de 
 Halecote, & Willelmo de Ludington, justiciariis itinerantibus 
 & aliis domini regis fidelibus tunc ibi praesentibus, inter 
 Robertum de Haleford & Amiciam uxorem ejus & Petrum de 
 Parva Cumpton petentes, et Hugonem Priorem de Orthbiria 
 tenentem, de triginta & sex acris terrae cum pertinenciis in 
 Tisho, unde placitum fuit inter eos in eadem curia : scilicet 
 quod praedicti Robertus, Amicia, ife Petrus remiserunt & 
 quietum clamaverunt de se & heredibus ipsorum Petri &, 
 Amiciae, praedicto Priori & successoribus suis & ecclesiae 
 suae de Orthbiria, totum jus i claniium quod habuerunt in 
 tota praedicta terra cum pertinenciis in perpetuum. Et pro 
 hac remissione quieta clamancia, fine, &, concordia, idem Prior 
 dedit praediotis Roberto, Amiciae & Petro quattuor marcas 
 argenti'." 
 
 Advant- The extract from Cruise with which we introduced 
 
 a^fine! the subject of fines referred to some of the obvious ad- 
 vantages of this method of transfer over the ordinary 
 feoffment. But we must not leave the subject before 
 calling attention to what was, for our purposes, a still 
 more important attribute of the final concord. Once a 
 person had obtained seisin and a fine in his favour his 
 title could not he disputed by anyone unless their claim was 
 set up within a certain short period. Bracton says : — • 
 " He must put in his claim within a month from the 
 beginning of the other action unless a just impediment 
 intervened — as that he was out of the country, or of 
 unsound mind at the time, or an infant, or in prison, or 
 the fine was made in secret, the chirograph having been 
 made and delivered for fraudulent purposes before the 
 lawful time^" — i.e. fifteen days after the concord was 
 made in court. 
 Bestric- We have delayed long enough over the description of 
 
 alienatkin ^^^ most important methods of conveying a freehold 
 inter vivos ; but we cannot leave the subject without a 
 
 1 Form. Ang. ocolxvii. 
 
 2 Bracton, f. 436. 
 
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RESTRAINT ON ALIENATION 43 
 
 brief consideration of the question whether the so-called 
 ' free ' holder was always free to alienate his property in 
 the ways that have been discussed. The subject is a 
 difficult one owing to the vagueness that seems to have 
 prevailed in this matter. In fact all that can be said of 
 the earlier law (before 1217) is that the tenant was free 
 to alienate provided that his action did not ' seriously 
 impair' the interests of his lord. This right of inter- 
 ference the lord could assert in the manorial court, and 
 as a matter of policy it was always wise to obtain the 
 consent of the lord to an alienation. And so in most of 
 the charters of this period we find that the lord generally 
 ' confirmed ' the gift. 
 
 The Great Charter of 1217 speaks of restraint on 
 alienation in the well-known words : " No free man shall 
 henceforth give or sell so much of his land as that out of 
 the residue he may not sufficiently do to the lord of 
 the fee service due to him which pertains to that fee " 
 [" Nullus liber homo de cetero det amplius alicui vel 
 vendat de terra sua qiiam ut de residuo terrae suae possit 
 sufficienter fieri domino feodi servitium ei debitum quod 
 pertinet ad feodum illud"]^ Even this is somewhat 
 vague ; but nothing more definite can be said as to 
 restraints on the alienation of tenements held by mesne 
 lords. Serjeanties seem to have been inalienable without 
 the king's consent from an early time, and in 1205 John 
 ordered the sheriffs to seize all such lands that had been 
 alienated since the beginning of the reign of Henry II. 
 without the royal assent. Moreover a somewhat strict 
 law grew up for the king's immediate tenants, so that by 
 the time of Edward I. they could not alienate at all 
 without the king's consent. 
 
 In another direction the freeholder's powers of aliena- No wills 
 tion were even more seriously curtailed — this was in the 
 matter of testament. The so-called will (cwide) of Anglo- 
 Saxon times has been already discussed and it has been 
 
 1 Magna Carta (1217), o. xxxii. 
 
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44 SteCOND PERIOD. CORPOREALS 
 
 seen that the bequest in that case was really of the 
 nature of a post obit gift. No sudden change in this 
 matter was effected by the Conquest; but as soon asj;he 
 courts were regularly organised under Henry II. they 
 exerted themselves to stamp out the custom. The reasons 
 for this policy are given by Glanvill in a well-known 
 
 "Licet autem ita generaliter cuilibet de terra sua rationa- 
 bilem partem pro sua voluntate, cuiounque voluerit, libere in 
 vita sua donare ; in extremis tamen agenti non est cuiquam 
 haotenus permissum ; quia possit tunc immodica fieri heredi- 
 tatis distributio, si fuisset hoc permissum illi qui fervore 
 passionis instantis et memoriam et rationem amittit, quod 
 non nunquam evenire solet ; unde presumeretnr quod si quis 
 in infirmitate positus ad mortem, distribuere cepisset terram 
 suam quod in sanitate sua minime facere voluisset, quod 
 potius proveniret illud ex furore animi quam ex mentis 
 deliberatione. Posset tamen hujusmodi donatio in ultima 
 voluntate alicui facta ita tenere, si cum consensu heredis 
 fieret et ex suo consensu confirma/retur^." 
 
 For some time after this wills have little interest for 
 our present subject, for a freeholder could no longer rest 
 his title on a will. Not that wills disappeared from this 
 date, they were not uncommon, but they were strictly 
 without legal effect. In order to obtain a good title the 
 ' devisee ' had to get actual seisin and confirmation at the 
 hands of the heir. Now the heir was not bound by law 
 to do this, and if — as often happened — he did comply, the 
 devisee's title really rested on a feoffment or surrender 
 from the heir and not on the ' will.' It is true that for a 
 short time in the thirteenth century the courts seemed 
 inclined to support a testamentary power of alienation in 
 the case where a man held land that had been granted 
 to him ' and his legatees ' (or some such phrase) ; this 
 however must be regarded as but a temporary aberration^. 
 
 On the other hand it must be noted that there were 
 
 1 Glanvill, lib. 7, c. 1. 
 
 '^ Of course we find wills restored later. 
 
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WILLS IN LONDON 45 
 
 exceptions to this general rale. The holders of gavelkind Exoep- 
 
 '^ => . . '^ tions to 
 
 land and of tenements in certain favoured boroughs could general 
 
 alienate their property by wilP. We shall not turn aside ^ijg°'^ ° 
 from the broad current of the law to explore these excep- 
 tions, but some deviation may be made for London owing 
 to its peculiar importance. In that great centre every 
 citizen from time immemorial enjoyed a power of disposi- 
 tion by will. Even there, however, certain restrictions 
 were imposed by custom,- e.g. — a husband could not give 
 his wife a larger estate than one for life ; nor could he 
 devise the tenements that he held in right of his wife^ ; 
 an infant, a lunatic, or a feme covert could not make 
 a will of lands or tenements. The will was usually 
 em'olled in the Court of Hustings, " the same being first 
 proved in open court on the oaths of two of the sub- 
 scribing witnesses thereto and produced at one of these 
 courts^" This enrolment was not essential to the vali- 
 dity of the will, but was the wiser practice. 
 
 The nature of these wills may be illustrated by a few 
 abstracts from Sharpe' 
 
 "a.d. 1259. Harden (Ralph). To Philippa his daughter 
 tenements in Kyrnnelane, parish of Paternoster church. To 
 Sibil his daughter an annual quit-rent of four marks issuing 
 from the house of Nicholas Hardell, contiguous to the church 
 of S. Martin in the Vintery. To his wife, by way of dower 
 and legacy, all his rents and tenements near the lane of 
 Richard le Gras and extending towards the Thames; re- 
 mainder to her heir. To Ralph and John his sons and to 
 the survivor of them, if either should die without an heir, 
 the tenement which he bought of Reyner de Burgeye. To 
 Johanna his daughter, wife of Peter de Frowick and her 
 heirs, rents in Chepe and Tower Street. To Alice, wife of 
 Ralfe de Rokeslegh, a tenement in the parish of S. Mary de 
 Hilla. All his ferms he leaves for the maintenance of his 
 wife and children. The residue of his goods to be divided 
 
 1 See Bracton, f. 272. 
 
 2 Calthorp, Ancient Customs and Usages of the City of London. 
 
 3 Emerson, Courts of Law of the City of London. 
 
 * Calendar of Wills enrolled in the Court of Hustings, London. 
 
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46 
 
 SECOND PERIOD. CORPOREALS 
 
 Descent. 
 
 Eights of 
 the heir 
 apparent. 
 
 into three parts ; one part to be expended for the good of 
 his soul among the poor of London, the other parts to be 
 divided between his wife and children remaining under her 
 care. A portion of his immoveables to be sold, if necessary, 
 by his executors for the payment of his debts'." 
 
 "a.d. 1279. Westminster (Bartholomew de). To Marjory 
 his wife his capital mansion in the parish of S. Andrew de 
 Holeburne ; also houses in New Street for life ; remainder 
 to Dionsia his daughter and in default of heirs the same to 
 be sold. [Mai'jory was present at the time of probate and 
 said that she claimed no more in the said mansion than a 
 life estate] =." 
 
 We have remarked^ that a testator could not bequeath 
 more than a life estate to his wife ; if he gave more she 
 had to claim only a life estate or lose everything. 
 
 We must turn next to the subject of title by in- 
 heritance or descent. It has been said that in the earliest 
 days this was the almost universal mode of acquiring land, 
 so that as son succeeded father with changeless monotony 
 the expectant heir gradually came to be looked upon as 
 one having rights in the land, rights that the tenant 
 could not alienate without the consent of his heir appa- 
 rent. The Conquest did not alter this state of affairs, 
 for the ' feodum ' was essentially a heritable estate and 
 the expectant heir had something to say as to its aliena- 
 tion. This has been already referred to and it is constantly 
 illustrated in charters of the twelfth century in which the 
 heir generally assents to if he does not actually join in 
 the gift. By the time we reach Glanvill, however, the 
 law is somewhat vague. Thus : — 
 
 " Every free man, being a tenant of land, may give with 
 his daughter or any other woman a certain part [quandam 
 partem] of his land by way of marriage gift, whether the heir 
 consent or not.... Anyone also may give to whomsoever he 
 pleases any part of his free tenement by way of remuneration 
 for services or in favour of a place of religion by way of alms 
 
 ' Calendar of Wills enrolled in the Court of Hustings, i. 3. 
 2 Ibid. 1. 43. 
 ^ Ante p. 4.5. 
 
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EIGHTS OF HEIR APPARENT 47 
 
 [in elemosinam] with the result that, if the gift has been 
 followed up hy seisin, the land shall be held for ever by 
 the donee and his heirs, if it were granted to him as an 
 estate of inheritance [jure hereditario] . . . . And, speaking 
 generally, anyone may in his life-time freely give to anyone 
 a reasonable part [partem rationabilem] of his land at his 
 pleasure.. . A gift made to anyone in a last will may hold 
 good, provided it be made ivitk the corisent of the heir and be 
 confirmed by him. When anyone makes a grant of land by 
 way of marriage gift or in any other mode, either he possesses 
 hereditary land only or acquired land, or both. If he has 
 hereditary land only he may, as has been said, give a certain 
 part of that inheritance to any stranger he pleases. If, 
 however, he have many legitimate sons he shall hardly luithout 
 the consent of the heir grant to his younger son any part of 
 his inheritance.... If, however, he have nothing but land 
 that he has purchased, he may make a gift of a portion of 
 it, but not to the extent of the whole of the purchased 
 land, because he may not disinherit the son who is his heir. 
 However, if there be no son or daughter begotten of his 
 body, he may then give any part of his purchased land to 
 anyone he likes, or the whole of it, for an estate of inherit- 
 ance In case he has both purchased and hereditary land 
 
 then he may give any part he pleases of his purchased land, 
 or the whole of it, to any other person in perpetuity — and 
 he can nevertheless give also part of his hereditary land 
 according to what has been said above, provided he does 
 it reasonably. It is further to be observed that if anyone 
 that holds land in free socage has more sons than one who 
 ought all to be admitted to the inheritance in equal shares, 
 then it is true without reservation that the father cannot 
 make grants either of hereditary or of purchased land to 
 any one of his sons in excess of the reasonable share of the 
 whole inheritance that belongs to such son'." 
 
 Affairs in such a state evidently marked a period of 
 transition. The expectant heir had still some rights, 
 but Glanvill found it impossible to define them clearly. 
 All he could say was that the father might alienate a 
 
 ' Glanvill, vii. 1. 
 
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4)8 SECOND PERIOD. CORPOREALS 
 
 ' reasonable ' part, and that the son must not be totally 
 disinherited. Evidently by this time the heir's expecta- 
 tion had lost much of its value and by the end of the 
 century it had gone. When Bracton vsrrote he could lay 
 it down definitely that the words 'and his heirs' in a 
 charter were words of limitation only and gave nothing 
 to the heir apparent \ 
 
 We have been discussing the heir-apparent' s rights in 
 the land and have seen them vanish at the close of the 
 twelfth century. It need scarcely be added that this loss 
 did not affect the rights to his ancestor's realty imme- 
 diately on the death of that ancestor — provided of course 
 that the ancestor had not made a valid disposition of the 
 property by one of the methods described above. Indeed, 
 in spite of the increasing powers of alienation on the part 
 of the tenant, title by descent remained the commonest of 
 titles, as is seen at once on examining any record of cases 
 such as that which Bracton's Note-Book affords. 
 Legiti- With the actual laws of descent we are not here con- 
 
 macy. cemed, but a word or two as to ' legitimacy ' may not be 
 out of place. The validity or otherwise of a marriage was 
 a question to be settled by the ' spiritual ' courts, but it 
 is important to notice that in certain circumstances a 
 child might inherit even though his parents' marriage 
 was pronounced unlawful. Thus, says Bracton, " If a 
 woman in good faith marries a man that is already 
 married, believing him to be a bachelor, and has children 
 by him, such children will be capable of inheriting^" On 
 the other hand a bastard was not rendered capable of 
 inheriting by the subsequent marriage of his parents, 
 although the court Christian would regard him as 'legiti- 
 mate.' However in case a bastard obtained seisin of his 
 father's lands and his heir succeeded him the actual 
 holder could not be ousted by the real heir of the original 
 tenant. Evidently the law as to legitimacy was singularly 
 inconsistent and ' inelegant.' 
 
 ' Bracton, f. 17. 
 2 Ibid. f. 63. 
 
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DOWER 49 
 
 These questions of legitimacy and marriage naturally Dower, 
 lead to the subject of 'dower.' It has been usual to 
 regard this as a species of gift and to trace its origin to 
 the morgen-gifu that was common among the Teutons and 
 was mentioned occasionally in Anglo-Saxon documents'. 
 Be this as it may, we find that in the period now under 
 discussion dower had become an important form of title 
 and was considered at some length by Glanvill and 
 Bracton. In their days it might be defined as the right 
 that a widow could claim to a life estate in a certain 
 share of her late husband's realty. In order that she 
 might support this claim her marriage must have been 
 a 'lawful' one, any diflSculty on that matter being settled 
 by the ecclesiastical courts. Moreover the temporal 
 courts insisted that the appointment of dower should 
 be made publicly and with solemnity at the church 
 door^, otherwise the appointment was nugatory even 
 although the marriage were without a flaw. Again, a 
 woman had no claim to dower if she married an infant 
 without the consent of his guardian, nor if she herself 
 at the time of her husband's death was too young for 
 the marriage to be consummated^. As to the effect of 
 divorce, Glanvill says that a woman could have no 
 dower if she were divorced for misconduct*, while Bracton 
 makes any dissolution of marriage deprive the wife of her 
 dower ^- According to the custom of certain places a 
 widow also lost her dower on marrying again or being 
 found guilty of unchastity. 
 
 Glanvill" and Bracton' agree that 'reasonable' dower 
 was one-third part of all the lands and tenements that 
 the husband had " in his demesne and so in fee that he 
 could endow her therewith " on the day of the espousals, 
 and further that if there were no specific appointment 
 
 1 e.g. Thorpe, Dipt, p. 596. 
 
 " Bracton, f. 92. 
 
 ' Ibid. f. 92. Afterwards this age was fixed definitely at nine years. 
 
 " Glanvill, vi. 17. = Bracton, f. 92. 
 
 6 Glanvill, vi. 1. ' Bracton, f. 92. 
 
 M. B. 4 
 
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50 SECOND PERIOD. CORPOREALS 
 
 of dower' (dos nominata) it was assumed that the wife 
 was to have this shared When the wife was simply 
 endowed with a third part of her husband's lands — there 
 being no specific appointment — she could not have a 
 share in anything that by its nature or by custom was 
 regarded as indivisible', but was compensated elsewhere. 
 She could take nothing of the chief messuage, nor of 
 anything within the close. A house, however, was to 
 be built for her "to the value of a third part, i.e. in 
 breadth and in length, but not in the value of the 
 buildings." " The assignment of the messuage having 
 been made, let a third part be given to her of everything 
 that her husband had in domain — one-third of the arable 
 land, one-third of the meadows, one-third of the woods, 
 one-third of the pastures, one-third of the services of 
 freemen, one-third of the escheats^" Even of the fish- 
 ponds outside the close she was to have one-third of the 
 profit " vel tertium piscem, vel jactum retis tertium, 
 secundum quod conveniret^" 
 
 It has been said above that in the absence of specific 
 dower the widow was entitled to a third of all the lands 
 and tenements that the husband held on the day of the 
 espousals. This was certainly the law in Glanvill's day 
 and it seems to have been the practice under Bracton ; 
 but in strictness the doweress could claim more than 
 when Glanvill wrote. Thus the charter of 1217, speaking 
 of the widow, says "assignetur autem ei pro dote sua 
 tertia pars totius terrae mariti sui quae sua fuit in vita 
 sua nisi de minori dotata fuerit ad ostium ecclesiae'"; 
 and shortly after Bracton's time this became the actual 
 practice. 
 When the The wife's interest in her dower land commenced 
 
 terest a-t the moment of appointment, so that if the husband 
 began. 
 
 ' If the wife aoeepted specific dower — which need not be of the value 
 of one-third part of the land and could not be more — she had to be con- 
 tent with that appointment and could claim nothing further. 
 
 ' Braoton, f. 95. " Ibid. f. 97. ■> Ibid. f. 97. 
 
 ^ Ibid. f. 98. « Magna Carta (ed. 1217), c. vii. 
 
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CURTESY 51 
 
 transferred land that had been named as the dower of 
 his wife she could claim it back at her husband's death. 
 In such a case the tenant would have to seek compensa- 
 tion from the husband's heir. If there had been no 
 specific appointment of dower the husband's feoffee could 
 keep his land, and the widow must seek compensation 
 from the heir. If, however, the heir had nothing to give 
 then, according to Bracton^ the feoffee must give up his 
 land to the widow. On this point, however, Glanvill is 
 not quite so clear, but inclines to think that the feoffee 
 was safe in both cases if the heir had enough to com- 
 pensate the widow I 
 
 Something has now been said of marriage as a mode Curtesy. 
 of acquiring an interest in realty ; to complete the pic- 
 ture the husband's share in the bargain must next be 
 considered. " The husband," says Bracton, " is guardian 
 as being the head of the wifeV' and this guardianship 
 was not without its substantial advantages. In fact the 
 husband took the profits of all the lands to which his 
 wife was entitled during the marriage, and this was a 
 right that he could alienate. Further, if a child were 
 bom' that could possibly inherit from its mother, the 
 husband acquired a still larger interest in his wife's 
 lands. He could then hold them for his whole life after 
 his wife's death, and that whether his child lived or not 
 and even if he married again. This right gave rise to 
 what was called ' tenancy by the law of England ' and 
 at a later date 'tenancy by the curtesy of England.' 
 It should be noted that a wife could not alienate her 
 land without the husband's consent and that, in later 
 times, the only way to obtain a good title, otherwise 
 than by descent, to the lands of a married woman was 
 through the instrumentality of a fine to which both 
 husband and wife were parties. 
 
 1 Bracton, f. 93. 
 
 2 Glanvill, vi. 3. 
 
 3 Bracton, f. 429, b. 
 
 * " And heard to cry within the four walls." 
 
 4—2 
 
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52 SECOND PERIOD. COEPOREALS 
 
 No pre- We have now passed in review the chief titles to 
 
 to&eehold freehold land within the present period. Before pro- 
 land, ceeding to other topics it should perhaps be remarked 
 that as yet there was no prescriptive title to freehold land. 
 Limita- There was, however, a limitation of actions. The most 
 tion of important of these actions was that begun by the writ of 
 rights and in an action initiated by this writ the claimant, 
 if his title were by descent, had to prove that his ancestor 
 was seised and took esplees ' in the time of such a king.' 
 Now this time could not be dated too far back in history. 
 When Bracton wrote the limit was the coronation of 
 Henry II. Before 1237 the death of Henry I. was the 
 critical period and in 1275 the boundary was finally fixed 
 at the coronation of Richard I. The reason for this 
 limitation is obvious when we consider the mode of proof 
 required in case of dispute. Bracton puts it in this way: — 
 
 " Et est ratio, quia ultra tempus illud non poterit quis 
 aliquid probare, licet jus habeat in re ; cum nuUus aliquid 
 probare possit ultra tempus illud, ex quo loqui non poterit de 
 visu suo proprio, vel de visu patris sui, qui ei injunxit quod 
 testis asset si inde audiret loqui^." 
 
 We shall quote two cases from Bracton's Note-Book, 
 the first to show the working of this " virtual statute of 
 limitations " and the second to illustrate the advantage 
 of long possession. 
 
 (A) Richard de Hof v. John de Reingay. Richard 
 claimed by descent from his grandfather who (he said) 
 was seised and took esplees in the time of Henry I. 
 This however was outside the prescribed limit, so that 
 the claim could not be considered ^ 
 
 (B) Marjory Osbert v. Richard Pauncefot and others. 
 Richard vouches Peter son of Osbert to warranty. He 
 says that he holds the land as the son and heir of his 
 father Osbert and that his father was seised in his 
 demesne as of fee and right in the time of Stephen and 
 
 1 Bracton, f. 328. = Ibid. f. 373. 
 
 » Bracton's Note-Book, pi. 280. 
 
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LIMITATION OF ACTIONS 53 
 
 throughout the times of Henry II. and of Richard and 
 that he died seised in the time of John. Marjory has a 
 different story ; but she has no proof of feoffment except 
 her own statement and so, since Peter (the warrantor) 
 stood seised for a long time, the decision goes against 
 Marjory. " Et quia Margeria nihil ostendit de feffamento 
 nisi simplicem vocem suam et quia idem Petrus extitit 
 in seisina per multum tempus, consideratam est quod 
 Petrus inde sine die et teneat in pace et Margeria in 
 misericordia\" 
 
 1 Braoton's Note-Book, pi. 507. 
 
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CHAPTEE IV. 
 
 SECOND PERIOD CONTINUED. INCORPOREALS 
 AND VILLEINAGE. 
 
 Scope of Throughout the last chapter we were occupied with 
 
 chanter freehold estates in land and paid little or no attention 
 to the great division of real property known as ' things 
 incorporeal,' nor to any tenure less dignified than a 
 freehold. The present chapter must therefore be devoted 
 to these neglected branches of our subject. 
 
 When dealing with the law in Anglo-Saxon times 
 before the Conquest we had to remark that a clear 
 distinction between the ownership of land and the pos- 
 session of governmental powers over it was not to be 
 expected. To a certain extent this is true of the period 
 now under discussion, so that we must not look for any 
 well-marked difference in the matter of title between 
 corporeals and incorporeals. The distinction is not always 
 very clearly seen even to-day, and it was much obscured by 
 the intense realism of the early feudal ages\ This being 
 the case we should hardly have separated this chapter 
 from the last were it not that the break is convenient. 
 At the same time we shall find that during this period 
 incorporeals differ from corporeals in two important par- 
 ticulars as to title — marriage is comparatively unimportant 
 in the incorporeal sphere, while prescription, far from 
 being unknown, is very much to the fore. 
 
 1 "Eevera nullum jus esse poterit sine oorpore et subjecto oui ad- 
 haeret." Bracton, f. 378, b. 
 
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SEIGNORIAL RIGHTS 55 
 
 Let us look at some of the more important incorporeal Seignorial 
 
 rielits 
 things in turn, and first at seignorial jurisdiction and 
 
 other lordly rights. It is well known that every lord 
 
 with tenants enough to hold a court might establish 
 
 such a court. This feudal court, however, need not 
 
 detain us long here. It will be much more prominent 
 
 when the non-free tenants are dealt with\ but when the 
 
 free only are being considered the lord's right to hold a 
 
 court does not usually seem a very valuable or important 
 
 one. As a rule it could bring him little money, nor 
 
 could it do much to increase his power over the tenants. 
 
 Indeed it was afterwards disputed whether a lord could 
 
 exact suit of court from his men, and in 1267 it was 
 
 settled that to insure this right the lord must have 
 
 expressly bargained for it when enfeoffing his tenant or 
 
 else must rely on prescription. On the other hand there 
 
 were many cases in which the lord possessed seignorial 
 
 rights of a very lucrative character. These were not due 
 
 directly to the feudal relation between lord and tenant, 
 
 but were regarded, at least in theory, as having their 
 
 origin in specific grants from the Crown. Such grants 
 
 of immunities from taxation were common within this 
 
 period and, just as in earlier times, 'freedom from taxation' 
 
 usually meant that the grantee was to enjoy the benefit 
 
 of a tax that would have otherwise gone to the royal 
 
 treasury. As an example of extensive immunities we 
 
 shall give the charter of the Templars: — 
 
 "Job's D-i gfa tc. Sciatis nos concessisse et psenti carta Charter 
 
 of the 
 Templars. 
 
 nfa confirmasse I>o et Be Marie et fribs milit Tempi Saloin ^p^^, 
 ofns fonabiles donacones terraf hoiu et elemosinaf eisd a 
 pdecessorib3 nfis vl ab aliis in p.tito vl a noti inpsnti collatas 
 vl infuturo a regib} vl ex alioz libalitate coferendas vl alio 
 ni° adq'sitas vl adq'rendas tarn i ecciis q^m I reb3 et posses- 
 sonib3 mundanis. Qf velum et firmit poipim qS pdci fres et 
 eoa holes cms possessiones et elem suas Rant et teneant cu 
 oiiiib} liBtalibs et li^bis consuetudinib5 et q'etanoiis suis, in 
 
 1 See post, p. 69. 
 
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S6 SECOND iPERIOD. iNCOiBPOREALS 
 
 bosco et piano, in pratis et pasturis, in aquis et molendiii, 
 in viis, in semitis, in stagri et vivariis, et marisc, et piscariis, 
 et g^'ngiis, et virgultis, infra burgu et ext^ burgii, cu socca 
 et sacca, toft et them, et infangenthef et utfangenthef, et 
 
 hamsooa, et grithbriche, et blodwita et fichwita, et wita, 
 
 et fredwita, et hengewita, et leirwita, et flemengsfrith, et 
 murdro et lat°ciflo, et forstal et ordel et oreste infra tp et 
 ex^ tp, et i omib} locis et cu omib} cais q sat vel ee posit. 
 Concedim' & inperpetuu qa predci fifes q'eti sint de omib} 
 miis, et qfl ipi et oms hoies sui liW sint ab omi scotto et 
 geldo et oinib} auxiliis Regu et vioecomiti et oiniu ministraliu 
 eoa et hidag et carrac, et denegelfi, et hornegelfl, et excitib}, 
 et wapetac, et scutag, et taillag, et leslag, et stallag, schiris 
 et hundredis, et placitis et querel, et warda, et wardpeni, et 
 avpeni, et hundredpeni et borenhalpeni et thethinpeni et de 
 opib) custellox parcoa et pontiu clausuris et oi careio et 
 sumag et navigio et dofnm regaliii edificacone et oimda 
 opacone. Et phiberni' ne bosoi eos ad pdca opa vel aliq" alia, 
 ullo m° capiat'. Volum' & qS lite et suiEciet in q^libs occa- 
 sione possint cape de oinib} boscis suis ad us'dom' sue qn 
 voluint : ne ppt hoc in forisco de wasto vel in mia ponant"^. 
 omsq t'ras suas et essarta sua et homiii suoa ja fca et q fient 
 impost'ii assfisu regio, eis ippetuii q'eta clammam' de wasto et 
 rewardo et de visu forestarioa, et omib} aliis consuetudinib). 
 Concedim' & qfl ipi fres Templi et hoies sui libi sint et q'eti 
 ab oi toUones i omi foro et i omibj nudinis et i omi t^nsitu 
 pontiii, viaf, et maris, p totu regnu nrm et p oms t'ras nfas i 
 q'b} eis dare libtates p'sum' et oia m'cta sua et hoiii suoa 
 sint similiter in' p'doTs locis ab oi tollones q'eta. Concedim' 
 & eis et contirmam' qfl si aliq's hoiii suos p delicto suo vita 
 vl mbrum debeat amitt'e vl fug'it et judico stare nolu'it vl 
 aliud delict fec'it p q° debeat sive i curia Bra sive i alia cur, 
 similr si aliq's hoiu suoa sit i m'cia erga nos vl baftos nfos, 
 p q^c3 ca vl delicto vl forisfco, m'cie et m'ciamenta p'dcis frib} 
 reddant"^, s'vata regie potestati justic mortis et membroa. 
 Hec omia p'dca et oia alia sclaria s'vicia et cosuetudines que 
 i h scpto no coprehendunf eis conoed' et confirmam' inppetua 
 eleiii cix oinib} libtatib} et litis cosuetudinib} q^s regia 
 potestas litiores alicui domui religionis cofre p'.per I>i amore 
 et p aia H. Rx pris nfi et H et R frm nroa quonfl Regu i 
 
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CHARTERS 57 
 
 Angi et p salute fira et mris me A. Regifi, et omiu aiicesso^ 
 et successor nfoi. Et phibem' sup forisfcura nfam qfl nitis 
 eis vl hoib} suis oont" h^c carta Hram i aliquo forisfaciat, q 
 ipos et oms res et possessiones suas et hoiu suoa in custodia et 
 speciale ptectone nram suscepim'. 
 
 T. etc. 
 
 Dat p manu H. Cant. arch, canceiiii iiri ap Sagiii xvi die 
 Julii anno regni nfi primo^" 
 
 We need scarcely say that the grants in this charter 
 are unusually numerous. In fact the document has been 
 transcribed at length not so much to illustrate the form 
 of a grant as to show how much the king had at his 
 disposal. Generally, of course, only a few of these rights 
 are given away at one time, a normal charter being like 
 this : — 
 
 " Job's D-i gf a etc. justic etc. Soiatis qfl concessim' Alan Another 
 fil Com qS t'ra ej' de Waltbamsocne sit q'eta de sectis bun- " .^^i^„ 
 dredoa et schiraa et wappetac et de auxilio vicecom et de immuni- 
 omib} exactonib3 q ad nos ptinet exceptis q ptinet ad corona ''^^" 
 nram. 
 
 T. H. Cant, arcft. canceito firo ap Valle Rodolii xvm die 
 Julii anno regni nri primo o f qMiu erit i s'vicio nro, T. etc. ^ " 
 
 These royal grants of powers of jurisdiction, or more other 
 accurately of the profits of iustice, do not, in spite of their means of 
 
 •' ^ . . acquiring 
 
 profusion, account for the extensive claims set up by the seignorial 
 greater lords towards the end of the present period. P"^*^"^^- 
 Probably many of these ' rights ' were acquired by might 
 and enforced under the sanction of the sword and the 
 anathema. At any rate when Edward I., on his return 
 from Palestine, set up an inquiry into the origin of the 
 franchises and the various powers claimed by the lords, 
 most of these claimants relied entirely on a prescriptive 
 title. After much dispute it was settled that a con- 
 tinuous seisin since the coronation of Eichard I. would 
 constitute a good title, and a check was put on the further 
 growth of such powers. 
 
 1 Bot. Chart, p. 1-2. ' Ibid. p. 4. 
 
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58 SECOND PERIOD. INCORPOREALS 
 
 It has been seen then that, partly owing to royal 
 
 grants and partly to the natural working of feudalism, 
 
 the lords often obtained extensive powers of taxing their 
 
 tenants. These taxes we might look upon as rents, they 
 
 'ran with the land' and had to be paid by anyone in 
 
 Alienation possession of that land. In order to alienate such a rent 
 
 rightr^ the lord (A) had to give the alienee (B) seisin, and this 
 
 was done by handing over something valuable in the 
 
 name of seisin of the rent. However, such transfers were 
 
 not common before the thirteenth century, and when they 
 
 did occur it was thought necessary to execute and deliver 
 
 a deed as evidence of the transaction. These deeds were 
 
 very like the charters of feoffment of land discussed in 
 
 Deed of the last chapter. Britton, writing just outside the limits 
 
 gran . ^^. ^^j^^^ period, gives the following as the normal form of 
 
 deed : — 
 
 "A touz ceux qi ceste lettre verrount ou orrount J de 
 B salutz. Sachetz moi aver done a P pur le bon service qe il 
 me ad fet (ou pur autre certeyne chose) C. livres de annuele 
 rent en N et en S, issi que des maners avauntditz prenge la 
 avauntdite rente de an en an al jour de S. Michel, en qi qe 
 unqes meyns les maners devynent, a tote la vie mesmes cell P 
 [ou en fee a ly et a ses heirs et ses assignez] et dount en noun 
 de seisine jeo ly ay bailie C sous devaunt ineyn, et qe le 
 avauntdit fee ne ly soit detenu et qe ceo doun soit estable, jeo 
 oblige les avauntditz manors a la destresce mesme celi P 
 [ou a P et ses heirs et a ses assignez] issint qe ils les pusent 
 destreyndre en qi meynes qe il devivent ataunt avaunt cum 
 jeo mesmes fere poray et ataunt qe ils sereint parpayez del 
 princepal fee et de lour damages. Et jeo Johan et mes heirs 
 garranterons le avauntdit fee et a avauntdit P et a ses heirs 
 et a ses assignez a touz jours^." Date and witnesses as in an 
 ordinary charter of feoffment. 
 
 Then again the alienee (B) might wish to dispose of 
 his right to C. For this purpose B must execute and 
 deliver a deed like the above, or levy a fine ; but C must 
 
 1 Britton, f. 106, b. 
 
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FINES 59 
 
 complete his ownership by obtaining seisin of the rent. 
 This seisin on C's part required the attornment of the 
 actual tenant of the land from which the rent issued and 
 the receipt from that tenant of something in the name of 
 seisin of the rent. Bracton says that the tenant could 
 not refuse his assent except for substantial reasons. In 
 case, however, the tenant were obdurate and persisted 
 in his refusal then recourse would be had to a fine and 
 the court would compel attornment'. We have numerous 
 records of fines of rents and services. Thus in the seventh Fines. 
 year of John's reign there was a final concord between 
 Henry of Nordwde and Roger of Bray — in Bedfordshire — 
 " de servitiis Willelmi P. de tenemento quod de ipso 
 Henrico tenet in la Felde et de servitiis Hugonis de la 
 Felde de tenemento quod tenet de ipso Henrico in la 
 Felde. Et de servitiis Roberti filii Matillidae de tene- 
 mento quod tenet de ipso Henrico in Sivelestro et de 
 servitiis Osberti Butch de tenemento quod tenet de ipso 
 Henrico in Pollokishello." 
 
 We have laid stress on the fact that for secure owner- Impor- 
 ship of the rent the grantee must obtain seisin, and the geisin. 
 model charter from Britton shows how this was done. 
 Bracton also emphasises the importance of seisin. Speak- 
 ing of the acquisition of incorporeal things in general he 
 points out that they do not admit of delivery^ " They 
 are acquired by the view alone of the acceptor or his 
 agent and by the will and affection of possessing," and of 
 these the deed is but evidence. In this way a sort of 
 quasi-seisin is obtained, but Bracton is careful to add 
 that the right so acquired may be readily lost by non- 
 user— "sed nunquam retinetur nisi per usum verum." 
 Thus we are brought back to actual seisin either by 
 oneself or one's ancestor as the only safeguard to title. 
 
 The next incorporeal thing to occupy our attention Advow- 
 
 son. 
 
 1 Compare Britton, f. 106. 
 
 " " Traditionem non patiuntur," Bracton, f. 222. We may remark 
 however that this is equally true of land — the delivery in both cases 
 must be symbolic. 
 
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60 SECOND PERIOD. INCORPOREALS 
 
 will be the advowson — the right of presentation to a 
 vacant ecclesiastical benefice. This right must often 
 have been a valuable one, if the value of a thing can be 
 gauged at all by the amount of litigation to which it 
 gives rise. 
 Advowson As a rule an advowson was appurtenant to a manor 
 tenant. ^^'^ ^^ the ordinary course was transferred along with 
 that manor. In such a case title to the advowson was 
 the same as title to the manor and so need not delay us 
 here. The only point for remark is that there might be a 
 Difficulty difficulty over the question of dower. If there had been 
 dower. a specific appointment — definite lands with their appur- 
 tenances — then, of course, if an advowson were one of the 
 appurtenances of the dowered land, the widow had the 
 right of presentation. If, however, there had been no 
 such specific appointment, the matter was less simple. 
 For ' reasonable ' dower was declared to be one-third part 
 of the husband's lands and tenements with their appur- 
 tenances. Now these appurtenances might include an 
 advowson, and as this could hardly be divided we should 
 expect some trouble. Bracton says " If satisfaction has 
 not been made to the woman in the matter of the 
 advowson from another source, it seems at first sight that 
 if the church has become vacant three times in her 
 lifetime she ought ' de aequitate ' to have the third 
 presentation. But it is of importance for this purpose 
 how she has been endowed and how the dower has been 
 appointed originally ; and if it has been of the third part 
 and there is only a single manor and one advowson, or if 
 there are three several manors and several advowsons, the 
 wife cannot claim anything of the advowsons by reason of 
 her third part, unless in the appointment of dower it has 
 been specially agreed that she ought to have something 
 therefrom and it is reasonable'^." 
 Advowson In many cases, however, the advowson might be 
 in gross, conveyed without the manor or vice versa. We then 
 
 1 Bracton, f. 96. Op. f. 243, " de assisa ultima praesentatione. " 
 
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ADVOWSONS 61 
 
 have an ' advowson in gross,' as it is now called. Such 
 a right was usually transferred by deed ; but this was 
 not actually necessary^, as a grant by word of mouth in 
 view of the church was sufficient. This gave the grantee 
 the right to the next presentation, but his ownership 
 was not complete until he had obtained actual seisin by 
 exercising his right. Until this was done, he had no 
 power of alienating the advowson^ ; and further he lost all 
 right to presentation if when the first vacancy occurred, 
 he allowed someone else to usurp his right^ 
 
 It need scarcely be said that an ' advowson in gross ' Pines, 
 could also be transferred by levying a fine. We have 
 numerous records of such transactions, thus : — 
 
 "Haeo est finalis concordia facta in Curia Domini Regis 
 apud Westmonasterium a die Paschae in unum mensem, anno 
 regni regis Johannis none, coram ipso Domino rage, Simone 
 de Pateshull, Jaoobo de Poterne, Henrico de Ponte Andomeri, 
 Justiciariis, & aliis fidelibus Domini Regis tunc ibi praesentibus, 
 inter Thomam de Preston per Alexandruni Walensem positum 
 loco sue ad lucrandum vel perdendum et Rudulphum Abba- 
 tem Westmonasterii deforciantem de advocatione ecclesiae de 
 Perham, unde recognicio ultimae praesentationis summonita 
 fuit inter eos in praefata curia : scilicet quod praedictus 
 Thomas recognovit advocationem praedictae ecclesiae esse jus 
 ipsius abbatis & conventus & ecclesiae S. Petri de West. & 
 eam remisit & quietam clamavit de se et heredibus suis, eidem 
 Abbati & Conventui et eorum sucoessoribus & ecclesiae S. Petri 
 de Westm. imperpetuum. Et praedictus abbas & conventus 
 receperunt eum in singulis beneficiis & orationibus quae fiunt 
 in ecclesia sua de Westm. imperpetuum ""." 
 
 From this it will be seen that title to an advowson was 
 very like that to freehold land. It might be transferred 
 by descent or by gift, and in the latter case a deed or 
 fine was usual and actual seisin of the first importance. 
 
 1 Bracton, f. 222. 
 
 ^ "Et quod non habuit ad alium transferre non potuit.'' Bracton, 
 f. 242, b. 
 
 ^ " Nunquam retinetur nisi per usum verum." Bracton, f. 222. 
 ■• Form. Ang. cccLXiv. p. 220. 
 
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62 
 
 SECOND PERIOD. INCORPOREALS 
 
 Bights of 
 common. 
 
 Further, there might be dower of an advowson, although 
 this only in exceptional cases, and finally the rule of 
 'curtesy' applied ^- 
 
 We must turn now to one of the most, important of 
 the incorporeal things that come within the scope of our 
 survey — rights of common. When dealing with Anglo- 
 Saxon times we had something to say of the allotment of 
 land in a village community. It was noticed that the 
 arable land was held in severalty and that, appendant to 
 each strip, was a right to turn out a certain number of 
 animals on the common pastures. This no doubt is the 
 most venerable form of the right of common, and it was 
 found practically unaltered in the feudal period now 
 under discussion. One of the most important functions 
 of the manorial court was to decide, by the verdict of a 
 jury of neighbours, the number and kind of cattle that 
 could be turned upon the common pastures from each 
 holding. Thus at the end of the reign of Henry III. the 
 Glastonbury Survey has this record, " Each hide may send 
 to the common eighteen oxen, sixteen cows, one bull, the 
 offspring of the cows of two years, two hundred sheep 
 with four rams, as well as their offspring of one year, four 
 horses and their offspring of one year, twenty swine and 
 their offspring of one year.'' 
 
 At a later period rights of common were divided into 
 three distinct groups — common appendant, common ap- 
 purtenant purtenant, and common in gross. ' Common appendant ' 
 is the right, described above, of putting a certain number 
 of commonable beasts to pasture on the common fields, 
 the number and kind being fixed by local custom in 
 accordance with the size of the holding. 'Common 
 appurtenant ' is also a right that runs with the land ; 
 but it is of the nature of a special privilege permitting 
 the tenant to put on the common animals not ordinarily 
 allowed by custom. ' Common in gross ' is a personal 
 privilege. It does not pertain to a particular plot of land, 
 
 Common 
 appen- 
 dant, ap- 
 
 and in 
 gross. 
 
 ' Bracton, f. 243 and f. 245. 
 
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COMMONS 63 
 
 but is granted to a definite person. Now the origin of Origin of 
 , . , ... J. 1 1 „ common 
 
 common appendant has given rise to a great deal or appen- 
 
 learned controversy. To enter into the details of this '^*'^*- 
 discussion would occupy more space in this essay than the 
 relative importance of the subject deserves. We shall 
 content ourselves therefore with a brief statement and 
 refer for fuller information to the writings of Williams, 
 Elton, Scrutton and Vinogradoff^. 
 
 Bracton has a good deal to tell us about rights of 
 common, although what he says is introduced rather 
 casually when dealing with the assise of novel disseisin^- 
 However he nowhere makes the triple division described 
 above, and there can be little doubt that the names 
 ' common appendant,' ' common appurtenant ' and ' com- 
 mon in gross ' belong to a later age. It is equally certain 
 that what is now called ' common in gross ' was quite 
 familiar to Bracton. He mentions it three times in his 
 discussion, mainly however to deny that it should be 
 described as a ' right of common**.' That name he prefers 
 to reserve for a right that pertains to a tenement, and 
 he does not distinguish the two forms of this right — 
 appendant and appurtenant. This omission on Bracton 's 
 part has led some to conclude that the distinction is due 
 merely to the ingenuity of later lawyers and that both 
 forms of the right have the same origin, being acquired 
 by grant from the lord or by prescription that presupposes 
 such a grant. To say however that both rights are due 
 in theory to grants from the lord is to throw very little 
 light on the difficulty. For such a statement merely 
 draws attention to the well-known feudal principles of the 
 period, in accordance with which land was always held of 
 some lord. This feudal theory may have obscured the 
 distinction ; but in spite of that we think that there was 
 
 ' Williams, On Commons (lectures iii. — ^vii.) ; Elton, Laws of Com- 
 mons ; Scrutton, Com,mons, Common Fields (chap. i. — in.) ; Vinogradoff, 
 Villainage in England (Essay ii. ch. 2). 
 
 ' Bracton, f. 222 and f. 234. 
 
 3 Ibid. f. 222 ; f. 225 ; f. 228. 
 
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64 SECOND PERIOD. INCORPOREALS 
 
 a real difference in the ways in which the. two rights arose, 
 and that, while common appendant represents the old 
 (pre-conquest) right of common that pertained to each 
 holding of arable land, common appurtenant is less vener- 
 able and came by direct grant from the lord or by 
 prescription. 
 
 Moreover, although it is true that Bracton does not 
 speak explicitly of this division, there is nothing in his 
 treatment that is opposed to its existence and a good deal 
 that seems to presuppose it. Thus he contrasts ' normal 
 rights' with those claimed by special grant. He says 
 that "some things are excepted tocii^i/ and some expressly; 
 and they cannot be exacted in virtue of pasturage unless 
 they are specially granted^" He is careful to explain 
 that a right of pasture cannot be claimed by a tenant 
 holding land reclaimed from the waste, or enclosed from 
 the meadow, except it be by special grant or prescription^. 
 In discussing the lord's rights he points out that even he, 
 though legally the owner of the common, is subjected to 
 the customary rules as to pasture, rules that are settled 
 by the tenants. Further we are told that if the lord 
 attempted to sell part of the common, the tenants were 
 entitled to a share of the proceeds. In fact it required a 
 special statute^ to give the lord power to 'approve' some 
 of the common land, and in so doing he was bound to 
 respect the customary rights of the free tenants*. It 
 should be noticed, too, that this very enactment seemed 
 to presuppose the division under dispute, for its operation 
 was confined to those that claimed by customary right^ ; 
 and a special act" was needed to give the lord similar 
 powers over those whose title rested on special grant or 
 prescription, such as the ' forinseci tenentes ' and the 
 commoners by agreement ' inter vicinum et vicinum'.' 
 
 ' Bracton, f. 226, b. 
 
 2 Ibid. f. 226 and 228. 
 
 ■> Stat, of Merton, a.d. 1236. 
 
 •> Bracton, f. 227, b. ' Ibid. f. 228. 
 
 « Westminster II., a.d. 1285. ' Ibid. c. 46, 
 
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PRESCRIPTION 65 
 
 It seems then that throughout this period there 
 existed a right very similar to that known in later 
 days as ' common appendant.' It adhered to every free 
 tenement in the vill and by its virtue the holder of the 
 tenement could turn a certain number of beasts on the 
 common — the number of beasts, their kind, and the times 
 at which this right could be lawfully exercised being all 
 regulated by custom and settled, in case of dispute, by a 
 jury of the tenants. The right passed with the land, that 
 is to say when A enfeoffed 5 of a bovate of land, so much 
 of the right of pasture as pertained to a bovate in that 
 particular village was presumed to be granted with the 
 arable portion. In such a case however Bracton was 
 careful to warn the feoffee that he might lose his right 
 by negligence. He ought to turn his ' quasi-seisin ' into 
 an actual one, or he might find himself in the same sad 
 predicament as the man privileged to hang robbers who 
 lost his right by non-user\ 
 
 It must not be supposed however that this was the 
 only way of acquiring a right of common. For a tenant 
 belonging to a different manor might enjoy the right, and 
 again the right itself might be much wider than what the 
 ordinary tenant could claim. In such cases however it 
 must have been acquired either by direct grant from 
 the lord or by prescription, A prescriptive title was Prescrip- 
 constituted by peaceable possession, with continuous, 
 open and undisputed use ' for a long time.' The exact 
 length of time required is not stated by Bracton. He 
 tells us, indeed, that the claimant " ought to show long 
 time and long user — such, for instance, as exceeds the 
 memory of man ; for such a time suffices for right, not 
 because right fails, but because an action fails or proofs." 
 This, however, is not properly prescription, but a limitation 
 of actions. The cases in Bracton's Note-Book throw more 
 light on the problem, for from these we learn that one 
 whose title was challenged in an action "quo jure clamat 
 
 1 Bracton, f. 223 ; f. 223, b ; f. 226, b. 
 3 Ibid. f. 230, b. 
 
 IM. B, 5 
 
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66 
 
 SECOND PERIOD. INCORPOREALS 
 
 Common 
 
 'pro 
 
 vioinitate. 
 
 Impor- 
 tance of 
 seisin. 
 
 Common 
 in gross. 
 
 communam " must, if he relied on long user, be able to 
 allege a continuous seisin since the Conquest. 
 
 Another variant of title was that 'pro vicinitate^' 
 ' It was due to a tacit or specific agreement between 
 neighbours that each would admit the other's cattle to 
 pasture on the uncultivated land between the holdings. 
 
 In all these cases it was important to obtain actual 
 seisin of the right, for till then it was precarious. More- 
 over, just as with an advowson^, the right could not be 
 alienated before actual seisin had been secured I Aliena- 
 tion was effected by the transfer of the tenements to 
 which the rights pertained, and a view by the grantee or 
 his agent of the lands over which these rights were to 
 be exercised — all this taking place in the presence of 
 neighbours as witnesses. In case the rights were of a 
 peculiar nature requiring the evidence of deeds, then 
 these deeds were handed to the grantee^. 
 
 So much of commons appendant and appurtenant. A 
 right of common by itself — what would now be called a 
 common in gross — was acquired, if the donor expressed an 
 intention to give and the donee to receive the benefit, 
 by viewing the ground over which the right was to be 
 exercised. In this case it was especially important to 
 obtain actual seisin in order to insure one's ownership and 
 acquire the power of alienation^- References to grants 
 of ' common in gross ' are often met with in the annals of 
 the period. Here are two from the chronicles of Meaux : — 
 
 In the time of the fourth abbot (1197 — 1210) we read 
 that " Thomas... dedit nobis quicquid pertinet ad tertiam 
 partem trium bovatarum terrae in praescripto West-Kerre 
 de Suttona juxta Forthdyk""; and about the same time 
 " In quo quidem escambio praefatus Johannes dedit nobis 
 
 1 Braoton, f. 222, b ; f. 225, b ; f. 230. 
 
 2 See p. 61. 
 
 3 Braoton, f. 225. 
 
 * Ibid. f. 222 ; f. 223 ; f. 225 ; f. 229 ; and Britton, f. 142. 
 
 « Ibid. f. 225. 
 
 " Chronica Monasterii de Melsa i. 300. 
 
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COMMON OF PISCARY, ETC. 67 
 
 in Westmarisco de Suttona pasturam quanta pertinet ad 
 X bovatas et dimidiam terrae in Suttona'." 
 
 Closely resembling these rights of common of pasture Common 
 were the rights of turbary and piscary and of '' cutting or tary, pis- 
 lopping in the forest or wood of another or in other waste "^"^^ ^^°- 
 places for reasonable, estovers for the purpose of building^." 
 The relative importance of this subject would scarcely 
 justify us in entering into its details. We shall content 
 ourselves, therefore, with a story from the Meaux Chron- 
 icles to illustrate the origin of such rights and the pro- 
 cedure in case of dispute. In the account of the rule of 
 the fifth abbot (1210 — 1220) we find "atque Johannes 
 de Lasceles dedit nobis unum clausum in Setona, super 
 marram de Wathsand, et piscationem unius sagenae in 
 tota marra de Wathsand et de Hornsel" At a later 
 period, under the ninth abbot (1249 — 1269), this fishing 
 at Hornsey is again referred to. According to the Meaux 
 chronicler the abbot and convent of York have usurped 
 the rights belonging to Meaux, and the monks of the 
 latter monastery decide to contest the matter. They 
 rely on the grant from John de Lasceles mentioned above 
 and on a charter of confirmation given by his descendant 
 William. An elaborate contract is made with William 
 in accordance with which he is, for a consideration, to 
 become principal in the suit they are about to institute 
 against the Abbot of St Mary of York. The case is 
 called and after much altercation a judicial contest 
 ensues. It ends in William Lasceles resigning all claim 
 to the fishing in consideration of an annual charge of 
 two marks to be paid to him and his heirs'*. This does 
 not seem to satisfy the Abbot and Convent of Meaux 
 and they decide to renew the suit on their own account. 
 Again a great altercation takes place and a judicial duel 
 has to be arranged. The jury proceed to view the mere, 
 
 ^ Chronica Monasterii de Melsa, i. 311. 
 
 " Braoton, f. 230. 
 
 ■* Chron. Mon. de Melsa, i. 869. 
 
 " This, however, he afterwards conferred on the Meaux people. 
 
 5—2 
 
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68 SECOND PERIOD. INCOEPOREALS 
 
 and the boundary of the part claimed by the monastery 
 is traced by a man on horseback and marked out by 
 stakes. Then the duel begins and lasts 'from morn to 
 dewy eve/ — "a mane usque ad vesperum" — ^but the 
 chronicler has to confess that the Meaux champion was 
 getting the worst of it, " athleta nostro paulatim suc- 
 cumbente." At this stage a judge friendly to Meaux 
 intervenes and suggests a compromise, and so, for a 
 consideration, all claim to the piscary is resigned into 
 the hands of the Abbot and Convent of York'. 
 Servitudes ^g ^o servitudes in general, Bracton remarks that 
 their number was infinite. " Jura siquidem, quae quis 
 in fundo alieno habere poterit, infinita sunt^." As a rule 
 they pertained to a tenement, but they also existed ' in 
 gross ' and in either case had their origin in grant or 
 prescription. " Servitudes belong to an estate from a 
 constitution or an imposition of them by the free will 
 of the lord. They may also belong to it without 
 such a constitution by long, continuous and peaceable 
 usage, not interrupted by any impediment contrariwise 
 from sufferance between those present which is taken 
 for consent'." Like all incorporeals they were transferred 
 '■ by the view alone of the acceptor or his agent, and by 
 the will and affection of possession*," and as usual actual 
 seisin was a most important safeguard. We shall give a 
 few examples, from the Meaux chronicles, of easements 
 obtained by direct grant, leaving the illustration of title 
 by prescription to the litigation of the periods 
 
 (A) " Thomas... ductum aquae de Skyrena ad facienda 
 molendina et alia aisimenta nostra ibidem nobis conferebat, 
 pro anima matris suae quae apud nos manet tumulata^" 
 
 (B) "Fulco de Basset, praepositus Beverlacensis... con- 
 cessit nobis quod portam et semitam haberemus a grangia 
 nostra de Hayholmo usque Levenam, sicut habuimus tem- 
 
 1 Ghron. Mon. de Melsa, ii. pp. 97—102. 
 
 2 Bracton, f. 221, b. » Ibid. f. 221. 
 ■• Ibid. f. 222. 6 gee p. loo. 
 * Cliron. Mon. de Melsa, i. 317. 
 
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VILLEINS 69 
 
 poribus antecessorum suorum. Et, si ex alia parte domus 
 personae de Levena porta exstructa fuerit, clavem haberemus 
 ad aperiendum nobis et propriae familiae nostrae cum perinde 
 transire necesse haberemus ; atque sic viam per mediam villam 
 de Levena usque ad ecclesiam, ac inter ecolesiam et rectoriam 
 per semitam quandam ad hoc assignatam, equitando, pedes 
 eundo, vel equos ducendo, usque in dominicum nostrum de 
 Hayholmo, et e converse, soliti sumus exercere'." 
 
 (C) " Saierus concessit nobis liberuro transitum cum 
 carectis nostris et carris ubique in territorio de Suttona ; 
 ita ut liceret nobis bladum nostrum metere, foenum falcare, 
 turbas fodere, et ad libitum nostrum haec omnia cariare^." 
 
 (D) Robert de Percy laid claim to a certain watercourse 
 — " sed tandem ductum ipsius aquae nobis teneri quietum 
 per chartam renovabat^." 
 
 So far we have been dealing exclusively with the The 
 freehold and its appurtenances and with those rights 
 over land which the free man might exercise. We shall 
 now turn to the unfree and consider some of the interests, 
 akin to those already discussed, that could be held by 
 these people. 
 
 In legal theory the lords were owners not only of the 
 goods but even of the bodies of their serfs, and in actual 
 practice they could remove the peasants from their holdings 
 at their will. At all events the evicted ones could make 
 no appeal to the royal courts. In fact this was the great 
 dividing mark between the free and the unfree. Glanvill 
 remarks: — -"It is to be observed that according to the 
 customs of the kingdom no one is bound to answer in 
 the court of his lord concerning any/ree tenement of his 
 without the writ of our lord the king or of his chief 
 justiciar^." Bracton completes the picture by telling us 
 that in case the lord evicted a villein the king would 
 certainly not interfere : " Domiaus rex non vult se de eis 
 intromittere''." At the same time it would be a mistake 
 
 1 Ghrcm. Mon. de Melsa, ii. 42. "" Ibid. ii. 87. 
 
 ^ Ibid. It. 147. ' Glanvill, xii. 25. 
 
 5 Bracton, Note-Book, pi. 1237. 
 
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70 SECOND PERIOD. VILLEINAGE 
 
 to suppose that the villein was without rights and abso- 
 lutely unprotected. He could act in every way like a 
 freeman provided his lord permitted him to do so, and 
 although his property was technically his lord's, this did 
 not give anyone but the lord any rights over that property. 
 And even against the lord he sometimes had more than 
 the protection of mere custom. Not uncommonly he had 
 a convention with his lord, and this the latter was bound 
 to respect'. 
 Eights of As to the rights of those holding in villeinage, they 
 
 were far from uniform. Even free men could hold in 
 villeinage. They did not lose their status by so doing, 
 and they were distinguished from the ordinary villein by 
 the fact that they were perfectly free to leave the lord 
 and could not be evicted except for failure to perform the 
 services in consideration for which their holdings were 
 granted. However, this right of leaving the land was 
 practically of very little value, and the word ' villanus ' 
 was often used quite indiscriminately for free and unfree 
 alike who held in villeinage. But this intermixture of 
 free and unfree is not the only thing that complicates 
 the discussion of the rights of the ' villani.' Even when 
 the free are put aside, some further distinctions are 
 necessary. Thus Bracton draws a line between ' pure ' 
 and 'privileged' villeins, the latter being in a sort of 
 middle position between the undoubted freeman and 
 the mere ' tenant at will of the lord.' As time went on 
 these privileged ones were styled 'villeni socmen' to 
 distinguish them from the ordinary villein. Many of 
 them were probably the representatives of those tenants 
 that (before the Conquest) held their land by base services, 
 characterised however by their fixity. Others, again, 
 had been free men before the Conquest, a fact that throws 
 light on the intromixture in privileged villeinage of 
 notions usually associated with freeholds. 
 
 Privileged villeins were especially common in those 
 
 ' See Viuogradoff, Villainage in England, pp. 70 — 74. 
 
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RIGHTS OF VILLEINS 71 
 
 manors that belonged to the Crown at the time of the 
 Conquest — the ' ancient demesne ' as it was called. Thus 
 Bracton' says "The tenants of demesnes of the lord the 
 king have such a privilege that they cannot be removed 
 from the soil as long as they are willing and can perform 
 the required service.... They do villein service, but it is 
 certain and determined ; nor can they be compelled 
 against their will to hold this kind of tenement, and 
 for this reason they are called free." However, although 
 they might be loosely called ' free ' to distinguish them 
 from their less fortunate fellows, their position was in 
 many respects a servile one, and Bracton himself insisted 
 that their tenure was really villeinage, although a privi- 
 leged one. Still it was not true of them as of the 
 ordinary villein that the king would refuse to interfere 
 in disputes concerning their holdings, for, if properly 
 stimulated, he might be induced to issue his ' little writ 
 of right close ' and so initiate an action. If this were 
 done the case was heard in the first instance by the 
 manorial and not by the royal court ; but the tenant 
 might challenge the judgment and then — though with 
 great difficulty — get the matter removed to the court 
 of the king. In addition to this it should be observed 
 that, if the lord endeavoured to impose additional services 
 on his tenants or otherwise oppress them, the king might, 
 on petition, interfere with his writ of ' monstraverunt.' 
 Such privileges were, as has been said, common on all 
 lands belonging to the ' ancient demesne,' but even there 
 we find instances of pure villeinage, i.e. tenure at the 
 will of the lord. Thus the Stoneleigh Register has this 
 entry : — 
 
 " Et quod in eodem manerio sunt diverse tenure secundum 
 consuetudinem manerii illius totis temporibus retroactis usi- 
 tatam, videlicet quidam tenentes ejusdem manerii tenent terras 
 et tenementa sua in sokemanria de feodo et hereditate de qua 
 quidem tenura talis habetur et omni tempore habebatur 
 consuetudo, videlicet quod quando aliquis tenens ejusdem 
 
 1 Bracton, f. 209. 
 
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72 SECOND PERIOD. VILLEINAGE 
 
 tenure terram suam alicui alienare voluerit, veniet in curiam 
 coram ipso Abbate vel ejus senescallo et per virgam sursum 
 reddat in manum domini terram sic alienandam...Et si aliquis 
 terram aliquam hujusmodi tenure infra manerium predictum 
 per cartam vel sine carta absque lioentia dioti Abbatis aliena- 
 verit aliter quam per sursum reddicionem in curia in forma 
 predicta, quod terra sic extra curiam alienata domino dicti 
 manerii erit forisfacta in perpetuum. Bicunt etiam quod 
 quidam sunt tenentes ejusdem manerii ad voluntaiem ejusdem 
 abbatis. Et si quis eorundem tenencium terram sic ad volun- 
 tatem tentam alienaverit in feodo, quod liceat dicto Abbati 
 terram illam intrare et illam tamquam sibi forisfactam sibi in 
 perpetuum retinere'." 
 
 Villeinage However, even where the villein held at the will of his 
 eustomf ^°^*^' customs grew up to regulate that will and check 
 its caprice. And as time rolled on these customs were 
 stereotyped, they began to get inserted in surveys and 
 other documents, until at length they acquired a moral 
 sanction almost as effective as a legal one. In this way 
 hereditary right was established, although the heir had to 
 pay the lord, by relief and heriot, for the privilege of 
 succession. As a rule all the land went to one son, very 
 often to the youngestl Again we find that a widow 
 usually had a right to 'free-bench,' just like the free 
 woman's right to dower, but she had to make a payment 
 to the lord to insure it. The rules as to free-bench were, 
 of course, regulated by custom and so varied in different 
 manors. Usually the widow was restrained from marrying 
 again'' and was bound to chastity. Occasionally, too, a 
 custom analogous to ' curtesy ' existed, but this was far 
 less common than ' free-bench.' Then again a right of 
 common pertained to a villein tenement just as to a 
 freehold, and the arrangement of the common was regu- 
 lated by custom, in the control of which free and unfree 
 
 1 Stoneleigh Begister, 32, quoted by Vinogradoff, Villainage, p. 116. 
 
 ■^ In Kent, as is well known, an equal division was made among the 
 sons. 
 
 2 In Kent, however, she was entitled to half the lauds of her husband 
 and she did not forfeit this on a second marriage. 
 
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GRANTS TO VILLEINS 73 
 
 shared alike. Indeed the rules as to rights of common 
 afford a striking instance of the thinness of the line 
 dividing the two sections of the community. We even 
 find the lord making contracts about the common in a 
 way that shows how empty might be the phrase that the 
 villein held ' at the will of his lord.' Thus in the records 
 of the manor of Brightwaltham at the end of the thirteenth 
 century we read "To this court came the whole commonalty 
 of the villeins of Brightwaltham and of its mere and 
 spontaneous will surrendered to the lord all the right and 
 claim that the said villeins had heretofore claimed by 
 reason of common in the lord's wood called Hemele and 
 the circumadjacent lands, to the intent that neither the 
 said villeins nor those that hereafter shall hold their 
 tenements shall henceforth be able to exact, demand or 
 have any right or claim by reason of common in the said 
 wood and circumadjacent lands. And in return for this 
 surrender the lord of his special grace has remised to 
 them the common that he had in the field called Eastfield 
 that lies along the road running from the Red Pit to the 
 lord's wood called Hemele. And he has further remised 
 to them the common that he had in the wood of the said 
 villeins called Trendale, to the intent that the said lord 
 shall have no beasts pasturing in the said common nor in 
 the said wood. And the lord has also granted that, at the 
 time of pannage, so soon as ever the lord shall enter his 
 said wood of Hemele for the purpose of pannaging his pigs, 
 the said villeins also may enter with their pigs until 
 Martinmas and shall give for pannage according to the 
 age of the pigs as is more fully set out in the Register of 
 the Abbey — to wit ; for a pig of full age a penny, and for 
 a younger pig, a half-penny\" 
 
 In addition to title by descent, and the life interests 
 acquired under the customs of ' free-bench ' and ' curtesy ' 
 already mentioned, a villein tenement might also be 
 obtained by gift or purchase. However, at least in pure 
 
 ^ Select Pleas in Maiiorial Courts, vol. x. Selden Soo. vol. ii. p. 172. 
 
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74 SECOND PERIOD. VILLEINAGE 
 
 villeinage, the holding could not be divided and, if dis- 
 posed of at all, must be transferred as a whole. The 
 Mode of universal method of conveyance both in pure and in 
 ance^^' pi'ivileged villeinage was by ' surrender and admittance' ' ; 
 the use of feoffment and charter was confined to freeholds, 
 and any conveyance by these means was of itself enough 
 to convert villeinage into freehold. The symbolic transfer 
 by the rod is referred to in the extract from the Stoneleigh 
 Register given above'- The rod was handed by the alienor 
 to the lord or his steward and he transferred it to the 
 alienee. It may be remarked that there was nothing 
 essentially servile in this ceremony^, for we have seen 
 something very like it accompanying the transfer of 
 freeholds in Anglo-Saxon times* ; and even in the feudal 
 period it was sometimes observed on such occasions. 
 Thus when Alexander of Budiscombe sold his land to 
 Thomas he handed a branch to the lady of the fee, and 
 this she transferred to Thomas in the name of seisin of 
 the land. " Et ipse Alexander se inde demisit et per 
 unum ramum arboris earn terram mihi quietam reddidit 
 in manum, ad saisendum praedictum Thomam de ilia ; et 
 ego aaisivi Thomam inde per eundem ramum arboris — ad 
 tenendum in capite de me et de meis heredibus, sibi et 
 suis heredibus." 
 
 This ceremony was performed in court^ so as to 
 obtain the witness of the neighbours, whose testimony 
 was employed to decide disputes. In this way the mem- 
 bers of the manorial court* played a very important part 
 
 ' Cp. extract from Stoneleigh Register quoted above, p. 71. 
 
 2 Ibid. 
 
 3 A similar practice was known to Frankish law with reference to 
 freeholds. ■■ Ante, pp. 9 and 22. 
 
 ^ A case is recorded in 1301, on the rolls of King's Eipton, in which 
 the ceremony was performed out of court. This, however, was evidently 
 exceptional and was permitted only because the alienor " detentus fuit 
 gravi infirmitate quod nuUo modo potuit ad curiam domini accedere." 
 
 " In the present period there was but one court — the halimot — for 
 free and untree, and the number of freeholders was as a rule relatively 
 small. At u, later time a division was made, the Court Baron being 
 reserved for freeholders, the Customary Court for villeins. 
 
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'COPY OF COURT EOLL ' 75 
 
 in the ceremony of conveyance. Towards the middle of 
 the thirteenth century some of the more prudent of the 
 lords began to keep records of the proceedings in their 
 courts^ The original objects of these records had little 
 to do with evidence of title ; but it was not long before 
 the advantages of some written evidence became apparent, 
 and tenants made payments to have records of the con- 
 veyance of their property entered on the court rolls ^. In 
 later times this became the most important evidence to 
 title, and the holder was described as tenant ' by copy of 
 court roll.' Perhaps however undue stress has sometimes 
 been laid upon this element of the proceedings. What 
 was really essential was the testimony of the court"; the 
 rolls were but a record of the proceedings and so not 
 absolutely indispensable. 
 
 1 The earliest roll extant dates from 1239. 
 
 2 See, e.g., case (L), p. 105. 
 
 3 The oases D, B, H and I cited in the next chapter illustrate the 
 fact that the court was generally described as a 'full' one. See pp. 103, 
 104, 105. 
 
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CHAPTER V. 
 
 SECOND PERIOD CONCLUDED. CASES. 
 
 The last two chapters have been taken up with a 
 review of title from the Conquest to Edward I. In the 
 present one we do not intend to add anything new, our 
 aim is simply to illustrate what has already been said by 
 reference to some of the leading cases of the period. The 
 devotion of a whole chapter to these cases needs no 
 apology, since the merest tyro must have learnt to some 
 Import- extent the extreme importance of judiciary law in 
 case law. England. The peculiar weight attached to judicial de- 
 cisions is doubtless due to the practice that English 
 judges have always adopted of stating publicly the reasons 
 for their decisions and quoting the authorities on which 
 they were based. Be that as it may, we find that even 
 before the Conquest the advocates were often learned in 
 judicial precedents ; and at a later date Bracton^ — himself 
 one of the few private authorities^ — quoted cases fre- 
 quently^ and handed down for our use a large and 
 valuable collection''. 
 
 In arranging the cases it will be convenient to follow 
 as nearly as possible the order that has been observed in 
 
 ^ De legibus Angliae—viriiten about a.d. 1260. 
 
 ^ Bracton has been quoted authoritatively in Court within the last 
 few years. 
 
 ^ Prof. Maitland says that Bracton mentions 494 cases. 
 ■■ Bracton's Note-Book (edited by Prof. Maitland). 
 
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CHARTERS OF FEOFFMENT 77 
 
 the previous discussion. We begin, therefore, with things 
 corporeal and take title by ' gift ' first : — 
 
 (1) Abbot Oilbert v. Earl Gilbert and others, a.d. Charter of 
 1145. In this case a solemn declaration (in writing) g™™o™e' 
 by Bishop Bernard is put in as evidence. The Bishop livery of 
 declares that he was present and saw and heard Robert 
 Gernum give to St Peter and to the Abbot of Gloucester 
 
 and to the monks the church of Wirecesturia of Laverke- 
 stoke "et omnia quae ad easdem ecclesias pertinent, et 
 dimidium molendinum, et medietatem terrae quae ad 
 illud pertinet." He affirms also that he knows that King 
 Henry confirmed this gift by a charter, and adds that 
 he saw the queen (Matilda) lead R. G. to the altar of St 
 Peter, and there in the presence of many others R G. 
 confirmed the gift " per cultellum super altare \" 
 
 (2) Gilbert Averell and Amice his wife v. Mathew de 
 Eston, A.D. 1200. The plaintiffs claim half the towns of 
 Normanton and of Eston as the dower of Amice, formerly 
 
 the wife of John de Eston. " And John was seised thereof Symbolic 
 and endowed her thereof and gave her seisin thereof at "^'^'^' 
 the church porch by a certain broken knife which she 
 shows^." 
 
 The importance of actual seisin has often been insisted 
 on and numerous illustrations of this are to be found in 
 the reports. Thus : — 
 
 (3) John de Hathfeldia v. Abbot of Warden, a.d. 1222. 
 This is a dispute as to the ownership of a messuage and 
 forty acres of land and appurtenances at Hathfeldia. 
 John claims as the heir of his uncle William ; but the 
 abbot affirms that three days before William's death he 
 gave him the lands and handed over the deeds [" et cartas 
 suas ei tradidit "]. The jury evidently has doubts as to 
 William having been in the full possession of his faculties 
 
 at the time, and it finds that in any case the Abbot did Feoffment 
 
 not have seisin in William's lifetime and so the gift was i™ery"of 
 
 void. " Et quia obiit in domo et Abbas nuUam seisinam seisin is 
 
 void. 
 
 ' Bigelow, Placita Anglo-No rmannica, p. 150. 
 
 2 Seidell Society, vol. in., Select Civil Pleas, pi. 16. 
 
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78 
 
 SECOND PERIOD. CASES 
 
 without 
 seisin. 
 
 A similar 
 case. 
 
 babuit in vita Willelmi, consideratum est quod Johannes 
 recuperavit seisinam suam et Abbas in misericordia." 
 
 The annotator remarks in the margin "Nota quod 
 non valet donatio sine seisina ubi donator moritur seisi- 
 tus\" 
 
 (4) Adam of Bedingford v. Robert le Enveisse and 
 others, A.D. 1230. A free tenement at Codenham is in 
 dispute. Robert is in possession, but Adam declares that 
 his father gave him the land one day after dinner in the 
 presence of the chief lord Gregory and that Gregory 
 
 No claim thereupon received his homage. However, Adam's father 
 remained iu seisin and afterwards gave the land to Robert. 
 It is decided that since Adam never had seisin he has no 
 claim ^. 
 
 (5) Petronilla {wife of William of 8. Martin) v. 
 William Rusteng and others, A.D. 1233. Petronilla claims 
 some land that her husband William gave her on the day 
 of the espousal ; but since she had no seisin " nisi post 
 fidem datam " it is decided that the gift was void^. 
 
 There are of course numerous references to charters of 
 feoffment : — 
 
 (6) Thomas de Gammille v. RobeH de Sutton, A.D. 
 1201. This is a claim for the marsh of Richeresnes which 
 Thomas demands as the heir of his grandfather William 
 Monk, who was seised thereof as of fee and right in the 
 time of Henry I. and took ' esplees ' thereof, as in cheese, 
 wool, rushes and other esplees, to the value of 5s. Robert 
 
 Charter of however produces a charter of Robert de Leyburn which 
 sets forth that R. L. gave him (R. de Sutton) that marsh, 
 and he vouches to warranty the son of the feoffor. A day 
 is fixed for the case^ 
 
 (7) William Marshal v. Fawkes of Breauti, A.D. 1220. 
 This is a furious dispute between two great men as to 
 the ownership of a large tract of land. Some of it Fawkes 
 
 feoffment. 
 
 ' Braoton's Note-Book, pi. 144. 
 
 2 Ibid. pi. 428. 
 
 3 Ibid. pi. 777. 
 
 ■* Selden Soc, vol. ui. Select Civil Pleas, pi. 80, 
 
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DISPUTED CHARTERS 79 
 
 declares to have been granted to him by deed under seal. 
 The genuineness of the seal is disputed ; but Fawkes Disputed 
 offers to prove it either by battle ("per corpus cujusdam 
 liberi hominis "), or by the evidence of neighbours, or by 
 comparison of seals. Marshal seems anxious for a fray 
 and he offers the king a thousand marks for the privilege 
 of fighting Fawkes. " Offert defendere per corpus suum 
 versus ipsum Falkesium sicut curia considerarit, et offert 
 domino Regi mille marcas pro habenda defensione sua 
 versus eum per corpus suum'." 
 
 (8) Galfrid Esturney v. Oshert of Ahhelot, A.D. 1227. 
 This is a claim for the manor of Russve with its appur- 
 tenances. Galfrid claims by assise of mort d'ancestor. 
 Osbert vouches Reginald to warranty, and says that 
 Reginald gave the property to Osbert's brother Alexander 
 " habendum et tenendum eidem Alexandro et heredibus 
 suis," according to a charter that Osbert produces. 
 Reginald however puts in another document that shows 
 that he gave the manor to Alexander for life and to the 
 heirs of his body by his then wife. To settle the matter 
 four witnesses and eight " recognitores '' are summoned. 
 The witnesses are put upon oath and say that they were 
 present when Reginald made his charter and that the gift 
 was a conditional one ; but of the other charter — that put 
 in by Osbert — they know nothing, nor of the gift. The 
 recognitors say that they know nothing of either charter ; 
 but they saw Reginald receive the homage of Alexander 
 " in pleno comitatu " of that land and he placed him in 
 seisin ; but they neither saw nor heard of a charter. And 
 since the witnesses know nothing of the second charter, 
 nor the jury upon whom Osbert placed himself, and since 
 it is testified that Alexander was a comrade of Reginald fi-enume- 
 
 11 ness or 
 
 and carried his seal at the time the deed was made [thus deed dis- 
 raising a presumption of forgery], and since Osbert has P"*^'^- 
 failed to prove the genuineness of his deed — the case 
 goes against him and his deed is cancelled''. 
 
 1 Braoton's Note-Book, pi. 102. 
 
 2 Ibid. pi. 250. 
 
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80 
 
 SECOND PERIOD. CASES 
 
 Claim by 
 descent. 
 
 Counter 
 claim by 
 charter. 
 
 (9) Sir Randolf of Cestria and Lincoln v. Prior of 
 S. Mary de Prd, A.D. 1228. Randolf claims land in 
 Stivington by descent from his grandfather who, he says, 
 was seised in his demesne as of fee and right in the time 
 of Henry and took esplees to the value of 20s. He 
 offers the king xx marks^ to have the case tried, and if 
 this is acceptable he will prove the matter by the body of 
 one of his freemen. The Prior sets up this claim : — He 
 produces a charter of Henry I. which grants and confirms 
 to God and the church of St Mary de Pr^ several lands in 
 Normandy, and proceeds thus, " et ex dono meo manerium 
 in Normannia quod vocatur Bures et Estvington in 
 Anglia cum omnibus ei pertinentibus et cum omnibus 
 libertatibus suis. Has tenuras et omnes alias tenuras 
 suas quecunque fuerint et de quibuscunque habeant, 
 volo et firmiter precipio quod ita teneant bene et in pace 
 etc., sicut ecclesia in regno meo potest liberius tenere et 
 insuper sicut mea propria." He produces also letters 
 patent of King Henry with these words " Henricus Rex 
 Angliae vicecomiti Berck' et ministris suis salutem. Pre- 
 cipio quod monachi S. Marie de Prato teneant manerium 
 suum de Stivendum ita bene et in pace et quieta cum 
 socca etc. sicut eis illud dedi in elemosinam et sicut habui 
 illud in manu mea." Further he produces a charter of 
 Henry II. confirming all these gifts in perpetual alms; 
 again a charter of John confirming the gift of his 
 grandfather Henry, and finally one of Henry III. also 
 confirming that gift. Sir Randolf however insists that 
 his grandfather was seised as described above in the time 
 of Henry II.; but the Prior replies that the monks were 
 in continuous seisin from a much earlier time than the 
 knight claims for his ancestor. Sir Randolf thereupon 
 offers to prove his case by the body of one of his freemen ; 
 and if that is not acceptable he will give the king 
 
 ' In passing, note this offer of money to the king for justice. The 
 king had a strong interest in seeing that 'justice' was done; but 
 'nothing for nothing' was the rule. Of. case (23), p. 87, below. 
 
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FINES 81 
 
 XXX marks' to have the matter decided. The Prior 
 sticks to his deeds and protests that the knight produces 
 no proof of his statements. A day is fixed for hearing 
 the case^" 
 
 We have spoken at length of the final concord as a 
 mode of conveyance'; and we hear a good deal of this in 
 the reported cases. Thus : — 
 
 (10) Richard de Throngham v. Robert Archard, A.D. Eeferences 
 1201. This is a claim "for the forinsec service for a 
 virgate of land that remained to Robert by the chirograph 
 
 made between Richard's father and Robert touching half 
 a hide of land about which there was a plea between 
 them in the king's court^" 
 
 (11) John Bishop v. Augustine, A.D. 1202. "John 
 Bishop, parson of the church of Backwell, complains that 
 Augustine the chaplain made a fine with William his 
 nephew, without John's consent, touching half a virgate 
 and half a furlong of land with appurtenances in Backwell, 
 about which land a chirograph had (previously) been 
 made between John and Augustine, in which it was 
 contained that Augustine had admitted the said land 
 with the appurtenances to be the right of John's church 
 of Backwell and that Augustine should hold all that land 
 for his life and that it should afterwards go back quit to 
 the said church and that John would warrant the land 
 to Augustine against John le Sore. Augustine came and 
 admitted the fine and the chirograph made as John says, 
 and he says that his nephew William brought a certain 
 assize against him touching the land and that, before 
 other Justices, he admitted the land to be the right of 
 William, because John (the plaintiff) would not warrant 
 the land to him. Augustine, being asked if he ever 
 vouched the said John to warranty, replies that he did. 
 It is decided that because Augustine and William have 
 
 ' He is outbidding the Prior. 
 2 Bracton, Note-Book, pi. 272. 
 " p. 38, et seq. 
 * Selden Soc, vol. iii. pi. 77. 
 
 M. B, 
 
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82 SECOND PERIOD. CASES 
 
 deceived the court of our lord the king, and behind 
 John's back, they and their heirs shall lose that land for 
 ever and John and his church may have seisin thereof 
 and may hold it in peace etc/ " 
 
 (12) Roger of Galceto and others v. Alhreda of 
 Jarpeiiville, A.D. 1229. This claim for land is opposed on 
 the ground that the ownership has been the subject of an 
 earlier suit [which lasted six years]. The ancestors of 
 the present claimant did not oppose the claim on that 
 occasion and the decision of the court is produced in the 
 present case ("per cyrographum quod profert et quod 
 testatur etc.")^ 
 
 (13) Walter, son of Alan, v. Richard de la Huse, 
 A.D. 1222. Walter claims by descent from Almarus who 
 was seised etc. in the time of Henry II. Richard replies 
 that his father John de la Huse obtained the land 
 "per finem duelli," the battle having been fought in the 
 presence of the demandant Walter and of his elder 
 brother William — and they set up no opposing claim at 
 the time of battle. Walter cannot deny this and so 
 loses his case^" 
 
 Titles by Examples of title by descent are of very frequent 
 
 escen . occurrence and we shall content ourselves with a few 
 typical instances. It should be remembered that the 
 ancestor from whom descent is traced must have been 
 seised in his demesne as of fee and right and have taken 
 esplees. Also that this must not have happened too far 
 back, as there was a limitation of actions. 
 
 (14) Gilbert Good v. Simon, son of Elias, a.d. 1202. 
 Gilbert Gilbert Good demands against Simon, son 
 
 I of Elias, three virgates of land with ap- 
 I purtenances by descent from his great- 
 Richard grandfather Gilbert and traces his descent 
 Gilbert in accordance with the accompanying 
 (the demandant) scheme. Gilbert (the elder) was seised in 
 
 ^ Seldeu Soc, vol. in. pi. 176. 
 " Bracton's Note-Booh, pi. 302. 
 3 Ibid. pi. 147. 
 
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INHERITANCE 83 
 
 his demesne as of fee and right on the year and daj' on 
 which Henry the grandfather of the king's father [i.e. 
 Henry I.] died and he took esplees to the value of 5s. 4c^. 
 and more. All this he offers to prove by a certain 
 freeman of his, Ralph the Forester, who is ready to 
 prove this as of the view and by the command of his 
 father Robert, etc' " 
 
 (15) Noel V. de CornhuUa, a.d. 1219. Noel claims 
 that certain land is his as of right and fee, that it 
 descended to him as the heir of his brother to whom 
 it was granted by a deed that he produces — a charter 
 of King Richard. He says that he was seised as of fee 
 and right and took esplees etc. in the time of King John. 
 He had been thrown into prison and temporarily disseised 
 and meanwhile Cornhulla had taken possession. The 
 parties go to a jury on the issue of fact^. 
 
 (16) Richard of Cattona v. Odo of Daunmartin, a.d. 
 
 1222. Odo has warranted some lands and the plaintiff 
 
 claims that the warranty is bad (injuste warrantizavit) as 
 
 he (Richard) is the real owner. He claims as the heir of 
 
 „ Hugo who was seised in his demesne as 
 
 George ° 
 
 [ ' 1 of fee and right and took esplees etc. in 
 
 Alice Hugo , . . °__ ■ ^_ TT , 1 • 
 
 I the time of Henry 11. He traces his 
 
 ^^'^° descent as shown in the scheme and offers 
 
 Richard to prove his claim by the body of Ado 
 
 (plaintiff) ^j^^ affirms that his father saw Hugo take 
 
 esplees from the land'*. 
 
 (17) Richard Fulton v. Cecilia of Ebreicis, A.D. 1224. 
 
 Eoger Orenga Sibyl Orenga = Eandolf 
 
 Godfrey Eaudolf William 
 
 Richard Fulton 
 
 Richard Fulton puts in a claim to two pieces of land- 
 two knights' fees that he claims as the heir of Roger who 
 
 1 Selden Soc, vol. iii. pi. 250. 
 " Bracton's Note-Book, pi. 17. 
 3 Ibid. pi. 185. 
 
 6—2 
 
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84 SECOND PERIOD. CASES 
 
 was seised in his demesne as of fee and right in the 
 time of Henry II. and took esplees to the value of 20s. 
 As to one of these fees, Cecilia pleads that she has not 
 the whole fee (someone else has a share) and in this she 
 is successful. As to the other, she claims that Orenga 
 did not die without issue — as Richard said — but was 
 married to Randolph and had issue. Richard tries to 
 meet this by affirming that there was no marriage and 
 that the children (Randolph and William) are con- 
 sequently illegitimate. To prove their legitimacy Cecilia 
 appeals to the judgment of the court in a previous case 
 in which it had been decided that William was entitled 
 to certain lands by descent from his mother Orenga. This 
 refutes Richard's statement as to the marriage and so 
 Cecilia wins the case\ 
 [Jus [Here we have what looks very like the setting up 
 
 ^^ "■■' of a jus tertii to be urged by way of defence..." Thus our 
 law of the 13th century seems to recognise in its practical 
 working the relativity of ownership. One story is good 
 until another is told. One ownership is valid until an 
 older i.s proved. No one is ever called upon to demon- 
 strate an ownership good against all men ; he does 
 enough even in a proprietary action if he proves an 
 older right than that of the person whom he attacks^"] 
 (18) Richard of Mundeville v. John of Mundeville, 
 ]^j„gj A.D. 1224. Richard claims land against 
 
 E nulT^ — Fhn '^'^^'^ ^^ *^6 ^®i^ of ^i^ grandfather Nigel. 
 
 I John admits the seisin of Nigel and says 
 
 that his elder brother Ranulf died before 
 
 Nigel and that he (John) remained in possession and 
 
 kept the land as Nigel's heir^- 
 
 This case is a further illustration of the importance of 
 actual seisin. Prof Maitland in a note to Bracton puts 
 the matter thus : — " A has two sons B and C of whom 
 B is the elder : B dies leaving a son D. A dies. C is 
 
 1 Bracton's Note-Book, pi. 227. 
 
 2 Pollock and Maitland, History of English Law, ii. 76. 
 
 3 Bracton's Note-Boole, pi. 230, 
 
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ESCHEAT 85 
 
 in possession. D has the better right but do remedy. 
 Bracton regards this as due to the casus Regis — John 
 having excluded Arthur of Brittany [f. 267 b] ; but cf. 
 Glanvill, vii. 3." 
 
 Occasionally we come across references to escheat in 
 the cases of the period. Thus :— 
 
 (19) lUietJion daughter of Reinward v. Hamo, a.d. Escheat. 
 1201. "The assise comes to recognise if Reinward, the 
 father of Illiethon, wife of Richard, was seised in his 
 demesne as of fee of one acre of land with the appur- 
 tenances in Hendra on the day that he died etc. ; which 
 land Hamo de Hendra holds. [Hamo] comes and says 
 that [Illiethon] has no right in the land and ought not 
 to have any, because Reinward who formerly held that 
 land fled the country on account of his crimes, so that he 
 was outlawed by the assise of the kingdom in full county 
 (-court) ; and afterwards during the outlawry he was 
 slain by his enemies with an arrow and died an outlaw. 
 And Richard and his wife say that [Reinward] never was 
 outlawed, but in truth he alienated himself from the 
 country on account of his enemies ; and at length came 
 to Earl Reginald (who at that time had the county of 
 Cornwall and all things that appertain to the king, as 
 well concerning life and limb as other things) and he 
 afterwards came into the peace and was reconciled to 
 him. And afterwards [Richard and Illiethon] admitted 
 that Reinward was outlawed; but Earl Reginald pardoned 
 his outlawry and he then recovered seisin of all the lands 
 that he had lost on the aforesaid occasion and in such 
 seisin he died, being slain by his enemies with an arrow. 
 And the whole county testifies that after Earl Reginald 
 had pardoned the outlawry, Reinward was again outlawed 
 for his crimes and while an outlaw was afterwards slain. 
 And be it known that Reinward held no land of the said 
 Earl Reginald, but of the Priory of Bodmin; wherefore 
 it would seem that, although the Earl could pardon 
 [Reinward] the outlawry, he could not give back to him 
 the land, which was so escheated to another. It is 
 
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86 SECOND PERIOD. CASES 
 
 considered that [Illiethon] has no right in the land and 
 that she takes nothing by that assise^." 
 
 This escheat arose from outlawry. Still more common 
 are escheats from failure of heirs. 
 
 (20) Randolph le Moyngne v. Walter son of Hugo, 
 A.D. 1230. This is a claim for two virgates of land and 
 their appurtenances which Galfrid le Moyne Byscoyne 
 held of Randolph. Randolph afiSrms that Walter "non 
 habet ingressum nisi per praedictum Galfridum" and 
 that the lands ought therefore to revert to him as 
 escheat, for Galfrid was a bastard and died without 
 heirs ^ 
 
 The next subject for illustration is dower, and to this 
 we find frequent references. 
 Dower. (21) Wife of Robert v. Abbot of Abingdon, circa A.D. 
 
 1154. Robert had given half a hide to the Abbey — 
 confirming the gift " super magnum altare, absque omni 
 in posterum reclamatione." However, the wife claims 
 that this was given to her as dower; but she loses her 
 case^ 
 
 (22) Eustace de Vesci v. Geoffrey de Saumarez and 
 his wife, A.D. 1200. " Eustace de Vesci demands against 
 Geoffrey de Saumarez and Matilda his wife, as his right 
 and inheritance, the town of Rodenham of which Eustace 
 Richard's son was seised in the time of king Henry. 
 Geoffrey comes and says that he claims nothing in that 
 land except through Matilda his wife, whose dower that 
 land is, of the gift of one William de Tilli, formerly her 
 husband, whose heir is one Ralph de Tilli, brother of the 
 said William, and he is beyond the sea. Geoffrey vouches 
 Ralph to warranty. Let them have him at Westminster 
 on the morrow of S. Clement. Matilda puts in her place 
 her husband or Jordan de Brakebury, and if Geoffrey 
 cannot be present, she puts Jordan in her place*." 
 
 1 Selden Soo., vol. iii. pi. 188. 
 
 ^ Braoton's Note-Book, pi. 402. 
 
 ^ Bigelow, Placita Anglo-Normannica, p. 180. 
 
 * Selden Soc. , vol. iii. pi. 43. 
 
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DOWER 87 
 
 (23) Robert de Orston v. Petronella de Orston, a d. 
 1201. "Robert de Orston complains that Petronella de 
 Orston has intruded herself into his capital messuage in 
 Orston, that he holds in fee farm, because he offered her 
 one of the messuages that he holds of the king in capite. 
 Petronella against this says that he offered her neither of 
 these messuages; but she says that she brought a writ 
 of the Justices to the sheriff in which it was contained 
 that he should assign reasonable dower to her, so that by 
 the command to the sheriff and by the view of lawful 
 knights of the county, [the sheriff] assigned to her her 
 dower and gave her that messuage ; and thereof she puts 
 herself on Sir Hugh Bardolf and upon the jury of twelve 
 lawful knights of the country ; and for having the jury 
 and their testimony, she offers the king one mark'. 
 Robert puts in his place William de Orston, etc. He 
 defends that that messuage was never assigned to her 
 and thereof puts himself upon Hugh Bardolf because he 
 was not there as justice, but as sheriff. Hugh Bardolf 
 is commanded that on the quindeme of S. Hilary by 
 lawful men who are said to have been present when 
 Petronella so recovered her dower, he shall make known 
 the truth of the matter to the Justices, etc.^" 
 
 (24) Adam Read v. Warin, A.D. 1202. "The assise 
 of mort d'ancestor between Adam Read and Amabel his 
 wife, and Warin son of Warin, touching one carucate of 
 land with appurtenances in Sutton, remains because Warin 
 says that he holds only a quarter of that land and his 
 mother holds half of it in dower, and his brother holds 
 the other quarter. Therefore let Adam and Amabel seek 
 other writs, etc.'" 
 
 [N. B. This is in Kent and illustrates the local 
 custom of dower (a moiety to the widow) and descent 
 (equal shares to the sons).] 
 
 1 Cf. p. 80. 
 
 2 Selden Soo., vol. in. pi. 110. 
 
 3 Ibid. pi. 128. 
 
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OS SECOND PERIOD. CASES 
 
 (25) Ala de Scalariis v. Henry de Scalariis, a.d. 
 1218. Ala claims that on the day of her espousal with 
 Hugo the father of Henry de Scalariis, Hugo endowed 
 her (with the consent of his father) with the manor of 
 Waddon and its appurtenances in the county of Cambridge 
 as a third part of all his inheritance, and that if this were 
 not sufficient for a third share the dower was to be made 
 up from the rest of Hugo's inheritance. The jury confirm 
 this and a writ is issued to the sheriff at Norfolk to make 
 a valuation of all the lands that Henry and Ala de 
 Scalariis hold " tarn in dominicis quam in serviciis red- 
 ditibus villenagiis, in bosco et piano et in omnibus rebus 
 ad terras ill as pertinentibus, et pretium omnium terrarum 
 illarum sic appreciatarum scire faciat et evidenter et 
 distincte per literas, etc. et per quatuor discretes homines 
 ex illis qui appreciacioni illi interfuerunt, etc.^ " 
 
 (26) Theobald de Lasceles and his wife Ada v. William 
 de Cantelupo, a.d. 1220. The demandants claim seven 
 carucates of land and its appurtenances as the dower 
 of Ada from her former husband. William however 
 objects that Ada ought not to have this as dower for 
 the land is the head of a barony and so cannot be included 
 in a general claim for dower. He declares himself willing 
 to let her have "reasonable dower according to the law 
 of the land." Theobald and Ada reply that the manor 
 is not the head of a barony but is a knight's fee all by 
 itself; and further that Reginald, the son of Ursus, 
 William's ancestor, endowed his wife Beatrice with the 
 same manor and that she held it as such all her life after 
 Reginald's death. Further they declare that Ada was 
 endowed specifically (norainatim) with that manor-." 
 
 Again, we meet with several cases of tenants by 
 
 curtesy. Thus : — 
 
 Curtesy. (£7) Hugo de Mariscis v. William de Mariscis, A.D. 
 
 1228. The demandant claims the custody of William 
 
 the son of the defendant and of Agnes who held land of 
 
 1 Braotou's Nole-Buolc, pi. i. ^ Ibid. pi. !)6. 
 
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CURTESY 89 
 
 him by military service. William maintains however 
 that Hugo ought not to have the custody of the boy, 
 for William (the boy in question) is his son and heir 
 " de predicta Agnete genitus " and he is holding the land 
 by the custom of the kingdom, since he had a son by 
 Agnes who is heir to the said land — " per consuetudinem 
 regni, quia puerum habuit de Agnete, cujus hereditas 
 terra ilia fuit\" 
 
 (28) Robert of Norfolk v. Adam, abbot of Eynesham 
 and others, A.D. 1228. Robert affirms that he has been 
 unjustly disseised of a certain tenement. The Abbot 
 however maintains that he took possession of it on the 
 death of Robert's wife Agnes and is holding it until the 
 right heir comes and does as he ought. Robert afterwards 
 appears at Westminster with some sons that he has by 
 his wife Agnes and maintains that he should hold 
 the land during his life " secundum legem et consuetu- 
 dinem regni." To this the Abbot replies that Robert did 
 not marry Agnes until after the boys were born, in fact 
 only three months before the death of Agnes, and he is 
 ready to prove that the marriage was made at Fendrayton 
 etc. Robert answers that, as a matter of fact, he married 
 Agnes 'apud Sanctum Juonem' twelve years ago, but 
 that the marriage was private as he was afraid of a 
 solemn ceremony on account of his relations and the lord 
 he then served. However, after the boys were born, he 
 came to Fendrayton and there, acting on the advice of 
 bis friends, he married Agnes with due solemnity 'in 
 facie ecclesiae" as the sponsors well know. The Abbot 
 however points out that three years ago Agnes sued him 
 and that on that occasion Robert appeared with her 
 "sicut armiger" but made no mention "in breve nee in 
 placito" that he was her husband. Robert is unable to 
 deny this as it is borne out by the records of the court, 
 and so he loses his easel 
 
 1 Bracton's Note-Book, pi. 267. 
 •■^ Ibid. pi. 291. 
 
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90 SECOND PERIOD. OASES 
 
 (29) Johanna de Bosco v. Randolph de Bray, a.d. 
 
 1231. 
 
 William de Bosco = Alicia = Eandolph de Bray 
 
 I I 
 
 Johanna [son] 
 de Bosco 
 
 This is a case where the wife has married again and the 
 second husband claims ' by curtesy.' Alicia first married 
 William de Bosco and had a daughter Johanna by that 
 marriage. She afterwards married Randolph de Bray 
 and had a son. Now Johanna claims a carucate of land 
 and its appurtenances against Randolph de Bray. She 
 affirms that the land was given "in maritagium" to 
 William de Bosco and Alicia and the heirs of their 
 bodies and that therefore it is hers by right. 
 
 Randolph however maintains that the land "sive fuerit 
 maritagium sive hereditas ipsius Aliciae " ought to be his 
 for his life " according to the law and custom of the realm." 
 Moreover he denies that it was given to the heirs of the 
 bodies of William and Alicia, but simply to their heirs ^ 
 
 There is a comment by the annotator "quod mari- 
 tagium remanere debet viro per legem Anglie sicut 
 ipsa hereditas, si data fuerit viro et uxori et heredibus 
 ipsius uxoris, sive heredes fuerint propinqui vel re- 
 moti, si autem ipsis et heredibus de ipsis viro et uxore 
 exeuntibus tunc secundus vir vel tertius vel quartus 
 nihil capient per legem Anglie, quia pueri sui heredes 
 esse non poterunt nee propinqui nee remoti set sunt 
 omnino extranei." " The doctrine of the marginal note," 
 says Prof. Maitland, "is just Bracton's S. 437 b, 438. 
 The second husband has curtesy not only of the wife's 
 inheritance but also of her maritagium, if there is no 
 special limitation to the heirs of the first marriage. This 
 is so whether any heirs of the first marriage are alive or 
 no. But the point was disputable. Segrave held that 
 the second husband has no curtesy, if there is issue of the 
 first marriage, to take the maritagium. Seemingly both 
 Bracton and the annotator thought otherwise. If however 
 
 ' Bracton's Note-Book, pi. 487. 
 
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FRANCHISES 91 
 
 there is special limitation, then the husband is not entitled 
 for the children of the second marriage." 
 
 These cases will suffice to illustrate the law as to Incor- 
 corporeals. We must turn now to things incorporeal and ^°^^^ ^' 
 should recall the fact that franchises always spring from 
 royal grant, at least in theory, although later a prescriptive 
 title is the most common one. 
 
 (30) Bishop Wulfstan v. Abbot Walter, circa a.d. 
 1077. Wulfstan claims the right to " socan et sepul- 
 turam et requisitiones et omnes consuetudines faciendas 
 ecclesiae Wigorniensi in hundredo de Oswaldeslawe et 
 geldum regis et servitium et expeditiones in terra et 
 in mari de xv hidis de Hantona et de mi hidis de 
 Benningewrde, quas debebat abbas tenere de episcopo 
 sicut alii feudati ecclesiae ad omne debitum servitium 
 regis et episcopi libere tenent." The king's writ directs 
 that the matter be decided upon the right of the parties 
 " sicut erant die, qua novissime, tempore regis Edwardii, 
 geldum acceptum fuit ad navigium faciendum." Wulfstan Long pos- 
 calls witnesses that had seen and performed the services 
 
 in the time of Edward the Confessor^ 
 
 (31) Burgesses of Northampton v. Abbot of Thorney, 
 A.D. 1201. "The Burgesses of Noi'thampton complain 
 that the Abbot of Thorney unjustly took from them toll 
 and unjust customs in his fair of Woodston and of Yaxley 
 and contrary to the charter of our lord King John, which Eoyal 
 they have and proffer, in which it is contained that he ^^^"^ ' 
 has granted to them that they be quit of all toll throughout 
 
 all England, and if anyone shall take [toll] from them, and 
 shall fail to do right, the reeve of Northampton may make 
 distress [from him] at Northampton. And Thomas de 
 Huntingdon, put in the place of the Abbot, comes and 
 says that of old of the gift of King William the Conqueror 
 they had a market at Yaxley with toll and other free 
 customs, and he produces charters of King Henry the 
 grandfather and King Henry the father so confirming. 
 
 1 Bigelow, Placita Anglo-Norinannica, p. 17. 
 
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92 SECOND PERIOD. CASES 
 
 And against this the Burgesses say that the Abbot 
 unjustly took custom of the men of Northampton at 
 Woodston, and moreover they say that of old at Yaxley 
 [the Abbot] was accustomed to take for each cart one 
 penny, for each load and horse one halfpenny, and for the 
 load of a man one farthing, and that now he had doubled 
 the customs. And against this Thomas says that in the 
 time of King Henry, the father, they took for carts as 
 aforesaid twopence and for the load of a horse one penny 
 and for the load of a man one halfpenny, and thereof he 
 puts himself upon lawful men of the neighbourhood ; and 
 that on the petition of the men of Northampton and by 
 reason of his market at Yaxley he took the customs due 
 at Woodston, he in the same way puts himself thereof on 
 a jury of the county, since they could load and unload 
 better at Woodston than at Yaxley. They [the Burgesses] 
 defend that never by their will have they come to Wood- 
 ston and they offer to deraign by Bartholomew Kempe or 
 Thomas that unjustly etc. And since the Abbot says 
 nothing why he ought to take customs at Woodston, nor 
 has he a charter thereof, it is considered that the Abbot 
 is in mercy for the unjust taking of customs ; and because 
 the Abbot says that in the time of King Hem-y the father 
 he took customs, to wit two pence for a cart and one 
 penny for a horse, and one halfpenny for a man, and [the 
 burgesses] cannot contradict this, let the Abbot hold in 
 peace [the right given by his charters] \" 
 
 (32) R. V. Bishop of Norwich, a.d. 1230. The Bishop 
 of Norwich claimed throughout his liberty all amercements 
 of his men holding in fee, amercements both in the county 
 courts and in the eyre of justices. " Et dominus Rex 
 Eoyal quaesivit quo warranto petiit amerciamenta ilia." He 
 ^^^^ ' claims under charters of the King's ancestors, viz. : — a 
 charter of King John which he produces. Moreover he 
 declares that Bishop J. de Gray his predecessor was seised 
 of these amercements and Bishop Randolph also''. 
 
 1 Selden Soe., vol. m. pi. 27. 
 
 2 Bracton's Note-Book, pi. 391. 
 
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ADVOWSONS 93 
 
 We have laid stress on the importance of seisin in all 
 such cases. In pi. 145 (Bracton's Note-Booh) the burgesses 
 of Beverley oppose a claim for taxation on the part of the 
 citizens of Lincoln on the ground that although Lincoln 
 may have had a royal charter giving them powers of Import- 
 taxing — as the Lincoln people assert — yet the people of ggjg|jj° 
 Beverley have never paid any such tax. There are many 
 similar cases. 
 
 Turning from franchises to advowsons, we find that 
 these give rise to almost endless litigation. 
 
 (33) Ahbot of Battel v. Alan de Bella/ago (temp. Advowson. 
 Hen. II.). Alan claims the right to present to the church 
 at Mendlesham, relying on a (somewhat doubtful) charter charter, 
 of the Abbot of St Martin. The suit is compromised by 
 Alan renouncing his claims in return for a grant of the 
 church at Brantham to hold of the Abbey for an annual 
 payment of one pound. Alan resigns his charters to the 
 Abbot 1- 
 
 (84) Geoffrey de Buckley and the Bean of Lincoln 
 V. the Prior of Bunstaple, A.D. 1200. This is a claim for 
 the advowson of a church of S. Mary of Bedford as a right 
 belonging to the church of Lincoln. The demandants Eoyal 
 show a charter of King William that testifies that 8''^°* ^""^ 
 
 ° _ conflrma- 
 
 [William] gave the church of S. Mary to that of Lincoln ; tion. 
 and they show a confirmation of King Henry. The Prior 
 has other charters that tell a different tale, and a day is 
 fixed to hear judgments 
 
 (35) Robert de Turnham v. Abbot of York, a.d. 1200. 
 Robert claims the advowson of the church of Doncaster Title by 
 by virtue of descent to his wife from her great-grandfather 
 who " was seised in the time of King Henry the grand- 
 father as of right, and which Robert pledged the whole of 
 the town of Doncaster, with the advowson of the said 
 church, to the said King Henry for five hundred marks of 
 silver; and this the said Robert de Turnham repaid to 
 our lord the King as he says ; [and the King] gave him 
 
 ' Bigelow, Placita Anglo- Normannica, p. 245. 
 2 Selden Soc, vol. in. pi. 35. 
 
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94 SECOND PERIOD. CASES 
 
 back the town of Doncaster with all the appurtenances, 
 as the right of his wife. Wherefore he demands against 
 the Abbot that church and his seisia thereof as Robert 
 Fossard (his predecessor) had it on the day that he 
 pledged the town of Doncaster as' aforesaid. The Abbot 
 comes and defends [Robert de Turnham's] right and says 
 that the church of York possessed that church and had it 
 from the Conquest of England as the gift of Nigel Fossard 
 Charter of father of the said Robert, and he shows Nigel's charter 
 feoffment, ^ggtifyi^g ^hat Nigel gave that [church] to the Abbey of 
 York in pure and perpetual alms ; and he shows a 
 confirmation of William Fossard, son of the aforesaid 
 Robert, who confirms the gift that Nigel his grandfather 
 made to the said church. Further the Abbot says that 
 he has charters of King Henry, grandfather (sic) of our 
 lord the King, and of all the Kings of England, confirming 
 the gift of Nigel and William from the time of the said 
 King Henry.... Be it noted that Robert [de Turnham] 
 produced his suit and prayed a recognition of the neigh- 
 bourhood whether the said Robert [Fossard] was so seised 
 of the said church as aforesaid or not ; and the Abbot says 
 that he will not put himself on a jury touching so ancient 
 a time\" 
 
 In these cases title is by charter. The right could, as 
 we have seen, be transferred by quit-claim and fine : — 
 (36) Prior of the Hospital of St John of Jerusalem 
 Fine. V. Allreda de Lisures, a.d. 1200. " A day is fixed for the 
 receipt of their chirograph touching the church of Flaw- 
 forth, whereof they made a concord to this effect — that 
 the Prior remised to Allreda and to William her son the 
 claim that he had to that church and she gave and 
 granted to the Prior and the house of the Hospital seven 
 shillings rent in... to hold for ever in pure and perpetual 
 alms ; so nevertheless that the Prior may have his recovery 
 thereof against the heir of John [Constable] of Chester, 
 who gave that church by his charter to the house of the 
 HospitaP." 
 
 1 Selden Soc, pi. 41. 2 j^jjj pi_ gg^ 
 
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IMPORTANCE OF SEISIN 95 
 
 (87) Abbot of Evesham v. Alice de Gray, a.d. 1200. Quj* 
 " William Moor, put in the place of the Abbot of Evesham, 
 comes and for the Abbot and his successors quit-claims to 
 Alice de Gray and her heirs for ever all the right and 
 claim that [the Abbot] had in the church of Corn well 
 — save the ancient and due tribute that the Abbot and 
 his predecessors were accustomed to take, to wit, one 
 pound of wax, as William and Alice admitted'." 
 
 The importance of actual seisin is brought out in Import- 
 
 1 1 anoe of 
 
 numberless cases : — seisin. 
 
 (38) Ralph Basset v. Abbot of Rochester, a.d. 1201. 
 " The Abbot comes and says that the church of Woodford 
 [the advowson to which is in dispute] is not vacant, 
 because his church [of Rochester] has had it and possessed 
 it for thirty years and more as the gift of Osmund Basset 
 and William Basset. And the Abbot shows their charters ; 
 one of which testifies that Osmund Basset gave the church 
 [of Woodford] to the church of Rochester in pure [and 
 perpetual alms] ; and the other testifies that William 
 conceded it to them as Osmund's gift. So that Richard 
 de Backton who last died was perpetual vicar of that 
 church [Woodford], rendering to the Abbot's church two 
 marks yearly. And against this Ralph says that he, after 
 the obtaining of the said charters, presented the said 
 Richard to that church, and thereof he puts himself upon 
 the jury. The jury says that Ralph presented the last 
 parson ; let him have a writ to the bishop to admit his 
 clerk^" 
 
 (39) Abbot of Lessay v. Abbot of Peterborough, a.d. 
 1202. This is a claim to the advowson of the church of 
 Sudbrook on the ground that the church of Lessay has 
 been seised of this for sixty years and more as the gift 
 of Robert de Hay whose charter is produced. Several 
 charters of confirmation are also forthcoming. The Abbot 
 of Peterborough opposes, but it is considered that nothing 
 has been said on which any deraignment may be made — 
 and so " qui tenet teneat^." 
 
 1 Selden Soo., pi. 67. ^ Ibid. pi. 70. ^ Ibid. pi. 245. 
 
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96 SECOND PERIOD. CASES 
 
 No aliena- Moreover the douee of an advoweon cannot alienate 
 
 seisin. Until he has obtained actual seisin : — 
 
 (40) Herbert de Aleneun v. Nicholaus Walensis, Wil- 
 lelmus le Eyr, and Robert his son, A.D. 1231. Herbert 
 says that Roger Walensis presented a certain Randolph to 
 the church and after his death he (Roger) gave and 
 quit-claimed all his right to a certain Simon de Saham 
 and Simon's sou Robert gave it to Herbert by charter. 
 Robert, son of Isabella, appears and admits that Roger 
 made the last presentation, as said above, and that Roger 
 afterwards gave the whole advowson to Isabella his mother 
 by a deed that is produced. " And because it is contained 
 in the deed (that Herbert produces) that Robert gave and 
 granted his whole right and Robert never had seisin, as 
 Herbert knows, it is considered that Herbert can have no 
 claim to the advowson^" 
 
 Seisin We may notice that the demandant must declare on 
 
 of'the ^ ^^^ '^'^^ seisin or that of his ancestor and not on that of a 
 
 claimant donor. Thus : — 
 
 ancestor. (41) Peter de Danes v. Prioress of Etona, a.d. 1231. 
 
 This is a claim for the advowson of the chapel of St Peter 
 of Allestorpe as the demandant's right " since a certain 
 Hugo Wae was seised in his demesne as of fee and right 
 in the time of King Henry the grandfather of our lord the 
 king and presented a certain Herbert la Ponere to the 
 church, and he was admitted to his presentation and took 
 esplees in tithes and otherwise to the value etc. ; and the 
 same Hugo afterwards gave the land of Allestorpe to 
 Thomas de Danes, Peter's father, with the advowson of 
 the aforesaid chapel and with all its appurtenances and 
 from Thomas the right of presentation descended to Peter 
 as his son and heir. That Hugo [was so seised] and that 
 such is his right, he offers to prove etc.... The Prioress 
 appears by attorney and objects that neither Thomas nor 
 any of his ancestors was seised of the advowson." This 
 Peter is unable to deny and so loses his case^ 
 
 ' Bracton's Note-Booh, pi. 644. 
 
 2 Ibid. pi. 488. Cp. Braoton, i. 376. 
 
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DOWER AND CURTESY 97 
 
 As to dower of an advowson, we have seen' that unless 
 the advowson was specifically named in the dower, or was 
 appurtenant to land specifically named, the widow could 
 not, as a rule, insist on a share in the presentation. 
 
 This is illustrated by an extract from a case quoted 
 by Bracton, f. 243 b :— 
 
 (42) "And Maria de Valoinis claimed a third part Dower 
 
 of a certain advowson by reason of a tenement that she advowson. 
 held in a certain vill in the name of dower, and because 
 she would not consent " in clericum presentatum ad duas 
 partes illius ecclesiae nee advocacio ilia prius fuit divisa 
 consideratum est quod possessor duarum parcium re- 
 cuperavit advocacionem suam et presentationem suam 
 ad to tarn ecclesiam''." 
 
 (43) Emma de Bella Fago v. William of Verdun 
 and his wife, A.D. 1227. The knight opposes this claim 
 to the advowson on the ground that Emma has no land 
 in the vill except a third portion of property of which he 
 and some others have the remainder. He says that it is 
 well known that Gilbert of Norfolk, Emma's late husband, 
 made the last presentation. Emma is asked if she was 
 specifically (' nominatim ') endowed with the advowson 
 and of the part of the land that she holds as dower. 
 She answers that she does not know, but says that the 
 church is situated on the land that she holds as dower. 
 Since, however, she is not able to say that she was 
 specifically endowed with the advowson her dower is 
 limited to a third part of the manor— exclusive of the 
 advowson — and so she loses her case^. 
 
 Here is a case showing that there could be ' curtesy ' 
 of an advowson : — 
 
 (44) Richard de Desebing v. Prior of the Hospital Curtesy 
 of Jerusalem in England, A.D. 1229. " The jury say that advowson. 
 a certain Roger Constantino presented one Thomas who 
 
 was the last parson to die in that church and who had 
 been admitted to his presentation. Asked who is Roger's 
 
 1 Ante, p. 60. ^ Bracton's Note-Book, pi. 380 [a.d. 1230]. 
 
 ■' Ibid. pi. 261. 
 
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98 SECOND PERIOD. CASES 
 
 heir, they say that Roger had one son William by name, 
 and William had a son Roger and a daughter Amicia, that 
 Roger died without issue and the heritage descended to 
 his sister Amicia who was the wife of Richard de 
 Deneburgo, who had sons by her. . . And because Richard 
 has the heritage of his wife and her heirs according to 
 the custom of the kingdom it is considered that Richard 
 should regain seisin of the advowson, and so the Prior 
 loses \ 
 
 Commons. The cases on the subject of commons are very 
 numerous. We shall be content with a few typical 
 ones. 
 
 (45) Nicholas de Estuteville v. Abbot of S. Mary of 
 York, A.D. 1227. This is a dispute about a common of 
 wood and pasture the rights of which had been settled 
 
 Fine. (according to Nicholas) by a final concord made before 
 the king's justices. However the Abbot has reasons for 
 breaking this concord and he then sets forth his own 
 
 Royal claim thus : — " Et idem dom. Rex postea boscum ilium 
 
 ^'^^^ ■ dedit eidem Abbati. Et profert cartam Dom. J. Regis 
 factam post cyrographum illud que testatur quod Johannes 
 Rex dedit et confirmavit Abbati et conventui S. Marie de 
 Eboraco totum boscum cum forestaria, et totam terram 
 illam ab aqua Duue, iisque ad aquam que appelatur 
 Siuena in latitudine et in longitudine a divisis Cliuelande 
 usque ad viam que vadit de Pickering ad Helmelay per 
 landam de Caltwayt, et prohibet forestariis suis ne de 
 bosco illo vel de terra ilia se intromittant, sed idem abbas 
 et successores sui habeant et teneant inperpetuum bene 
 libere etc., totum predictum boscum cum forestaria ejus- 
 dem bosci et totam predictam terram salvis predicto Regi 
 cerno et cerna, apro, etc.^ " 
 
 However, such titles by royal grant are much less 
 common than prescriptive ones : — 
 
 Prescrip- (46) Henry de Gerne v. Henry Tuneire, a.d. 1224. 
 
 Tuneire is summoned to show by what right he claims 
 
 ' Bracton's Note-Book, pi. 319. 
 " Ibid. pi. 254. 
 
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COMMONS 99 
 
 common of pasture on de Cerne's lands, seeing that de 
 Cerne has no common on the lands of Tuneire. Tuneire 
 says that he and his ancestors have always had common 
 m the lands that de Cerne now holds, and moreover that 
 de Cerne and his predecessors in title have always had 
 the right of common pasture in Tuneire's lands if they 
 cared to exercise it — at least it has always been so 
 since the Conquest, "ita semper fuit post conquestum 
 Angliae^" 
 
 (47) The Prior of Okeburnia and Richard de Tmii 
 V. Robert de Chounse, a.d. 1228. Robert is called upon 
 to show cause why he claims common in the lands at 
 Bledelawe, seeing that the Prior has no common in 
 Robert's land and Robert does not render him any 
 service. Robert replies that he has every right to com- 
 mon in the said lands because the Prior and Richard 
 have many free men that all claim common in his 
 (Robert's) land and have always done so from the Con- 
 quest till now. This the Prior cannot deny; but he 
 says that he has a large and valuable wood, while Robert 
 has destroyed his own wood so that the Prior is not able 
 to have his usual pannage. Robert replies that he has a 
 good wood and more pasture than the Prior, and so he 
 goes quit and the Prior " in misericordia''." 
 
 (48) Hugo de Stretton v. William de Lanny and 
 V. Randolph, a.d. 1230. Hugo appears on behalf of the 
 king to force William to show cause why he exercises 
 common in the lands of the king, while the king has no 
 common on his (William's) lands. Proceedings are also 
 taken against Randolph, son of Thomas, for a similar 
 purpose — namely to show why he claims common of pas- 
 ture in the king's lands at Stretton while the king has 
 no such right in Randolph's land, and Randolph does him 
 no service etc. Randolph claims common in a certain 
 marsh between Stretton and Burton and, on being asked 
 whether the marsh pertains to the vill of Stretton or to 
 
 1 Braoton's Note-Book, pi. 223. 
 
 2 Ibid. pi. 274. 
 
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100 SECOND PERIOD. OASES 
 
 that of Burton, he says that it pertains to Burton. 
 Further, he declares that the Burton men have always 
 intercommoned with those of Stretton right up to the 
 present time'. 
 
 (49) R. V. Richard de Rudington, a.d. 1231. Here 
 Richard is called upon to show why he should have 
 common on the king's land under circumstances exactly 
 like those of the last case (48). Richard rests his claim 
 on the fact " that he has always had common there since 
 the conquest of Englandl" 
 
 (50) R. V. Abbot Walkelin, circa A.D. 1158. This 
 is a dispute as to the number of pigs that the Abbot 
 can turn out in the forest at Kingesfrid. The king issues 
 a writ ordering an inquisition as to the number that 
 the Abbot used to turn out in the time of Henry I. 
 " Secundum itaque praeceptum regis, per legales homines 
 de hundredo sacramento recognitum est abbatem Atten- 
 domine in foresta Kingesfrid ccc. porcos habere sine 
 pasnagio antiquitus solere et regis Henrici tempore 
 habuisse quod et ita Walkeline Abbati et successoribus 
 suis ex regis jussu concessum et confirmatum est^" 
 
 Ease- We shall conclude this portion of our subject with a 
 
 few cases on easements. 
 
 (51) Prior of Siccle v. William and Adam de Baiocis, 
 A.D. 1225. " William and Adam have been summoned to 
 show cause why they exact common of pasture in the land 
 of the Prior at Leggesby, seeing that the said Prior has 
 no common on their land and they do him no service. 
 William and Adam come and say that they rightly have 
 common because, before the house of Sixle was founded, 
 their ancestors for forty years had common of pasture in 
 the land of Leggesby, and for the reason that in hot and 
 dry weather the men of Leggesby had an easement of 
 water " de Pittes " in Lindwide and that they can enjoy 
 this easement whenever they wish. [To prove] that this 
 
 > Bracton's Note-Book, pi. 433. 
 ' Ibid. pi. 628 ; and cp. pi. 909. 
 ^ Bigelow, Placita Anglo-Norinannica, p. 204. 
 
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EASEMENTS 101 
 
 is SO they place themselves on the grand assize of our lord 
 the king and seek recognition to be made whether they 
 have more right in that pasture than the Prior or 
 otherwise \" 
 
 (52) Galfrid de Cruce v. John Prudumme, a.d. 1234<. 
 John Prudumme has been summoned to answer to Galfrid 
 de Cruce why with violence and against justice he makes 
 use of a certain way across his land at Waleton. De 
 Cruce declares that Prudumme has no right there and 
 that he (de Cruce) has been wronged by Prudumme and 
 has suffered damage to the extent of 40s. 
 
 John comes and defends his action, and says that 
 all his ancestoi'S since the conquest of England to the 
 present day have used that way, and he declares that his 
 father Richard was seised thereof and made use of the 
 way in the time of King John, that he himself was always 
 afterwards in seisin and so the right pertains to the 
 tenement that he holds in the vill. [To prove] that this 
 is his right and that he has so used the way, both he and 
 his father place themselves upon the country. 
 
 Galfrid, on the other hand, denies that either John 
 or his father was ever in seisin, except by the permission 
 and free-will of his father Reginald de Cruce, and at a 
 time when the land was lying fallow. The sheriff is 
 instructed to call together a jury of twelve to investigate 
 the facts and decide the issue I 
 
 Our collection of cases will be complete when we Villeinage, 
 have illustrated what has been said about villeinage by 
 references to the records of some manorial courts. 
 
 We have remarked on the heritability of customary 
 land and on the payment that the heir was required to 
 make for the privilege of succeeding. Here are some 
 records bearing on the subject :— 
 
 (A) "...gus, son of Roger Clerk, gives 20s. to have Descent, 
 seisin of the land that was his father's. Pledges— Gilbert 
 
 and Hugh Cross." [1247. Manors of the Abbey of 
 Bee — Ruislip.] 
 
 1 Bracton's Note-Book, pi. 720. '^ Ibid. pi. 843. 
 
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102 SECOND PERIOD. CASES 
 
 (B) "Roger Hamo's son gives 20s. to have seisin of 
 the land that was his father's and to have an inquest 
 of twelve as to a certain croft that Gilbert Bisuthe holds. 
 Pledges — Gilbert Lamb, William John's son, and Robert 
 King." [1246. Manors of the Abbey of Bee — Ruislip.J 
 
 (C) "Ralph of Morville gives a half-mark on the 
 security of Jordan of Streatham and William Spendlove to 
 have a jury to inquire whether he be the next heir to the 
 land that William of Morville holds. And the twelve jurors 
 come and say that he has no right in the said land but 
 that William Scott has greater right in the land than any- 
 one else." [1247. Manors of the Abbey of Bee — Tooting.] 
 
 (D) " John of Bagmere demands against John, son 
 of Walter Wells, one virgate of land with the appur- 
 tenances in the vill of Combe as his right according to 
 the custom of the manor, and therefore as his right — for 
 
 John of Bagmere ^^ ^^J^ that one John of Bagmere, his 
 I grandfather, died seised of the said 
 
 I virgate with the appurtenances as his 
 
 John (the demandant) ^ight according to the custom of the 
 manor and from that John the right descended according 
 to the custom of the manor to his son William, the 
 demandant's father, whose heir the demandant is, ac- 
 cording to the custom of the manor, (so he says) and [to 
 establish] that such right is his he prays that an inquest 
 be made and he gives the lord 5s. for such an inquest. 
 And the said John Wells comes and answers and admits 
 the seisin of the said John of Bagmere [the elder] and 
 Procedure that the said William was his son, but says that no right 
 dispute." i"^ *^® ^^^^ virgate of land accrued or, according to the 
 custom of the manor, could accrue to the demandant 
 through tlie said William his father ; for he [the tenant] 
 says that the said William, the demandant's father, 
 formerly impleaded him [the tenant] in the said court 
 before the lord touching the virgate of land now de- 
 manded, demanding against him [the tenant] the said 
 land as his [William's] right according to the custom 
 of the manor, etc. And at length the action between 
 
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VILLEINAGE 103 
 
 them was compromised by their making accord by the 
 lord's will and in fall court in the manner following — i.e. 
 that William granted, remised and quit-claimed for 
 himself and his heirs all his right that he had, or in 
 any manner might have, in the said virgate of land to 
 the said John Wells for ever according to the custom of 
 the manor: and this he is ready to verify by the record 
 of the rolls or of twelve jurors of the said court by the 
 leave of the lord and his steward : and he craves judgment 
 whether, according to the custom of the manor, any right 
 in the said land can accrue to [the demandant] against 
 the deed of his father the said William. And the said 
 John of Bagmere says that the said William his father 
 never remised or quit-claimed the said land for himself 
 and his heirs in the said court ; and this he puts upon 
 the record of the rolls or is willing that it be established 
 by inquest of twelve jurors of the Court. And the said 
 John Wells does the like. A day is given them at the 
 next court to hear their judgment and their record." 
 (Finally John Wells gains the day.) [1290. Manors of 
 the Abbey of Bee — Combe.] 
 
 We have given this rather lengthy extract as it affords 
 a good illustration of the procedure in case of a disputed 
 title. We notice that litigants are beginning to follow 
 the example of the stragglers in the royal courts in 
 offering a money payment to have the dispute settled by 
 inquest. Further, we observe the appeal to the court 
 records as an evidence of title. 
 
 (E) "Edith Hale, who by judgment of the wliole 
 court is found to be of full age and next heir to the land 
 formerly held by John May, renders into the lord's hand 
 in full court to the use of Mathew Palmer all right and 
 claim that she has or in any way may hereafter have to 
 the said land ; for which rendering the said Mathew gives 
 to the said Edith 9s. %d. and he is put in seisin by the 
 lord and therefore gives to the lord 10s. for entry 
 on this land." [1290. Manors of the Abbey of Bee — 
 Preston.] 
 
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104 SECOND PERIOD. CASES 
 
 Free- We have said that there was free-bench of customary 
 
 bench. , , 
 
 land : — 
 
 (F) " Peter Coterel gives two marks to have seisin 
 of the land that was his father's, saving to Raise his 
 mother a third part of the same land. Pledges — William 
 Ketelburn, Simon Francis, William Costard and John 
 of Senholt." [1249. Manors of the Abbey of Bee— 
 Bledlow.J 
 
 (G) " Henry White demands one acre of land that 
 was held by his brother John, whose heir he is, as he says. 
 And Cristina Ticee comes and says that she has greater 
 right to hold the said acre for her life than Henry to 
 demand it, for she says that the said John purchased the 
 said acre after his marriage with her and, according to 
 the custom of the manor of Ruislip, a wife after her 
 husband's death should hold the whole of any purchase 
 made by him after his marriage with her; and this she 
 offers to verify by the court and she gives the lord Qd. 
 to have an inquest. And the inquest says that the 
 custom of the manor is as Cristina pleads it, so that she 
 has greater right to hold than Henry to demand the said 
 land. Therefore it is considered that she do hold as she 
 now holds and that Henry be in mercy etc. : fine 3d" 
 [1296. Manors of the Abbey of Bee— Huislip.J 
 
 As to common rights we have this entry : — 
 Commons. (H) " John Howes is accused in full court by the 
 steward of attempting and endeavouring to deprive the 
 lord and his men of their common of pasture that they 
 have enjoyed from time immeviorial and of having pro- 
 cured that they should be attached to answer for the 
 said pasture to a writ of trespass vi et armis ; and that he 
 does so is found by an inquest of the whole court, to which 
 inquest however he refused to submit himself, but denied 
 all the charges made against him word by word ; and he 
 is at his law as to this matter. Pledges for his law — Robert 
 Bar and Richard Ford." A later entry tells us that he 
 " afterwards made his law and acquitted himself six-hun- 
 dred." [1288. Manors of the Abbey of Bee— Cottisford.] 
 
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SURRENDER AND ADMITTANCE 105 
 
 Records of surrender and admittance are naturally Surrender 
 very numerous. Here are a tew typical ones : — mittance. 
 
 (I) " Elias Deynte in full court resigned his land and 
 William Deynte his son was put in seisin of it, and swore 
 fealty and found the same pledges for 5s. as his relief 
 Afterwards he paid." [1247. Manors of the Abbey of 
 Bee — Weld on Beck.] 
 
 (J) " Agnes Mabely is put in seisin of a farthing 
 land that her mother held and gives the lord 33s. 4sd. for 
 entry money. Pledges — -Noah, William Askil." [1275. 
 Same manor as (I) above.] 
 
 (K) " Sarah Laundress surrendered her burgage into 
 the lord's hands and Thomas of Fulwood is put in seisin 
 of it and gives 4s. for entry money and finds pledges that 
 [the Abbot's] franchise shall suffer no harm from him ; 
 to wit — William Alison, Thomas Julian, Thomas Baker." 
 [1285. Manors of the Abbey of Bee — Atherstone.] 
 
 (L) "William Clerk renders into the hands of the 
 lord a half virg'ate of land formerly Ivo's to the use of 
 Juliana his daughter. Afterwards at the desire of the 
 said Juliana the said William is put in seisin of the said 
 land, to hold the same for the term of his life, to the 
 intent that on his death the said Juliana shall be his next 
 heir tb have and to hold the said half virgate of land 
 according to the custom of the manor, and in case Juliana 
 shall die without an heir of her body, then the said land 
 shall revert to the heirs of the said William. And the 
 said William gives the lord 10s. for having the said 
 premises recorded and enrolled in full court." [1291. 
 Manors of the Abbey of Bee — Weldon Beck.] 
 
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CHAPTER VI. 
 
 THIRD PERIOD. FROM EDWARD 1. TO HENRY VIII. 
 
 (statute of WESTMINSTER I. TO STATUTE OP USES.) 
 
 (1275—1535.) 
 
 We have been dealing with medieval law as laid 
 down by Bracton. A new chapter in legal history is 
 begun with the reign of Edward I. Parliament has just 
 come into being and is not long in passing some important 
 statutes that deal with land. Even apart from this the 
 reign is important as a mark of the beginning of that 
 great series of law reports known as the Year Books. 
 Our object, however, is not to write a history of English 
 law, and it would be straying from our domain to enter 
 into details as to the Statutes or the Year Books. For 
 the present we are concerned with these only in so far as 
 they explain or throw light on the ways of acquiring 
 realty in vogue at the time. We shall content ourselves, 
 therefore, with brief references to the Statutes, and intro- 
 duce the minimum necessary to make the narrative 
 continuous and the bearing on ' title ' intelligible. 
 Stat. The first statute of the reign was the famous West- 
 
 3 Ed.' I.' minster I.; but, in spite of its importance in other 
 Limita- branches of law, it has very little to do with title. In 
 
 tion of . 
 
 Actions, fact of the fifty-one chapters m the statute only one 
 bears on the subject and that but indirectly. This is 
 c. XXXIX. which fixes the beginning of the reign of 
 Richard I. for the limitation of a writ of right. Strictly 
 this is only a matter of pleading, but Coke has a note 
 
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STATUTES 107 
 
 " This act doth limit within what time the seisin shall 
 be in a writ of right, and by construction the time of 
 prescription is taken for this time'." 
 
 In the following year (4 Ed. I.) came the Statute de De 
 Bigamist The sixth and last chapter of this deals with fl^T' 
 the subject of implied warranty :^ Implied 
 
 "In deeds also where is contained 'dedi et concessi 
 tale tenementum' without homage or without a clause 
 that contaiueth warranty, and to be holden of the givers 
 and their heirs by a certain service ; it is agreed that the 
 givers and their heirs shall be bound to warranty. And 
 where is contained ' dedi et concessi, etc' to be holden of 
 the cliief lord of the fee or of other and not of the feoffors 
 or of their heirs, reserving no service without homage or 
 without the foresaid clause, their heirs shall not be 
 bounden to warranty, notwithstanding • the feoffor during 
 his own life, by force of his own gift, shall be bounden to 
 warrant." However, only fourteen years later the statute 
 of ' Quia Emptores^ ' did away with the significance of 
 the first half of this chapter and from that date the 
 warranty implied by the word 'dedi' affected only the 
 giver and not his heirs. 
 
 The third chapter of the Statute of Glocester made Stat, of 
 a change in the law by declaring that a tenant by ^^^^i^^' 
 ' curtesy ' could not bar his son by feoffment with warranty, c. 3. 
 unless the son got assets by descent. " Establie est 
 ensement, que si home alien tenement, que il tient per 
 le ley Dengleterre, son fils ne soit pas forbarre per le fait 
 son pier (de que nul heritage luy discend) a demander et 
 recoverer per briefe de mortdancester de la seisin sa mier, 
 tout face le charter son pier mention que luy et ses 
 heyres sont tenus a la garrant. Et si heritage luy 
 discend de part son pier, donques soit il forclose de la 
 value del heritage que luy est discendus." 
 
 But for our purposes the first really important statute De Viris 
 was that of 1279 — de Viris Religiosis. Its object was to 7 Ed. i. 
 
 Mortmain, 
 i Coke's Second Institutes, i. p. 238 (1). 
 
 '^ So called from its fifth chapter. '' See p. 109. 
 
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108 THIRD PERIOD 
 
 restrain the alienation of lands into mortmain. This had 
 already been partially effected by a clause in Magna 
 Carta. " Non licet alicui de cetero dare terram suam 
 alicui domui religiosae ita quod illam resumat tenendam 
 de eadem domo^" The restriction was now extended 
 to corporations generally whether lay or ecclesiastical. 
 " Ordinavimus quod nullus religiosus aut alius quicunque 
 terras aut tenementa aliqua emere vel vendere, aut sub 
 colore donationis aut termini vel alterius tituli cujus- 
 cunque, ab aliquo recipere, aut alio quovis modo, arte 
 vel ingenio sibi appropriare praesumat sub foiis factura 
 eorundem, per quod ad manum mortuam terrae et tene- 
 menta hujusmodi deveniant quoquo modo...^" However 
 this prohibition did not long check ' religious men ' in 
 their efforts to acquire property. The statute said nothing 
 about title by ' suffering a recovery ' and so to this mode 
 of conveyance recourse was had. Thus it required a 
 further enactment to put a stop to this simple method 
 of evading the Statute de Keligiosis, and it was only six 
 years after that statute that the subject was again dealt 
 with in the famous Statute of Westminster the Second. 
 Stat. The Statute of Westminster the Second is of great 
 
 c. i!de length' and deals with a variety of legal problems. The 
 Donis. opening chapter — generally referred to as the Statute de 
 Estates Donis (Conditionalibus) — is for our purposes the most 
 **''• important one, for it created a new species of estates of 
 
 inheritance, the estate tail. Bracton has already made 
 us familiar with conditional gifts and what look very 
 like estates tail. It should be remembered, however, that 
 a gift to a man and his wife and the heirs of their 
 bodies was held to be an ordinary estate of inheritance 
 conditional on issue being born. Until the bii'th of issue 
 there was merely a life estate, but after that the estate 
 became a fee simple and was alienable at the will of the 
 donee. The Statute de Donis changed all this by forcing 
 
 1 Magna Carta (1217), u. xliii. 
 
 '' Statutum de Viris Religiosis. 7 Ed. I. Stat. 2, u. xiii. 
 
 ^ It contains fifty chapters. 
 
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STATUTES 109 
 
 the donee to respect the form of the gift. It prevented 
 him from alienating at the expense of the heirs of his 
 body and in this way created, as has been said, what was 
 really a new species of estate. "Dominus rex statuit 
 quod voluntas donatoris, secundum formam in charta doni 
 sui manifesto expressam, de caetero observetur, ita quod 
 non habeant illi, quibus tenementum sic fuit datum sub 
 conditione, potestatem alienandi tenementum sic datum, 
 quo minus ad exitum illorum, quibus tenementum sic 
 fuerit datum, remaneat post eorum obitum, vel ad dona- 
 torem, vel ad ejus haeredem (si exitus deficiat) revertatur, 
 per hoc quod nullus sit exitus omnino, vel (si aliquis 
 exitus fuerit, et per mortem deficiet) haerede de corpore 
 hujusmodi exitus deficiente*." 
 
 The introduction of this new estate^ in land added 
 greatly to the complexity of our legal system by increasing 
 the number of possible combinations of modes in which 
 a donor could dispose of his interests. It may be noted 
 here that although the statute speaks of the donor's 
 intention as expressed in the deed of gift, the courts 
 admitted parol evidence as to the form of gift so that a 
 deed was not absolutely essentiaP. 
 
 The last statute that need occupy our attention at Stat, 
 this stage is the very important one of Westminster III. ig Ed. I. 
 (18 Ed. I.), usually spoken of as the Statute of ' Quia Q"ia 
 Emptores^.' It had the effect of putting a stop to the 
 further growth of mesne lords, and this it did by enacting 
 that if B held lands in fee simple of A, and alienated 
 them by grant to C, then G simply stepped into B's shoes 
 and held directly of A and not of B as formerly. It 
 should be observed, however, that this statute did not 
 prevent a tenure arising in case of the alienation of a 
 fee-tail, or a term of life^ 
 
 1 Statutum de Westminst. Secundo, u. i. 
 
 ^ The estate tail was not the only estate created by this statute. See 
 note, p. lis." 3 See Y. B. 20 Ed. I. p. 130. 
 
 ^ So called from the opening words "quia emptores terrarum et 
 tenementorum etc.," Stat, de Westminst. Tertio, c. i. 
 
 5 See Littleton, Tenures, i. 2, § 19. 
 
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110 THIRD PERIOD 
 
 Even from this rapid survey it will be seen that the 
 reign of Edward I. was marked by considerable legislative 
 activity. However this sudden intrusion of Parliament 
 into our fields was but a brief one, for after ' Quia 
 Emptores' there was no enactment of first-rate import- 
 ance till the great event of 1535, the Statute of Uses. 
 Not that the law was stationary during the intervening 
 two centuries and a half It developed then, as it had 
 done before, in the gradual manner characteristic of judge- 
 made law. It was in this period, too, that the supple- 
 mentary system of law afterwards known as equity was 
 being built up. To this we shall have to devote a special 
 section later. In the meanwhile, confining our attention 
 to the common law^ perhaps we cannot do better than 
 Littleton's follow in the footsteps of Littleton'. His famous work on 
 
 Tenures. m < ■ ■> ■ i- 
 
 1 enures presents m very brief space a survey of the 
 whole field of realty as known in his day. Let us see 
 something of the light it throws on the subject of ' title.' 
 Fee In dealing with a fee simple, the old charter of 
 
 Feoffment feoffment accompanied by livery of seisin was still in 
 by livery use. As in earlier days, actual seisin was most important, 
 although there was a certain relaxation when several 
 tenements in the same county were to be conveyed. 
 " And if a man will make a feoffment, by deed or without 
 deed, of lands or tenements that he hath in divers towns 
 in one county, the livery of seisin made in one parcel of 
 the tenements in one town in the name of all the rest is 
 sufficient for all other lands and tenements comprehended 
 within the same feoffment in all other towns in the same 
 county. But if a man maketh a deed of feoffment of 
 lands or tenements in divers counties, then it behoveth in 
 every county to have a livery of seisinl" 
 
 The absence of actual seisin could be excused if the 
 donee were restrained by fear of violence from entering 
 upon the land. In such a case it would suffice if the 
 
 ' Littleton was made a judge of the Court of Common Pleas on the 
 26th of AprU 1466 (6 Ed. IV.). 
 
 = Littleton, Tenures, i. 7. 61 ; of. in. 7. 417. 
 
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FEOFFMENT 111 
 
 donee went near the land and by word of mouth claimed 
 it as his^ Moreover, if he were too ill to go himself, he 
 might send a substitute^. Coke remarks that the fear 
 " must not bee a vaine feare, but such as may befall a 
 constant man " and that it must concern the donee's 
 person, not his goods. 
 
 As to the necessary words in the conveyance, Littleton 
 says : — '' If a man would purchase lands or tenements in 
 fee simple, it behoveth him to have these words in his 
 purchase — To have and to hold to him and to his heirs ; 
 for these words (his heirs) make the estate one of inheri- 
 tance. For if a man purchase lands by these words ' To 
 have and to hold to him for ever ' ; or by these ' To have 
 and to hold to him and his assigns for ever ' ; in these two 
 cases he hath but an estate for term of life, for that there 
 lack these words (his heirs), which words onlj^ make an 
 estate of inheritance in all feoffments and grants'." In a 
 lengthy note on this passage Coke analyses a deed of 
 feoffment and divides it into eight formal parts. Into 
 these matters we need not follow him, for the forms were 
 not essential to the feoffment. "For if a man by deede 
 give lands to another and to his heirs without more 
 saying, this is good, if he put his seale to the deede, 
 deliver it and make livery accordingly. So it is if A give 
 lands to have and to hold to B and his heires. And yet 
 no well advised man will trust to such deeds, which the 
 law by construction maketh good, ut res magis valeat ; 
 but when forme and substance concurre, then is the deed 
 faire and absolutely good*." 
 
 [" The date of the deed many times antiquity omitted ; 
 and the reason thereof was for that the limitation of 
 prescription, or time of memory, did often in processe of 
 time change ; and the law was then holden, that a deed 
 bearing date before the limited time of prescription, was 
 
 1 Littleton, m. 7. 419. His authority is reported in Booke of Assises, 
 38 Ed. III. pi. 23. 
 
 2 Ibid. III. 7. 434. ^ Ibid. i. 1. 1. 
 * Coke's Institutes, 7 a. 
 
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112 
 
 THIRD PERIOD 
 
 A charter 
 of feoff- 
 ment. 
 
 Fines. 
 
 not pleadable; and therefore they made their deedes 
 without date, to the end they might alledge them within 
 the time of prescription. And the date of the deedes was 
 commonly added in the raigne of Ed. 2 and Ed. 3 and so 
 ever since ^."] 
 
 We may fitly conclude the account of this mode of 
 conveyance by transcribing a charter of feoffment from 
 the reign of Henry VI. 
 
 " Sciant praeseutes & futuri, me Robertum Morton Cleri- 
 cum tradidisse dimisisse & praesenti carta mea confirmasse 
 Ricardo Comiti Sarum, Roberto Constable, Roberto Stele 
 Clerico, Thomae Wytham, & Thomae Walton omnia terras, 
 tenementa, servicia, reversiones, ac possessiones quaecunque 
 cum suis pertinenciis quae habeo in villis seu hamelettis de 
 Walton juxta Ludam, Alvingham, Skamelesby <fe Hamering- 
 ham, in comitatu Lincolniae : Habendum & tenendum praefatis 
 comiti, R. C, R. S., T. W., & T. W., haeredibus ife assignatis 
 suis imperpetuum, omnia praedicta terras, tenementa, redditus, 
 servicia, reversiones ac possessiones quaecunque cum suis 
 pertinenciis. In cujus rei testimonium huic cartae meae 
 sigillum meum apposui. Hiis testibus — Thoma Cumberworth 
 Milite, Waltero Tailboys, Ricardo Haunsard, Thoma Meres, 
 Willelmo Percy, armigeris & aliis. Datum apud Welton 
 praedictam, vicesimo die lanuarii, Anno Regni Regis Henrici 
 sexti post conquestum vicesimo prime ^." 
 
 Another important mode of conveyance was by means 
 
 of a fine. The form and attributes of a final concord were 
 
 discussed in the preceding period and there had been 
 
 little change when Littleton wrote. On one matter some 
 
 fluctuations took place, namely as to the power of a fine 
 
 to bar adverse claims if not set up within a short period. 
 
 Originally this period of limitation was a year and a day 
 
 from the levying of the fine, but the law was altered by 
 
 Statute 34 Ed. III. which took away this power of barring 
 
 future claims'. C. 16 says " And it is accorded that the 
 
 plea of non-claim of fines that from henceforth shall be 
 
 levied shall not be taken or holden for any bar in time to 
 
 1 Coke's Institutes, 6 a. ^ Form. Ang. oooxLvi. 
 
 3 See Littleton, in. 7. 441. 
 
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FINES 113 
 
 come." This state of affairs however did not last very long, 
 for the ancient order was restored by 1 Rich. III. and 
 4 Hen. VII. But even then there were some modifications, 
 for proclamations were made necessary and the time for 
 putting in an adverse claim was extended to five years. 
 
 A single instance of a final concord, taken from the 
 reign of Edward IV., will suffice to illustrate its form 
 within the present period : — 
 
 " Haec est finalis concordia facta in Curia Domini Regis 
 apud Westm. a die Paschae in unum mensem, anno regnorum 
 Edwardi Regis Angliae & Franciae quarti a conquestu none, 
 coram Roberto Danby etc. Justiciariis & aliis Domini Regis 
 fidelibus tunc ibi praesentibus. Inter Johannem Ouston Cleri- 
 cum querentem, et Nicholaum Gaynesford Armigerum <fe 
 Margaretam uxorem ejus deforciantes, De duobus mesuagiis, 
 duobus cotagiis, ducentis triginta & quatuor acris terrae, 
 sexaginta & tribus acris prati, duodecim acris bosci, sex acris 
 marisci, & septuaginta & una solidatis redditus cum pertinen- 
 ciis in Netherburneham, Upperburneham, Westwode, Ouston, 
 Epworth, Estlande, & Haxay infra insulam de Axeholme in 
 Comitatu Lincolniae, Et de sexdecim solidatis redditus cum 
 pertinenciis in Mesterton in Oomitatu Notynghamiae, unde 
 Placitum convencionis summonitum fuit inter eos in eadem 
 curia : scilicet quod praedicti Nicholaus & Margareta recogno- 
 verunt praedicta tenementa & redditus cum pertinenciis esse 
 jus ipsius Johannis ut ilia quae idem Johannes habet de dono 
 praedictorum Nicholai & Margaretae : Et ilia remiserunt & 
 quietam clamaverunt de ipsis Nicholao & Margareta & haere- 
 dibus suis inperpetuum : Et praeterea iidem Nicholaus & 
 Margareta concesserunt pro se & haeredibus ipsius Margaretae, 
 quod ipsi warantizabunt praedicto Johanni & haeredibus suis, 
 praedicta tenementa & redditus cum pertinenciis, contra 
 Georgium Abbatem Westmonasterii & successores suos inper- 
 petuum : Et pro hac recognitione, remissione, quieta cla- 
 matione, warantia, fine & concordia, idem Johannis dedit 
 praedictis Nicholao & Margaretae ducentas marcas argentic" 
 
 1 Form. Ang. ccclxxxix. Formerly a married woman could not 
 dispose of her property except by a fine in which the husband concurred, 
 but in the present period another method came into fashion — the common 
 recovery, see p. 114. 
 
 M. B. 8 
 
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114 
 
 THIRD PERIOD 
 
 Evidence 
 of fine. 
 
 Re- 
 coveries. 
 
 The evidence of title by fine was discussed when the 
 subject was first introduced. It must now be added that 
 a statute was passed' in this period enacting that all the 
 proceedings on fines, both previous to the final concord 
 and at its acknowledgment, should be enrolled in the 
 records of the Court of Common Pleas. The chirograph 
 of a fine is evidence to all persons and in all courts of 
 such a fine^. " It is," says Cruise, " a principle of common 
 law that the evidence of a record is of so high and certain 
 a nature, that its authenticity is never permitted to be 
 called in question ; so that no averment can be made 
 against any fact that is once upon record ; and therefore, 
 when the foot or chirographum of a fine is recorded, no 
 averment can be made as to the caption or time of its 
 acknowledgement, btit it must be considered as a fine of 
 that term in which it is recorded, nor can it be falsified 
 until it is vacated or reversed by the Court of Common 
 Pleas^" 
 
 Closely analogous to the mode of acquiring property 
 by a fictitious suit ending in a final concord was the 
 method of ' suffering a recovery.' " A recovery, in its 
 most extensive sense, is a restitution to a former right by 
 a solemn judgment of a court of justice; and judgments, 
 whether obtained after a real defence made by the tenant, 
 or upon his default, or feint plea, had equally the same 
 force and efficiency to bind the right of the land so 
 recovered, and to vest a free and absolute estate in fee 
 simple in the recoveror. A common recovery is a judg- 
 ment obtained in a fictitious suit brought against the 
 tenant of the freehold, in consequence of a default made 
 by the person who is last vouched to warranty in such 
 fictitious suit^." 
 
 This mode of conveyance was invented by ecclesiastics 
 in order to evade the statutes of mortmain. " To effect 
 this purpose the religious houses used to set up a fictitious 
 
 1 5 Hen. IV. o. 14. 2 Gilbert, Bvid. 
 
 2 Cruise, Fines. 
 
 " Cruise, Common Recoveries, chap. i. p. 1. 
 
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RECOVERIES 115 
 
 title to the lands intended to be given or sold, and brought 
 an action against the tenant to recover them ; the tenant 
 by collusion made no defence; whereby judgment was 
 given for the religious house, which then recovered the 
 lands by sentence of law upon a supposed prior title'." 
 Once invented the method was soon adopted by laymen 
 as well as by ecclesiastics as a convenient means of trans- 
 ferring land. However this extensive use of fictions was 
 not allowed to go on without a check. The eleventh 
 chapter of the Statute of Glocester provided that a 
 termor for years might falsify a recovery feigned by the 
 owner of the inheritance, and the system received a much 
 more severe blow from the Statute of Westminster II. c. 32. 
 This enacted that "in all cases where ecclesiastics recovered 
 lands by default a jury should try the right of the deman- 
 dants to the land, and if the religious house were found to 
 have a title, they should recover them ; but otherwise it 
 should be forfeited to the lord of the fee.'' In consequence 
 of this legislation common recoveries practically disap- 
 peared for a long time. However they were brought in 
 again at a later stage as an ingenious means of evading 
 the restraints on alienation imposed by the Statute de 
 Donis. We shall have to return to them when dealing 
 with estates tail. 
 
 Note. Before dismissing the subject of title by the judg- Tenancy 
 ment of a court, reference may be made to another species of ^ elegit, 
 that title that had its origin in the Statute of Westminster II. 
 (see p. 109, note 1). The most important result of that statute 
 has been already discussed — its creation of the estate tail ; but 
 in addition to this it gave rise to another interest in land, 
 tenancy by elegit. It was enacted that a judgment creditor 
 could elect to have either a writ of fi. fa. executed upon the 
 goods of the debtor or one commanding the sheriff to deliver 
 "omnia catalla debitoris (exceptis bobus et afris carucae) et 
 medietatem terrae." This was called a writ of elegit and the 
 creditor thus put in possession by the sheriff was styled 
 'tenant by elegit.' Closely resembling this estate were the 
 
 1 Cruise, Common Recoveries, i. 2. 
 
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116 THIRD PERIOD 
 
 tenancies by statute merchant and statute staple created 
 about the same time by Stat, of Acton Burnell (11 Ed. I.) and 
 Stat, de Mercatoribus (13 Ed. I.). However, it would be out 
 of place to discuss any of these estates in the text, for in spite 
 of their importance, and of their close resemblance to freehold, 
 they passed to the tenant's executor or administrator and 
 not to his heir, and so were at most but chattels real. See 
 Coke, Second Inst. 396 and Coke, Litt. 436. 
 
 Lease and Another method of conveyance in vogue at this time, 
 release. ^-^^ q^q destined to become for long the usual one in 
 practice, was that known as the 'lease and release.' A, a 
 tenant in fee simple, leased his lands to B for a term of 
 years, and after B had entered, A released all his rights to 
 B who thus obtained the fee simple. The original lease 
 might be but a tenancy at will, and livery of seisin was 
 unnecessary as the tenant was already in possession^. 
 Possession by the tenant was, however, essential. "Also 
 if a man letteth to another his land for term of years, if 
 the lessor release to the lessee all his right etc. before that 
 the lessee hath entered into the same land by force of the 
 same lease, such release is void, for that the lessee had 
 not possession in the land at the time of the release, but 
 only a right to have the same land by force of the lease. 
 But if the lessee enter into the land and hath possession 
 of it by force of the said lease, then such release made to 
 him by the feoffor or by his heir is sufficient to him by 
 reason of the privity which by force of the lease is between 
 them.... In the same manner it is, as it seemeth, where a 
 lease is made to a man to hold of the lessor at his will, by 
 force of which lease the lessee hath possession, if the lessor 
 in this case make a release to the lessee of all his right, 
 this release is good enough for the privity that is between 
 them^." Littleton also remarks that if I let to a man for 
 a term of years by force whereof he is in possession, and 
 afterwards release all my right to him, then I give him 
 only a life estate. If I wish him to have more than this 
 I must say something definite about an estate of inheri- 
 
 ' Littleton, in. 8. 460. - Ibid. §§ 459 and 460. 
 
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RELEASE 117 
 
 tance, as that he is to have a fee shmple or fee tail. " If I 
 release to him and to his heir, then he hath a fee simple ; 
 if to him and to his heirs of his body begotten — a fee 
 tail\" In other words, in the release the estate must be 
 properly marked oi^t. A few examples will show the 
 usual form of release. 
 
 (A) " Omnibus Christ! fidelibus ad quos hoc praesens Form of 
 scriptum pervenerit, Ricardus de Hothleghe senior salutem '^^l^''^''- 
 in Domino. Noveritis me remisisse, concessisse, & de me ife 
 haeredibus meis quiete clamasse Rogero filio Johannis de 
 Dalinggerugge & haeredibus <fe assignatis suis, in plena & 
 paoifica seisina praedioti Rogeri, totum jus & clameum quod 
 habui vel habere potui seu potero in omnibus terris & tene- 
 mentis cum suis pertinenciis, quae praediotus Rogerus habuit 
 
 ex dono & concessione Johannis filii mei in villa & parochia de 
 Hertefelde seu in quibuscunque aliis terris & tenementis cum 
 suis pertinenciis me & haereditatem meam qualitercunque 
 contingentibus in eadem villa; Ita quod ego praedictus Ricardus 
 nee haeredes mei nee aliquis nomine nostro, nihil juris seu 
 clamii in praedictis terris & tenementis cum suis pertinenciis 
 de caetero vendicare poterimus, exigere, nee reclamare imper- 
 petuum ; set ego praedictus Ricardus & haeredes mei omnia 
 praedicta terras & tenementa cum pertinenciis praefato Rogero 
 haeredibus <fe assignatis suis contra omnes gentes warrantiza- 
 bimus imperpetuum. In cujus rei testimonium, huic scripto 
 quietae clamanciae sigillum meum apposui ; et quia sigillum 
 meum pluribus est incognitum, sigillum commune civium 
 
 civitatis Cicestriae eidem apponi procuravi. Hiis testibus 
 
 Datum apud Cicestriam die Jovis in festo Sancti Bartholomaei 
 Apostoli, anno regni Regis Edwardi tercii post Conquestum 
 quartodecimo ^. " 
 
 (B) "A toux iceux qui ceste lettre verront ou orrount, 
 Edward Cowdray & John Peperwhit salutz en Dieu. Come 
 nous sumes enfeffes joyntement ove Hugh Seint John, Robert 
 Hulle & aultres, Thomas Ponynges Sire de Seint John, en le 
 Manoir de le Moote ove lez appurtinaunces en le Counte de 
 Hertford, come en fee symple : Saches, nous avoir relesse, 
 
 1 Littleton, in. 8, § 465. ^ Form. Ang. dcci. 
 
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118 THIRD PERIOD 
 
 pour nous & noz heirs a toux jours, tout le droit & claym cfue 
 nous aTons ou per ascune voye avoir purrons eut apres, en le 
 dit Manoir ove lez appurtinaunces ; Issint que nous, nul de 
 nous, noz heirs, ne nul autre en nostre noum nuUe manere 
 action ne droit naveroms desorenavaunt, en le Manoir avaunt 
 dit ne en nul parcel de icell ; mays de toutez actions & 
 clayms sumes exclusez per ioestes ; enseeles de noz seells. 
 Done le Vyntisme jour de Septembre, Ian del regne le Roy 
 Henry quarte puis le Conquest secunde'." 
 
 Confirma- Instead of a release, a deed of confirnaation was 
 sometimes employed. The substance of such a deed was 
 as follows. " Know all men etc. that I, A of B, have 
 ratified, approved and confirmed to G and D, the estate 
 and possession that I have of and in the messuage etc. 
 with appurtenances etc.^" Just as in the case of a 
 release, confirmation was appropriate when possession 
 had already been obtained by the donee ; but in certain 
 circumstances this method of conveyance was available 
 when a release would have been void. Thus if A had 
 let land to B for term of life and B sub-let to G for forty 
 years (say), then, if G entered into possession, A might 
 confirm this term of years and in that case could not 
 disturb G if B died before the end of forty years. Now 
 A could not effect this by means of a release ; such an 
 instrument would be void " for that then there was no 
 privity between A and G, for a release is not available to 
 a tenant for years except when there is a privity between 
 him and him that releaseth'." The distinction between a 
 release and confirmation is further illustrated by the fact 
 that if A had let to B for a term of years and afterwards 
 confirmed this without putting more words in the deed, 
 then B would get no more than he had before ; but if, on 
 the other hand, A released all his right, then B would get 
 at least a life estate, and if proper words were used a fee 
 simple or fee tail^ 
 
 1 Form. Ang. docx. - Littleton, in. 9. 515. 
 
 3 Ibid. §§ 516 and 517. * Ibid. §§ 545 and 546. 
 
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CONFIRMATION 119 
 
 As to the form of the deed of confirmation, it may be 
 mentioned that the word confirmavi need not be em- 
 ployed, dedi or concessi would do equally well. Thus, 
 says Littleton, " If I be disseised of a carve of land and 
 make such a deed ; Sciant praesentes etc. quod dedi to the 
 disseisor (or quod concessi to the disseisor) the said carve 
 of land etc., and I deliver only the deed to him without 
 livery of seisin of the land, this is a good confirmation and 
 as strong in law as if there had been in the deed the 
 word confirmavi \" Here is a confirmation in fee of land, 
 combined with a feoffment in fee of other lands : — 
 
 " Noverint universi per praesentes, me Johannem atte Form of 
 Stokke filium ife haeredem Ricardi atte Stokke, ratificasse, jj^q 
 confirmasse, & hoc praesenti scripto meo approbasse & relax- 
 asse, Ricardo Cheddere haeredibus & assignatis suis imper- 
 petuum, totum statum suum quern habet ex concessione 
 Johannis Lythyate, in omnibus clausis, pascuis, & pasturis, 
 cura pertinenciis in parochia de CherchehuU, quae vocantui- 
 Willyngg : Habendum & tenendum eidem Ricardo haeredibus 
 & assignatis suis, de Capitalibus Dominis feodi illius imper- 
 petuum, per servicia inde debita & de jure consueta. Dedi 
 etiam &, concessi & praesenti scripto meo confirmavi eidem 
 Ricardo haeredibus & assignatis suis, omnia terras & tenementa 
 mea, prata, pascuas, pasturas, una cum viis, semitis, redditibus, 
 consuetudinibus, serviciis tam liberorum quam villanorum, ac 
 wardis, maritagiis, reversionibus, escaetis, & aliis quibuscunque 
 suis pertinenciis, quae habeo, habui, seu aliquo modo ante 
 haeo tempora exegi seu clamavi, apud la Stokke, CherchehuU 
 in parochia de Banewell, Apston in parochia de Wedmore, 
 Alwarton ife Alweryngton & Hyde in parochia de Bageworthe, 
 Cosyngton, & Chelton : Habendum &, tenendum omnia prae- 
 dicta terras & tenementa, prata, pascuas & pasturas, una cum 
 viis, semitis, redditibus, consuetudinibus, serviciis tam liberorum 
 quam villanorum, ac wardis, maritagiis, reversionibus, escaetis 
 & aliis quibuscunque suis pertinenciis, praedicto Ricardo 
 haeredibus & assignatis suis imperpetuum : De capitalibus 
 dominis feodi illius per servicia inde debita & de jure consueta. 
 Et ego vero praedictus Johannes haeredes & assignati mei, 
 
 1 Littleton, in. 9. 531. 
 
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120 THIRD PERIOD 
 
 omnia supradicta terras &, tenementa, prata, pascuas, & 
 pasturas, cum suis ubique pertinenciis, praefato Ricardo 
 haeredibus & assignatis suis, contra omnes gentes warrantiza- 
 bimus, acquietabimus, &, imperpetuum per praesentes defende- 
 nius. In cujus rei testimonium huic scripto meo sigillum 
 meum apposui. Datum apud Wedmore, duodecimo die niensis 
 Julii, anno regni Regis Henrici quinti post conquestum 
 quarto'." 
 
 Exchange. Another title, employed from an early period, had the 
 peculiarity of not requiring livery of seisin. This was the 
 exchange. If two owners of equal estate — i.e. both fee 
 simple, or both fee tail special, or the like — agreed to 
 exchange their property and afterwards made entry, this 
 was a good conveyance. "And such an exchange made 
 by parol of tenements within the same county is good 
 enough ; but if the tenements be in different counties a 
 deed indented is essentials" It was important that the 
 estates should be ' equal ' in the sense mentioned^, other- 
 wise the transaction was void. We append an example of 
 an exchange from the reign of Edward III. 
 
 Form of " Sciant praesentes & futuri, quod Ego Alicia Dran dedi 
 
 exchange, goncessi & hac praesenti carta mea confirmavi. Domino Wil- 
 lelmo Comiti Sarum, septem pecias prati continentes unam 
 acram & dimidiani, octo perticatas & dimidiam in Southmede, 
 ex opposite raanerio de Caneford in excambium pro una acra 
 & dimidia prati in prato dicti Domini Comitis in Netherwode, 
 videlicet, de illis quinq; acris quas modo teneo de ipso Domino 
 Comite ad firmam, sub forma quae sequitur, Habendum & 
 tenendum praedictas septem pecias prati in Southmede praefato 
 Willelmo Comiti, haeredibus & assignatis suis, de Oapitalibus 
 Dominis feodi illius, per servicia inde debita & de jure consueta 
 inperpetuum. Et si contingat praefatum comitem, haeredes 
 vel assignatos suos, de praedictis septem peciis prati in South- 
 mede, per praefatain Aliciam, vel per haeredes Henrici Dran 
 nuper mariti sui, vel per aliqueni alium implacitari, ita quod 
 in curia Domini Regis per judicium dictas septem pecias prati 
 
 1 For7n. Aug. oxxix. ' Littleton, i. 7, §§ 62 and 63. 
 
 3 Of course equality of size or value was not at all necessary. See 
 Littleton, I. 7, §§ 64 and 65. 
 
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EXCHANGE 121 
 
 vel aliquam partem, aiuiserit ; quod extunc bene liceat praefato 
 Comiti, haeredibus &, assignatis suis, in praedictani unam acram 
 & dimidiam prati, in prato de Netherwode, reintrare & seisire 
 & penes se iSi haeredes suos inperpetuum retinere, sine con- 
 tradictione aliquali. Et ego vero praedicta Alicia & haeredes 
 raei, praedictas septem pecias prati in prato de Southmede 
 supradicto, praefato comiti haeredibus & assignatis suis in 
 forma supradicta contra omnes gentes warantizabimus inper- 
 petuum & defendemus. Pro hac autem donatioue <fe concessione 
 nos praefatus Comes dedimus, concessimus & hac praesenti 
 carta nostra confirmavimus, praefatae Aliciae unam acrafn & 
 dimidiam prati, in prato de Netherwode supradicto in Excam- 
 bium pro septem peciis prati in prato de Southmede supradicto, 
 in forma supradicta : Habendum &, tenendum praedictani 
 unam acram & dimidiam in prato de Netherwode praedictae 
 Aliciae &, haeredibus Henrici Dran, nuper mariti sui, de 
 Capitalibus Dominis feodi illius, per servicia inde debita & de 
 jure consueta inperpetuum. Et si contingat — (here follows a 
 proviso like the one above on the part of Alice ; and a like 
 warranty on the Earl's part). In cujus rei testimonium — Hiis 
 
 testibus Datum apud Caneford, die Lunae proximo 
 
 post festum Sancti Hillarii, anno Regni Regis Edwardii tercii 
 post conquestum quadragesimo octavo'." 
 
 Real estate could also be acquired by means of a Surrender, 
 surrender. For example, a life tenant in possession might 
 surrender his estate to the remainderman without formal 
 entry. "Surrender," says Coke, "is properly a yeelding 
 up an estate for life or yeares to him that hath an 
 immediate estate in reversion or remainder wherein the 
 estate for life or years may droune by mutual agreement 
 between them^" " A surrender differs from a release in 
 this respect, that the release operates by the greater 
 estate's descending upon the less :— a surrender is the 
 falling of a less estate into a greater. As there is 
 necessarily a privity of estate between the surrenderor 
 and the surrenderee, no livery of seisin is necessary to 
 perfect a surrender"." 
 
 1 Fm-ni. Ang. oclxxviii. ^ Coke's Institutes, 338 a. 
 
 3 Butler's Note (1) to Coke's Inst. 337 b. 
 
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122 THIRD PERIOD 
 
 Fee tail. So far our attention has been directed mainly to the 
 
 fee simple. Something must now be said of that innova- 
 tion of the present period — the fee tail. We have already 
 given an account of the legislation that set up this new 
 species of estate. " Tenant in fee tail," says Littleton, " is 
 by force of the statute of Westminster II. cap. 1', for 
 before the said statute, all inheritances were fee simple^." 
 If the obvious intention of the framers of that statute 
 had been carried out, we should not have had to delay 
 long over the fee tail. For the estate would then have 
 been inalienable, and after it had once been established 
 the only possible title would have been that by descent". 
 And indeed this was what really happened for some time 
 after the Statute de Donis. However, restrictions on 
 alienation were naturally unpopular with all but a few 
 interested parties, and it was not very long before attempts 
 were made to avoid the restraints imposed by the legis- 
 lature. Still progress in this direction was not rapid and 
 it was long before the method ultimately adopted was 
 perfected. The first step was a judicial decision to the 
 effect that the issue in tail could not avoid the alienation 
 of his ancestor, provided that he was left a proper recom- 
 pense for the loss of his estate''. The further development 
 was intimately associated with the current doctrine of 
 warranty. " But he that demandeth fee tail by writ of 
 formedon in descender shall not be barred by lineal 
 warranty, unless he hath assets by descent in fee simple by 
 the same ancestor that made the warranty. But collateral 
 warranty is a bar to him that demandeth fee tail, without 
 any other descent of fee simple, except in cases that are 
 restrained by the statutes^" Or, as Reeves puts it, " An 
 estate tail might be barred by the warranty of an ancestor 
 under whom the estate was claimed, if accompanied with 
 assets, and by the warranty of an ancestor under whom 
 the estate was not claimed, without any assets ; which 
 
 1 See p. 108. ^ Littleton, i. 2. 13. 
 
 ^ Ou title to fee tail by descent, see p. 130. 
 
 ■• 10 Rep. 37 b. ^ Littleton, m. 13. 712. 
 
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COMMON RECOVERY 123 
 
 first warranty has since been called lineal and the latter 
 collateral, because collateral to the title by which the 
 estate was claimed. These were treated as bars to which 
 au estate tail was subject in its very creation, and which 
 were unaffected by the prohibition of the Statute de 
 Donis\" 
 
 At first the courts were strict in requiring a real and 
 bona fide recompense to the issue of a tenant in tail who 
 had avoided the restrictions of de Donis and bound his 
 heirs to warranty. A great step, however, was taken in 
 the well-known Taltarum's case'' when it was decided Taltarum's 
 that a nominal and even fictitious recompense to the issue 
 in tail would bar them from disputing their ancestor's 
 alienation, and bar not only them but all persons in 
 remainder or reversion. From this time recoveries again 
 came to the front and remained in possession of the field 
 as the regular method of barring estates tail. Let us see 
 then more definitely what a common recovery was and 
 how it worked as a bar. As has already been said, it was Common 
 a judgment obtained in a real action, and although it 
 depended on a series of fictions it required all the for- 
 malities of an actual suit to be carefully attended to. 
 The first thing to be done was for the demandant, to 
 whom the lands etc. were to be conveyed, to sue out a 
 regular writ or praecipe against the tenant of the freehold 
 (called the tenant to the praecipe). " In obedience to 
 this writ the tenant of the freehold appears in court, 
 either in person or by attorney ; but, instead of defending 
 the title of the land himself, he calls on some other person 
 who upon the original purchase is supposed to have 
 warranted the title, and prays that such person may be 
 called in to defend the title which he warranted, or 
 otherwise to give the tenant lands of equal value to 
 those that he shall lose by defect of his warranty. This 
 is called the voucher or calling to warranty. The person 
 thus called to warrant the title (the vouchee) appears in 
 
 1 Reeves, ii. 340. ^ T. B. 12 Ed. IV. 19. 
 
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124 THIRD PERIOD 
 
 court, is impleaded, and enters into the warranty, by 
 which means he takes upon himself the defence of the 
 land. The demandant then desires leave of the court to 
 imparl or confer with the vouchee in private, which is 
 granted of course. Soon afterwards the demandant returns 
 to court, but the vouchee disappears, or makes default ; in 
 consequence of which it is presumed by the Court that 
 he had no title to the lands demanded in the writ, and 
 therefore could not defend them ; whereupon judgment is 
 given for the demandant, now called the recoverer, to 
 recover the lands in question against the tenant, and 
 judgment is also given for the tenant to recover against 
 the vouchee lands of equal value, in recompense for the 
 lands so warranted by him, and now lost by default. This 
 is called the recompense, or recovery in value ; but as it 
 is customary to vouch the crier of the court (who is hence 
 called the common vouchee), the tenant can have only a 
 nominal recompense for the lands thus recovered against 
 him by the demandant. Finally a writ of habere facias 
 seisinam is sued out, directed to the sheriff of the county 
 in which the lands thus recovered are situated ; and on the 
 execution and return of this writ the recovery is com- 
 pleted^" 
 Eever- It was remarked above that one effect of the Statute 
 
 de Donis was the introduction of a greater complexity 
 into our legal system by increasing the number of com- 
 binations into which it was possible to divide and dispose 
 of one's interests in realty. This has been illustrated by 
 the discussion of the estate tail, and it receives further 
 confirmation from the fact that it was in the present 
 period that reversions and remainders came prominently 
 to the fore and that the complex system of rules relating 
 to them began to be constructed. "A reversion" says 
 Coke "is where the residue of the estate always doth 
 continue in him that made the particular estatel" The 
 regular mode of conveying a reversion was by deed of 
 
 1 Cruise, Goimnon Recoveries, pp. 11 — 12. 
 '' Coke, Inst. 22 b. 
 
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 sions. 
 
REMAINDERS 125 
 
 grant. It must be observed, however, that in case the 
 conveyance were made to any other than the tenant of 
 the particular estate, the attornment of that tenant was 
 necessary to complete the transaction. Thus if A leased 
 to B for a term of years, or for life, or made him a gift in 
 tail, reserving a certain rent, and afterwards wished to 
 convey his reversion to G, then A must execute a deed of 
 grant in Cs favour and obtain the attornment of B\ If 
 the grant to G were brought about by a deed of confir- 
 mation, confirming B in his estate and granting G his, 
 then, if B accepted this deed, that would be a sufficient 
 attornments Supposing, on the other hand, that A wished 
 to convey the reversion to B, then his usual course was to 
 surrender his right to him by deed. The reversion could 
 also be conveyed by a fine or by suffering a common 
 recovery ; and this was a bar to all reversions depending on 
 the estate of which the recovery was suffered S 
 
 As to a remainder, which Coke defines as "a residue Remain- 
 of an estate in land depending upon a particular estate, 
 and created together with the same''," Littleton remarks 
 that if A granted a term of years to B (with or without a 
 deed) with remainder over to G for life, or in fee simple or 
 tail, then A must make livery of seisin to B, not for his 
 sake, but to secure the rights of the remaindermen who 
 would otherwise get nothing'. A release was the regular 
 means of conveying a vested remainder", but it is to be 
 noted that the remainderman must " have the remainder 
 in deed at the time that the release is made, and not 
 merely the right of a remainder'." A man could release 
 only what he actually had at the time of the release, and 
 any attempt to use this form of conveyance for future 
 estates was void. " These words that are commonly put 
 in releases— quae quovis modo in futurum habere potero — 
 are void in law ; for no right passes by a release but the 
 
 ' Littleton, in. 10. 572. 
 
 ^ Ibid. § 573. ^ Cruise, Common Recoveries, 337 b. 
 « Coke, Inst. 49 a. ' Littleton, i. 7. 60. 
 
 « Ibid. in. 8, 450. ' Ibid. § 451. 
 
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126 THIRD PERIOD 
 
 right that the releasor has at the time the release is 
 made'." A remainder could also be conveyed by a fine or 
 a common recovery'. 
 Contin- Contingent remainders were common towards the end 
 
 mainders °f *^i^ period, but the exact date of their origin is 
 doubtful. We may say, however, that before the reign 
 of Henry VI. their validity was open to question, but 
 that from that time they ceased to be under suspicion. 
 Littleton has something to say of these remainders^, but 
 in his time the rules that afterwards governed this species 
 of estates were not yet clearly defined. All we need say 
 is that a contingent remainder could not be transferred 
 inter vivos except by means of a fine or common recovery^; 
 it was, however, transmissible to the heirs of the person 
 to whom it was limited, if that person died before the 
 contingency happened. 
 Dower. We shall look next at the modes of acquiring realty 
 
 through marriage. The law as to dower had undergone 
 some changes and extensions since Bracton's day. The 
 changes referred to the amount of ' reasonable dower ' 
 and will be mentioned a little later. The extensions 
 arose from the introduction of estates tail, for the right 
 of dower was extended to the wife of a tenant in fee tail 
 (general or special) and that whether the wife had issue 
 of her husband or not. 
 
 As has been indicated before, the limit of age of the 
 wife was now fixed, and it was decided that in order to 
 claim dower the wife must be at least nine years old at 
 the time of her husband's death". In the case of an 
 endowment 'by the assent of the father,' i.e. when the 
 husband endowed his wife with land that was the father's 
 (the son being the heir apparent), Littleton says that 
 " it hath been said that it behoveth the wife to have a 
 
 1 Littleton, iii. 8. 446. " Cruise, Fines and Recoveries. 
 
 ■' Littleton, iii. 13. 720—723. 
 
 ' Cruise, Fines and Eecoveries; Pearne, Contingent Bemainders, 7th 
 ed. p. 366. 
 
 5 Littleton, i. 5. 36. 
 
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DOWER 127 
 
 deed of the father's to prove his assents" He was 
 doubtful, however, whether in such a case the wife could 
 claim dower if under nine years of age; but Coke 
 maintained that " the dower being made by assent " the 
 wife could not be disqualified by age ; " for consensus 
 tollit errorem^" 
 
 The wife was not entitled to dower from lands held 
 by her husband jointly with another; but it was other- 
 wise with tenancies in common". It is to be noted, too, 
 that it was useless for a husband to endow his wife 
 specifically at the church door of lands that he held in 
 tail. In any case the wife would have the common law 
 share", but the husband could not give her more and he 
 could not make a specific appointment from an estate 
 taiP. In the case of special tail the wife could not obtain 
 dower unless she might have had children that could 
 inherit — she need not actually have had such children. 
 " If tenements be given to a man and to the heirs that 
 he shall beget of the body of his wife... and the husband 
 die without issue, the same wife shall be endowed of the 
 same tenements ; because the issue that she by possibility 
 might have had by the same husband, might have in- 
 herited the same tenements. But if the wife dieth and 
 the husband takes another wife and dieth, his second wife 
 shall not be endowed in this case"." 
 
 Littleton distinguishes five kinds of dower: — (1) dower "Various 
 
 , . kinds of 
 
 by common law (one-third), (2) dower by special custom dower, 
 (usually one-half, but sometimes the whole of the hus- 
 band's lands'), (3) dower ad ostium ecclesiae (what we 
 have called specific dower), (4) dower ex assensu patris, 
 and (5) dower de la plus belle. 
 
 We have already, in following Bracton, had occasion to 
 deal with all these forms except the last. 
 
 As to the first an important change, already fore- 
 
 1 Littleton, i. 5. 40. ^ Coke, Inst. 37 a. ^ Littleton, i. 5. 45. 
 
 "i.e. one third ; or more in case of special custom. 
 
 " Littleton, i. 5. 46. " Ibid. § 53. 
 
 >■ e.g. in Burgage. See Littleton, ii. 10. 166. 
 
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128 THIRD PERIOD 
 
 shadowed', had taken place since Bracton's day. At that 
 time ' reasonable dower ' was one-third of the freehold of 
 which the husband was seised on the day of the espousals. 
 Now, however, it was one-third of all that had been the 
 hxisband's in his life time in fee simple or fee tail. In 
 (3) also there had been a change, for when Bracton wrote 
 it was limited to one-third, but now the whole of the 
 husband's realty might be included. Of the last — dower 
 de la plus belle — Littleton says, "And this is in case 
 where a man is seised of forty acres of land and he 
 holdeth twenty acres of the said forty acres of one by 
 knight's service and the other twenty acres of another in 
 socage, and taketh wife and hath issue a son and dieth, 
 his son being within the age of fourteen years ; and the 
 lord of whom the land is holden by knight's service 
 entereth into the twenty acres holden of him and holdeth 
 them as guardian in chivalry during the nonage of the 
 infant, and the mother of the infant entereth into the 
 residue and occupieth it as guardian in socage ; if in 
 this case the wife bringeth a writ of dower against the 
 guardian in chivalry, to be endowed of the tenements 
 holden in knight's service, in the king's court or other 
 court, the guardian in chivalry may plead in such case 
 all this matter and show how the wife is guardian in 
 socage, as aforesaid, and pray that it may be adjudged 
 by the court, that the wife may endow herself de la plus 
 belle, i.e. of the most fair of the tenements that she hath 
 as guardian in socage, after the value of the third part 
 that she claims by her writ of dower to have the tene- 
 ments holden by knight's service. And if the wife 
 cannot gainsay this, then the judgment shall be given, 
 that the guardian in chivalry shall hold the lands holden 
 of him during the nonage of the infant, quit from the 
 woman etc. And note that after such a judgment given, 
 the wife may take her neighbours and in their presence 
 endow herself, by metes and bounds, of the fairest part of 
 the tenements that she hath as guardian in socage, to 
 1 See p. 50. 
 
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CURTESY 129 
 
 have and to hold to her for term of her life ; and this 
 dower is called dower de la plus belle'." 
 
 In Littleton's time a doweress might dispose of her 
 land and bind her heir by warranty'' This power, 
 however, was taken from her by Statute 11 Hen. VII. 
 c. 10, and from that date such warranty was void. Dower 
 could be barred by the husband and wife joining in a fine 
 or in suffering a common recovery. 
 
 Tenancy by curtesy remained just as in the preceding Curtesy, 
 period, with a few additions due to the introduction of 
 the estate tail. The husband had a life interest in the 
 lands that his wife held whether in fee simple, or fee tail, 
 or fee tail special, provided, however, in the last case, that 
 " the husband have issue by the same wife, male or 
 female born alive, although this issue may afterwards 
 die'." "And some have said that he shall not be tenant 
 by the curtesy unless the child that he hath by his wife 
 be heard to cry ; for by the cry it is proved that the child 
 was born alive. Therefore quaere^." A similar view had 
 been expressed at an earlier period', but it was afterwards 
 established that the cry was important merely as evidence 
 of the infant being alive, and that other evidence might 
 be entertained, "for peradventure," says Coke, "the infant 
 might be born dumbe." 
 
 We have seen that the husband had only a life 
 interest in his wife's lands. However, before the Statute 
 of Glocester a tenant by the curtesy might alienate in fee 
 and bind his heir by warranty. After that statute he 
 could no longer do this, unless the heir got assets by 
 descent from the tenant by the curtesy". At the same 
 time it should be remarked that the courts were not so 
 strict in requiring a bona fide recompense to the issue 
 of a tenant by the curtesy as to that of a tenant in 
 taiP. 
 
 ' Littleton, i. 5, §§ 48 and 49. ^ ibid. m. 13. 725. 
 
 •< Ibid. I. 4. 35. ■• Ibid. § 35. 
 
 '- See Bracton, v. 5. 30 ; Britton, o. 50, f. 132 ; Fleta, vi. i:. 50. 
 « Littleton, in. 13. 724. '' Beeves, n. 840. 
 
 M. E. 9 
 
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130 THIRD PERIOD 
 
 Title by Passing from methods of conveyance inter vivos, we 
 
 need hardly remark that title by descent was an exceed- 
 ingly common one, both fee simple and fee tail being 
 essentially heritable estates. The actual laws of descent 
 are discussed at length by Littleton^ but they need not 
 occupy us here. In the case of a fee tail the course of 
 descent depended on the form of the gift — tail general, 
 or special, male or female. " In cases of gifts in tail " 
 says Littleton " the will of the donor ought to be 
 observed, who ought to inherit and who not"." After 
 giving various examples of descent^, he makes the im- 
 portant remark " But if a man gives lands or tenements 
 to another, to have and to hold to him and to his heirs 
 male, or to his heirs female, he to whom such a gift is 
 made hath a fee simple, because it is not limited by the 
 gift of what body the issue male or female shall be and 
 so cannot in any wise be taken by the equity of the said 
 statute, and therefore he hath a fee simple*." In speaking 
 of the law in the preceding period we had frequently to 
 
 Import- dwell on the importance of seisin. This receives many 
 illustrations also in the period now under discussion. 
 Thus, in the matter of descents, "If a man be seised 
 of certain lands in fee and hath issue two sons and the 
 elder is a bastard and the younger mulier (i.e. legitimate) 
 and the father dies and the bastard entereth claiming 
 as heir to his father and occupieth the land all his life, 
 without any entry made upon him by the mulier, and 
 the bastard hath issue and dieth seised of such estate in 
 fee and the land descend to his issue and his issue 
 entereth etc.; in this case the mulier is without remedy, 
 for he may not enter, nor have any action to recover the 
 land, because there is an ancient law" in this case used 
 
 ' Littleton, i. 1, §§ 2 — 9. Just as in Bracton's time the ordinary 
 rules were sometimes set aside by special custom, as that of gavelkind or 
 Borough English. See Littleton, ii. 10. 165. 
 
 2 Ibid. 1. 2. 22. ■> Ibid. §§ 23—30. 
 
 4 Ibid. § 81. 
 
 ^ See the discussion of ' legitimacy ' in the last period, p. 48. 
 
 ance of 
 seisin. 
 
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OCCUPANCY 131 
 
 etc.* " It would be quite otherwise if the mulier disseised 
 the bastard, as the latter could then have no claim". 
 
 As yet there was no such thing as a proper will of Wills, 
 lands, except, as before, in the case of special custom such 
 as existed in many boroughs'. Something will be said 
 as to the practical method of avoiding the restraints on 
 devising realty when we deal with ' uses ' during this 
 period. 
 
 We must next refer to title by occupancy, a title that Oceu- 
 is of interest mainly because it used to be spoken of as P*"''^- 
 the original and 'natural' title. This position would 
 scarcely be maintained to-day", and although Blackstone 
 adopts it, he does not fail to point out that the title 
 has been confined by English law within a very narrow 
 compass'*- Within historic times, at any rate, it operated 
 only in the case of an estate pur autre vie. Thus suppose 
 that A were tenant pur autre vie, B being cestui que 
 vie. In the event of A dying before B, there were two 
 possibilities. In the first place, if A's estate had been 
 limited to A without mention of his heirs, then anyone 
 might enter on the land, and the first person to do so 
 became entitled to the estate during the life of B and 
 was called a ' general ' [and sometimes a ' common '] 
 occupant. If, on the other hand, A's estate had been 
 limited to him and his heirs, then there was no room 
 for the play of occupancy, although the name ' special 
 occupant' was given to the heir in such circumstances. 
 The case, then, of a general occupant was the only 
 example of occupancy, properly so called, known to 
 English law, and even this did not exist for very long. 
 For Bracton tells us nothing of occupancy ° and we shall 
 
 1 Littleton, iii. 6. 399. ^ Ibid. § 401. 
 
 5 See Littleton, ii. 10. 167. Litigation concerning wills began to be 
 common in the reign of Edward III. and soon the rule was established 
 that every effort should be made to give effect to the intention of the 
 devisor, however uuteohnieally it might be expressed. 
 
 ■* See Maine, Ancient Law, Chap. viii. ^ Blackstone, Comm. ii. c. 16. 
 
 ^ In his day the estate reverted to the grantor on the death of the 
 tenant pur autre vie, 
 
 9—2 
 
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132 
 
 THIRD PERIOD 
 
 Incor- 
 poreals. 
 
 Seignory. 
 
 Bents. 
 
 hea^' its death knell in the Statute of Frauds at the 
 beginning of the next period. It should be noted that 
 there could be no occupant against the king, since "nullum 
 tempus occurrit regi," and also that the law as to general 
 occupancy did not apply to incorporeals nor to copyholds. 
 
 In the last period we devoted a special chapter to the 
 discussion of incorporeals and villeinage ; but the law on 
 these subjects experienced so few important changes in 
 the interval that in this period it may be considered 
 much more briefly. 
 
 As to a seignory, there is practically nothing to be 
 added to Bracton's account. The regular method of 
 conveyance inter vivos w^as by deed of grant with attorn- 
 ment of the tenant, the attornment being accomplished 
 either by word of mouth or by delivery to the grantee 
 of " a penny, halfpenny or farthing^" A fine or common 
 recovery might also be employed. Descent was, however, 
 by far the most common title and it should be added that 
 the rules of dower and curtesy applied. 
 
 In dealing with rents, Littleton makes a triple 
 division — rent service, rent charge, and rent seek I By 
 virtue of the statute ' quia emptores ' rent service could 
 be reserved only by one who had the reversion ; but a 
 deed was not essential to the reservation. Rent charge 
 was established by the grant (by deed, poll or indenture) 
 of an annual rent issuing out of certain lands, and could 
 be granted in fee simple, fee tail, for term of life etc.^ 
 To complete the transfer the tenant of the land charged 
 should attorn to the grantee*. 
 
 It should be observed that the donee of a rent charge 
 lost it entirely if he purchased the whole or part of the 
 land out of which the charge issued — " because the rent 
 charge cannot be apportioned^." Further, if A leased 
 
 1 Littleton, iii. 10. 551. = ibj^ ^ ii_ 213. 
 
 3 Ibid. § 218. 
 
 ■• Ibid. III. 10. 556. In the case of joint-tenants, the attornment of 
 one sufficed for all. See Littleton, iii. 10. 566. 
 
 " Littleton, ii. 11. 222. This was not the case with rent service. 
 
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INCORPOREALS 133 
 
 lands to B for a term of years, or life, or made a gift in 
 tail, reserving a certain rent, and afterwards granted his 
 reversion to C (and B attorned), then the rent passed 
 with the reversion although no mention of the rent had 
 been made^ 
 
 Rents could also be conveyed by means of a fine or 
 common recovery. Just as in the preceding period, a 
 prescriptive title was one of the most common. The 
 time of prescription was the time " whereof there is no 
 memory of man to the contrary." This time could not 
 be presumed to run beyond the limit of legal memory, 
 and this, as we have seen, was finally fixed^ at the 
 beginning of the reign of Richard I. In other respects 
 the rules as to prescription were unaltered since Bracton's 
 day. Just as then, too, actual seisin was of the first 
 importance in establishing a claim to rents. Thus if a 
 lord granted the rent of his tenant by deed to another 
 and the tenant attorned — " If the rent be denied him 
 [the grantee] at the next day of payment, he hath no 
 remedy, because he had not thereof any possession. But 
 if the tenant, when he attorneth to the grantee or 
 afterwards, will give a penny or a halfpenny to the 
 grantee in the name of seisin of the rent, then if after 
 at the next day of payment the rent be denied him, he 
 shall have an assize of novel disseisin^" 
 
 Advowsons were discussed at some length in the Advow- 
 preceding period and there is little to be added here. ^°°^' 
 Of course some novelties attended the introduction of 
 strict estates tail by the Statute de Donis, and the 
 method of avoiding that statute by means of common 
 recoveries was applied in due time to advowsons as well as 
 to other forms of real estate. It should be noted also 
 that it was in the present period that the legislature 
 interfered to secure the proper payment and endowment 
 of vicars — i.e. those endowed in the place of rectors in 
 cases of appropriations. The matter was dealt with by 
 
 1 "Not however e converso." Littleton. 
 
 2 By Stat. West. I., see p. 106. 3 Littleton, ii. 12. 235. 
 
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134 THIRD PERIOD 
 
 Statutes 15 Rich. II. c. 6 and 4 Hen. IV. c. 12, and this 
 may be taken as the time when vicarages became known 
 to the law. The advowsons of these vicarages belonged 
 originally to the owners of the rectories ; and in the first 
 instance they were appendant to these rectories, but as 
 time went on they were frequently severed and became 
 advowsons in gross. 
 
 Commons. Our last survey of commons' carried us across the 
 borders of the present period and left little need for 
 further comment. We saw reason for believing that the 
 distinction between common appendant and common ap- 
 purtenant is a venerable one, but after what Mr Scrutton 
 has shown us from the Year Books- we can have little 
 doubt that the name ' common appendant ' is not much 
 older than Littleton. 
 
 Copyhold. Turning from the freehold to the copyhold we find 
 that the actual rules that regulated dealings with this 
 class of tenure had undergone little change since Bracton 
 wrote on villeinage. Li the interim, however, there 
 had been a natural tendency to stereotype the customs 
 of the different manors, and in this way the copy- 
 holder — as he was now called — was rendered more secure 
 and free from arbitrary interference on the part of the 
 lord. And, in addition to this, an important step was 
 taken about Littleton's time when the common law courts 
 began to recognise and to enforce the customs of the 
 different manors. It was generally said, says Littleton, 
 that copyholders were but tenants at the will of the lord 
 according to the custom of the manor. " But the lord 
 cannot break the custom that is reasonable in these cases. 
 Brian, C. J., said that his opinion hath always been and 
 ever shall be that if such tenant by custom paying his 
 services be ejected by the lord, he shall liave an action of 
 trespass against him- — H. 21 Ed. 4". And so was the 
 opinion of Danby, C. J., in 1 Ed. 4^. For he says that 
 
 ' See pp. 62 et seq. 
 
 ^ Scrutton, Commons and Common Fields. 
 
 3 Y. B. 21 Ed. IV. 80, pi. 27. ■" Y. B. 7 Ed. IV. 18, pi. 16. 
 
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COPYHOLD 135 
 
 tenant by the custom is as well inheritor to have his land 
 according to the custom as ,he that has a freehold at the 
 common law^" 
 
 The various kinds of estates that could be created in 
 copyhold land, and all the incidents of tenure, the various 
 dues, the mode of descent, methods of alienation, rules as 
 to freebench and curtesy^ rights of common and the like 
 were all, as we have seen, matters to be settled by 
 reference to custom as evidenced by the court rolls of 
 the manor. A short reference to the customs as to 
 estates tail is all that need be added to the description 
 given in the preceding period. We have seen that for a 
 long time it was possible to give an estate to a man and 
 the heirs of his body, but that before the Statute de 
 Donis this was really but a fee simple conditional on the 
 birth of issue. The Statute de Donis was intended to 
 put an end to this state of affairs and, as we have noticed, 
 it did so until the method of barring entails by means of 
 a common recovery was invented. The laws of copyhold 
 tenure, however, were regulated entirely by custom and 
 so were not affected by the Statute de Donis. Now in 
 some manors there was no custom to entail, and in these 
 the copyholder was in a position like that of the holder 
 of a fee simple conditional to which we have referred 
 above. But in other manors there was a custom to 
 entail, and where this existed the estate descended to 
 the customary heir, and the tenant in tail was powerless 
 to alienate. However, the benefits to be derived from 
 greater freedom of alienation were as obvious to the 
 copyholder as to the freeholder, and in course of time he 
 too invented methods of avoiding the restrictions. To 
 effect this different plans were adopted in different 
 manors. In some an ordinary conveyance by surrender 
 was a sufiBcient bar to the entail ; in others it was 
 necessary for the tenant to forfeit his land to the lord, 
 
 ' Littleton, i. 10. 77. 
 
 2 "When freebench and curtesy obtained they were complete without 
 the formality of 'admittance.' 
 
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136 THIRD PERIOD 
 
 who by a preconcerted agreement regi'anted it in fee 
 simple; while a third, and very common, plan was to 
 follow the analogy of the procedure with a freehold estate 
 and suffer a ' customary ' recovery. 
 
 Equity 
 
 So far we have been looking at our subject only from 
 one point of view — -the common law. Now, however, a 
 period has been reached in which some of the doctrines 
 of equity are forced upon our notice. Towards the end 
 of the fourteenth century the chancellor took to enforcing 
 uses. Feoffments to uses had been made long before 
 this ; but they were enforced merely by moral sanctions. 
 When in that condition they lay outside the domain of 
 the lawyer, but the chancellor's intervention changed all 
 that. Henceforth they must be regarded as strictly within 
 the limits of legal institutions. 
 Equitable We must See then in what way the equitable doctrine 
 
 \vhatT~ ^^ ^^®^ affected the subject of title. Suppose that A 
 enfeoffed B of certain lands, B being seised to the use 
 of C (the ' cestui que use ' as he was called). It would 
 commonly be said that B is the ' legal owner ' and G the 
 ' equitable owner ' of the estate. This is, however, a 
 somewhat confusing way of describing the position, for 
 it suggests a conflict between rival owners and, of course, 
 there is no such conflict. B is undoubtedly the legal 
 owner of the estate — all courts (legal or equitable) will 
 recognise him as such. But disputes as to his title will 
 not be entertained by the courts of equity. Such matters 
 will be left to the ' common law ' courts, and these will 
 insist on a title and evidence of title such as have been 
 discussed at length in the pages above. B, however, 
 though unquestionably the owner of the land, is hemmed 
 in by restrictions. He is bound to use the property in 
 the particular way laid down when the estate was con- 
 ferred on him. He is seised to the use of G and must,- 
 as a rule, do with his property as G may direct. Should 
 
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EQUITY 137 
 
 he attempt to do otherwise, the common law courts will 
 not interfere, but the chancellor will coine down with a 
 strong arm and insist on the trust being fulfilled. G then 
 has all the benefits that flow from ownership, although 
 the courts do not recognise him as owner at all. He is 
 said to have an ' equitable estate.' 
 
 How then could this equitable estate be acquired ? Creation 
 The usual method was for A to convey the legal estate abie^"' 
 to B by any of the ordinary modes of conveyance — estate. 
 feoffment, fine, recovery etc. — and to declare that B was 
 to be seised to the use of C. No formalities, however, 
 were required for the creation of this use ; writing was 
 not necessary, mere word of mouth was quite sufficient 
 and any words that clearly expressed ^'s intention would 
 do. Even if no such words were employed an equitable 
 estate was sometimes created by 'implication.' This 
 happened if A made his conveyance to B without any 
 consideration either of blood or money. Equity inter- 
 preted this to mean that A intended the beneficial 
 ownership to remain in himself. B was therefore re- 
 garded as a mere trustee for A and the use was said 
 to result to J.'. 
 
 Moreover an equitable estate could be created without 
 any legal (common law) conveyance at all. A could 
 himself become trustee for C, without the intervention 
 of B, and this could be done in two ways : — (1) By a 
 covenant to stand seised — if A affirmed that in future 
 he would hold his property to the use of his son, brother, 
 nephew or cousin. (2) By a bargain and sale — if A 
 entered into an agreement with G for the sale of his 
 estate and G paid or promised to pay the purchase 
 money ; from that moment Equity regarded C as having 
 an equitable estate in ^'s land, although no legal con- 
 veyance had yet been made. 
 
 One very important consequence of the doctrine of Wills, 
 uses was that a power of devising lands was acquired 
 
 1 The doctrine of resulting uses did not apply to a grant to B of a 
 life estate — it held only in case of a fee simple or fee tail. 
 
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338 THIRD PERIOD 
 
 and was consUiifcly employed. Thus A might convey his 
 land to B and his heirs to the uses declared by A's will. 
 Then, in his will, A would declare a use in favour of G, and 
 until this operated the use resulted to A ; but after A's 
 death Equity would compel B to hold the land to (7's use. 
 Moreover it is to be noted that no formalities were 
 requisite for the validity of such a will. The preamble' 
 to the Statute of Uses tells us that wills were "sometimes 
 made by nude parolx and words, sometimes by signs and 
 tokens, and sometimes by writing." And we have only 
 to look at the Calendar of Proceedings in Chancery to 
 find many striking illustrations of the informal character 
 of the wills in these days. Thus in the time of Henry VI. 
 we have the case of William of Arundel v. Sir Maurice 
 Berkeley. The Bill complains that the plaintiff's father 
 enfeoffed certain persons in various manors to the intent 
 that they should perform his will and that he sub- 
 sequently settled these estates by deed on the plaintiff 
 and the heirs of his body. After his death his eldest son 
 took possession of the manors and enfeoffed the defendant 
 in the same to the intent that he should perform his will, 
 which, by letter addressed to Lady Arundell, his mother, 
 he declared to be " that a state shoulde be made to the 
 seid besecher his brother, yn all the said manors and 
 office, according to the wille of his seid fader, yn the 
 most STirest wyse^." Here is an account from about the 
 same time, of a will made by mere word of mouth by one 
 Robert Crody. The night before his death he called two 
 friends John Gover and Thomas Attemore to his bedside 
 " sayng to theym in this maner : — ' Sires ye be the men 
 in whom I have grete trust afore moche other persones 
 and in especial that suche will als 1 shall declare you atte 
 this tyme, for my full and last will, shall through your 
 gude help by oure Lordes mercy be perfourmed; where- 
 fore I late you have full knowlich, that this house which 
 
 ' Not a very trustworthy authority on some matters, but reliable 
 enough here. 
 
 ^ Calendar of Proceedings in Chancery, i. xxxv. 
 
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WILLS 139 
 
 I ly in, and all myn other londes and tenements in this 
 towne, I j'eve and graunte to you, to holde to you your 
 heires and your assignes, to this entent that after myn 
 deces, ze shall make estate of the same house, londes and 
 tenements to Alice my wyfe for terme of hir lyve, so that 
 after hir deth thay remayne to Margarete my doghter, 
 and to the heires of hir body comying, that then they 
 remayne to my right heires for evermore. And to the 
 entent that this my last will mowe be performed by you, 
 als my trust is that it shall be, her atte this tyme 
 I delyver you possession of this house in the name of 
 all my londes and tenements afore especified, also holy 
 and entirely als they wer ever myn atte any tyme.' By 
 force whereof the forseide John and Thomas wer possessyd 
 of the house, landes, and tenements aforeseide in thaire 
 demesne also of fee, and of the same house, londes and 
 tenements made estate to the saide Alice, after the 
 deth of hir saide husband, according to the entent and 
 will afore declared \" 
 
 Another result of the equitable doctrines was the Future 
 enlarged power that men acquired of fixing the devolution 
 of their estates in the future. At the common law the 
 only future estates known were the remainder and the 
 analogous reversion'- Equitable estates however had no 
 such narrow limits. They could be made to spring up at 
 any future time and the rules as to their construction 
 shaped at a later time had an important influence on the 
 development of conveyancing forms. 
 
 So far we have spoken of the creation of equitable Transfer 
 estates. It remains to add that, once created, these estates able 
 could be transferred according to the direction of the estates. 
 cestui que use without any formality whatever — a mere 
 expression of intention to the feoffee to uses being 
 sufficient. In fact in this department we find no trace 
 of the common law respect for open and notorious transfer 
 of possession. If the feoffee to uses failed to act according 
 
 1 Calendar of Proceedings in Chancery, i. xliii. 
 
 2 See p. 124. 
 
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140 THIRD PERIOD 
 
 to the directions of cestui que use, the latter had only 
 to appeal to the Chancellor, and we have numerous 
 records of such appeals^ Hei-e is one from the reign 
 of Edward IV. 
 
 John Clyfford v. William Apulderfeld. " To the right 
 reverent fader in God the Bisshop of Lincoln and Chaun- 
 cellor of England. Mekely besecheth your good lordship 
 your contynuell oratour William Clyfford squyer, that 
 where as John Clyfford squyer, his fader, among other 
 landes and tenements beyng seased of the maner of 
 Kemsle with the appurtenances CCC. acres of londe and 
 mersshe and a water mille called South Mille with the 
 appurtenances in the hundred of Middleton in the counte 
 of Kent, in his demesne as of fee and so seased of grete 
 trust and confidence thereof enfeoffed Walter Langley, 
 William Norton, and John Huse squyers, nowe dede, 
 and William Apulderfeld yet a lyve, to have to theym 
 and to theire heires for ever to thuse and behouf of the 
 seide John Clyfford and Alice his wyf and theires of 
 their ij bodyes lawfully begoten : by force of the which 
 the seide William Apulderfeld and his cofeffees of the 
 said maner, lande, mersshe, and mille with the appur- 
 tenances were seased in their demesne as of fee to thuse 
 and behouf abovesaid, and after that, the seide John 
 Clyfford and Alice hadde issue betwene theym, your 
 seide oratour and dyed ; after whos deth your seide 
 oratour ofte tymes hath requyred the seide William 
 Apulderfeld to make estate to hym in fee, of the seide 
 maner, lande, mersshe, and mille with the appurtenances 
 and he that to do at all times hath refused and yet 
 refuseth ageyn all right and conscience and contrarie 
 to thentent of the seid feffement. Please it therefore 
 your gracious lordship the premysses considered to graunte 
 a writte of sub poena to be direct to the seide William 
 Apulderfeld comandying hym by the same to appere 
 affore our soveraigne lord the Kyng in his Chauncerye 
 
 1 See e.g. Calendar, i. Ivii., Ixii., xc. , xoiv., cv., oxii., cxv., cxvi., 
 cxxiv. 
 
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DEVOLUTION OF EQUITABLE ESTATE 141 
 
 at a certeyn day and under a certeyne payne by your 
 good lordship to be lymytted, there to answer unto the 
 premisses and to do and resceyve as by your good lord- 
 ship shall be thought resonable, for the love of God and 
 in the wey of charite\" 
 
 In 1483 the legislature declared that conveyances 
 of cestui que use were good without the assent of the 
 feoffees ^ 
 
 In almost all respects ' equity followed the law ' as ' Equity 
 to the devolution of estates. However, there was no the law.' 
 dower or curtesy of an equitable estate, a fact that is 
 emphasised in the preamble to the Statute of Uses, which 
 also points out that there was no escheat to the lord on 
 failure of heirs, nor forfeiture to the king in case of 
 felony. A very important point not yet noted was that 
 lands might be held to the use of a married woman. 
 At the same time it must be observed that a married Married 
 woman had not during the coverture the same freedom in ^°™®"- 
 alienating her estate as a ' feme sole,' and it was regarded 
 as a breach of trust for the trustee to agree to any joint 
 request of husband and wife for the disposition of the 
 wife's equitable estate". 
 
 ' Calendar, i. cv. 
 
 2 Stat. 1 Rich. III. c. 1. A century before this — in 1.S77 — uses 
 had been made liable to be taken in execution for debt. Stat. 50 
 Ed. III. c. 6. 
 
 3 See e.g. Y. B. 7 Ed. IV. 14. 8; and 18 Ed. IV. 11. 4. 
 
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CHAPTER VII. 
 
 FOURTH PERIOD. FROM HENRY VIII. 
 
 TO WILLIAM IV. 
 
 (statute of uses to the prescription act.) 
 
 (1535—1832.) 
 
 In the last chapter we sketched somewhat rapidly the 
 changes introduced into the legal system after Bracton — 
 changes that were due mainly to the legislative activity 
 under Edward the First and later to the rise of the 
 Chancellor's jurisdiction. We must now turn to the 
 Statute of famous Statute of Uses and see in what way it affected the 
 Uses. development of our subject. The section most important 
 for present purposes is this : — 
 
 " Where any person or persons .stand or be seised or at 
 any time hereafter shall happen to be seised of and in any 
 castles, honours, manors, lands, tenements, rents, services, 
 reversions, remainders, or other hereditaments to the use 
 confidence or trust of any other person or persons, or of any 
 body politick, by reason of any bargain, sale, feoifment, fine, 
 recovery, covenant, contract, agreement, will or otherwise 
 by any manner of means whatever it be ; that in every such 
 case, all and every such person and persons, and bodies 
 politick, 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 reverter, shall from henceforth stand and be 
 seised, deemed, and adjudged in lawful seisin, estate, and 
 
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STATUTE OF USES 143 
 
 possession of and in the same honours, castles, manors, 
 lands, tenements, rents, services, reversions, remainders, and 
 hereditaments, with their appurtenances, 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 here- 
 ditaments, to the use, confidence, or trust of any such person 
 or persons, or of any body politick, 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\" 
 
 Three important effects of this statute on the methods Effect of 
 of dealing with legal estates should be observed, (a) It modes of 
 introduced two new modes of conveying a freehold, (b) It '^^?'i^'?^ 
 enabled one to make certain limitations of the legal estate estates. 
 which had been impossible before, (c) It abolished the 
 power of devising a use. Each of these must be examined 
 separately. 
 
 (a) In the first place a Bargain and Sale was now raised Bargain 
 to the level of the older methods of conveyance, like the r^ised^in 
 feoffment with livery of seisin. And there was nothing level. 
 in the statute that required any special formality about 
 the bargain, it need not even be in writing. This however 
 was provided for by a statute of the same year (the Statute Statute of 
 of Enrolments 1-535) which declared that every bargain ments. 
 and sale " of an estate of inheritance or freehold," that 
 was to operate as a conveyance under the Statute of 
 Uses, 
 
 " should be made by writing indented, sealed, and enrolled 
 in one of the King's Courts of Record at Westminster, or 
 else within the same county or counties where the manors, 
 
 1 Stat. 27 Hen. VIII. c. 10. It should be noted that the statute 
 speaks of one person seised to the use of another person. Thus it does 
 not operate where there is an active trust to perform and it has nothing 
 to do with copyholds. 
 
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144 
 
 FOURTH PERIOD 
 
 Did not 
 
 affect 
 bargain 
 and sale 
 of term 
 of years. 
 
 New 
 mode of 
 acquiring 
 a free- 
 hold. 
 
 lands, or tenements so bargained and sold lie or be, before 
 the Gustos 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 enrolment to be had and made within six 
 months next after the date of the same writings indented'." 
 
 It is most important to notice that this statute has 
 nothing to say about bargains and sales of terms of years. 
 And it may be I'emarked, in passing, that it is a mistake 
 to suppose, as is often done, that the Statute of Uses has 
 nothing to do with terms of years. It is true that that 
 statute does not affect the oooveyance of a leasehold when 
 once that has been created, but it frequently operates 
 in its creation. Thus suppose A (tenant in fee simple) 
 is declared to be seised to the use of B for a term of 
 years, then by virtue of the Statute of Uses B is deemed 
 to be in lawful possession of the estate for the term of 
 years. Or — to put a slightly different case that touches 
 us more nearly at the present — suppose A (tenant in fee 
 simple) bargains and sales land to B for a year. The 
 Statute of Uses operates in spite of the Statute of 
 Enrolments, for the latter does not apply to leaseholds. 
 Thus B is deemed in lawful possession of the land for the 
 term of years. Now it has been seen that the legal estate 
 — fee simple, or fee tail, or term of life — can be conveyed 
 to a tenant for years in possession, by means of a release. 
 In this way we have an important new mode of acquiring 
 a freehold due to the operation of the Statute of Uses. 
 One great result of that enactment was to obviate the 
 necessity of actual possession on the part of the donee 
 when a conveyance was to be made. For, by utilising the 
 statute, the donee was deemed to be in possession with- 
 out actually being so. This new means of transferring 
 property by bargain and sale for a year followed by 
 a release was viewed with some suspicion at first ; but it 
 was placed on a firm footing by the decision in Lutwidge 
 
 Stat. 27 Hen. VIII. c. IG. 
 
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FUTURE USES 145 
 
 V. Mitton^ in the eighteenth year of the reign of James I. 
 and from that time till the reforming statutes of the 
 present reign it remained the regular mode of conveyance 
 inter vivos. 
 
 So much for the Bargain and Sale — but this was not 
 alone in being raised by the Statute of Uses to the level 
 of the older methods of conveying realty. The covenant to Covenant 
 stand seised received a similar treatment and will occupy seised" 
 our attention later ^ 
 
 {h) It has been remarked that before the Statute of Future 
 
 Uses the Chancellor had countenanced the creation of f" ^gg^^ " 
 
 equitable estates that might arise at a future time and now 
 
 be subject from the beginning to a law of variation quite within 
 
 unknown to the common law. These future and shiftine: sphere of 
 
 o ' law. 
 uses were now brought within the cognizance of the 
 
 ordinary law courts by the operation of the Statute of 
 
 Uses which identified the ' legal ' with the ' beneficial ' 
 
 owner. It would be foreign to our purpose to enter into 
 
 a discussion of the various rules that grew up as to these 
 
 future uses. In the present essay we are concerned only 
 
 with the mode of their formation and alienation. 
 
 Closely allied to the operation of these future uses is 
 the means of conveyance by the creation of powers of 
 appointment. Thus A conveys (by any of the recognised 
 common law modes) his land to B, and at the same time 
 declares that it is to be held to such uses as G shall 
 appoint by an expression of his will in proper form. If 
 then G exercise this power in proper form [and the 
 courts are very strict as to the terms of the power being 
 complied with] in favour of D, then this constitutes a 
 legal conveyance from A to D. Before the Statute of 
 Uses B would have been the legal owner and D would 
 have had only an equitable estate; but by virtue of the 
 statute D is deemed to be in lawful seisin etc. 
 
 (c) The third effect of the Statute of Uses to which 
 special attention is to be directed was that it abolished 
 
 ^ Croke's Reports, .Tames, 604. 
 2 See p. 162. 
 
 M. E. 10 
 
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146 FOURTH PERIOD 
 
 Effect of the power of disposing of land by will, a power that had, 
 Statute of ^ . ^ ^ J 1 1 J J ^u 
 
 Uses on as we have seen, grown up and developed under the 
 
 ^'''^- patronage of the Chancellor. 
 
 The death knell of wills was listened to, however, 
 with great dissatisfaction. Like most of the provisions 
 of this famous statute, it had been forced upon an un- 
 willing people by a powerful and unscrupulous king aided 
 by a subservient parliament. The country had other 
 reasons too for showing signs of uneasiness and at length 
 rebellion broke out. One of the grievances alleged in the 
 Pilgrimage of Grace was that one could no longer make 
 provision by will for his wife and younger sons. It was 
 thought well to remove this source of disaffection and 
 
 Wills Act, so in 1540, the Wills Act was passed. This, with the 
 
 1540. 1 c 
 
 explanatory act of 1542, gave every tenant in fee simple 
 the power of devising all his lands held in socage tenure 
 and two-thirds of that held by knight-service. The first 
 section of the act of 1540 declares : — 
 
 " That all and every person and persons having or which 
 hereafter shall have any manors, lands, tenements, or here- 
 ditaments holden in socage, or of the nature of socage 
 tenure, and not having any manors, lands, tenements or 
 hereditaments holden of the King our sovereign Lord by 
 knight-service, by socage tenure in chief, or of the nature 
 of socage tenure in chief, nor of any other person or persons 
 by knight-service from the twentieth day of July in the year 
 of our Lord mdxl. shall have full and free liberty, power and 
 authority to give, dispose, will, and devise, as well by his 
 last will and testament in writing, or otherwise by any act 
 or acts lawfully executed in his life, all his said manors, 
 lands, tenements, or hereditaments, or any of them, at his 
 free will and pleasure; any law, statute, or other thing 
 heretofore had, made, or used, to the contrary notwith- 
 standing." 
 
 And in the fourth section : 
 
 "it is further enacted by the authority aforesaid, that all 
 and singular person and persons having any manors, lands, 
 tenements or hereditaments of estate of inheritance holden 
 
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WILLS 147 
 
 of the King's Highness in chief by knight-service, or of the 
 nature of knight-service, from the said twentieth day of July, 
 shall have full power and authority by his last will by 
 writing or otherwise by any act or acts lawfully executed 
 in his life to give, dispose, will, or assign two parts of the 
 same manors, lands, tenements, or hereditaments, in three 
 parts to be divided, or else as much of the said manors, lands, 
 tenements, or hereditaments as shall extend or amount to the 
 yearly value of two parts of the same in three parts to be 
 divided, in certainty and by special divisions as it may be 
 known in severalty, to and for the advancement of his wife, 
 preferment of his children, and payment of his debts or 
 otherwise at his will and pleasure ; any law, statute, custom 
 or other thing to the contrary thereof notwithstanding'." 
 
 The act of 1542 explains that the former act applies Explaua- 
 to a person or persons having a sole interest or interest ofY542 
 in fee simple, or seised in fee simple, or coparcenary, or 
 in common in fee simple in possession, reversion, or 
 remainder. It proceeds to state that the devise may be 
 made " to any person or persons, except bodies politick and 
 corporate." Further it declares void all wills made " by 
 any woman covert, or person within the age of twenty-one 
 years, idiot, or of any person de non sane memory^" 
 
 It will have been observed that these enactments No special 
 require no special formality for the execution of a valid required 
 will. Even the provision as to writing is somewhat ^'"' ^ ^^'^'• 
 loosely worded, " as well by his last will and testament in 
 writing or otherwise by any act or acts lawfully executed 
 in his life " — and as a matter of fact bare notes in the 
 handwriting of another person were allowed to be good 
 wills within the statute. 
 
 We have now reviewed the epoch-making legislation 
 of the reign of Henry VIII. in so far as it bears on title, 
 and have seen how profoundly it affected that subject. 
 Its influence on the creation and transfer of equitable 
 estates will occupy us later'. From the close of this 
 
 1 The Act of Wills, etc. 32 Hen. VIII. u. 1. 
 
 2 Stat. 34 and 35 Hen. VIII. o. 5, § 14. •' pp. 179 et seq. 
 
 10—2 
 
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148 FOURTH PERIOD 
 
 period — almost revolutionary in the history of our subject 
 — there were, with one or two exceptions, scarcely any 
 changes of importance till the great reforming period 
 after 1832. What took place in the long interval was 
 but a gradual development of forms under the restraining 
 influence of the courts ; there was nothing of the nature of 
 an organic change. 
 
 For our purposes by far the most important event in 
 
 the interim was the passing of the Statute of Frauds in 
 
 Military 1677^ However we should first mention the famous act 
 
 abolished, abolishing military tenures and turning all into free and 
 
 1660. common socage. This was passed by the Long Parliament 
 
 in 1645, confirmed in 1656 and finally enacted in 1660^ 
 
 It is, of course, of first class importance in the general 
 
 history of realty; but for our purposes is mainly of 
 
 interest as extending the Wills Acts of 1540 and 1542 so 
 
 Effect on ^s to give a general power of disposing of freeholds by 
 
 wills. yf[\i — ^}jg restriction in the case of tenure in capite being 
 
 henceforth meaningless. 
 Statute Turning to the Statute of Frauds, we note that it 
 
 IqFJ^ ' introduces important changes in the nature of the evi- 
 dence of title required by law. 
 § 1 declares that : 
 
 Leases "from and after the fower and twentyeth day of June which 
 
 writing shall be in the yeare of our Lord one thousand six hundred 
 
 and pro- seaventy and seaven all leases, estates, interests of freehold 
 
 sfgned °^ terms of yeares or any uneertaine interest of in to or out 
 
 have force of any messuages, mannours, lands, tenements or heredita- 
 
 at will ments made or created by livery and seisin onely or by parole 
 
 only. and not putt in writeing and signed by the parties soe 
 
 making or creating the same or their agents thereunto 
 
 lawfully authorised by tvrUeing shall have the force and 
 
 effect of leases or estates at will onely and shall not either 
 
 in law or equity be deemed or taken to have any other or 
 
 greater force or eifect, any consideration for makeing any 
 
 such parole leases or estates or any former law or usage to 
 
 the contrary notwithstanding." 
 
 1 Stat. 29 Car. II. u. 3. ' Stat. 12 Car. II. o. 24. 
 
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STATUTE OF FRAUDS 149 
 
 § 2. " Except neverthelesse all leases not exceeding the Exception, 
 terme of three yeares from the making thereof whereupon 
 the rent reserved to the landlord dureing such terme shall 
 amount unto two third parts at the least of the full improved 
 value of the thing demised." 
 
 § 3. "And moreover that noe leases, estates or interests Deed or 
 not being copyhold or customary interest of in or out of any ^fLssarv 
 messuages, mannours, lands, tenements or hereditaments shall for assign- 
 at any time after the said fewer and twenty day of June be ^ffi-gg 
 assigned, granted or surrendered unlesse it be by deed or not being 
 note in writeing signed by the party soe assigning granting ''°^^ ° 
 or surrendering the same or their agents thereunto lawfully 
 authorised by im'iting or by act and operation of law." 
 
 § 4 states, among other things, that : No action 
 
 can be 
 " no action shall be brought upon any contract or sale of brought 
 11 i 1 tj • 1 . upon con- 
 
 lands, tenements or hereditaments or any interest therein tract on 
 
 unless the agreement or some memorandum thereof be in ^^^^ °^ 
 
 writing and signed by the party to be charged therewith or unless 
 
 some other person thereunto by him lawfully authorised'." written 
 
 and 
 
 S 5 says that wills of land must be in writing and !'^'^^. '. 
 
 . •',.'',,. .,. 1 Requisites 
 
 signed by the devisor or some one in his presence and for a valid 
 
 under his direction, and the will must be attested and 
 
 subscribed by three or four credible witnesses. 
 
 §1 7, 8, and 9 are most important in their bearing on 
 
 title to equitable estates with which we must deal in a 
 
 special section later. It will be convenient however to 
 
 give the substance of these sections here. 
 
 § 7 afifirms that : Declara- 
 
 tion of 
 " all declarations or creations of trusts or confidences of any trust 
 
 lands, tenements or hereditaments' shall be manifested and^^v' ^ ^ 
 proved by some writeing signed by the partie who is by law by writing, 
 enabled to declare such trust or by his last will in writeing, 
 or else shall be utterly void and of none effect." 
 
 § 8 is of the nature of a proviso and saves from the Proviso- 
 operation of the preceding section those trusts that arise trusts^ ° 
 
 arising by 
 ^ A verbal authority to the agent is sufficient under this section. operation 
 
 - This includes copyholds. 
 
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150 FOURTH PERIOD 
 
 " by implication or construction of law." Consequently 
 these need not be expressed in writing. 
 
 Grants § 9. "All grants and assignments of any trust or con- 
 
 °"'™?''^. fidence shall be in writeing signed by the partie granting 
 
 writing or or assigning the same [or] by such last will or devise or else 
 
 ^ ^^' ■ shall be utterly void and of none eiFect." 
 
 The tenth section declares that trust estates shall be 
 regarded as assets by descent. The only other section 
 that need be mentioned is the twelfth, which did away 
 with title by ' general ' occupancy. It enacted that the 
 owner of an estate pur autre vie might dispose thereof by 
 his will ; that, if no such disposition were made, the heir 
 as occupant should be charged with the ancestor's debts ; 
 or, if there were no such ' special ' occupant, the estate 
 should go to the executors or administrators, and be 
 subject to the payment of debts. 
 Review of After this survey of the legislation of the period we 
 titles. must proceed to the consideration of the various titles. 
 With the important exception to which attention has 
 been called when the statutes were discussed, we have 
 nob to chronicle many changes from the state of affairs 
 in the preceding period. However we may take the 
 opportunity of directing attention to some points too 
 little emphasised before. 
 Feoff- As to modes of conveyance inter vivos, a feoffment " the 
 
 most antient, the most solemn and public, and therefore 
 the most easily remembered and proved'" was still a formal, 
 valid, and effective method of transfer ; but it was little 
 used owing to the growing popularity of the newer mode 
 by lease and release. A charter of feoffment was usual, 
 but, until the Statute of Frauds, not essential to the 
 validity of the transfer-. Livery of seisin was still the 
 
 ^ Blaokstone, Comm. ii. c. 20, p. 310 (13tii edit.). 
 
 - The Statute of Frauds (see above) made writing necessary, but, as 
 yet, a, deed was not usually required. To this however there were some 
 exceptions. When the subject of the conveyance was a reversion or an 
 advowson ; when the feoffor was a corporation ; and in all cases where 
 the livery was done by attorney a deed was necessary. 
 
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 ment. 
 
FEOFFMENT 151 
 
 essence of the conveyance' and if either party died before 
 livery of seisiix took place the conveyance was void. 
 Livery was either in deed or in law'-", and the ceremonies 
 attending the livery were just as Bracton described them. 
 
 " Livery of seisin may and must be made either by the 
 party himself that maketh the estate, or if it be a Hvery 
 in deed it may, in his absence, be made by his attorney 
 sufficiently authorised by writing^." 
 
 A livery in law could not be made by attorney'', and in all 
 cases where the livery was done by attorney a deed of 
 feoffment was required. 
 
 A conveyance by feoffment with livery of seisin had Advan- 
 the advantage over other methods of transfer that : feoffment. 
 
 "it cleareth all wrongful and defeasible titles and reduceth 
 the estate clearly to the feoffee, when the entry of the feoffor 
 is lawful.... And it passeth the present estate of the feoffor, 
 and not only so, but barreth and excludeth him of all present 
 and future right and possibility of right to the thing which 
 is so conveyed ; insomuch that if one have divers estates all 
 of them pass by his- feoffment ; and if he have any interest, 
 rent, common, or the like into or out of the land, it is 
 extinguished and gone by the feoffment. And further, it 
 barreth the feoffor of all collateral benefits touching the land, 
 as condition, power of revocation, writs of error, attaint, and 
 the like ; insomuch that if a man make an estate of his land 
 upon condition, or with power to revoke it, and after he 
 make a feoffment of the land ; by this he is barred for ever 
 of taking advantage of the condition or power of revocation. 
 It destroyeth contingent uses, gives away a future use in- 
 clusively, gives away a seignory inclusively and gives away 
 a right of action ; for both the feoffment and livery of seisin 
 incident thereunto are much favoured in law and shall be 
 construed most strongly against the feoffor and in advantage 
 of the feoffee'." 
 
 ' Blackstone, Comm. ii. o. 20, p. 311. " Ibicl. p. 315. 
 
 ' Sheppard's Touchstone, a. 9, vol. i. p. 211. [The real author seems 
 to have been Mr Justice Doderidge.] 
 
 ■> Coke on Littleton, f. 52 b ; Blackstone n. c. 20, p. 816. 
 ' Sheppard's Toiichstone, c. 9, vol. i. p. 204. 
 
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152 FOURTH PERIOD 
 
 This sweeping character of a feoffment^ gave it a power 
 that no other mode of conveyance possessed, and occasion- 
 ally produced strange results. For to make a feoffment 
 good and valid nothing was wanting but possession ; hence 
 if a tenant for life or years, or even a mere possessor 
 without any estate in the land, made a feoffment, the 
 feoffee acquired the fee simple. This ' tortious operation ' 
 of a feoffment did not always make for justice ; but it 
 was generally employed to effect purposes that are now 
 regarded as legitimate, but which could not then be 
 attained otherwise than by this 'tortious' course. Its 
 chief use was to enlarge a long term of years into a fee 
 simple. 
 Fines. "^^^ ^^^J important addition to the law of fines since 
 
 our last account of it was that made at the beginning of 
 this period by Statute 32 Hen. VIII. c. 36, which declared 
 that: 
 
 " a fine levied bj' any person of full age, to whom, or to whose 
 ancestors, lands have been entailed, shall be a perpetual bar 
 to them and their heirs claiming by force of such entail; 
 unless the fine be levied by a woman after the death of her 
 husband of lands which were, by the gift of him or his 
 ancestors, assigned to her in tail for her jointure ; or unless 
 it be of lands entailed by act of parliament or letters patent, 
 and whereof the reversion belongs to the crown^." 
 
 It should be noted that the judges might refuse per- 
 mission to certain persons to levy fines. 
 
 ".Of this sort are madmen, lunatics, villains, idiots, men 
 that have the lethargy, doting old persons that want dis- 
 cretion, drunken men, and men that are forced to it by 
 threatening or the like, also such as are born blind, deaf and 
 dumb^." 
 
 ' An illustration of the peculiarly binding character of a feoffment 
 with livery of seisin is seen in the fact that a conveyance made in this 
 way by a lunatic could not be set aside by the man himself on his return 
 to sanity. This was not the case with other assurances : see 1 Thompson 
 V. Leath, Comb. 468 ; Beverley's case, 4 Rep. 1236. 
 
 ^ Blackstone, ii. c. 21, p. 355. 
 
 ' Sheppard, Touchstone, c. 2, vol. 1, p. 6 — 7. 
 
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FINES AND RECOVERIES 153 
 
 Persons attainted of felony or treason could not levy a fine, 
 and infants were generally refused permission to do so, 
 but if they succeeded in levying the fine it was good 
 against them, unless avoided by writ of error during 
 minority. A married woman ought not to be admitted 
 alone (without her husband) to levy a fine ; but a fine so 
 levied was good if not set aside at the husband's instance 
 by writ of error or entry. If a husband levied a fine of 
 lands that he was enjoying in the right of his wife, the 
 latter should join in- the fine — otherwise she and her heirs 
 might avoid it within five years after her husband's death. 
 A fine levied by one civilly dead was void. A corporation 
 could adopt this mode of conveyance, except it were an 
 ecclesiastical body restrained from so doing by Act of 
 Parliament. 
 
 Passing from fines to recoveries, we observe that they Re- 
 continued to grow in popularity throughout the present ''°^''"'^''- 
 period and soon became the regular means of barring an 
 entails The recovery described before^ was one ' with a 
 single voucher.' Soon however it was found expedient 
 to have double, treble, or farther vouchers in certain 
 cases, and even in ordinary circumstances a double voucher 
 was preferred to a single one. In case of double voucher 
 the estate was first conveyed to an outsider (A) against 
 whom the praecipe was brought; A then vouched to 
 warranty the tenant in tail (B) and B vouched the 
 common vouchee. The object of this procedure was 
 obvious : 
 
 " for, if a recovery be had immediately against tenant in tail, 
 it bars only such estate in the premises of which he is then 
 actually seised^ ; whereas if the recovery be had against 
 another person and the tenant in tail be vouched, it bars 
 every latent right and interest that he may have in the lands 
 recovered*." 
 
 ' For this purpose it was in some ways better than a fine. A fine 
 barred the heir in tail, but not remaindermen nor reversioners — a 
 recovery barred them all. 
 
 - p. 123. ^ Piggott, Recoveries, 28. 
 
 ■* Blackstone, ii. o. 21, p. 359. 
 
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154 FOURTH PERIOD 
 
 We have stated that the force of a recovery depended 
 oil its power of barring entails and all remainders and 
 reversions expectant on the determination of the estates 
 tail. It remains to point out some limitations to this 
 wide power of barring estates. In the first place, although 
 a common recovery barred a contingent remainder by 
 destroying the particular estate on which it depended, it 
 had no such effect on a springing use or an executory 
 devised Again, if the estate tail were derived from the 
 king's gift and the remainder and reversion were still in 
 the king, a recovery was no bar of this reversion or 
 remainder^. Moreover a widow could not suffer a recovery 
 of lands settled on her by her late husband ; and it is im- 
 portant to notice that a tenant for life was restrained by 
 statute^ from suffering a recovery so as to bar reversions 
 or remaindermen. This point was frequently raised in 
 litigation, for few things were more usual than an attempt 
 to suffer a recovery by a tenant who professed to be tenant 
 in tail but was really only tenant for life. 
 Private One form of conveyance by matter of record was 
 
 Acts of common in this period although little heard of before — 
 ment. that was, conveyance by ' private Act of Parliament.' 
 Such acts were not published among the public acts, and 
 although made by the High Court of Parliament itself, 
 and enrolleii among the public records, were looked upon 
 as private conveyances. Relief could be obtained against 
 such an act if it could be proved to have been obtained 
 upon fraudulent suggestions* ; and it could be rendered 
 void if, in the opinion of the court, it was contrary to law 
 and reason'*. The expedient of a private act seems first 
 to have been resorted to with the object of settling the 
 ownership of realty in cases where the evidence of title 
 was hopelessly entangled. The practice was carried to 
 great length in the reign of Charles II. and became very 
 common again towards the end of the, eighteenth century. 
 
 1 Piggott, Recoveries, 127. - Stat. 34 and 35 Hen. Till. c. 20. 
 
 3 Stat. 14 Eliz. c. 8. ■• Richardson v. Hamilton (1733). 
 
 5 4 Kep. 12. 
 
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PRIVATE ACTS OF PAKLIAMENT 155 
 
 In the later period most private acts were for the 
 purpose of enclosing waste lands and commons, there 
 being about 4000 of these enclosure acts from the ac- 
 cession of George III. to the end of the present period. 
 A few examples of the titles of these private acts will 
 indicate their character : — 
 
 "An act for dividing and inclosing the commons and waste 
 grounds in the manor and parish of Orownthorpe in the 
 county of Norfolk'." "An act for dividing, allotting and 
 inclosing the commons and waste lands within the hamlet 
 of Stock and Bradby, in the parish of Fladbury in the County 
 of Worcester^" "An act for vesting the Manor, Rectory, 
 and Isle of Hayling in the county of Southampton, part 
 of the settled estate of the Duke of Norfolk, in William 
 Padwick the younger, esquire, his heirs and assigns, and for 
 applying the money thence arising in the purchase of other 
 estates''." " An act to enable the trustees of the settled 
 estates of the Right Hon. Charles Henry Cadogan, Earl 
 Cadogan, a Lunatic, to pull down a mansion house, and to 
 sell the materials thereof." 
 
 Preston, writing early in the present century, says : 
 
 " Few titles are more perplexed than those which depend 
 
 on allotments under inclosure acts As a rule there is 
 
 a change of lands etc. but not a change of title. The title 
 which A has to his lands, or common rights, at the time 
 of the allotment or exchange is communicated to the land 
 he receives under the allotments or exchanges ; while under 
 a mere private act of exchange between individuals each 
 holds the lands under the title which attached to these lands 
 prior to the exchange*." 
 
 A special mode of acquiring realty was by grant from Royal 
 the king, such grants being matters of public record. S'^^^^- 
 This method had existed from the earliest times and, as 
 we have seen'*, the oldest conveyances on record were 
 
 1 17 Geo. III. Pr. ... 1. 
 
 2 6 Geo. IV. Pr. c. 1. ^ ibja. pr. e. 57. 
 
 * Preston, Abstracts of Title (1818), i. 161—2. ^ j^nte, p. 19. 
 
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156 
 
 FOURTH PERIOD 
 
 Restraints 
 on aliena- 
 tion. 
 
 Absolute 
 grants 
 pro- 
 hibited. 
 
 What 
 could be 
 granted. 
 
 made by grant from the king or by his will. In those 
 days the king could convey away his lands as readily as 
 any one else ; but when, in course of time, the Crown 
 became strictly hereditary the lands of the king were 
 looked upon as part of the royal demesne rather than as 
 private property, and they could not be disposed of by will. 
 There was nothing however to prevent the king from 
 granting away his lands during his lifetime, and so 
 frequently was this done, to satisfy the cravings of royal 
 favourites, that the Crown lands were constantly diminish- 
 ing in spite of the continual income from escheats and 
 forfeitures. In this respect the Stuart kings were 
 specially improvident, and by the time that Anne came 
 to the throne the Crown lands had shrunk to so small 
 a measure that the rent they produced was only a few 
 thousand pounds per annum. To preserve this remnant 
 Parliament interfered and passed an act^ limiting the 
 king's powers of disposing of Crown lands. 
 
 " Whereas the necessary expences of supporting the Crown, 
 or the greater part of them were formerly defrayed by a land 
 revenue which hath from time to time been impaired and 
 diminished by the grants of former kings and queens of this 
 realm, so that her majesty's land revenues at present can 
 afford very little towards the support of her government" 
 
 future absolute grants from the Crown are altogether 
 prohibited. Any grant of Crown lands is to be 
 
 " utterly void and of none efi'ect unless such grant, lease, or 
 assurance be made for some term or estate not exceeding 
 thirty-one years, or three lives, or for some term of years 
 determinable upon one, two, or three lives ; and unless such 
 grant, lease, or assurance respectively be made to commence 
 from the date or making thereof; and if such grant, lease, 
 or assurance, be made to take effect in reversion or ex- 
 pectancy, that then the same together with the estate or 
 estates in possession of and in the premises therein contained, 
 do not exceed three lives, or the term of thirty- one years in 
 the wholes" 
 
 1 Stat. 1 Anne, c. 7. 
 
 - Ibid. § 5. 
 
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ROYAL GRANTS 157 
 
 In case however the greater part of the estate consisted Grant of 
 of buildings, the king or queen might "' ™^^' 
 
 "demise or grant such tenements or hereditaments to any 
 person or persons for any term or estate not exceeding fifty 
 years'." 
 
 Several later acts also dealt with the disposition of Crown Various 
 lands. Thus the revenue arising to his Majesty by rents of 
 lands or for fines of leases was, after the death of George II., 
 to be carried to and made part of the general aggregate 
 fund established by 1 George I.^ The clause in the act 
 of Anne's reign quoted above which allowed a grant for 
 fifty years if the property consisted mainly of buildings 
 was repealed, and the king was permitted to grant land 
 for building purposes for ninety-nine years or three lives in 
 certain cases^. By a later act'' it was declared that none Purchases 
 of the restrictions in the above acts were to extend to ^^g ^ut 
 lands purchased by the king out of his privy purse, or °^ P^ivy 
 coming to the king from any persons not being kings or 
 queens of the realm'*. Copyhold lands so purchased were 
 to be vested in trustees appointed by the king, and these 
 trustees were to be admitted to the lands according to the 
 nature of the estate therein and were to be deemed the 
 tenants^. Such estates could be dealt with by the king 
 in the same manner as if he were a private person'; and 
 early in the reign of George IV. the act first quoted was 
 extended to manors in possession at the accession to the 
 Crown". It will be seen, then, that at this stage of history 
 title by royal grant held a very different position to that 
 in the earlier periods ; for now the king had comparatively 
 little to dispose of and even with this he was no longer 
 free to deal. When a royal grant was made, however, it Form of 
 was done by charter or letters patent, usually addressed by ^^'^^ ' 
 the king to all his subjects. The grant was first passed by 
 a bill prepared by the attorney or solicitor-general on 
 
 1 Ibid. § 6. 2 Stat. 1 Geo. III. u. 1, § 3. 
 
 3 Stat. 34 Geo. III. c. 75. ^ Stat. 39 and 40 Geo. III. c. 88. 
 
 = Ibid. § 1. <' Ibid. § 2. ' Ibid. § 3. 
 
 8 Stat. 4 Geo. IV. c. 18. 
 
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158 FOURTH PERIOD 
 
 receiving a warrant from the Crown. The king's sign 
 manual was then placed at the head of the bill, which was 
 sealed with his privy signet. 
 
 In granting away his lands the king had certain 
 advantages over his subjects, for the grant was absolutely 
 void if it appeared from the face of the instrument that 
 the king had been deceived or mistaken as to a matter 
 either of law or fact^; and as early as Henry IV.'s time it 
 had been decided that no grant of the king should be 
 valid unless the grantees in their petition for the grant 
 made express mention of the real value of the land^ 
 Exchange. The method of conveyance by an exchange of ' equal 
 interests' continued to be used, but its occurrence was 
 much less frequent than at an earlier stage of our history. 
 The main change in the law was that introduced by the 
 Statute of Frauds already cited. From that time onwards 
 writing was necessary if the exchange were of freeholds. 
 It should be remarked that the word ' exchange ' was 
 necessary to make the conveyance operative. Hence if 
 A conveyed land to B by deed and B to A, without livery 
 of seisin, the transaction was void as a feoffment and it 
 would not be construed as an exchange. 
 
 We have already pointed out the necessity for ' equality ' 
 in the estates exchanged and also for entry into the things 
 taken in exchange. It should be added that where a 
 reversion, rent or seignory was granted in exchange the 
 attornment of the tenant was required to perfect the title ; 
 but, in this case, after such attornment, no entrj' or claim 
 was necessary to complete the exchange. 
 We may note further : 
 
 " that the things exchanged need not be in esse at the time 
 that the exchange is made ; for a man may grant a rent 
 de novo out of his land in exchange for a manor. And yet 
 if I grant to another the manor of A for the manor of B 
 which he is to have after his father's death by descent, it 
 
 ' E.g. a mis-recital of former grants ; a mistake in the statement of 
 the king's title ; grant of estate contrary to rules of law. 
 " Stat. 1 Hen. IV. c. 6. 
 
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RELEASES 159 
 
 seems this exchange is void. Further there needs no trans- 
 mutation of possession ; for a release of rent, estovers, or right 
 of land, for land is good. Again the things exchanged need 
 not be of one nature, so long as they concern lands or 
 tenements, for land may be exchanged for rent, common, 
 or any other inheritance that concerns lands or tenements.... 
 But annuities and such like things, which charge the person 
 only, and do not concern lands or tenements, or goods and 
 chattels, cannot be exchanged for land'." 
 
 As to disabilities — if one of the parties were an infant 
 he could avoid the exchange on reaching his majority. A 
 tenant in tail could make an exchange binding him for 
 life, but his heirs could confirm or avoid it as they pleased. 
 If one of the parties were non sanae memoriae his heir 
 could avoid the conveyance. A man holding in right of 
 his wife could make an exchange that would bind him 
 (and his wife) for his life, but it could be set aside after- 
 wards. 
 
 The next title to consider is the release, which, as Release. 
 explained before, is " a conveyance of right to a person 
 already in possession I" Releases of lands or tenements 
 were divided into two great classes : — (1) Those that 
 enured by way of enlargement or passing of an estate, and 
 (2) those that enured by way of passing and extinguishing 
 a right or title only. As to the first (1), these points 
 may be noted : — (a) The releasor must have an estate 
 out of which he might release what he professed to 
 do — e.g. if he had the reversion in fee he might release 
 to a tenant for years so as to increase the tenant's estate 
 to one for life or in tail or in fee simple. 
 
 " But if there be a lessee for years rendering rent and the 
 reversion is granted for life, the remainder over in fee, and 
 the grantee of the reversion release all his right to him in 
 remainder, and then he in remainder grant the reversion and 
 the tenant for life release to the grantee also — in this case 
 
 ' Sheppard, Touchstone, u. 16, vol. 2, p. 294. 
 - Gilbert, Tenures, 53. 
 
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160 FOURTH PERIOD 
 
 it seems that both these releases are void and cannot enure 
 as releases'." 
 
 (6) The releasee must have some estate (in possession, or 
 in reversion) in the lands that are the subject of the 
 release, (c) There must be some privity in estate between 
 releasor and releasee at the time of making the release. 
 (d) The estate that the releasee is to have must be 
 properly marked out and limited. 
 
 As to the second class (2) — (a) just as before the 
 releasor must have a right to make the release that he 
 proposes to make, he must have more than a possibility 
 of a right ; (b) the releasee must have the freehold (in 
 deed or in law) in possession, or he must have some estate 
 in reversion or remainder, and this in deed and not merely 
 in right ; (c) but there is no necessity for privity between 
 the parties ; and (d), as in the last case, proper words of 
 limitation must be used. 
 
 So far we have been dealing with a release of lands 
 and tenements. In the case of a seignory the lord could 
 extinguish all his claims by a release without any special 
 words of inheritance or limitation'. Rent charges, and 
 common of pasture, or any profits a prendre issuing out 
 of land, could be released by a release of the land in 
 question, provided the land were the releasor's and he had 
 more than a mere right to it'. In the case of joint owners 
 of an advowson, one of them might release to the other — 
 unless the church were vacant at the time. 
 Conflrma- Closely allied to a release is a confirmation, of which 
 we gave an example in the last chapter. 
 
 " Confirmation," says Gilbert, " is the approbation or assent 
 to an estate already created, which, as far as in the confirmor's 
 power, makes it good and valid : so that the confirmation 
 doth not regularly create an estate, but yet such words may 
 
 ' Sheppard's Touchstone, o. 19, vol. 2, p. 324. [" Howbeit they may 
 enure as surrenders, if they have words of surrender in them.'' Ibid.] 
 
 - Of course by using proper words he may release the aeignory only 
 in tail or for life. 
 
 ^ As in the case of disseisor. 
 
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 tion. 
 
SURRENDERS 161 
 
 be mingled in the confirmation as may create and enlarge 
 an estate ; but that is by the force of such words as are 
 foreign to the business of confirmation and by their own force 
 and power tend to create the estate'.'' 
 
 The confirmation — whether simply to confirm or to 
 enlarge an estate — must be by deed, duly sealed and 
 delivered, and care must be taken that the estate is 
 properly marked out and limited. 
 
 Surrenders were found in the preceding period ; but, Surrender, 
 whereas at that time they could be made by apt words and 
 express agreements between the parties, now the Statute 
 of Frauds required writing either by the surrenderor or by 
 his agent lawfully authorised by writing [or by act and 
 operation of law] I The proviso as to surrenders by 
 operation of law applied to cases such as where a lessee 
 for life (in possession or reversion) took a new lease for 
 years and so drowned the first estate in the second. This 
 was called a surrender in law. As to a surrender in deed, 
 it should be noted that the surrenderor must have an 
 estate in possession and not a mere right to the thing 
 possessed. Further that the surrenderee must have the 
 neoDt immediate estate in remainder or reversion ; that 
 there must be a privity of estate between the parties ; 
 that the surrenderee must have a greater estate than 
 the surrenderor ; that the estate must be in his own right 
 and not in that of his wife ; and that he must be solely 
 seised of this estate in remainder or reversion^ 
 
 The words commonly adopted in a surrender were 
 ' surrender,' ' give,' or ' give up ' ; but any words that 
 clearly expressed the intention to surrender would do as 
 well. As a rule a deed was not necessary even after the 
 Statute of Frauds ; but if the thing to be surrendered were 
 common of pasture, a rent, an advowson, a reversion, or 
 anything that required a deed of grant, then a deed was 
 necessary for its surrender. We should add that the 
 
 ' Gilbert, Tenures, 75. 
 
 2 Stat, of Frauds, § 3 [p. 150 above]. 
 
 3 Sheppard, Touchstone, e. 17, vol. 2, p. 303. 
 
 11 
 
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162 FOURTH PERIOD 
 
 surrender was not perfect until the acceptance and 
 
 agreement of the surrenderee, but no entry on his part 
 
 was required. 
 
 New We have been occupied for a time with a review of 
 
 TOnvey-" '^a.rious modes of conveyance none of which appears for the 
 
 ance in- first time in the present period. Indeed, with the exception 
 
 by Statute of the novelties introduced by the Statute of Frauds, there 
 
 of Uses. ]ja,s been little to narrate that might not have been put 
 
 down to the preceding period. Now however we must 
 
 turn to conveyances the force of which was derived from 
 
 the provisions of the Statute of Uses. In discussing that 
 
 statute we took occasion to point out what these methods 
 
 were and how they operated by force of the statute. 
 
 Here we must take up the description at the point where 
 
 it was left off and consider some of the peculiarities of 
 
 those three means of conveyance — the covenant to stand 
 
 seised, the bargain and sale, and (most important of all) 
 
 the lease and release. 
 
 Covenant Taking the covenant to stand seised first, although it 
 
 to stand * , i p r ■ ■ ■, 
 
 seised. was never a common method oi transference, it is to be 
 
 noted that for the validity of the covenant it was necessary 
 
 that there should be some consideration — either ' valuable,' 
 
 i.e. of money value, or ' good,' i.e. in consideration of blood 
 
 or marriage. If the covenant depended on a ' valuable ' 
 
 consideration, then — after the Statute of Enrolments 
 
 (1535) — it had to be made by deed, indented and enrolled 
 
 as explained above^, for in that case it was practically 
 
 a bargain and sale. However a covenant to stand seised 
 
 usually rested on a consideration of kinship or marriage, 
 
 and then there was no need of an enrolled deed. In fact, 
 
 until the Statute of Frauds, writing was not absolutely 
 
 essential, although as a matter of practice a deed was 
 
 commonly employed. After that statute the covenant 
 
 must be manifested and proved by writing^; but the 
 
 writing was required merely as evidence and could be 
 
 made after the covenant. 
 
 > See p. 143. « gt^t. of Frauds, § 7. [See p. 149 above.] 
 
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NEW MODES OF CONVEYANCE 163 
 
 If there were an express ' valuable ' consideration then 
 a deed indented and enrolled was required, even though 
 the covenant might have been founded on a 'good' con- 
 sideration not requiring any deed. Thus suppose James 
 Smith covenanted to stand seised of land to the use 
 of John Smith (his brother) 'in consideration of one 
 hundred pounds.' This would be void without a deed 
 duly enrolled ; whereas if James had covenanted similarly 
 ' in consideration that John is my brother and has paid 
 me £100' no deed would have been required. "Express- 
 um facit cessare taciturn." 
 
 Turning to the bargain and sale, we have seen that, to Bargain 
 
 and sale. 
 
 be effective, it must be made by deed, duly indented and 
 enrolled ^ Further it is to be observed that it was 
 essential to the validity of this title that there should be 
 some valuable consideration, or more strictly that such a 
 consideration should be declared in the deed, although it 
 need not actually have been paid. Enrolment had to be 
 made within six months of the sale, and until this was 
 done the lands etc. remained in the bargainor. The 
 enrolment was on parchment, and by statute 10 Anne, 
 c. 18, § 3, a copy of this enrolment signed by the proper 
 officer having custody of the rolls and proved upon oath 
 to be a true copy, 
 
 "shall in all cases where a bargain and sale shall be pleaded 
 with a profert in curia be of the same force and effect as 
 the indenture of bargain and sale should be if the same was 
 produced." 
 
 The method of conveyance by ' lease and release ' was Lease and 
 described when the Statute of Uses was under discussion, '^^^^^^^• 
 and, as there remarked, when once established, it became 
 the commonest form in practice until the year 1841. Its 
 chief advantages were, (1) that by its means an estate 
 could be transferred without livery of seisin or entry on 
 
 ' See p. 143. By a special proviso, lands in the City oJ London might 
 be bargained and sold for a consideration by word of mouth without any 
 writing. 
 
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164 FOURTH PERIOD 
 
 the land; and (2) that it did not require enrolment, for 
 the bargain and sale that formed part of the transaction 
 dealt with an estate for years only. On the other hand it 
 had the disadvantage of requiring two instruments for a 
 single conveyance. 
 
 After what has been said above ^ we need not delay 
 long over the lease and release. The ' lease ' always took 
 the form of a bargain and sale for a year. Such a bargain 
 and sale required ' consideration,' but, as has just been 
 observed, it did not need a deed enrolled. However after 
 the Statute of Frauds writing was essential, and it became 
 the usual practice to employ a deed for a bargain and 
 sale, although this was not absolutely necessary. The 
 Statute of Uses operated to put the bargainee in pos- 
 session (in the eyes of the law) for the term of years, and 
 the conveyance was then completed by a 'release,' the 
 essentials of which have been considered already and so 
 need not be described again. 
 
 Dower and As to the laws dealing with dower and curtesy, there 
 ur esy. jg little to be added to what we have learned from Bracton 
 and Littleton. Indeed all that we need notice here are 
 two statutes of the reign of Edward VI. The statute 
 1 Ed. VI. c. 12 enacted that a wife should not (as formerly) 
 be deprived of her dower by the attainder of her husband 
 for misprision of treason or felony. This was not meant 
 to alter the law of attainder for high treason, and by the 
 statute 5 and 6 Ed. VI. c. 11 it was declared that in 
 such a case no dower could be claimed by the wife. 
 
 Title by Little, too, need be said about title by inheritance. 
 
 The rules of descent were subject to scarcely any alteration, 
 and indeed when Lord Hale first reduced them to a series 
 of canons^ he stated that they had continued the same 
 for four centuries. However we may note a few changes 
 as to disabilities. It has been said that aliens were 
 incapable of inheriting ; 
 
 » Seep. 159. 
 
 ^ Hale, History Com. Law, 6th edition, p. 318 seq. — foUowed by 
 Blaokstone, Gomm. ii. u. 14. 
 
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INHERITANCE 165 
 
 "but statute 11 and 12 Will. III. c. 6 enacted that all 
 persons being natural-born subjects of the king may inherit 
 and make their titles by descent from any of their ancestors ; 
 although their father or mother or other ancestor, by, 
 from, through, or under whom they claim, were born out of 
 the king's allegiance. But inconveniences 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 Wherefore it was provided by 
 
 statute 25 Geo. II. c. 39, that no right of inheritance shall 
 accrue by virtue of the former statute to any persons what- 
 soever, unless they are in being and capable of inheriting 
 at the death of the person last seised — with an exception 
 however to the case where lands shall descend to the 
 daughter of an alien; which descent shall be diverted in 
 favour of an after-born brother, or the inheritance be divided 
 with an after-born sister or sisters, according to the usual 
 rule of descents by the common law'." 
 
 Another question dealt with about the same time was 
 the competency of a Roman Catholic to inherit realty. 
 The statute of 11 and 12 Will. III. c. 4, declared that 
 every such person " who shall not abjure the errors of his 
 religion by taking the oaths to the government and 
 making a declaration against transubstantiation within 
 six months after reaching the age of eighteen shall be 
 incapable of inheriting." The act however was repealed 
 by statute 18 Geo. III. c. 60, which did away with all 
 abjuring of "errors of religion" and required merely an 
 oath of allegiance. 
 
 Turning next to title by will — we have already drawn Wills, 
 attention to the chief statutes bearing upon this subject, 
 the Statute of Wills of 1540 (with the explanatory act of 
 1542) and later the oft-quoted Statute of Frauds of 1677. 
 As to the form of a valid will, the statute of 1542 
 required writing; but this was construed very loosely 
 and it was not till 1677 that a more satisfactory state 
 was reached. From that time the will was required to be 
 
 ' Blackstone, Comm. ii. o. 14. 
 
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166 FOURTH PERIOD 
 
 in writing, and signed by the party making his devise, or 
 by some other person in his presence and by his express 
 directions, and moreover it had to be attested and sub- 
 scribed in the presence of the devisor by three or four 
 credible witnesses. 
 Who could The act of 1542 had something to say of persons not 
 a will. capable of making a will. A married woman could not 
 make a will disposing of her lands in the lifetime of her 
 husband, except in special cases, as where the husband 
 had been banished for life by an Act of Parliament. An 
 infant could not devise lands except by special custom, 
 nor could a lunatic unless in his lucid intervals. The 
 will of an idiot, " i.e. such a one as cannot number twenty, 
 or tell what age he is, or the like\" was void ; but not 
 so that of " one of mean understanding only, that hath 
 grossum caput and is of the middle sort between a wise 
 man and a iooV." Void was the testament of an old 
 man in his second childhood, " so forgetful that he hath 
 forgotten his own name." A man born deaf and dumb 
 could not make a valid will ; but if his infirmity were the 
 result of accident he suffered under no such disability. 
 An alien, a man civilly dead, and a felon were alike in 
 being unable to make a valid testament of lands. 
 Com- The competency of the witnesses to a will was a 
 
 wltnesseB thorny subject that gave rise to endless trouble over 
 devises. After some conflict of opinion it was decided 
 by the Court of King's Bench that a person taking any- 
 thing under the will was not a credible witness. In the 
 natural course of affairs testators would get some of those 
 they proposed to benefit as witnesses to their wills, and 
 this led to the annulment of many a will. Finally an act 
 was passed in 25 Geo. II. c. 6, " for putting an end to 
 doubts and questions relating to the attestation of wills 
 and codicils concerning real estates.'' This made a devisee 
 a competent witness to a will ; but rendered of no effect 
 the portion of the will which benefited the witness. At 
 the same time a creditor was made a competent witness 
 
 ' Sheppard, Touchstone, e. 23. ^ i\)ii_ 
 
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WILLS 167 
 
 although the will charged the testator's lands with the 
 payment of his debts. 
 
 In a devise of realty the devisor must be solely seised Devisor 
 of an estate in fee-simple. An estate tail could not be ™"el*y^^ 
 devised ; nor an estate pur autre vie until the twelfth seised of 
 
 ATI PR^fl^P 
 
 section of the Statute of Frauds made the change already in fee- 
 referred to\ A seignory, rent, or reversion could be ^^^Pl^- 
 devised in the same way as land. 
 
 It was noted that the Statute of Wills made void all Devises to 
 devises to corporations, the object being to prevent gifts tkS'g°vo'id 
 in mortmain. However, the rigour of this law was abated —except 
 by the interpretation put on a statute 43 Eliz. c. 4, which charitable 
 gave validity to devises to a corporation provided they "^®^- 
 were for charitable uses. 
 
 As to the revocation of a will — the will of a woman Eevoca- 
 was revoked by her marriage, and that of a man by his ^^ ° "^ 
 marriage and the birth of a child. A will could also 
 be revoked by deliberately destroying the instrument, 
 whether by the devisor's own hands or in his presence 
 and with his consent. A devise was rendered void if the 
 testator afterwards forfeited his lands for treason or felony, 
 unless they were restored to him on his pardon. The 
 making of a new will destroyed the effect of an earlier 
 one ; and if the devisor disposed of his real estate after 
 devising it the will was of no effect even though the 
 property was afterwards reacquired by him. 
 
 The rule as to general occupancy remained as in the Occu- 
 preceding period until it was swept away by the twelfth 
 section .of the Statute of Frauds. There it was enacted 
 that the tenant pur autre vie might dispose of his estate 
 by will ; that, if it were not so devised, the estate should 
 descend to the heir at law and be chargeable with the 
 debts of the ancestor; while if there were no special 
 occupant it should go to the executors or administrators 
 and be chargeable, as before, with the debts of the original 
 tenant pur autre vie during the life of cestui que vie. 
 On this statute a doubt arose as to whether the adminis- 
 1 See p. 150. 
 
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168 FOURTH PERIOD 
 
 trator was entitled to the property for his own benefit 
 after payment of all debts of the original tenant. A 
 supplementary act was therefore passed^ declaring that 
 the surplus of such estate pur autre vie should — after 
 payment of the debts — be distributed as personalty among 
 the next of kin^. 
 
 Bank- We have now to discuss a title that had its origin 
 
 very early in the present period and has since become of 
 considerable practical importance — viz. the title of the 
 Commissioners and assignees in Bankruptcy. We are not 
 required to enter into a discussion of bankruptcy generally 
 — such questions as who may become bankrupt, what is 
 an act of bankruptcy, and the like are clearly outside our 
 province. All that must be done is to consider the title 
 of the Commissioners or assignees and the nature of their 
 estate. 
 
 Earliest Bankruptcy law dates from the statute 34 and 35 
 
 statute XTTTT At, ■ 1 T^ 1 
 
 on the Hen. V HI. c. 4, An Act against such Persons as do 
 subject, jjj^jjg Bankrupt": 
 
 " Whereas divers and sundry Persons craftily obtaining into 
 their Hands great substance of other Men's Groods, do sud- 
 denly flee to Parts unknown, or keep their Houses, not 
 minding to pay or restore to any their Cieditors their Debts 
 and Duties, but at their own Wills and Pleasures consume 
 the Substance obtained by Credit of other Men, for their 
 own Pleasure and delicate Living, against all Reason, Equity 
 and Good Conscience : Be it therefore enacted by Authority 
 of this present Parliament, That the Lord Chancellor of 
 England, or Keeper of the Great Seal, the Lord Treasurer, 
 the Lord President, Lord Privy Seal, and other of the King's 
 most honourable Privy Council, the chief Justices of either 
 Bench for the Time being, or three oj them at the least, 
 whereof the Lord Chancellor or Keeper of the Great Seal, 
 Lord Treasurer, Lord President, or the Lord Privy Seal, 
 to be one, upon every Complaint made to them in Writing, 
 by any Parties grieved concerning the Premisses, shall have 
 
 1 14 Geo. II. 0. 20. 
 
 ^ See note (5) to Coke, Littleton, f. 41 b. 
 
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BANKRUPTCY 169 
 
 Power and Authority bj' Virtue of this Act, to take by their 
 Wisdoms and Discretions, such Orders and Directions, as 
 well with the Bodies of such Offenders aforesaid, wheresoever 
 they may be had, or otherwise, as also with their Lands, 
 Tenements, Fees, Annuities, and Offices which they have in 
 Fee-simple, Fee-tail, Term of Life, Term of Years, or in the 
 Right of their Wives, as much as the Interest, Right, and 
 Title of the same Offender shall extend or be, and may then 
 lawfully be departed with, by the said Offender. . . . And to cause 
 their said Lands, Tenements, Fees,... to be searched, viewed, 
 rented, and appraised, and to make Sale of the same Lands, 
 Tenements, Fees... as much as the same Offender may then 
 lawfully give, grant or depart with, or otherwise to order the 
 same for the true Satisfaction and Payment of the said 
 Creditors : That is to say, to every of the said Creditors, 
 a Portion Rate and Rate like according to the Quantity 
 of their Debts. And that every Direction, Order, Bargain, 
 Sale and other Thing done by the said Lords, authorised 
 as is aforesaid, in Writing signed with their Hands, by 
 Authority of this Act, shall be good and effectual in the 
 Law to all Intents, Constructions and Purposes against the 
 said Offenders, their Heirs and Executors for ever, as though . 
 the same Order, Direction, Bargain and Sale had been made 
 by the said Offender or Offenders, at his or their own free 
 Will and Liberty, by Writing indented enrolled in any the 
 King's Courts of Record." 
 
 The subject was next dealt with by statute 13 Eliz. Commia- 
 h, 1 ■ 1 n in- 1 1 11 sioners ir 
 
 c. 7, which, alter denning who may become bankrupt, bank- 
 
 Srives authority to the Lord Chancellor or Lord Keeper ™ptey— 
 o ■' _ ... how ap- 
 
 of the Seal to appoint Commissioners in bankruptcy, pointed. 
 
 These Commissioners could dispose of the estate of the Powers 
 
 bankrupt in the same manner as the Lord Chancellor commis- 
 
 and others mentioned in the act of Hen. VIII. were siouers. 
 
 empowered to do. After payment of the bankrupt's 
 
 debts, the residue of his property was to be divided into 
 
 two equal portions, one part 
 
 "paid unto the Queen's Majesty, her Heirs and Successors, 
 and the other Moiety thereof shall be by the said Com- 
 missioners imployed and distributed to and amongst the Poor 
 
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170 FOURTH PERIOD 
 
 within the Hospitals in every City, Town or County, where 
 any such Bankrupt shall happen to be " [§ 8]. 
 
 No dis- Further it should be noted that there was nothing in 
 
 all debts the nature of a discharge from bankruptcy until all debts 
 paid. -were paid, for § 11 enacts that any real or personal 
 
 property acquired by the bankrupt after the declaration 
 of his bankruptcy may be disposed of by the Commissioners 
 until the debts are all paid. At the same time, by § 12, 
 any bona fide assurance of the bankrupt made before his 
 bankruptcy was not void unless the parties to whose use 
 the assurance was made " were privy or consenting to the 
 fraudulent Purpose of any such Bankrupt, to deceive his 
 Creditors." 
 
 Then, in 1604 [2 Jac. I. c. 15], came another act " for 
 the better relief of the creditors against such as shall 
 become bankrupts " : 
 
 " For that frauds and deceits, as new diseases, daily increase 
 amongst such as live by buying and selling, to the hindrance 
 of traffick and mutual commerce, and to the general hurt 
 of the realm, by such as wickedly and wilfully become bank- 
 ' rupts," 
 
 it is more clearly explained who may be adjudged a 
 
 Convey- bankrupt ; and, what is more important for our purposes, 
 
 bankrupts conveyances made by bankrupts are declared void except 
 
 are void, in special cases, § 5. 
 
 except in 
 
 special " Be it farther enacted that if any person which hereafter 
 
 is or shall be a bankrupt by intent of this statute, shall 
 
 convey, or procure, or cause to be conveyed, to any of his 
 
 children or other person or persons, any manors, lands, 
 
 tenements, hereditaments, offices, fees, annuities, leases, goods, 
 
 chattels, or transfer his debts into other men's names, except 
 
 the same shall be purchased, conveyed or transferred for or 
 
 upon marriage of any of his or her children, both the parties 
 
 married being of the years of consent, or some valuable 
 
 consideration, shall be in the power and authority of the 
 
 commissioners on this behalf to be appointed, or the more 
 
 part of them, to bargain, sell, grant, convey, demise, or 
 
 otherwise to dispose thereof, in as ample manner as if the 
 
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 cases. 
 
BANKRUPTCY 171 
 
 said bankrupt had been actually seized or possessed thereof, 
 or the debts were in his own name, of the life estate or 
 interest to his or their own use, at such time as he or she 
 became bankrupt ; and that every such grant, bargain, sale, 
 conveyance, and disposition of the said commissioners, or of 
 the greater part of them, shall be good and available to all 
 intents, constructions and purposes in the law, against the 
 offender or offenders, his heirs, executors, administrators and 
 assigns, and such children and persons as shall be subject 
 to this statute, and against all other person and persons 
 claiming by, from or under such offender or offenders, or 
 such said other persons, to whom such conveyance shall 
 be made by the said bankrupt, or by his means or pro- 
 curement'." 
 
 Between this time and the reign of George II. a 
 number of Bankruptcy Acts were placed in the Statute- 
 Book, but they have little bearing on the present subject. 
 In 5 Geo. II. c. 30, we come upon a very long act, the 
 main object of which is to protect the creditors from 
 fraud. A few of the sections have an interest for us. 
 § 30 enacts that the Commissioners in bankruptcy may 
 appoint an assignee or assignees of the estate and effects 
 or any part thereof; and 
 
 "all the estate and effects of the bankrupt which shall be 
 delivered up or assigned, shall be, to all intents and purposes, 
 as effectually and legally vested in such new assignee or 
 assignees as if the first assignment had been made to him 
 or them by the said commissioners." § 32. " And whereas 
 by reason of the names which are lodged in the hands of 
 assignees until a dividend is made, assignees do oftentimes 
 delay the dividing thereof, to the very great prejudice of the 
 bankrupt's creditors ; for preventing whereof, and to the end 
 assignees may make speedy dividends of the estate and effects 
 of such bankrupts, be it enacted by the authority aforesaid, 
 that before the creditors shall proceed to the choice of an 
 
 ^ That bankruptcy was regarded as a grave moral offence is evident 
 from the wording of this and several other statutes of the same period. 
 A little later [21 Jae. I. o. xix.] we find an act " for inflicting corporal 
 punishment upon the bankrupts in some special cases." 
 
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172 FOURTH PERIOD 
 
 assignee or assignees of any bankrupt's estate, the major part 
 in value of the said bankrupt's creditors then present shall, 
 if they think fit, direct in what manner, how, with whom 
 and where the monies arising by, and to be received from 
 time to time out of the bankrupt's estate, shall be paid in 
 and remain until the same shall be divided amongst all the 
 creditors as by this act is directed : to which rule and 
 direction every such assignee and assignees, afterwards to 
 be chosen, shall conform, as often as one hundred pounds 
 shall be got in and received from such bankrupt's estate, 
 and shall be and are hereby indemnified for what they shall 
 do in pursuance of such direction of the said creditors as 
 aforesaid." 
 
 Bankrupt All earlier acts dealing with bankruptcy were repealed 
 iolidated ^° ^^^* ^y 5 George IV. c. 98— "An Act to consolidate 
 and amend the Bankrupt Laws. " Within a year, however, 
 it was found necessary to repeal this statute, and a new 
 act was passed [6 George IV. c. 16] entirely reconstituting 
 the Bankruptcy law. By § 12 the Lord Chancellor is em- 
 powered to issue a commission giving the Commissioners 
 full powers to dispose of the bankrupt's property — copy- 
 hold as well as freehold — for the satisfaction of the 
 Powers of creditors' claims. By § 45 the Commissioners may, by 
 sioners^ writing under their hands, appoint an assignee or assignees 
 of the bankrupt's estate ; but these assignees may be 
 replaced by others chosen at a meeting of creditors and 
 approved of by the Commissioners [§ 61]. To these 
 assignees the Commissioners are to convey, by deed 
 indented and enrolled, for the benefit of the creditors all 
 the bankrupt's real estate — " except Copy or Customary- 
 hold. " The Commissioners may sell any land whereof the 
 bankrupt is tenant in tail. This is to be done by deed 
 indented and enrolled, and every such deed shall be good 
 against the bankrupt and all whom he might have barred 
 by fine or other means. It is further enacted that all 
 powers vested in any bankrupt which he might legally 
 execute for his own benefit (except the right of nomination 
 to any vacant ecclesiastical benefice) may be executed by 
 
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INCORPOREALS 173 
 
 the assignees for the benefit of the creditors fS 771. In Surplus of 
 
 * . 1 /¥- • bank- 
 
 case the value of the estate is more than sufficient to meet rupt's 
 
 the claims of all the creditors, the surplus must be paid f^^*^^ 
 by the assignees to the bankrupt, his executors, admin- posed of. 
 istrators or assigns [§ 132]. With this we may conclude 
 our brief sketch of the bankruptcy laws within the present 
 period. We have seen the modes in which the Commis- 
 sioners and assignees in bankruptcy acquired their estates 
 and the nature of these estates, and this is the only part 
 of the subject that has any direct bearing on title. 
 
 In the earlier chapters of this work we devoted special Incor- 
 sections to the discussion of things incorporeal. It seems, 
 however, no longer necessary to consider the titles to the 
 different incorporeal s separately. For a title that was 
 possible for any incorporeal in the preceding period 
 remained possible in this, and any change in the mode of 
 transfer itself — e.g. in the release or the recovery — has 
 been already noted. Repetition will serve no useful 
 purpose, and so it seems better while discussing each title 
 to point out, as we have done, any peculiarity when the 
 subject of the transfer is an incorporeal. 
 
 It will be remembered that the regular mode of Deed of 
 conveying an incorporeal hereditament inter vivos was by S^ant. 
 means of a deed of grant, and a few notes on that subject 
 may not be out of place. An alien could grant anything 
 that he was capable of taking. The grant of a person Djg. 
 attainted of treason or felony was good against all but the abilities. 
 king and the lord of whom he held. A feme covert (except 
 the queen) could not grant without the consent of her 
 husband. The grant of an infant (except in the case of 
 special custom) was void ab initio unless the grant were 
 by fine, when it was valid if not set aside during infancy. 
 A grant made under duress was voidable except made by 
 fine. A person non sanae memoriae could not avoid his 
 own grant, but his heirs could do so unless a fine had been 
 employed. A valid grant could not be made by one born 
 deaf and dumb and blind ; but it was otherwise with one 
 deaf and dumb, or blind. Further it should be noted that 
 
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tion 
 
 174 FOURTH PERIOD 
 
 a grant might be void for uncertainty, as where the 
 limitation of the estate was indefinite. It was also void if 
 made on a corrupt contract or for fraudulent purposes. 
 
 Presorip- As yet there was no prescriptive title to land, such a 
 
 title being, as before, confined to purely incorporeal 
 hereditaments. The only change in the law of prescription 
 since Littleton was effected by the second section of the 
 statute 32 Hen. VIII. c. 2, which enacted that no person 
 should make any prescription by the seisin of his ancestor 
 or pi-edecessor, except the seisin had taken place within 
 sixty years before the setting up of the claim. But 
 although there was no proper prescription of land, yet, as 
 has been observed before, the operation of Statutes of 
 Limitation might establish a person in secure possession 
 of land to which he had otherwise no title. Thus, after 
 the statute just quoted ^ if A on being disseised by B 
 took no steps for thirty years to recover his possession 
 he lost the right of possession and had to be content 
 with a mere right of property. And further if he re- 
 frained from action for sixty years he was absolutely 
 without remedy. 
 
 Copy- Turning now to the subject of copyholds, we have not 
 
 to describe any great change from the state of affairs at 
 the close of the preceding period. Early in the present 
 period the law as to copyholds received a systematic ex- 
 position at the hands of Coke^, and remained practically 
 unchanged throughout the period. In our last stage we 
 had already reached a position where the tenure of the 
 copyholder was practically as secure as that of a free- 
 holder, and so we find Coke writing, 
 
 " But now copyholders stand upon a sure ground, now they 
 weigh not their lord's displeasure, they shake not at every 
 suddaine blast of winde, they eate, drinks, and sleeps secursly, 
 onsly having a speciall care of the main chance (viz.) to 
 
 1 See also Stat. 21 Jao. I. o. 16. It should be noted that Statutes of 
 Limitation do not affect the rights of the Crown, unless expressly said to 
 do so. " Nullum tempus ooourrit regi." 
 
 ^ Coke, The Compleate Copy-holder. 
 
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 holds. 
 
COPYHOLDS 175 
 
 performe carefully what duties and services soever their 
 tenure doth exact and custome doth require ; then let the 
 lord frown, the copyholder cares not, knowing himselfe safe, 
 and not within any danger; for if the lord's anger grow to 
 expulsion the law hath provided aeverall weapons of remedy ; 
 for it is at his election either to sue a sub poena or an action 
 of trespasse against the lord. Time hath dealt very favorably 
 with copyholders in divers respects'." 
 
 We have said that custom ruled the copyhold ; but Custom 
 a custom to be upheld in the king's courts must be 
 ' reasonable,' ' according to common right,' ' upon a good 
 consideration,' 'compulsory,' and 'certain I' As to con- 
 veyances of copyholds, it should be noted that if the 
 lord himself were tlie grantor he was not under any of 
 the disabilities that at common law would invalidate a 
 conveyance — such as infancy, idiocy, lunacy, outlawry, 
 coverture, or the like". It was otherwise, however, in the 
 case of grants between copyholders, for persons incapable 
 of disposing of land at common law could not, without 
 special custom, convey their copyhold. As to the grantee, 
 the copyholder was in the same position as the freeholder, 
 except that in many manors a feme covert could receive 
 a copyhold by surrender from her husband^ and was thus 
 in a better position than the grantee of a freehold. More- 
 over the manorial courts were not so particular as the 
 royal courts that the name of the grantee should be 
 accurately set down, for even a description would avail 
 if it were definite. 
 
 It may be repeated that a conveyance could not be 
 effected otherwise than in accordance with the custom 
 of the manor. For example, a devise of copyholds could 
 not be made unless there was a custom to that effect. 
 The devise too could be made only by a surrender to the 
 use of the last will and testament, and a declaration of 
 intention in that will. In strictness this was not a 
 will of copyholds, it was merely a declaration of use, 
 
 ' Coke, The Compleate Copy-holder (edit. 1644), § ix. 
 2 Ibid. § 33. 3 Ibid. § 34. * Ibid. § 35. 
 
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176 
 
 FOURTH PERIOD 
 
 Three 
 stages in 
 normal 
 convey- 
 ance. 
 
 and so was not affected by the provisions of the Statute 
 of Frauds as to wills — the so-called 'will' need not be 
 signed nor attested. Late in the period, however, the 
 Legislature interfered and made a devise of copyholds 
 valid without any surrender to the use of the will'. 
 An exchange could not take place without a surrender 
 to the lord and admittance by him. Again, it was useless 
 to attempt a conveyance by first leasing the copyhold 
 and then passing the reversion by a release ; the re- 
 version must first be surrendered to the lord, by whom 
 it would be granted to the lessee ''. 
 
 There were three stages in the normal conveyance of 
 a copyhold — surrender, presentment, and admittance ; but 
 in some manors the surrender was dispensed with, in 
 others the presentment, and again in others the admit- 
 tance. In case of a surrender, the word ' surrender ' must 
 be used : 
 
 " for if a copyholder come into court and offer to passe his 
 copyhold by word of grant, of gift, of bargain, or sale or 
 such like, I doubt he will faile of his purpose, for as he is 
 tyed to a singular forme of assurance, so is he restrained to 
 peculiar words in his assurance'." 
 
 The symbolism accompanying the surrender varied with 
 the manor, a rod, a straw, a glove, or some such thing 
 being delivered to the steward, and by him to the grantee 
 in the name of seisin, " et consuetude loci semper est 
 observanda." The presentment was usually required to 
 be made at the next court day after the surrender, but 
 in some cases it could take place at the second or third 
 courts Admittances were of three sorts — upon a volun- 
 tary grant, upon surrender, and upon descent^. Even in 
 the case of a voluntary grant the lord" was bound strictly 
 by the customs of the manor. He could not, on a regrant, 
 alter the nature and incidents of the tenure. 
 
 1 Stat. 55 Geo. HI. c. 192. 
 
 2 Coke, § 36. 3 Ibid. § 39. 
 < Ibid. § 40. ^ Ibid. § 41. 
 
 ^ If he did not choose to enfranchise the land, as he might do. 
 
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COPYHOLDS 177 
 
 " If the custome doth warrant an estate only durante 
 viduitate and the lord admits for life, this shall not binde 
 his heire or successor, because custome hath not sufficiently 
 confirmed it. So if the lord faile in reserving veruni et 
 antiquum redditum — as if he reserve ten shillings where the 
 usual rent customably reserved is twenty shillings : this may 
 be a means to avoid the admittance, and the law is very 
 strict in this point of reservation : for though the ancient 
 accustomable rent be reserved according to the quantity, 
 yet if the quality of the rent be altered, the heire may 
 avoid this grant : for if the ancient rent from time to time 
 hath been twenty shillings in gold and the lord reserveth 
 it in silver, this variance of the quality of the rent is in 
 force to destroy the grant : so if the ancient rent hath been 
 accustomably paid at foure feasts in the year and the lord 
 reserveth it at two feasts^." 
 
 In case of admittances upon surrender the lord was 
 regarded as a mere agent "through whose hands, as 
 through a conduit-pipe, the lands are conveyed to the 
 purchaser^." Consequently the lord's title did not affect 
 the validity of the conveyance, it being immaterial whether 
 he held the manor by right or by wrong^ This was the 
 case also with the other admittance — viz. that upon de- 
 scent. 
 
 "Admittances, however, upon surrender differ from those 
 upon descent in this ; that by surrender nothing is vested 
 in cestui que use before admittance, no more than in 
 voluntary admittance; but upon descent the heir is tenant 
 by copy immediately upon the death of his ancestor : not 
 indeed to all intents and purposes, for he cannot be sworn 
 on the homage nor maintain an action in the lord's court 
 as tenant ; but to most intents the law taketh notice of him 
 as of a perfect tenant of the land instantly upon the death 
 of his ancestor, especially where he is concerned with any 
 stranger. He may enter into the land before admittance ; 
 may take the profits ; may punish any trespass done upon 
 the ground ; nay, upon satisfying the lord for his fine due 
 
 > Coke, § 41. 2 ibia § 34. s ii,;a. § 41. 
 
 M. B. 12 
 
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178 FOURTH PERIOD 
 
 upon the descent, may surrender into the hands of the lord 
 to whatever use he pleases'." 
 
 Estates In the preceding period we spoke of estates tail and 
 
 copyholds, customary recovery of copyholds, and there is no need to 
 add anything here. Perhaps, however, it should be re- 
 marked that there was nothing analogous to general 
 occupancy in the case of a copyhold estate pur autre 
 vie. On the death of the tenant the lord was entitled 
 to the land during the life of cestui que vie. 
 Bank- ^g to the effect of bankruptcy on the tenure of copy- 
 
 ruptcy. j^^j^^ .^ ^^ ^^^^ ^^^^ ^^^^ ^y g Qg^ jy c. 16, § 64, the 
 
 Commissioners could assign all the bankrupt's real estate 
 to assignees in bankruptcy except that of copyhold or 
 customary tenure. A later section' of the same act 
 provided for the disposition of this property — it could 
 be sold by the Commissioners themselves, by deed in- 
 dented and enrolled, for the benefit of the creditors. 
 Every person to whom such a sale is made 
 
 " shall, before he enter into or take profit of the same, agree 
 and compound with the Lords of the Manors of whom the 
 same shall be holden, for fines, dues and other services as 
 theretofore have been usually paid for the same, and there- 
 upon the said Lords shall at the next or any subsequent 
 court to be holden for the said manors grant unto such 
 vendee, upon request, the said copy or customary lands... 
 reserving the ancient rents, customs and services and shall 
 admit him tenant of the same^." 
 
 1 Blaekstone, Gomm. ii. e. 22, p. 371. Cf. Coke, § 41. 
 
 2 6 Geo. IV. c. 16, § 68. a itij. § 69. 
 
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TRUSTS 179 
 
 Equity. 
 
 In the preceding period we referred to the rise of the 
 Chancellor's jurisdiction and the growing importance of 
 equitable estates. In fact by the time of Henry VII. 
 most of the estates in the kingdom were held by way of 
 use. Towards the close of the period, however, several 
 efforts were made by the Legislature to keep uses within 
 narrower limits and to assimilate them to legal estates^; 
 but these attempts were all rendered insignificant by the 
 sweeping character of the Statute of Uses. At first sight 
 this statute seemed to abolish uses altogether and so put 
 an end to equitable estates ; but this was not to be. In Statute 
 the first place, it should be remembered that the Statute jj/not 
 of Uses does not operate where an active duty is imposed affect an 
 on the feoffee to uses. In such a case we do not find trust. 
 " one person seised to the use of another person," and so 
 the case of an active trust was ruled out of the operation 
 of the statute shortly after the passing of that act. Thus 
 in 1645 we find: 
 
 " Home fait feoffment in fee al son use per term de vie et 
 que puis son decease J. N. prendra les profits, ceo fait un 
 use in J. N. Contrar s'il dit que puis son mort ses feoffees 
 prendront les profits et liver ont eux al J. N. ceo ne fait use 
 in J. N. car il nad eux nisi par les mains les feoffees^," 
 
 Moreover the statute had no effect on copyholds, as it 
 speaks of persons seised to the use of others, and seisin 
 implies a freehold. 
 
 Thus the Chancellor was still left with a field for his Effect of 
 jurisdiction, but the field was a very small one compared uses on 
 with its former extent. Mr Ames has shown us that uses Chan- 
 
 cgIIoit s 
 
 were suppressed for a hundred years after the statute', jurisdic- 
 and has explained the meaning of the doctrine laid down ''°"- 
 
 > Statutes 1 Eich. m. c. 1 ; 1 Hen. VII. o. 1 ; 19 Hen. VII. c. 15. 
 2 Brooke's Abridgment, Feoffment al Uses, 52, quoted by Digby, 
 p. 368. 
 
 ^ Ames, Green Bag, iv. 81. 
 
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180 
 
 FOURTH PERIOD 
 
 Trusts. 
 
 Tyrell's 
 case. 
 
 in 1557 in Tyrell's case' that "a use cannot be engendered 
 upon a use," or as it was afterwards commonly expressed 
 'there cannot be a use upon a use.' Until 1634 the 
 statute operated on the first use and the second was 
 simply void for repugnance. However in a case Samback 
 V. Dalton, about 1634, the Chancery enforced the second 
 use and in this way equitable estates were completely 
 re-established under the modern name of Trusts. 
 
 The doctrines as to trusts follow in the main those 
 that had prevailed concerning uses, "indeed," said Lord 
 Hardwick, " I wonder how they ever came to be distin- 
 guished." In some minor points, however, the old rules as 
 to uses were departed from. Thus it was held that a 
 corporation might act as trustee of real estate upon 
 charitable trusts^ Moreover a husband was allowed his 
 estate by the curtesy in the trust estate of his wife ; but 
 the analogy of the common law was not followed in the 
 case of dower. 
 
 ' The importance of case law in England could scarcely be better 
 illustrated than by reference to two cases, Tallarum's case and Tyrell's 
 case, each of which affected the land law far more profoundly than many 
 Acts of Parliament. The following is from Dyer's Reports, 155 a : 
 
 Tyeell's Case. (Michaelmas Term, 4 and 5 Philip and Maby.) 
 Jane Tyrell, widow, for the sum of £400 paid by G. Tyrell her son 
 and heir apparent, by indenture enrolled in Chancery in the 4th year of 
 
 B. 6, bargained, sold, granted, covenanted and concluded to the said 
 G. Tyrell all her manors, lands, tenements, etc. to have and to hold the 
 said manors, etc. to the said G. T. and his heirs for ever, to the use of 
 the said Jane during her life without impeachment of waste, and im- 
 mediately after her decease to the use of the said G. T. and the heirs of 
 his body lawfully begotten ; and in default of such issue, to the use of 
 the heirs of the said Jane for ever. Quaere well whether the limitation 
 of those uses upon the habendum are not void and impertinent, because 
 an use cannot be springing, drawn, or reserved out of an use, as appears 
 primfi facie? And here it ought to be first an use transferred to the 
 vendee before that any freehold or inheritance in the land can be vested 
 in him by the enrolment etc. And this case has been doubted in the 
 Common Pleas before now : ideo quaere legem. But all the judges of 
 
 C. B. and Saunders, 0. J. thought that the limitation of uses above is 
 void. ..because an use cannot be engendered of an use." 
 
 ' See Green v. Rutherford, i. Vesey, 468 — the question being whether 
 St John's College, Cambridge, could be seised to a trust. 
 
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TRUSTS 181 
 
 When dealing with equitable estates in the preceding Creation 
 period, we saw that no formalities were required for their ^Express 
 creation. An important change in this matter was effected trusts. 
 by the Statute of Frauds, whose sections relating to the 
 present subject have been already quoted \ It should be 
 noted that the seventh section speaks of declarations and 
 creations of trusts of lands, tenements and hereditaments 
 {including copyholds); that it requires the declaration or 
 creation of trust to be manifested and proved by writing ; 
 that the statute is satisfied in this matter by writing 
 subsequent to the creation of the trust ; that a deed is not 
 necessary; that trusts may also be created by wilP; and 
 finally that the special proviso of § 8 protects trusts that 
 arise by implication or construction of law from the 
 necessity of writing. It will be seen, then, how few were 
 the formalities required for the creation of a trust even 
 after the Statute of Frauds. Where writing was required 
 no special form was insisted on, a letter or memorandum 
 signed by the person creating the trust' was sufficient. 
 Any words that expressed an intention to constitute a 
 trust were effective, however untechnical they might be ; 
 and, especially when dealing with wills, the Chancery 
 seemed eager to catch at any phrase that could be twisted 
 into an expression of a trust. Thus in 1702 in Sales v. Precatory 
 England the Chancellor held that the words " my will is *™^*s. 
 that he (the legatee) give... to A at his death" imposed a 
 trust on the legatee. This is the first important example 
 of a precatory trust, a class that grew considerably through- 
 out the eighteenth century, almost the only restriction 
 imposed being the rule that " to create a precatory trust 
 
 1 Ante, p. 149. 
 
 ^ § 7 of Statute of Frauds. If A devised realty to B, but upon the 
 understanding between A and B that the property was to be held in trust 
 for G, then parol evidence of this understanding would be admitted, and 
 if the court were satisfied that a trust was intended it would establish 
 the trust. 
 
 3 The party enabled to declare such a trust was the owner of the 
 beneficial interest, the holder of the legal estate in case of a trust being a 
 mere 'conduit-pipe.' 
 
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182 FOUBTH PERIOD 
 
 the object and the subject of it must be certain," and 
 this was not settled till the end of the century. Towards 
 the close of the period, however, the Court of Chancery 
 showed an inclination to oppose any further extension of 
 the rules giving effect to precatory trusts. 
 
 Before leaving the subject of the creation of trusts by 
 express declaration it should be noted that although the 
 court will interfere to execute a trust if by any possibility 
 it can, yet it will not do so unless there is a plain intention 
 to create a definite trust. And although it is true that 
 " if the act is completed, though voluntary, the court will 
 act upon it^," on the other hand a defective conveyance 
 without valuable consideration will not be construed as a 
 declaration of trust. " There is no instance where a court 
 of equity has compelled a man to complete a mere act of 
 volition ^." 
 Trusts So much of the creation of trusts by express declaration, 
 
 operatio/ ^® must turn now to the important class of trusts that 
 of law. arise " by implication or construction of law " — i.e. we have 
 to deal with Eesulting and Constructive Trusts. Two 
 cases of resulting trusts are usually considered — (a) where 
 an owner makes a conveyance and there is no ground of 
 inference that he means to dispose of the beneficial interest, 
 then there is said to be a resulting trust in favour of this 
 owner ; and (6) where a purchaser takes a conveyance of 
 a legal estate in the name of a third person and there is 
 nothing to indicate that he intended the conveyance for 
 the benefit of that third person, then a trust results to 
 him. These principles were arrived at early in the present 
 period. It should be noted, however, that the presumption 
 of a resulting trust might be rebutted by parol evidence 
 of a contrary intention, and further that if the grantee 
 were the wife or child of the actual purchaser or grantor 
 the presumption was in favour of advancement, i.e. of a 
 real benefit for the wife or child. This was first laid down 
 by Lord Nottingham in 1677. 
 
 ' Lord Eldou. 
 
 ^ Lord Northington, in Wycherley v. Wycherley, 2 Eden, 177. 
 
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TRUSTS 183 
 
 In the previous year the same judge said, 
 
 "There is one good general and infallible rule that applies 
 to both these kinds of trusts, to which there is no exception, 
 and that is this — the law never implies, the court never 
 presumes, a trust but in case of absolute necessity. The 
 reason of this rule is sacred, for if the Chancery do once 
 take liberty to construe a trust by implication of law, or 
 to presume a trust unnecessarily, a way is opened to the 
 Lord Chancellor to construe or presume any man in England 
 out of his estate." 
 
 The doctrine of constructive trusts has been thus Con- 
 defined. " Wherever a person clothed with a fiduciary t^y^ts. 
 character gains some personal advantage by availing 
 himself of that character, he becomes a trustee of the 
 advantage so gained." It need scarcely be remarked that 
 the doctrine is a very wide one and operates in a great 
 variety of cases ; but in spite of its importance it need not 
 delay us longer here. 
 
 A trust estate, when once created in any of the above As a rule 
 ways, conformed as a rule to the law as to legal estates, fonows''' 
 The main difference was that trusts were independent of ^^^ l^''^^-" 
 the common law founded on the principles of tenure, for a 
 trust was not holden of any one. Thus it was decided 
 that a trust was not liable to forfeiture or escheat. With 
 forfeiture there was some doubt as to the construction of 
 various statutes of Treason in Henry VIII.'s reign\ and in 
 the matter of escheat Lord Mansfield thought that a trust 
 estate should escheat to the king, but the majority of the 
 court decided against him^ In nearly all other matters 
 equity followed the law. There could be an equitable 
 estate in fee-simple, fee-tail, for term of life, etc., and in 
 the devolution of these the analogy of the common law 
 rules of descent was followed. With reference to estates 
 tail, however, it should be remarked that at first they 
 found little favour in equity, and before the Restoration 
 
 1 26 Hen. VIII. c. 13, § 5 ; 27 Hen. VIII. u. 10 ; 33 Hen. VIII. 
 c. 20, § 2. 
 
 2 Burgess v. Wheats, 1 Eden, 223. 
 
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184 FOURTH PERIOD 
 
 they could be barred by a mere conveyance without tine. 
 In later days it was thought advisable to follow the example 
 of the common law even in this matter, and the fiction 
 of an equitable recovery with an equitable tenant to the 
 praecipe was employed to bar estates taiP. As might 
 be expected springing, shifting and future trusts were 
 allowed with no other limit than the rule against per- 
 petuities. The rule in Shelley's case was also adopted". 
 In the matter of curtesy, equity followed the law even 
 though the fee simple had been settled for the separate 
 use of the wife''. This was held at the beginning of the 
 18th century. With dower, however, equity refused to 
 follow the law, and the anomaly was not removed, in 
 spite of the attempt of Jekyll, M. R., till the Dower 
 Act of 1833. In one case the Legislature interfered to 
 make equity follow the law where the Court of Chancery 
 had hesitated. By § 10 of the Statute of Frauds trust 
 estates in fee-simple were made assets for the payment 
 of debts*. 
 Aliena- It was in the matter of alienation inter vivos that 
 
 trusts equity differed most materially from the common law. 
 inter ^g vve have already seen, before the Statute of Frauds 
 
 no formalities whatever were necessary for the transfer 
 of a trust. The ninth section of that act^ requires every 
 grant or assignment of any trust to be in writing signed 
 by the party granting or assigning the same". Even after 
 this, however, any instrument however destitute of form 
 would suffice ; a deed was certainly not necessary. On 
 the other hand the Court of Chancery would not enforce 
 an imperfect gift in favour of a volunteer, and in case 
 of a voluntary conveyance it had often to consider whether 
 or not the transfer of the trust was intended as a final act 
 or not. If it was so intended and was in writing signed 
 
 1 North V. Way, 1 Vern. 13. 
 
 2 Jones V. Morgan, 1 Bro. co. 206, 222. 
 
 2 An equitable estate was not subject to curtesy if the husband were 
 an alien. 
 
 * Ante, p. 150. » Ibid. 
 
 " The transfer could be made by will ; § 9 says so explicitly. 
 
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TJRUSTS 185 
 
 by the beneficial owner, then the donee's title was com- 
 plete ; but the mere writing was not of itself conclusive 
 of the intention of the donor. Parol evidence might be 
 given as to the circumstances in which it was written to 
 show whether or not it was intended as irrevocable' ; but 
 instructions and declarations made after the writing and 
 unconnected with declarations or acts at the time, could 
 not be given in evidence. 
 
 As to the estate of the trustee, little need be said, as Estate of 
 he was merely the nominal instrument to execute the 
 trust. Nothing that the trustee could do could disappoint 
 the interests of cestui que trust, unless for a valuable 
 consideration he disposed of the estate to a purchaser 
 who had no notice of the trust. A trustee need not 
 accept the position ; but he could do so either by signing 
 the trust deed or by expressly declaring his assent, or by 
 acting as trustee, and even if he did not so act he was 
 presumed to have accepted the position if he had not 
 disclaimed within a reasonable time after receiving notice 
 of his appointment. The extent of his estate depended 
 entirely on the instrument creating the trust, it might be 
 for a term, for life, or inheritable. It was decided that 
 the word ' heirs ' was not necessary to give the trustee an 
 estate of inheritance if a less estate would be insufficient 
 to enable the trustee to execute the trust'. On the death 
 of a trustee intestate his trust estate descended to his 
 heir at law, or to his customary heir; but the trustee 
 could devise his estate, and it was held that a general 
 devise carried the trust estate in the absence of any 
 indication of a contrary intention. In such circumstances 
 however the Court of Chancery might appoint a new 
 trustee if the heir or devisee was considered unsuitable 
 for the position of trustee. The trustee could not resign 
 his office except he was empowered to do so by the trust 
 instrument. He could get out of his responsibilities by 
 death, by duly accomplishing and winding up the trust, 
 
 1 Stratford v. Powell, 1 Ball and Ball, 14, 21. 
 
 2 Shaw V. Weigh, 1 Equity Cases Abr. 185. 
 
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186 FOURTH PERIOD 
 
 or by conveying away the trust property at the request 
 of cestui que trust — the latter being of full age and under 
 no disability. In case the trustee became bankrupt the 
 Chancellor might order the conveyance or assignment of 
 the property to other trustees^ The king was authorised 
 to make grants by sign manual to trustees with the object 
 of executing the trust affecting estates that had been for- 
 feited to the Crown '\ and by a statute made very near the 
 close of this period it was enacted that no land vested in 
 any person on trust should escheat to the king or other 
 person by reason of the attainder or conviction of any such 
 trustees- 
 Trusts for The objects for which trusts were created were, of 
 separate course, of the most varied character, but one of them is of 
 use. such importance that it merits special notice. It has been 
 
 seen that at common law a married woman could hold no 
 property ; it was reserved for the Courts of Equity to 
 bring the law more in touch with the requirements of 
 modern life. As early as Elizabeth's reign we find cases 
 in which a separate maintenance was secured to a wife, 
 but this only on a voluntary agreement between husband 
 and wife to live apart ^. At a later stage a pre-nuptial 
 contract was sometimes made which secured lands to 
 trustees with the duty of paying the rents and profits to 
 the wife. All such plans required the concurrence of the 
 husband, and it was not till the beginning of the 18th 
 century that much progress was made towards modern 
 methods. A most important step was taken in 1725 
 when it was decided*^ that if property were given to a 
 married woman — without the intervention of any trustee 
 — with the direction that it should be for her separate 
 use, then the husband, if he took the legal estate, was 
 bound to hold it in trust for his wife. It was just at the 
 close of the century that the plan of imposing a restraint 
 
 1 6 Geo. IV. 0. 16, § 79. = 39 and 40 Geo. III. o. 88, § 12. 
 
 3 11 Geo. IV. and 1 Will. IV. «. 60, § 3. 
 ^ See Sanky v. Goulding, Gary's Eep. 124. 
 " See Bennet v. Davis, 2 Peere Williams, 816. 
 
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TRUSTS OF COPYHOLDS 187 
 
 on anticipation was adopted ; but the subject was so beset 
 with difficulties that many questions connected with it 
 were not settled within the present period. With these 
 and with later developments it will be more convenient to 
 deal when taking our final survey of equity in the last 
 chapter. 
 
 So far we have been dealing mainly with freeholds. Trusts of 
 Turning to copyholds, it will be remembered that they are 
 not within the operation of the Statute of Uses, so that 
 when land was surrendered to the lord to the use of A the 
 fact that A's title was independent of that of the lord was 
 due not to the Statute of Uses but to the power of custom. 
 Such an estate was not equitable, but legal. If however 
 the land were surrendered to the lord to the use of A in 
 trust for B, then the Court of Chancery would compel A to 
 perform the trust, and B's estate would be purely equitable. 
 
 As with freeholds, no special formalities were needed Creation 
 to create a trust of a copyhold, the one restriction being 
 that after the Statute of Frauds the declaration of trust 
 must be in writing. The doctrines of resulting and 
 constructive trusts were extended to copyholds, and in 
 most matters affecting the devolution of the trust estate 
 equity followed the law. There was a difficulty, however, 
 with resulting trusts when estates pur autre vie were 
 involved. Thus if A paid the fine on the grant of a 
 copyhold to B for his life, there being no consideration 
 or relationship, B held the land in trust for A. If now 
 A died intestate before B, on whom was the benefit of 
 the trust to devolve ? There was no such thing as general 
 occupancy with copyholds, and estates pur autre vie were 
 not within the Statute of Frauds' — so that it was not 
 clear who was entitled during the remainder of B's life. 
 In such circumstances the balance of authority inclined 
 towards giving the residue of the trust to A's personal 
 representative '■*. 
 
 1 Nor within 14 Geo. U. o. 20, § 9. 
 
 ' See Clark v. Danvers, 1 Ch. Ca. 310 ; Howe v. Howe, 1 Vern. 415 ; 
 Bundle v. Bundle, 2 Vern. 252, 264 ; Withers v. Withers, Amb. 151. 
 
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188 FOURTH PERIOD 
 
 Convey- It should be noticed that the owner of the equitable 
 
 equi'table ©State was not a copyholder, that position being held by 
 estates, the trustee. It followed that the trust estate could not 
 be transferred by the method peculiar to copyholds — 
 surrender and admittance. The conveyance was effected 
 by a surrender to the trustee, and his admittance as legal 
 tenant to the lord, while the trust itself was required by 
 the Statute of Frauds to be evidenced by a written 
 instrument signed by the party conveying the trust. This 
 trust might or might not be entered on the court rolls. 
 The lord could not be compelled to allow the entry on the 
 rolls ; but if the surrender were made upon trust either 
 expressed or referred to on the rolls, then the lord was 
 . bound to execute the trust in case the tenant forfeited his 
 estate. 
 Creation A trust of copyhold could also be created and trans- 
 
 fer by ferred by means of a will. In dealing with the purely 
 ■"''l- legal aspect of copyholds, we saw that, in strictness, there 
 
 was formerly no such thing as a will of copyholds^ The 
 copyhold had to be surrendered to the use of the will, which 
 operated only as a declaration of use. Thus copyholds at 
 law were out of the Statute of Frauds in so far as that 
 was concerned with wills, so that, in spite of that statute, 
 when a copyhold was devised by means of a surrender to 
 the use of a will, the will need not have been signed or 
 attested. When a will was employed to create or transfer 
 an equitable estate, two cases had to be distinguished, 
 {A) where custom permitted the devise of the legal 
 estate, {B) where it did not. As a general rule equity 
 followed the law, so that it might have been expected 
 that the equitable estate could be devised in {A), but not 
 in (B). Indeed we find that in {A) the estate could be 
 disposed of by will, and further that as the will of the 
 legal estate was not within the Statute of Frauds, neither 
 was the will of the equitable estate — it required neither 
 signature nor witnesses^ Equity, however, was not 
 
 1 See p. 175. 
 
 2 See Lord Hardwick in Hussey v. Grills, Amb. 300. 
 
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TRUSTS OF COPYHOLDS 189 
 
 thoroughly consistent in following the law, for it allowed 
 a will of the equitable estate even in (B), and as in this 
 case it was not bound by the analogy of the law, the will 
 was required to satisfy the conditions of the Statute of 
 Frauds V In case a copyhold were devised for sale to 
 executors as trustees then the executors being trustees 
 must first have acquired the legal estate before selling ; 
 i.e. they must have been admitted as tenants of the lord. 
 If, however, the will merely empowered the executors to 
 sell, the executors, although they had this power, were not 
 trustees, and the purchaser could be admitted as taking 
 directly under the will. 
 
 Finally it may be noted that equitable estates of Equitable 
 copyhold were not subject to freebench, and (in this ^g^^ g„i,. 
 period) were not assets by descent. ject to 
 
 freebench 
 and not 
 1 Lewis V. Lane, 2 M. and E. 449 ; Hussey v. Grills, Amb. 300. assets by 
 
 descent. 
 
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CHAPTER VIII. 
 
 FIFTH PERIOD. WILLIAM IV. AND VICTORIA. 
 
 (prescription act to land transfer act.) 
 1832—1897. 
 
 Legislation. 
 
 In the earlier chapters we have followed the changes 
 of title to the verge of the great period of reform ushered 
 in by the Reform Bill. We enter now on the last stage 
 of our journey. Its chief characteristic is an extraordinary 
 richness in legislative enactments. In this period the 
 number of statutes dealing with title is at least three 
 times as large as that for the whole preceding English 
 history, and many of these statutes are epoch-making in 
 their nature. Following out the previous plan of cam- 
 paign, we shall begin with a survey of the most important 
 acts in the period and leave those of less magnitude to be 
 referred to as we deal seriatim with the various modes of 
 acquiring real property. 
 Prescrip- The first great act that must be considered is the 
 
 1832 "*' Prescription Act' of 1832. It inaugurated a new species 
 of prescription by declaring that a perfect title to ease- 
 ments and profits is conferred on those that have enjoyed 
 them continuously and as of right for certain definite 
 periods. It should be noticed, however, that the act does 
 not deal with land, but only with rights over land, and 
 further that it does not profess to supersede the common 
 
 1 Stat. 2 and 3 Will. IV. t. 71. 
 
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PRESCRIPTION ACT, 1832 191 
 
 law doctrines as to prescription, but merely to add some- 
 thing thereto. 
 
 §1. "No claim which may be lawfully made at the 
 
 common law by custom, prescription or grant to any right 
 
 of common or other benefit to be taken and enjoyed from 
 
 or upon any land of our sovereign lord the king, or any 
 
 land being parcel of the duchy of Lancaster or of the duchy 
 
 of Cornwall or of any ecclesiastical or lay person, or body 
 
 corporate, except such matters and things as are herein 
 
 specially provided for, and except tithes, rent and services, Claims to 
 
 sliall, where such right profit or benefit shall have been ^^ 
 
 'Of ^ common 
 
 actually taken and enjoyed by any person claiming right and other 
 
 thereto without interruption for the full period of thirty p°™^ 
 
 years, be defeated or destroyed by showing only that such not to be 
 
 right, profit or benefit was first taken or enjoyed at any time ''^'s^'^" 
 
 prior to such period of thirty years, but nevertheless such 30 years' 
 
 claim may be defeated in any other way by which the same ^npy^P' 
 •I J J J by snowing 
 
 is now liable to be defeated ; and when such right profit the com- 
 
 or benefit shall have been so taken and enjoyed as aforesaid ™''^''' 
 
 for the full period of sixty years the right thereto shall be ^fter 
 
 deemed absolute and indefeasible unless it shall appear that 60 years' 
 
 the same was taken and enjoyed by some consent or agree- jjjg fj„jj|. 
 
 ment expressly made or given for that purpose by deed or to be 
 
 ... ,, absolute, 
 
 writmg. ui^legg 
 
 § 2. The next section makes a similar statement with consent or 
 
 reference to claims of rights of way, and other easements, agree- 
 
 the periods, however, in these cases being twenty and j^j j^jg ^f 
 
 forty years. way and 
 
 •' •' other 
 
 § 3. "When the access and use of light to and for any easements 
 
 dwelling house, workshop, or other building shall have been ^^and°40 
 
 actually enjoyed therewith for the full period of twenty years years. 
 
 without interruption, the right thereto shall be deemed Light, 
 
 absolute and indefeasible, any local usage or custom to the ^ 
 
 contrary notwithstanding, unless it shall appear that the 
 
 same was enjoyed by some consent or agreement expressly 
 
 made or given for that purpose by deed or writing." 
 
 § 7. " Provided that the time during which any person Proviso 
 
 otherwise capable of resisting any claim to any of the matters ^^^^^ gj^, 
 
 before mentioned shall have been or shall be an infant, idiot, 
 
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192 
 
 FIFTH PERIOD 
 
 non compos mentis, feme covert, or tenant for life, or during 
 which any action or suit shall have been pending, and which 
 shall have been diligently prosecuted until abated by the 
 death of any party or parties thereto, shall be excluded in 
 the computation of the periods hereinbefore mentioned, except 
 only in cases where the right or claim is hereby declared to 
 be absolute and indefeasible." 
 
 § 8. " Provided always, that when any land or water 
 upon, over or from which any such way or other convenient 
 watercourse or use of water shall have been or shall be 
 enjoyed or derived hath been or shall be held under or by 
 40 years, virtue of any term of life, or any term of years exceeding 
 three years from the granting thereof, the time of the 
 enjoyment of any such way or other matter as herein last 
 before mentioned, during the continuance of such term, shall 
 be excluded in the computation of the said period of forty 
 years, in case the claim shall within three years next after 
 the end or sooner determination of such term be resisted 
 by any person entitled to any reversion expectant on the 
 determination thereof." 
 
 What 
 time to be 
 excluded 
 in com- 
 puting the 
 term of 
 
 Real 
 Property 
 Limita- 
 tion Act, 
 1833. 
 
 No land 
 or rent 
 to be re- 
 covered 
 within 
 20 years 
 after right 
 of action 
 accrued. 
 
 Advow- 
 son. 
 
 In the folio-wing year (1833) a very important act was 
 passed for the limitation of actions — " The Real Property 
 Limitation Act, 1833." A limitation act does not, as has 
 often been remarked, set up a new species of title ; but it 
 has the effect of extinguishing the right of one who does 
 not assert his rights within a certain period from the 
 time at which they first accrued' to the person through 
 whom he claims. The present act fixed the period as 
 twenty^ years in the case of land and rents. For an 
 advowson the period is three successive incumbencies, 
 all adverse to the right of presentation or gift that is 
 claimed 
 
 "if the times of such incumbencies taken together shall 
 amount to the full period of sixty years ; 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 
 
 1 Real Property Limitation Act, 1833, Stat. 3 and 4 Will. IV. 
 c. 27, § 34. 
 
 ' Subsequently altered to twelve by Stat. 37 and 38 Vict. c. 57, § 1. 
 
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LIMITATION ACT, 1833 193 
 
 time as with the times of such incumbencies will make up the 
 full period of sixty years ^" 
 
 And whatever the length of the incumbencies no 
 advowson is to be recovered after one hundred years from 
 the time at which adverse possession of the benefice was 
 obtained ^- 
 
 Sectiona 3 — 9 lay down rules for fixing the time at 
 
 which the right in question shall be deemed to have 
 
 accrued. It is further stated that a mere entry i"s not Rules 
 
 to be deemed possession^, that no right can be preserved session. 
 
 by continual or other claim', that possession by one 
 
 coparcener is not to be deemed possession by the others^, 
 
 and that possession by a younger brother or other relation 
 
 is not to be regarded as possession by the heir". There 
 
 is an important proviso to the effect that when a Aoknow- 
 
 written acknowledgment of the title of the person £„ writing 
 
 entitled to any land or rent has been given to him or equivalent 
 1 ■ 1 , , . . 1 '" posses- 
 
 his agent and signed by the person m possession, the sion or 
 
 period of twenty years is to begin from the date of that '^'^'^^'P' °' 
 
 acknowledgment'. Further it is enacted that if, when person 
 
 the right first accrued, the person entitled was under the ]J°'^?^vf 
 
 disability of infancy, coverture, lunacy, or absence beyond to be 
 
 seas, then recovery might be made within ten' years next te^ years. 
 
 after the person ceased to be under such disability or 
 
 died". However, even in this case recovery could not be But no 
 
 made after forty" years from the time when the right first shaTAe 
 
 accrued, and no further time was allowed for a succession brought 
 
 beyond 
 of disabilities". 40 years 
 
 Sections 21—23 deal with estates tail. By section 21, ^fter the 
 when the right of a tenant in tail to bring an action for accrued, 
 the recovery of land or rent is extinguished by lapse of 
 
 I R. P. L. A. (1833), § 80. ^ ibid. § 33. ' Ibid. § 10. 
 * Ibid. § 11. ^ Ibid. § 12. « Ibid. § 13. 
 
 ? Ibid. § 14. 
 
 8 Afterwards clianged to six by Stat. 37 and 38 Vict. c. 57, § 9. 
 
 " §16. 
 
 '« Changed to thirty by Stat. 37 and 38 Vict. c. 57, § 5. 
 
 II R. P. L. A. (1833), § 18. 
 
 M. E. 13 
 
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194 
 
 FIFTH PERIOD 
 
 Limita- 
 tion as to 
 suits in 
 Equity. 
 
 In cases 
 of express 
 trust the 
 right not 
 to accrue 
 until con- 
 veyance. 
 
 As to 
 cases of 
 Fraud. 
 
 time, the rights of all persons entitled to estates that the 
 tenant in tail might have barred are also extinguished. 
 And, by section 22, if the tenant in tail die before the ex- 
 piration of the period of limitation, no one claiming any 
 estate that the tenant in tail might have barred can bring 
 an action for recovery unless within the period during 
 which the tenant in tail might have done so, had he not 
 died. By section 23, when a tenant in tail makes ati 
 assurance creating a base fee, possession under this assu- 
 rance for twenty years [altered to twelve years by the Act 
 of 1874] from the time at which the tenant in tail might 
 have completely barred the entail without the consent of 
 any other person operates to turn the base fee into a fee 
 simple. 
 
 The twenty-fourth section of the act made the above 
 rules equally applicable to an equitable estate^ provided 
 that, in cases of express trust, the right shall not be 
 deemed to have accrued until a conveyance to a purchaser, 
 and shall then be deemed to have accrued only as against 
 such purchaser and any person claiming through him" 
 
 In cases of concealed fraud no time shall run while 
 the fraud remains concealed ; but " reasonable diligence " 
 in discovering the fraud is required from the person 
 claiming the benefit of this provision, and 
 
 ^ But prior to the year 1890 the application of the statute was 
 confined to equitable interests arising by operation of law. It did not 
 apply to the claim of a cestui que trust against his trustee except in the 
 case of money charged on land. However, the Trustee Act of 1888 
 declared in § 8 (which came into force on Jan. 1, 1890) that "In any 
 action or other proceedings against a trustee or any person claiming 
 through him, except where the claim is founded upon any fraud or 
 fraudulent breach of trust to which the trustee was party or privy or is 
 to recover trust property, or the proceeds thereof still retained by the 
 trustee, or previously received by the trustee and converted to his 
 use, the following provision shall apply : — All rights and privileges 
 conferred by any statute of limitations shall be enjoyed in the like 
 manner and to the like extent as they would have been enjoyed in such 
 action or other proceeding if the trustee or person claiming through him 
 had not been a trustee or person claiming through him." 
 
 2 R. P. L. A. (1833), § 25. 
 
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FINES AND RECOVERIES ACT, 1833 195 
 
 "nothing in this clause shall enable any owner of lands or 
 rents to have a suit in equity for the recovery of such lands 
 or rents, or for setting aside any conveyance of such lands 
 or rents, on account of fraud, against any bona fide purchaser 
 for valuable consideration who has not assisted in the com- 
 mission 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'." 
 
 In the same year was passed the famous " Act for the Fines and 
 Abolition of Fines and Recoveries and for the substitution ^ct 1833. 
 of more simple modes of assurance^" The act is a 
 lengthy one of ninety-three sections, and its importance 
 necessitates a somewhat minute examination of its 
 contents. 
 
 § 2 abolishes fines and recoveries after the 31st Dec. Fines and 
 
 - QQo Recoveries 
 
 i-Oo6. abolished. 
 
 §§ 4, 5 and 6 deal with the conveyance of lands in 
 ancient demesne, a matter which had previously given rise 
 to great confusion. The conveyance was made by fine or Lands in 
 recovery suffered in the lord's court ; but owing to the fact ^g^g"jig 
 that the tenure of ancient demesne was not always known 
 as such, the judicial proceedings were often taken in a 
 superior court — a mistake that engendered great trouble. 
 The present Act attempted to correct this by declaring 
 that fines and recoveries of lands in ancient demesne, 
 levied or suffered in the manorial court after other fines 
 and recoveries in a superior court, should be as valid as if 
 the tenure had not been changed by the proceedings in 
 the superior court ; further that fines and recoveries 
 should not be invalid in other cases though levied or 
 suffered in courts whose jurisdictions did not extend to 
 the lands dealt with by the court ; and moreover that the 
 tenure of ancient demesne, which had been destroyed by a 
 fine or recovery in a superior court, should be restored 
 where the rights of the lord of the manor had been 
 recognised within twenty years. 
 
 1 Ibid. § 26. 2 Stat. 3 and 4 Will. IV. c. 74. 
 
 13—2 
 
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196 
 
 FIFTH PERIOD 
 
 Estates 
 tail no 
 longer 
 barrable 
 by War- 
 ranty. 
 
 Power 
 to dispose 
 of lands 
 entailed 
 in fee 
 simple, or 
 for a less 
 estate, 
 saving the 
 rights of 
 certain 
 persons. 
 
 Exception 
 in case of 
 
 Protector. 
 
 The next section of permanent importance in con- 
 nection with title is the fourteenth which removes the 
 force of warranties. 
 
 "All warranties of lands which, after the 31st Dec. 1833, 
 shall be made or entered into by any tenant in tail thereof 
 shall be absolutely void against the issue in tail, and all 
 persons whose estates are to take effect after the determination 
 or in defeasance of the estate tail." 
 
 § 15 enacts that 
 
 " every actual tenant in tail, whether in possession, remainder, 
 contingency, or otherwise, shall have full power to dispose 
 of, for an estate in fee simple absolute or for any less estate, 
 the lands entailed as against all persons claiming the 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 whose estates are to take 
 effect after the determination or in defeasance of any such 
 estate tail ; saving always the rights of all persons in respect 
 of estates prior to the estate tail in respect of which such 
 disposition shall be made, and the rights of all other persons 
 except those against whom such disposition is by this Act 
 authorised to be made." 
 
 However, in §| 16 and 18, it is provided that this wide 
 power of disposition is not to be exercised by women 
 tenants in tail ex provisione viri under Stat. 11 Hen. 
 VII. c. 20, except with assent as specified in that act ; 
 nor by those restrained from barring their estates tail 
 by Stat. 34 and 35 Hen. VIII. c. 20 ; nor by tenants in 
 tail after possibility of issue extinct. 
 
 §§ 22 — 33 deal with the appointment of a protector 
 in various contingencies, and in § 34 it is laid down 
 
 " that if at any time when any person, actual tenant in tail 
 of lands under a settlement but not entitled to the remainder 
 
 His 
 
 consent 
 
 required 
 
 to enable or reversion in fee immediately expectant on the determina- 
 
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FINES AND RECOVBRIES ACT, 1833 197 
 
 tion of his estate tail, shall be desirous of making under this tenant in 
 Act a disposition of the lands entailed, there shall be a^l^^^^l"^ 
 protector of such settlement, then and in every such case larger 
 the consent of such protector shall be requisite to enable t^lnl 
 such actual tenant in tail to dispose of the lands entailed base fee. 
 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 
 claimed by the person making the disposition at the time of 
 his making the same, shall claim the lands entailed." 
 
 § 35 requires the consent of the protector of the settlement Base fee. 
 by which the estate tail was created to the alienation of 
 the base fee. Moreover, by § 36, the protector is to be Protector 
 subject to no control in the exercise of his power of f^om ^'^'^'^ 
 consenting. control. 
 
 § 40. " Every disposition of lands under this Act by a Tenant in 
 tenant in tail thereof shall be eflfected by some one of the j^^j^g g^ 
 assurances (not being a will) by which such tenant in tail disposi- 
 could have made the disposition of his estate were it an estate .jgg^ ^^ jf 
 at law in fee simple absolute : provided nevertheless that seised in 
 
 f pp nil t 
 
 no disposition by a, tenant in tail shall l)e of any force either ^^l j,„ 
 
 at law or in equity, under this Act, unless made or evidenced will or 
 
 by deed ; and that no disposition by a tenant in tail resting ^nij if a ' 
 
 only in contract, either expressed or implied or otherwise and married 
 
 whether supported by a valuable or meritorious consideration ^m, ' 
 
 or not, shall be of any such force at law or in equity under husband's 
 
 concur- 
 this Act, notwithstanding such disposition shall be made or i-gnce. 
 
 evidenced by deed ; and if the tenant in tail making the 
 
 disposition shall be a married woman, the concurrence of her 
 
 husband shall be necessary to give effect to the same ; and 
 
 any deed which may be executed by her for effecting the 
 
 disposition shall be acknowledged by her as hereinafter 
 
 directed." 
 
 By § 41, every such assurance is inoperative unless Enrol- 
 enrolled in Chancery within six months. necessary. 
 
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198 FIFTH PERIOD 
 
 Consent ol §42. "The consent of the protector of a settlement to 
 has to be the disposition under this Act of a tenant in tail shall be 
 given. 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." 
 
 If the consent is evidenced by a separate deed it is to 
 
 be considered as unqualified, unless it is expressly limited ; 
 
 and, once duly given, it cannot be revoked [§§ 43, 44]. To 
 
 be effective however this separate deed must be enrolled 
 
 with or before the assurance [§ 46]. 
 
 Courts of By § 47, Courts of Equity are excluded from giving 
 
 ^^glll "°' any effect to dispositions by tenants in tail or consents 
 
 effect to of protectors, which are invalid in Courts of Law. 
 
 tiong In cases of lunacy, idiotcy, and unsound mind, the 
 
 invalid consent of the lord high chancellor, lord keeper, or lords 
 in Courts ^ i ^ 1 , 
 
 of Law. commissioners for the custody of the great seal, or other 
 Case of person or persons intrusted with the care of the lunatic 
 ' etc., is required, and in this case no document or instru- 
 ment as evidence of the consent of the protector is needed 
 beyond the order in obedience to which the disposition 
 has been made [§§ 48, 49]. 
 
 Copyholds § 50. " All the previous clauses in this Act, so far as 
 
 included, circumstances and the different tenures will admit, shall 
 
 with 
 
 certain apply to lands held by copy of court roll, except that a 
 
 variations, 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 equitj', may be made either 
 
 by surrender or bj' deed as hereinafter provided, and except 
 
 so far as such clauses are othervs^ise altered or varied by the 
 
 clauses hereinafter contained." 
 
 The consent of the protector must be by deed and is 
 to be produced to the lord of the manor of which the 
 lands are parcel, or to his steward or deputy steward, 
 otherwise it is ineffectual. The deed must be indorsed 
 
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FINES AND RECOVERIES ACT, 1833 199 
 
 by the lord, steward, or deputy steward and then entered 
 on the court rolls of the manor 
 
 "and the indorsement purporting to be so signed shall of 
 itself be prima facie evidence that the deed was produced 
 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" [§ 51]. 
 
 § 53 gives a tenant in tail of lands held by copy of Equitable 
 court roll, whose estate is merely equitable, full power copyhold, 
 to dispose by deed of such lands under this act in the 
 same manner in every respect as he could have done if 
 they had been of freehold 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." 
 
 § 54. " Provided always, and be it further enacted. That Inrolment 
 in no case where any disposition under this Act of lands ^ ^^ ^^ 
 held by copy of court roll, by a, tenant in tail thereof, shall Copy- 
 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 which the protector shall consent to 
 the disposition, require inrolment otherwise than by entry 
 on the Court rolls." 
 
 In case of the bankruptcy of tenant in tail, the com- Power of 
 missioner shall by deed dispose of the entailed lands to g^on^'in 
 a purchaser for the benefit of the creditors, and, as regards bank- 
 the consent of the protector and enrolment of the deed, dispose of 
 the commissioner is in the same position as the tenant *^.^ estate 
 in tail before his bankruptcy [§§ 56 — 59]. By § 62, a 
 voidable estate created in favour of a purchaser by an 
 actual tenant in tail or tenant in tail entitled to a base 
 fee, who afterwards becomes bankrupt, shall be confirmed 
 by the disposition of the commissioner, except against a 
 purchaser for value and without notice. All acts of a 
 bankrupt tenant in tail are void against any disposition 
 under this act by the commissioner — but, subject to the 
 
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200 FIFTH PERIOD 
 
 powers given to the commissioner, a bankrupt retains his 
 powers of disposition. And if the tenant dies before any 
 judgment against him has affected his lands, or before he 
 has been adjudged bankrupt, then the entailed lands are 
 no longer subject to his debts, except in case of certain 
 Crown debts. It should be noted, however, that the com- 
 missioner can dispose of the lauds after the death of the 
 tenant in tail 
 
 " 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 dis- 
 position, 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" [§ 65]. 
 
 Extension § ^^1 extends the previous clauses to the case of lands 
 
 tobeTn-^ of any tenure that are appointed to be sold, where the 
 
 vested in purchase money is subject to be invested in the purchase 
 
 of lands of lands to be entailed, and where money is subject to be 
 
 that are invested in like manner — except where the laud to be 
 
 to be . V . 
 
 entailed, purchased is leasehold, when it is to be regarded as 
 
 personalty. 
 
 A married §§ 70 — 90 deal with the dispositions of married women. 
 
 have same Such a woman is empowered to dispose, by deed, of lands 
 
 powers of ^f ^j^y tenure just as if she were a feme sole. But every 
 
 disposi- J J J 
 
 tiou as a such deed — not executed by her in the character of pro- 
 feme sole. 
 
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FINES AND RECOVERIES ACT, 1833 201 
 
 tector — must be produced and acknowledged by her before 
 a judge of one of the superior courts or commissioners 
 appointed for the purpose. Such judge or commissioners 
 must examine her, apart from her husband, touching her 
 knowledge of the deed and ascertain whether she freely 
 and voluntarily consents to such deed — and if it be found 
 that she does not freely and voluntarily consent, the deed 
 is void. 
 
 A proviso in § 77 saves from the necessity of a deed Not to 
 the transfer of a married woman's estate in copyhold in copyholds 
 
 cases where the conveyance could previouslv have been ™ ''^'^*''*™ 
 made by her, in concurrence with her husband, by sui 
 
 oases. 
 ir- 
 
 render iuto the hands of the lord of the manor of which equitable 
 
 the lands to be conveyed formed a parcel. If the woman's estate m 
 
 , ^ copyhold 
 
 estate in the copyhold is merely equitable, she must be the 
 examined separately on the surrender, just as if the estate ™°'™ '^ 
 in question were an estate at law instead of a mere estate to be 
 in equity [§ 90]. ITmi^tl 
 
 In the same year we have the Dower Act\ which Dower Act, 
 revolutionised the subject of dower by placing it com- 
 pletely under the power of the husband. As the act 
 was about to take so much from the widow it began 
 by making her a small present ; by § 2 she is to be widows to 
 entitled to dower out of an equitable estate of inheritance ^^ entitled 
 
 r . . . . ''' dower 
 
 in possession (other than a joint tenancy) just as if the out of 
 estate were legal. And the next section is also in her g^t"\es 
 favour, for it enacts that seisin shall not be necessary to seisin not 
 give title to dower — the widow may have it out of lands pecessary 
 
 o . •' to give 
 
 to which the husband was entitled title to 
 
 dower. 
 "provided that such dower be sued for or obtained within 
 the period during which the husband's right of entry or 
 action might be enforced." 
 
 § 4. " No widow shall be entitled to dower out of any No dower 
 land which shall have been absolutely disposed of by her ""^.'^J^J^ 
 husband in his lifetime or by his will." disposed 
 
 § 5. " All partial estates and interests and all charges ° ' 
 created by any disposition or will of a husband, and all to"partiai 
 
 1 Stat. 3 and 4 Will. IV. o. 105. charges, 
 
 etc. 
 
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202 
 
 FIFTH PERIOD 
 
 Dower 
 may be 
 barred by 
 a declara- 
 tion in a 
 deed. 
 
 Or by a 
 
 declara- 
 tion in the 
 husband's 
 will. 
 
 Dower 
 shall be 
 subject to 
 restric- 
 tions. 
 
 Devise of 
 real estate 
 to the 
 widow 
 shall bar 
 her dower. 
 
 Bequest of 
 
 personal 
 
 estate 
 
 shall 
 
 not bar 
 
 dower. 
 
 Inherit- 
 ance Act, 
 1833. 
 
 debts, incumbrances, contracts, and engagements to which 
 his land shall be subject or liable, shall be valid and effectual 
 as against the right of his widow to dower.'' 
 
 § 6. "A widow shall not be entitled to dower out of any 
 land of her husband, when, in the deed by which such land 
 was conveyed to him, or by any deed executed by him, it 
 shall be declared that his widow shall not be entitled to 
 dower out of such land." 
 
 § 7. "A widow shall not be entitled to dower out of any 
 land of which her husband shall die wholly or partiallj' 
 intestate when, by the will of her husband duly executed 
 for the devise of freehold estates, he shall declare his in- 
 tention that she shall not be entitled to dower out of such 
 land, or out of any of his land." 
 
 § 8. " The right of a widow to dower shall be subject 
 to any conditions, restrictions, or directions, which shall 
 be declared by the will of her husband duly executed as 
 aforesaid." 
 
 § 9. " Where a husband shall devise any land out of 
 which his widow would be entitled to dower if the same 
 were not so devised, or any estate or interest therein, to 
 or for the benefit of his widow, such widow shall not be 
 entitled to dower out of or in any land of her said husband, 
 unless a contrary intention shall be declared by his will." 
 
 § 10. "No gift or bequest made by anj' husband to or 
 for the benefit of his widow of or out of his personal estate, 
 or of or out of any of his land not liable to dower, shall 
 defeat or prejudice her right to dower, unless a contrary 
 intention shall be declared by his will." 
 
 § 18 abolished dower ad ostium ecclesiae and dower ex 
 asaensu patris which had long been obsolete. 
 
 The next statute that parliament passed was the Act 
 for the Amendment of the Law of Inheritance^ It has 
 already been remarked that the actual rules of descent 
 need not occupy our attention in the present essay. 
 Hence it will be sufficient to say that the present statute 
 laid it down that descent shall always be traced from the 
 
 Stat. 3 and 4 Will. IV. c. 106. 
 
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INHERITANCE ACT, 1833 203 
 
 last purchaser; that the owner is to be considered as 
 the purchaser unless the contrary be proved ; that every 
 descent from a brother or sister shall be traced through 
 the parent; that a lineal ancestor shall be heir iu pre- 
 ference to collateral persons claiming through him; that 
 the male heir is to be preferred to the female ; that on 
 failure of male paternal ancestors the mother of the more 
 remote male ancestor is to be preferred to the mother of 
 the less remote male ancestor ; that the half-blood, if on 
 the part of a male ancestor, is to inherit after the whole 
 blood of the same degree, and if on the part of a female 
 ancestor then immediately after her ; finally that inheri- 
 tance shall no longer be prevented by the attainder of the 
 person through whom the descent is traced. 
 
 One of the earliest acts of Victoria's reign was " An Wills Act, 
 Act for the Amendment of the Laws with respect to 
 Wills'." This repealed the Act of Henry VIII. and 
 placed the law as to wills on its present basis. 
 
 All realty, whether the estate be at law or in equity, is All realty 
 made devisable by will, including customary freeholds and disposed 
 copyholds without surrender and before admittance (and °^ ^y ^"l'- 
 although these are not devisable otherwise than by this 
 act). It includes also estates pur autre vie, whether there 
 is a special occupant or not and whatever the nature of 
 the tenure, and whether the hereditament be corporeal 
 or incorporeal. Moreover it extends to all contingent, 
 executory and other future interests and also to property 
 acquired after the execution of the will [§ 3]. 
 
 In connection with copyholds it is provided that a wills of 
 copy of the will, or of the part of it dealing with the ^"7^°''^^ 
 copyhold, must be entered on the court roils and that the customary 
 lord is to be entitled to the same fines and dues on jq ^e 
 succession of the heir as before the act, and no one can entered on 
 
 Court 
 
 be entitled to admission before payment of these fines EoUs. 
 [§§4 and 5]. 
 
 An estate pur autre vie, not disposed of by will, is to Estate pur 
 be chargeable in the hands of the heir as assets by descent, 
 1 Stat. 7 Will. IV. and 1 Vict. c. 26. 
 
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204 
 
 FIFTH PEEIOD 
 
 Will of 
 minor or 
 of feme 
 covert 
 invalid. 
 
 Every will 
 to be in 
 writing 
 and 
 
 signed in 
 presence 
 of two 
 witnesses. 
 
 Appoint- 
 ments by 
 will to be 
 executed 
 like other 
 wills. 
 
 Will not 
 void by 
 incom- 
 petency of 
 witness. 
 
 Gifts to 
 attesting 
 witness 
 void. 
 Will re- 
 voked by 
 marriage. 
 
 and, if there should be no special occupant, the estate goes 
 to the executor or administrator to be distributed as 
 personalty. 
 
 No will made by an infant is valid ; nor by a feme 
 covert except such as were valid before this act [§| 7 
 and 8]. 
 
 ' No will shall be valid unless it shall be in writing and 
 executed in the 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 acknow- 
 ledged 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 " [§ 9]. 
 
 Appointments made by will must be executed like 
 other wills and are then valid 
 
 "notwithstanding 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" 
 [§ 10]. 
 
 A will is not to be rendered void by the incompetency 
 of an attesting witness to be admitted to prove the 
 execution of the will. Gifts to an attesting witness or to 
 his wife (or husband) are void ; but a creditor attesting a 
 will charging an estate with debts to him is an admissible 
 witness, and so also is an executor. 
 
 A will is revoked by marriage 
 
 ' ' except ih will made in exercise of a power of appointment, 
 when the real or personal estate thereby appointed would 
 not in default of such appointment pass to the testator's heir, 
 customary heir, executor, or administrator, or the person 
 entitled as his or her next of kin under the statute of 
 distributions" [§ 18]. 
 
 But a will cannot be revoked otherwise than by marriage, 
 
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WILLS ACT, 1837 205 
 
 except by a new will or codicil or by its wilful destruction^ ^" "^^^^ 
 
 ~ CtlSCS Si 
 
 [§ 20]. will may 
 
 Every will is to be construed, as to the estate comprised yo^gd 
 
 in it, to speak from the death of the testator ; and lapsed will to 
 
 or void devises fall to the residuary devisee [§§ 24, 25]. aeath oP 
 A general devise of the testator's lands shall be taken testator. 
 
 to include copyhold as well as freehold, in the absence of ^'''''' ?■, 
 
 i^-' ' general de- 
 
 an express intention to the contrary, and a general gift of vise shall 
 
 realty includes property over which the testator has a 
 
 general power of appointment. 
 
 § 28. " Where any real estate shall be devised to any How a 
 
 d.GVlS6 
 
 person without any words of limitation, such devise shall ^vjthout 
 be presumed to pass the fee simple or other the whole estate words of 
 or interest " (not a mei-e life estate as formerly) " which the g^j^^n j^g 
 testator had power to dispose of by will in such veal estate, construed, 
 unless a contrary intention shall appear by the will." 
 
 § 2y provides that, in a devise of realty, any words 
 that import a failure of issue of any person shall be 
 coDstnied to mean a failure of issue in the lifetime or 
 at the death of such person, and not an indefinite failure 
 of issue, unless a contrary intention shall appear by the 
 will ; while §§ 32, 33 are designed to prevent a lapse in 
 certain cases. 
 
 " Where any person, to whom any real estate shall be de- Devises of 
 vised for an estate tail or an estate in quasi entail, shall die ^^^^i not 
 in the lifetime of the testator leaving issue who would be lapse. 
 heritable 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 by the 
 will " [§ 32]. And " where any person, being a child or Gifts to 
 other issue of the testator to whom real or personal estate ^j, ojjjgj. 
 shall be devised or bequeathed for any estate or interest not issue who 
 determinable at or before the death of such person, shall die \iyi„„ at 
 
 the testa- 
 tor's death 
 ^ But a codicil containing provisions independent of the will is not shall not 
 
 revoked by the destruction of the will. See I. Jarman, Wills, p. 125. lapse. 
 
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206 FIFTH PERIOD 
 
 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 effect 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 " [§ 33]. 
 
 Eeal In 1845 came the great "Act to Amend the Law of 
 
 Act^isls. ^^^^ Property \" Four years earlier there had been an 
 act abolishing the lease for a year and making a release 
 by deed, expressed to be made in pursuance of the act, an 
 effectual mode of conveyance. In 1844 another attempt 
 was made to simplify the transfer of land by enacting that 
 freehold might be conveyed by deed without livery. The 
 Act of 1845 was, however, decisive and final. 
 
 Freehold § 2. " After the first day of October one thousand eight 
 
 ° , hundred and forty-five all corporeal tenements and heredita- 
 
 corporeal j r 
 
 tenements ments shall, as regards the conveyance of the immediate 
 
 to he in freehold thereof, be deemed to lie in grant as well as in 
 
 livery." 
 
 Feoff- §3. "A feoffment made after the said first day of 
 
 ments, October one thousand eight hundred and forty-five, other 
 partitions, ° . j. 
 
 exchanges, than a feoffment made under a custom by an infant, shall 
 
 leases, as- jg ^^^^^ ^^f i^^ unless evidenced by a deed ; and a partition 
 
 signments i t 
 
 and sur- and an exchange of any tenements or hereditaments, not 
 
 h^°if ^H^ *^ being copyhold and a surrender in writing of an interest 
 
 in any tenement or hereditament, not being a copyhold 
 interest and not being an interest which might by law have 
 been created without writing, made after the said first day 
 of October one thousand eight hundred and forty-five, shall 
 be void at law unless made by deed." 
 
 Feoff- §4. "A feoffment made after the said 1st Oct. 1845 
 
 ments not gjjg^^j ^q^ have any tortious operation : and an exchange or 
 
 to operate ' . 
 
 by wrong ; a partition of any tenements or hereditaments, made by deed 
 
 nor ex- executed after the said first day of October, shall not imply 
 changes, '' . ^ •' 
 
 etc. to any condition in law ; and the word ' give ' or the word 
 
 ^"^V\y^^y ' grant ' in a deed executed after the same day shall not 
 
 condition, " _ -' 
 
 nor 'give' imply any covenant in law in respect of any tenements or 
 
 and 
 
 ' grant ' 
 
 any cove- ' Stat. 8 and 9 Vict. u. 106. 
 
 nant. 
 
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REAL PROPERTY ACT, 1845 207 
 
 hereditaments, except so far as the word ' give ' or the word 
 ' grant ' may by force of any Act of Parliament imply a 
 covenant.'' 
 
 § 5. " That, under an indenture, executed after the first 
 day of October, 1845, an immediate estate or interest, in any 
 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 ; also that a deed, executed after the Actual 
 said first day of October 1845, purporting to be an indenture, jj^j 
 shall have the efifect of an indenture, although not actuallj' necessary. 
 indented." 
 
 § 6. "After the 1st Oct. 1845 a contingent, an executory Contin- 
 
 and a future interest and a possibility coupled with an S^°' ^"^ 
 
 interest, in any tenements or hereditaments of any tenure, interests 
 
 whether the obiect of the gift or limitation of such interest ^F^ ajieu- 
 
 .,.,., . iible by 
 
 or possibility be or be not ascertained... may be disposed of deed, 
 
 by deed ; but no such disposition shall by force only of this ^^J'^S es- 
 Act defeat or enlarge an estate tail ; and every such dis- 
 position by a married woman shall be made conformably to 
 the provisions relative to dispositions by married women of 
 the Fines and Recoveries Act, 1833." 
 
 § 8. "A contingent remainder existing at any time after Contin- 
 
 the 31st Dec. 1844 shall be, and if created before the passing ^en* re- 
 
 r o maiuders 
 
 of this Act shall be deemed to have been, capable of taking protected. 
 
 effect, notwithstanding the determination by forfeiture, sur- 
 render, or merger of any preceding estate of freehold, in the 
 same manner in all respects as if such determination had 
 not happened." 
 
 § 9. " When the reversion expectant on a lease, made When the 
 
 either before or after the passing of this Act, of any ''^^^''siou 
 
 . ■' on a lease 
 
 tenements or hereditaments of any tenure shall after the is gone, 
 
 said 1st Oct. 1845 be surrendered or merge, the estate which *'^® "^"^ 
 
 estate to 
 shall for the time being confer as against the tenant under be deemed 
 
 the same lease the next vested right to the same tenements *^® rever- 
 
 sion. 
 or hereditaments shall, to the extent and for 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 reversion expectant on the 
 
 same lease." 
 
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208 
 
 FIFTH PERIOD 
 
 Married 
 Women's 
 Property 
 Act, 1870. 
 
 Trust for 
 wife's 
 separate 
 use to 
 arise by 
 implica- 
 tion of law 
 in certain 
 oases. 
 
 Land 
 coming to 
 married 
 women as 
 heiress of 
 an intes- 
 tate to be 
 for her 
 separate 
 use. 
 
 Real 
 Property 
 Limita- 
 tion Act, 
 1874. 
 
 Period 
 reduced 
 to twelve 
 years. 
 
 Effect of 
 disability. 
 
 Passing over a quarter of a century during which there 
 was no enactment of the first rank we come in 1870 to 
 the Married Women's Property Act'. This is of great 
 importance in the history of the law as to married 
 women, but as it was repealed and replaced by a more 
 comprehensive statute in 1882 there is no need to enter 
 fully into its clauses. Before the Act of 1870 a married 
 woman could enjoy property separately from her husband 
 only by virtue of her right to enforce in equity a trust for 
 her separate use. After that date, however, a trust for 
 the wife's separate use arose by implication of law in 
 certain specified cases. Most of these are in the field of 
 personalty, but the eighth section has a bearing on our 
 subject. 
 
 " Where any freehold, copyhold, or customary property shall 
 descend upon any woman, married after the passing of this 
 Act,, as heiress or co-heiress of an intestate, the rents and 
 profits of such property shall, subject and without prejudice 
 to the trusts of any settlement aflfecting the same, belong to 
 such woman for her separate use, and her receipts alone shall 
 be a good discharge for the same." 
 
 Two important statutes of the year 1874 must now 
 be considered. The first is "An Act for the further 
 limitation of Actions and Suits relating to Real Property^" 
 
 § 1. "No person shall make an entry or distress or bring 
 an action or suit, to recover any land or rent, but within 
 twelve years next after the time at which the right to make 
 such entry or distress, or to bring such action or suit, shall 
 have first accrued to some person through whom he claims ; 
 or if such right shall not have accrued to any person through 
 whom he claims, then within twelve years next after the time 
 at which the right to make such entry or distress, or to bring 
 such action or suit, shall have first accrued to the person 
 making or bringing the same." 
 
 In case of disability through infancy, coverture, idiotcy, 
 lunacy, or unsoundness of mind, six years are allowed from 
 
 ' Stat. 33 and 34 Vict. c. 93. 
 
 Stat. 37 and 38 Vict. u. 57. 
 
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VENDOR AND PURCHASER ACT, 1874 209 
 
 the time when the person has ceased to labour under this 
 disability. However, no time is allowed for absence beyond 
 seas, and thirty years is the utmost period allowable for 
 disabilities. 
 
 The other Act of 1874 to which we referred is the "Act Vendor 
 to Amend the law of Vendor and Purchaser and further ^^^^g"""" 
 to simplify title to land'." Act, 1874. 
 
 § 1. "In the completion of any contract of sale of land Forty 
 made after the 31st Dec. 1874 and subject to any stipulation ■''nt'^! ^j^^' 
 to the contrary, forty years shall be substituted as the period for sixty 
 of commencement of title which a purchaser may require in ^^' ^'■°°'' 
 place of sixty years, the present period of such commence- 
 ment ; nevertheless earlier title may be required in cases 
 similar to those in which earlier title may now be required." 
 
 These cases requiring title earlier than sixty years 
 were (a.) an advowson, for which a hundred years was the 
 period, (6) tithes and other property granted from the 
 Crown, for which the original grant could be demanded, 
 and (c) a reversion, the creation of which must have been 
 shown. 
 
 § 2. " In the completion of any such contract as afore- Effect of 
 said... recitals, statements and descriptions of facts matters''®"'**' 
 and parties contained in deeds, instruments, Acts of Parlia- years old. 
 ment, or statutory declarations, twenty years old at the date 
 of the contract shall — unless and except so far as they shall 
 be proved to be inaccurate — be taken to be sufficient evidence 
 of the truth of such facts, matters and descriptions.'' 
 
 It should be noted that a recital in a deed is not 
 evidence against those that are not parties to the deed, or 
 have not executed the deed. A recital as to matters of 
 pedigree in a deed executed by deceased members of a 
 family is admitted as evidence, and forms a well-known 
 exception to the general rule excluding hearsay evidence. 
 A recital in a public Act of Parliament is always evidence 
 of the matter recited, whatever the date of the act ; but 
 this is not so with a private Act of Parliament. 
 
 1 Stat. 37 and 38 Vict. u. 78. 
 M. E. 14 
 
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210 
 
 FIFTH PERIOD 
 
 Before the present act a vendor that could not hand 
 over the title deeds to the purchaser was bound to give 
 him a legal covenant for their production ; but now it was 
 enacted that 
 
 Estate 
 of bare 
 trustee in 
 fee simple 
 to vest in 
 executor 
 or admin- 
 istrator. 
 Married 
 woman 
 who is 
 bare 
 trustee 
 may con- 
 vey as 
 feme sole. 
 
 Non-re- 
 gistration 
 of will in 
 Middlesex 
 etc. cured 
 in certain 
 cases. 
 Laud 
 Transfer 
 Act, 1875. 
 
 " the inability of the vendor to furnish the purchaser with 
 a legal covenant to produce and furnish copies of documents 
 of title shall not be an objection to title in case the purchaser 
 will, on the completion of the contract, have an equitable 
 right to the production of such documents.'' 
 
 § 5. " Upon the death of a bare trustee of any corporeal 
 or incorporeal hereditament of which such trustee was seised 
 in fee simple, such hereditament shall vest like a chattel 
 real in the legal personal representative from time to time 
 of such trustee'." 
 
 § 6. " When any freehold or copyhold hereditament shall 
 be vested in a married woman as a bare trustee, she may 
 convey or surrender the same as if she were a feme sole.'' 
 
 §8. "When the will of a testator devising land in 
 Middlesex or Yorkshire has not been registered within the 
 period allowed by law in that behalf^, an assurance of such 
 laud to a purchaser or mortgagee by the devisee or by some 
 one devising title under him shall, if registered before, take 
 precedence of and prevail over any assurance from the testa- 
 tor's heir at law." 
 
 We come next to "An Act to Simplify Titles and 
 Facilitate the Transfer of Land in England^" The whole 
 subject of the registration of titles had been dealt with 
 exhaustively by the Real Property Commissioners in 1830, 
 but nothing was done till 1862, when an ofBce of land 
 registry was established. This however had little influence 
 on practice, and the Act of 1875 was drawn up to improve 
 
 1 This was an important change, for formerly the trust estate 
 devolved on the heir or devisee. However, the clause was repealed by 
 the Land Transfer Act of 1875. See p. 212. 
 
 2 i.e. within six months of the death of a testator dying in Great 
 Britain, or within three years from the death of a testator dying upon or 
 beyond the seas. 
 
 3 Stat. 38 and 39 Vict. o. 87. 
 
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LAND TRANSFER ACT, 1875 211 
 
 the machinery of registration, and the reformers returned 
 to the task in 1887, and again in 1897. 
 
 The Act of 1875 set up a land registry and invited 
 owners or purchasers to apply to the registrar for the 
 registration of their title. The applicant had various 
 courses open to him, he could seek an absolute, a qualified, 
 or a possessory title : 
 
 "Where an absolute title is required the applicant or his Absolute 
 
 nominee shall not be registered as proprietor of the fee-simple not^™"^ 
 
 until and unless the title is approved by the registrar. Where registered 
 
 a possessory title only is required the applicant or his nominee approval 
 
 may be registered as proprietor of the fee-simple on giving of regis- 
 
 such evidence of title and servius; such notices, if any, as may ,, 
 
 . •" •' Possessory 
 
 tor the time being be prescribed " [§ 6]. title. 
 
 When the title has been thus eatered on the register the 
 proprietor is entitled to claim a land certificate from the 
 registrar. 
 
 § 21. "A title to any land adverse to or in derogation Title 
 of the title of the registered proprietor shall not be acquired f Tu'^? f 
 by any length of possession, but this section shall not pre- registered 
 judice, as against any person registered as first proprietor P'°P'^'^*°'' 
 of land with a possessory title only, any adverse claim in acquired 
 respect of length of possession of any person who was in ? "g g 
 possession of such land at the time when the registration of sion. 
 such first proprietor took place.'' 
 
 Once the title has been registered the transfer of the 
 land' or land charge is a simple matter. It is completed Transfer- 
 by the registrar entering on the register the transferee as y^ ^T 
 proprietor of the land in question and the new proprietor 
 may claim a land certificate. 
 
 " On the death of the sole registered proprietor, or of the 
 survivor of several joint registered proprietors of any freehold 
 land, such person shall be registered as proprietor in the 
 place of the deceased proprietor or proprietors as may on 
 the application of any person interested in the land be 
 appointed by the registrar, regard being had to the rights 
 
 ' We speak only of freehold : copyhold had long been subjected to a 
 system of registration, viz. entry on the court rolls. 
 
 14—2 
 
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212 FIFTH PERIOD 
 
 of the several persons interested in such land, and in 
 particular to the selection of such person as may for the 
 time being appear to the registrar to be entitled according 
 to law to be appointed, subject to an appeal to the court in 
 the prescribed manner by any person aggrieved by any order 
 of the registrar under this section" [§ 41]. 
 
 Trustee On the bankru ptcy of a registered proprietor, his trustee 
 
 in bank- . ^.^, , ^ , ^ .\ , ^ • ^ • u- i 
 
 ruptcy IS entitled to be registered as proprietor in his place. 
 
 entitled to When a woman whose name is on the resrister marries, 
 be regis- ° 
 
 tered as her husband may be registered as co-proprietor, but this 
 proprietor, ^jjj ^^^ ^^^^^ ^^^ woman's rights after the death of the 
 Case of ■ . 
 
 married husband. And if the husband survives the wife he is not 
 
 woman, entitled to be registered as sole proprietor of the land : 
 
 "but there shall be registered as co-proprietor with him if 
 he is entitled as tenant by the curtesy, and as sole proprietor 
 in place of himself and his deceased wife if he is not entitled 
 as tenant by the curtesy, such person as may on the ap- 
 plication of any person interested in right of the wife, be 
 appointed by the registrar," 
 
 with power of appeal, as before, on behalf of any one 
 aggrieved [§ 4]. 
 
 I 48 repeals § 5 of the Vendor and Purchaser Act, 1874, 
 and in its place enacts : 
 
 In case of "that upon the death of a bare trustee intestate as to any 
 
 lands not QQj.pQi.eal or incorporeal hereditament of which such trustee 
 
 registered, ... 
 
 on death was seised in fee-simple, such hereditament shall vest like 
 
 t lat'^e ^ chattel real in the legal personal representative from time 
 
 intestate to time of such trustee ; but the enactment by this section 
 
 p^tsVke substituted for the aforesaid section of the V. and P. Act 
 
 a chattel 1874 shall not a[)ply to lands registered under this Act." 
 
 ^^^ ■ § 60. " Any person having or claiming such an interest 
 
 interested ^^ ^^Y ^^^^ which is not already registered as entitles him 
 
 may lodge to object to any disposition thereof being made without his 
 
 with consent may lodge a caution with the registrar to the effect 
 
 registrar, that the cautioner is entitled to notice in the prescribed form, 
 
 and to be served in the prescribed manner, of any application 
 
 that may be made for the registration of such land." 
 
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CONVEYANCING ACT, 1881 213 
 
 In case the registrar is in doubt as to some matter of In case 
 
 law or fact that affects the title, he may refer the case to registrar 
 
 any of the superior courts, and the opinion of the court is ^'^y ^^^^'' 
 
 1 • 1 • . , to any 
 
 conclusive, unless it permits an appeal. superior 
 
 The next statute to consider is the "Conveyancing and ''°^^^- 
 
 Law of Property Act, 1881V ^°Zg' 
 
 Act, 1881. 
 
 § 4. " Where at the death of any person there is sub- General 
 sisting a contract enforceable against his heir or devisee, for words in 
 the sale of the fee simple or other freehold interest descendible anoes^ 
 to his heirs general, in any land, his personal representative — °f land, 
 shall, by virtue of this Act, have power to convey the land for 
 all the estate and interest vested in him at his death, in any 
 manner proper for giving effect to the contract." 
 
 § 6. (1) "A conveyance of land shall be deemed to 
 include, and shall by virtue of this Act operate to convey with 
 the land all buildings, erections, fixtures, commons, hedges, 
 ditches, fences, ways, waters, watercourses, liberties, privileges, 
 easements, rights and advantages whatsoever appertaining 
 or reputed to appertain to the land, or any part thereof, or 
 at the time of conveyance demised, occupied, or enjoyed with 
 or reputed or known as part or parcel of or appurtenant to 
 the land or any part thereof." 
 
 (2) "A conveyance of land, having houses or other build- — of land 
 ings thereon, shall be deemed to include and shall by virtue buildings 
 of this Act operate to convey with the land, houses, or other thereon, 
 buildings, all outhouses, erections, fixtures, cellars, areas, 
 courts, courtyards, cisterns, sewers, gutters, drains, ways, 
 passages, lights, watercourses, liberties, privileges, easements, 
 
 rights and advantages whatsoever, appertaining or reputed 
 to appertain to the land, houses or other buildings conveyed, 
 or any of them or any part thereof or at the time of 
 conveyance demised, occupied or enjoyed with or reputed 
 or known as part or parcel of or appurtenant to the land, 
 houses or other buildings conveyed or any of them or any 
 part thereof." 
 
 (3) " A conveyance of a manor shall be deemed to — of a 
 include and shall by virtue of this Act operate to convey ™''°°''- 
 with the manor all pastures, feedings, wastes, warrens, 
 
 ' Stat. 4i and 45 Vict. <;. 41. 
 
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214 
 
 FIFTH PERIOD 
 
 Powers 
 incident 
 to estate 
 of mort- 
 
 Devolution 
 of trust 
 estate on 
 death. 
 
 commons, mines, minerals, quarries, furzes, trees, woods, 
 underwoods, coppices, and the ground and soil thereof, fish- 
 ings, fisheries, fowlings, courts leet, courts baron, and other 
 courts, view of frank-pledge and all that to view of frank- 
 pledge doth belong, mills, mulctures, customs, tolls, duties, 
 reliefs, heriots, fines, sums of money, amerciaments, waifs, 
 estrays, chief-rents, quit-rents, rents-charge, rents seek, rents 
 of assize, fee-farm rents, services, royalties, jurisdictions, 
 franchises, liberties, privileges, easements, profits, advantages, 
 rights, emoluments, and hereditaments whatsoever, to the 
 manor appertaining or reputed to appertain, or at the time 
 of conveyance demised, occupied, or enjoyed with the same, 
 or reputed or known as part, parcel, or member thereof." 
 
 (4) "This section applies only if and so far as a contrary 
 intention is not expressed in the conveyance and shall have 
 efiect subject to the terms of the conveyance and to the 
 provisions therein contained." 
 
 (5) " This section shall not be construed as giving to 
 any person a better title to any property, right, or thing 
 in this section mentioned than the title which the conveyance 
 gives to him to the land or manor expressed to be conveyed, 
 or as conveying to him any property, right, or thing in this 
 section mentioned, further or otherwise than as the same 
 could have been conveyed to him by the conveying parties.'' 
 
 § 19 confers on a mortgagee, when the mortgage is 
 made by deed, the power to sell the mortgaged property 
 when the mortgage money has become due, provided a 
 contrary intention is not expressed in the mortgage deed. 
 The conditions under which this power of sale can be 
 exercised are regulated by § 20 ; but, if these are fulfilled, 
 the mortgagee is to proceed exactly as under the ordinary 
 power of sale in a deed [§ 21]. 
 
 § 30. " Where an estate or interest of inheritance, or limited 
 to the heir as special occupant, in any tenements or heredita- 
 ments corporeal or incorporeal, is vested in any trust or by way 
 of mortgage in any person solely, the same shall, on his death 
 notvjithstanding any testamentary disposition, devolve to and 
 become vested in his personal representatives or representative 
 for the time being, in like manner as if the same were a 
 
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CONVEYANCING ACT, 1881 215 
 
 chattel real vesting in them or him ; and according!}' all the 
 like powers for one only of several joint personal representa- 
 tives as well as for a single personal representative, and for 
 all the personal representatives together, to dispose of and 
 otherwise deal with the same, shall belong to the deceased's 
 personal representatives or representative from time to time, 
 with all the like incidents, but subject to all the like rights, 
 equities, and obligations, as if the same were a, chattel real 
 vesting in them or him ; and for the purposes of this section, 
 the personal representatives for the time being of the deceased 
 shall be deemed in law his heirs and assigns within the meaning 
 of all trusts and powers'." 
 
 §§ 31-38 deal with trustees and executors. Arrange- Appoint- 
 ments are made for the retirement of a trustee and the ^'^^g.^ 
 appointment of a new one, and the powers of sale of a trustees, 
 trustee are determined in certain cases. We shall not 
 enter into the matter here as these sections have been 
 repealed and replaced by the Trustee Act of 1893 and the 
 subject will be better discussed under the head of equity. 
 §§ 39-40 relate to married women : 
 
 " Notwithstanding that a married woman is restrained Married 
 
 from anticipation, the court may, if it thinks fit, where it '*^o™6n— 
 ' . power of 
 
 appears to the court to be for her benefit, by judgment or court to 
 
 order, with her consent, bind her interest in any property. . " "^ 
 
 Also a married woman, whether an infant or not, shall by 
 
 virtue of this Act have power, as if she were unmarried and 
 
 of full age, by deed to appoint an attorney on her behalf for 
 
 the purpose of executing any deed or doing any other act 
 
 which she might herself execute or do ; and the provisions of 
 
 this Act relating to instruments creating powers of attorney 
 
 shall apply thereto.'' 
 
 §46. "The donee of a power of attorney may, if he Execution 
 
 thinks fit, execute or do any assurance, instrument or thinji "" ^^ , 
 ' . power or 
 
 in and with his own name and signature and his own seal, attorney, 
 where sealing is required, by the authority of the donor of 
 the power ; and every assurance, instrument, and thing so 
 executed and done shall be as effectual in law to all intents 
 
 1 This section does not apply to copyholds. See Copyhold Act, 1894, 
 § 88, replacing Copyhold Act, 1887, § 45. 
 
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216 FIFTH PERIOD 
 
 as if it had been executed or done by the donee of the power 
 in the name and with the signature and seal of the donor 
 thereof." 
 
 §§ 49 — 6-i deal with the construction and effect of 
 deeds and other instruments : — 
 
 Use of § 49. "It is hereby declared that the use of the word 
 
 ?^°^^j..yjj_ 'grant' is not necessary in order to convey tenements or 
 
 necessary, hereditaments, corporeal or incorporeal." 
 
 Convey- § 50. " Freehold land may be conveyed by a person to 
 
 peKon'^to l"™S6'f jointly with another person, by the like means by 
 
 himself, which it might be conveyed by him to another person ; and 
 
 * °' may, in like manner, be conveyed by a husband to his wife, 
 
 and by a wife to her husband, alone or jointly with another 
 
 person." 
 
 Words of § 51. "In a deed it shall be sufficient, in the limitation 
 
 |™g^*J°" of an estate in fee-simple, to use the words 'in fee-simple' 
 
 in tail. without the word ' heir ' ; and in the limitation of an estate 
 
 in tail, to- use the words 'in tail ' without the words 'heirs of 
 
 the body ' ; and in the limitation of an estate in tail male or 
 
 in tail female, to use the words ' in tail male ' or ' in tail 
 
 female,' as the case requires, without the words 'heirs male of 
 
 the body,' or ' heirs female of the body '.' " 
 
 Receipt § 54. (1) "A receipt for consideration money or secu- 
 
 suffictent '■i*'i®® ^^ ^he body of a deed shall be a sufficient discharge for 
 
 the same to the person paying or delivering the same, without 
 
 any further receipt for the same being indorsed on the deed." 
 
 Receipt in § 55. (1) "A receipt for consideration money or other 
 
 ndors'^d consideration in the body of a deed or indorsed thereon shall, 
 
 evidence in favour of a subsequent purchaser not having notice that 
 
 seauent ^'^^ money or other consideration thereby acknowledged to be 
 
 purchaser, received was not in fact paid or given, wholly or in part, be 
 
 sufficient evidence of the payment or giving of the whole 
 
 amount thereof." 
 
 Provision § 63. " Every conveyance shall by virtue of this Act be 
 
 TOT* flll "i"nP 
 
 estate etc. effectual to pass all the estate, right, title, interest, claim and 
 demand which the conveying parties respectively have in, to, 
 or on the property conveyed or expressed or intended so to 
 
 ' This section does not apply to conveyances to corporations. 
 
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CONVEYANCING ACT, 1881 217 
 
 be, in which they respectively have power to convey in, to, or 
 on the same." 
 
 § 65 supplies a means of converting into a fee simple Long 
 a term of years originally created for not less than three itr^alnto 
 hundred years and that has at least two hundred years to fee simple. 
 run'. 
 
 The main object of the act, as expressed in its title, 
 is to simplify modes of assurance, and with the view 
 of comparing modern with older forms, we shall give the 
 model conveyance on sale and marriage settlement as 
 printed in the Fourth Schedule appended to the act : 
 
 " Conveyance on Sale. 
 
 This Indenture made the [ ] day of [ ], between A of Model 
 
 [ ] of the first part, B oi [ ] and C of [ ] of the l^l^^^ 
 
 second part, and il/ of [ ] of the third part Whereas by an Sale, 
 
 indenture dated [ ] and made between [ ] the lands 
 
 hereinafter mentioned were conveyed by ^ to 5 and G in fee- 
 simple by way of mortgage for securing \£ ] and interest 
 and by supplemental indenture dated [ ] and made between 
 the same parties those lands were charged by A with the 
 payment to B and C of tlie further sum of [£ ] and 
 interest thereon And whereas a principal sum of [£, J 
 remains due under tlie two before mentioned indentures but 
 all interest thereon has been paid as B and G hereby acknow- 
 ledge Now this Indenture Witnesseth that in consideration of 
 the sum of [£ ] paid by the direction of j4 to ^ and C and 
 of the sum of [£ ] P^id to A those two sums making 
 together the total sum of \£ J paid by M for the purchase 
 of the fee simple of the lands hereinafter mentioned of which 
 sum of [£ ] jB and G hereby acknowledge the receipt and 
 of which total sum of [£, ] A hereby acknowledges the 
 payment and receipt in manner before mentioned B and G as 
 mortgagees and by the direction of A as beneficial owner hereby 
 convey and A as beneficial owner hereby conveys and confirms 
 to M All that [ ] To hold to and to the use of M in fee- 
 simple discharged from all money secured by and from all 
 
 ^ The term that can be enlarged is described more fully in the C. A., 
 1882, § 11. 
 
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218 
 
 FIFTH PERIOD 
 
 Model 
 Marriage 
 Settle- 
 ment. 
 
 claims under the before mentioned indentures [Add if required, 
 and A hereby acknowledges the right of M to production of 
 the documents of title mentioned in the schedule hereto and 
 to delivery of copies thereof and thereby undertakes for the 
 safe custody thereof] In witness etc.'' 
 
 " Marriage Settlement. 
 
 This Indenture made the [ ] day of [ ], between John 
 M. of [ ] of the first part, Jane S. of [ ] of the second 
 part and .V of [ ] and 7 of [ ] of the third part 
 Witnesseth that in consideration of the intended marriage 
 between John M. and JaneS. John M. as settler hereby 
 conveys to X and Y All that [ ] To hold to X and Y in 
 fee-simple to the use of John M. in fee-simple until the 
 marriage and after the marriage to the use of John M. during 
 his life without impeachment of waste with remainder after 
 his death to the use that Jane S. if she survives him may 
 receive during the rest of her life a yearly jointure rent charge 
 of £■ to commence from his death and to he paid by equal 
 half yearly payments the first thereof to be made at the end of six 
 calendar months from his death if she is then living or if not 
 a proportional part to be paid at her death and subject to the 
 beforementioned rent charge to the use of X and / for a term 
 of five hundred years without impeachment of waste on the 
 trusts hereinafter declared and subject thereto to the use of 
 the first and other sons of John M. and Jane S. successively 
 according to seniority in tail male with reriiainder to the use 
 of all the daughters of John M. and Jane S. in equal shares as 
 tenants in common in tail with cross remainders between them 
 in tail with remainder to the use of John M. in fee simple. 
 [Insert trusts of term of five hundred years for raising portions; 
 also, if required, power to charge jointure and portions on 
 a future marriage ; also powers of sale, exchange, and partition, 
 and other powers and provisions if and as desired.] In 
 witness etc.-" 
 
 The following year gave us the Settled Land Act, 1882', 
 \^R9 ^°'' 'which introduced many important changes by enabling a 
 ' tenant for life ' of settled land to dispose of a larger estate 
 than his own. 
 
 1 Stat. 45 and 46 Viet. u. 38. 
 
 Settled 
 
 Land 
 
 1882. 
 
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SETTLED LAND ACT, 1882 219 
 
 § 3. A tenant for life beneficially entitled in possession Powers to 
 
 tenant for 
 (i) " May sell the settled land or any part thereof or any life to sell. 
 
 easement right or privilege of any kind over or in relation to 
 
 the same ; and 
 
 (ii) Where the settlement comprises a manor — may sell Case of 
 the seignory of any freehold land within the manor or the 
 freehold and inheritance of any copyhold or customary land, 
 parcel of the manor, with or without any exception or 
 reservation of all or any mines or minerals, or of any rights or 
 powers relative to mining purposes, so as in every such case to 
 efl'ect an enfranchisement ; and 
 
 (iii) May make an exchange of the settled land or any May 
 part thereof, for other land, including an exchange in con- 
 sideration of money paid for equality of exchange ; and 
 
 (iv) Where the settlement comprises an undivided share May 
 in land, or under the settlement the settled land has come to „g^^^^ 
 be held in undivided shares, — may concur in making partition 
 of the entirety, including a partition in consideration of money 
 paid for equality of partition." 
 
 § 15. "Notwithstanding anything in this Act, the princi- Eestrio- 
 pal mansion-house on any settled land, and the demesnes 
 
 concur m 
 on. 
 
 mansion- 
 
 thereof ' and other lands usually occupied therewith, shall not house, 
 
 be sold or leased by the tenant for life, without the consent of ^ ' 
 
 the trustees of the settlement, or an order of the court." 
 
 §20. (1) "On a sale, exchange, lease, mortgage, or Comple- 
 
 charge, the tenant for life may, as regards lands sold, given in ea°le, lease 
 
 exchange or on petition, leased, mortgaged or charged or in- etc. by 
 
 tended so to be, including copyhold or customary or leasehold ance.^"^" 
 
 land vested in trustees, or as regards easements or other rights 
 
 or privileges sold or leased, or intended so to be, convey or 
 
 create the same by deed, for the estate or interest the subject 
 
 of the settlement or for any less estate or interest, to the uses 
 
 and in the manner requisite for giving effect to the sale, 
 
 exchange, partition, lease, mortgage, or charge." 
 
 (2^ "Such a deed, to the extent and in the manner to What 
 ^ ' niay be 
 
 and in which it is expressed or intended to operate and can conveyed. 
 
 ■ By the Settled Land Act, 1890 [52 and 53 Vict. c. 36, .s. 10] the 
 phrase "pleasure grounds and park and land (if any) usually occupied 
 therewith'' was substituted for " the demesnes thereof," and a restriction 
 on exchange was added to that on sale or lease. 
 
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220 FIFTH PERIOD 
 
 operate under this Act, is efifectual to pass the land conveyed, 
 
 or the easements, rights, or privileges created, discharged from 
 
 all the limitations, powers, and provisions of the settlement, 
 
 and from all estates, interests, and charges subsisting or to 
 
 arise thereunder, but subject to and with the exception of — 
 
 Exoep- (i) ^11 estates, interests, and charges having priority 
 
 tions. 
 
 to the settlement ; and 
 
 (ii) All such other, if any, estates, interests, and 
 charges as have been conveyed or created for securing 
 money actualljf raised at the date of the deed ; and 
 
 (iii) All leases and grants at fee-farm rents or other- 
 wise, and all grants of easements, rights of common, or 
 other rights or privileges granted or made for value in 
 money or money's worth, or agreed so to be, before the 
 date of the deed, by the tenant for life, or by any of 
 his predecessors in title, or by any trustees for him or 
 them, under the settlement, or under any statutory power, 
 or being otherwise binding on the successors in title of 
 the tenant for life." 
 Case of (3) " In case of a deed relating to copyhold or customary 
 
 copy . ]g^^(j^ j^ jg sufficient that the deed be entered on the court rolls 
 of the manor, and the steward is hereby required on production 
 to him of the deed to make the proper entry, and on that 
 production, and on payment of customary fines, fees, and 
 other dues or payments, any person whose title under the 
 deed requires to be perfected by admittance shall be admitted 
 accordingly ; but if the steward so requires, there shall also 
 be produced to him so much of the settlement as may be 
 necessary to show the title of the person executing the deed ; 
 and the same may, if the steward thinks fit, be also entered on 
 the court rolls." 
 
 Tenant for The tenant for life is in the position of a trustee for 
 obtak)"'^' others entitled under the settlement [§ 53], and in selling or 
 best price exercising other powers under the act he must obtain the 
 best price and conditions possible [§ 4]. But any failure 
 in this respect, although it will render him liable to the 
 others for whom he is a quasi trustee, will not invalidate 
 the sale or other conveyance. 
 
 " On a. sale, exchange, partition, lease, mortgage, or charge. 
 
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MARRIED women's PROPERTY ACT, 1882 221 
 
 a purchaser, lessee, mortgagee or other person dealing in good General 
 faith with a tenant for life shall, as against all parties J^™ „"''°" 
 entitled under the settlement, be conclusively taken to have chasers, 
 given the best price, consideration, or rent as the case may 
 require, that could reasonably be obtained by the tenant for 
 life and to have complied with all the requisitions of this Act" 
 [§ 54]. 
 
 Where the ' tenant for life ' is an infant, the powers where 
 given by this act may be exercised by the trustees of the J?f°''j° ^°^ 
 settlement : infant. 
 
 " and if there are none, then by such person and in such 
 manner as the court, on the application of a testamentary or 
 other guardian or next friend of the infant, either generally 
 or in the particular instance, orders" [§ 60]. 
 
 A married woman who is ' tenant for life ' may exercise Married 
 the powers of this act independently of her husband, and ^™™^°- 
 a restraint on anticipation in the settlement shall not 
 prevent her from so doing [§ 61]. 
 
 § 62. " Where a tenant for life, or a person having the Lunatic, 
 powers of a tenant for life under this Act, is a lunatic, so 
 found by inquisition, the committee of his estate may, in his 
 name and on his behalf, under an order of the Lord Chancellor, 
 or other person intrusted by virtue of the Queen's sign manual 
 with the care and commitment of the custody of the persons 
 and estates of lunatics, exercise the powers of a tenant for life 
 under this Act, and the order may be made on the petition 
 of any person interested in the settled land, or the committee 
 of the estate." 
 
 We must next examine the important " Act to Con- Married 
 solidate and Amend the Acts relating to the Property of pj.°™*]."^ 
 Married Women " whose short title is the '' Married ^ot> 1^82. 
 Women's Property Act, 1882 1." 
 
 § 1. (1) "A married woman shall, in accordance with Married 
 the provisions of this Act, be capable of acquiring, holding "a°pable of 
 and disposing by will or otherwise of any real [or personal] acquiring, 
 property as her separate property in the same manner as ^g^ JJJg 
 if she were a feme sole, without the intervention of any posing of 
 
 trustee." fikfr'^ 
 
 ' Stat. 45 and 46 Vict. c. 75. feme sole. 
 
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222 FIFTH PERIOD 
 
 Property § 2. " Every woman who marries after the commencement 
 
 married °^ ^^^^ Act' shall be entitled to have and to hold as her 
 
 woman sepai'ate property and to dispose of in manner aforesaid all 
 
 act to be '"^^^ ^"'^ personal pr-operty which shall belong to her at the 
 
 held by time of marriage or shall be acquired by or devolve upon her 
 her as a „^ . „ 
 
 feme sole, '^tter marriage. 
 
 § 5. " Every woman married before the commencement of 
 this Act shall be entitled to have and to hold and to dispose of 
 in manner aforesaid as her separate property all real and per- 
 sonal property, her title to which, whether vested or contingent, 
 and whether in possession, reversion or remainder, shall accrue 
 after the commencement of this Act '." 
 Saving of § 19. "Nothing in this Act contained shall interfere with 
 
 settle- or affect any settlement or agreement for a settlement made 
 ments, or to be made, whether before or after marriage, respecting 
 power to ^^^ property of any married woman, or shall interfere with or 
 make render inoperative any restriction against anticipation at 
 
 Tnf"nTP 
 
 settle- present attached or to be hereafter attached to the enjoyment 
 ments. of any property or income by a woman under any settlement, 
 agreement for a settlement, will or other instrument." 
 
 Lastly, in 1897, we reach " An Act to establish a Real 
 Representative and to amend the Land Transfer Act, 
 1875 V' 
 Land §1. (1) "Where real estate is vested in any person 
 
 A t°isq7 without a right in any other person to take by survivorship' 
 Devolu- ^^ shall, on his death, notwithstanding any testamentary 
 tion of disposition, devolve to and become vested in his personal 
 terest'hi representatives or representative from time to time as if it 
 real estate were a chattel real vesting in them or him." 
 
 (2) "This section shall apply to any real estate over 
 which a person executes by will a general power of appoint- 
 ment, as if it were real estate vested in him." 
 
 1 i.e. 1st Jan. 1883. See § 25 of the act. 
 
 ' It was decided, after some conflict, that this section is limited in its 
 operation to property the title to which first accrues on or after Jan. 1st, 
 1883 : see Reid v. Reid, 31 Ch. D. 402. 
 
 ^ Stat. 60 and 61 Vict. c. 65 : ante, p. 210. 
 
 " Note that this excludes estates tail and estates for life. Trust 
 estates are also not included, they devolve in accordance with § 30 of 
 the Conveyancing Act of 1881. 
 
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LAND TRANSFER ACT, 1897 223 
 
 (3) " Probate and letters of administration may be 
 granted in respect of real estate only, although there is no 
 personal estate." 
 
 (4) " The expression ' real estate ' in this part of the Act Copyhold 
 shall not be deemed to include land of copyhold or customary j^^ gg^t^in 
 tenure in any case in which an admission on any act by the oases. 
 lord of the manor is necessary to perfect the title of a 
 purchaser from the customary tenant." 
 
 (5) " This section applies only in cases of death after the 
 commencement of this Act." 
 
 §2. (1) "Subject to the powers, rights, duties, and Removal 
 
 liabilities hereinafter mentioned, the personal representatives o' e^e- 
 
 ' ^ ^ outor, pro- 
 
 of a deceased person shall hold the real estate as trustees for visions as 
 
 the persons by law beneficially entitled thereto, and those t" admin- 
 ^ ■' •' . . istration. 
 
 persons shall have the same power of requiring a transfer of 
 
 real estate as persons beneficially entitled to personal estate 
 
 have of requiring a transfer of such personal estate." 
 
 § 3. (1) "At any time after the death of the owner of Provision 
 any land, his personal representatives may assent to any fg^ j^ jjgj^ 
 devise contained in his will, or may convey the land to any or devisee. 
 person entitled thereto as heir, devisee, or otherwise, and may 
 make the assent or conveyance, either subject to a charge for 
 the payment of any money which the personal representatives 
 are liable to pay, or without any such charge ; and on such 
 assent or conveyance, subject to a charge for all moneys (if 
 any) which the personal representatives are liable to pay, all 
 liabilities of the personal representatives in respect of the land 
 shall cease, except as to any acts done or contracts entered 
 into by them before such assent or conveyance." 
 
 (2) "At any time after the expiration of one year from 
 the death of the owner of any land, if his personal repre- 
 sentatives have failed on the request of the person entitled to 
 the land to convey the land to that person, the court may, if 
 it thinks fit, on the application of that person, and after notice 
 to the personal representatives, order that the conveyance be 
 made, or, in the case of registered land, that the person so 
 entitled be registered as proprietor of the land, either solely 
 or jointly with the personal representatives." 
 
 (A) " The production of an assent in the prescribed form 
 by the personal representative of a deceased proprietor of 
 
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224 
 
 FIFTH PERIOD 
 
 Appropri- 
 ation of 
 land in 
 satisfac- 
 tion of 
 legacy or 
 share in 
 estate. 
 
 Eegistra- 
 tion. 
 
 Title 
 
 adverse to 
 registered 
 one, not 
 to be 
 acquired 
 by length 
 of posses- 
 sion. 
 Proviso. 
 
 registered land shall authorise the registrar to register the 
 person named in the assent as proprietor of the land." 
 
 §4. (1) "The personal representatives of a deceased 
 person may, in the ab.9ence of any express provision to the 
 contrary contained in the will of such deceased person, with 
 the consent of the person entitled to any legacy given by the 
 deceased person or to a share in his residuary estate, or, if the 
 person entitled is a lunatic or an infant, with the consent of 
 his committee, trustee, or guardian, appropriate any part of 
 the residuary estate of the deceased in or towards satisfaction 
 of that legacy or share, and may for that purpose value in 
 accordance with the prescribed provisions the whole or any 
 part of the property of the deceased person in such manner as 
 they think fit. Provided that before any such appropriation 
 is effectual, notice' of such intended appropriation shall be 
 given to all persons interested in the residuary estate, any of 
 whom may thereupon within the prescribed time apply to the 
 court, and such valuation and appropriation shall be conclusive 
 save as otherwise directed by the court." 
 
 (3) " In the case of registered land, the production of the 
 prescribed evidence of an appropriation under this section 
 shall authorize the registrar to register the person to whom 
 the property is appropriated as proprietor of the land." 
 
 |§ 6 — 23 deal with the subject of Registration and are 
 to be read with the Land Transfer Act of 187.5-. 
 
 § 12. "A title to registered land adverse to or in deroga- 
 tion of the title of the registered proprietor shall not be 
 acquired by any length of possession, and the registered pro- 
 prietor may at any time make an entry or bring an action to 
 recover possession of the land accordingly. Provided that 
 when a person would, but for the provisions of the principal 
 Act [of 1875] or of this section, have obtained a title by 
 possession to registered land, he may apply for an order for 
 rectification of the register under section ninety-five of the 
 principal Act, and on such application the court may, subject 
 to any estates or rights acquired by registration for valuable 
 
 ' This notice becomes part of the title to the appropriated land. 
 2 See p. 210. 
 
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LAND TRANSFER ACT, 1897 225 
 
 consideration in pursuance of the principal Act or this Act, 
 order the register to be rectified accordingly. And provided 
 also that this section shall not prejudice, as against any person 
 registered as first proprietor of land with a possessory title 
 only, any adverse claim in respect of length of possession of 
 any other person who was in possession of such land at the 
 time when the registration of such first proprietor took place." 
 
 § 16. "A purchaser of registered land shall not require Evidence 
 any evidence of title except : — °j^^J ^ 
 
 (i) the evidence to be obtained from an inspection of the be re- 
 register or of a certified copy or extract from the register ; BurohasCT 
 
 (ii) a statutory declaration as to the existence or other- 
 wise of matters which are declared by § 18 of the principal 
 Act and by this Act not to be incumbrances ' ; 
 
 (iii) if the proprietor of the land is registered with an 
 absolute title, and there are incumbrances entered on the 
 register as subsisting at the first registration of the land, 
 either evidence of the title to these incumbrances, or evidence 
 of their discharge from the register ; 
 
 (iv) where the proprietor of the land is registered with 
 a qualified title, the same evidence as above provided in the 
 case of absolute title, and such evidence as to any estate, 
 right, or interest excluded from the effect of the registration 
 as a purchaser would be entitled to if the land were un- 
 registered ; 
 
 (v) if the land is registered with a possessory title such 
 evidence of the title subsisting or capable of arising at the 
 first registration of the land as the purchaser would be entitled 
 to if the land were unregistered." 
 
 Finally we come to an important innovation in the Compul- 
 nature of an arrangement for the compulsory registration t°^^j(,n^'^" 
 of title. 
 
 § 20. (1) "Her Majesty the Queen may, by order in How made 
 Council, declare as respects any county or part of a county ^°" 
 mentioned or defined in the order, that, on and after a day 
 specified in the order, registration of title to land is to be 
 
 1 The chief of these in the field of realty are : rights of common, of 
 way, and other easements ; rights to mines and minerals ; rights of fishing 
 and sporting ; seignorial and manorial rights of all descriptions. 
 
 M. E. 15 
 
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226 
 
 FIFTH PERIOD 
 
 What is 
 ' land ' 
 within 
 meaning 
 of this act. 
 Excep- 
 tions. 
 
 Meaning 
 of 
 
 ' personal 
 represent- 
 ative.' 
 
 compulsory on sale, and thereupon a person shall not, under 
 any conveyance on sale executed on or after the day so specified, 
 acquire the legal estate in any freehold land in that county, or 
 part of a county, unless or until he is registered as proprietor 
 of the land." 
 
 § 24. (1) " All hereditaments, corporeal and incorporeal, 
 shall be deemed land within the meaning of the principal 
 Act and this Act, except that nothing in this Act shall 
 render compulsory the registration of the title to an incor- 
 poreal hereditament, or to mines or minerals apart from the 
 surface [or to a lease having less than forty years or two lives 
 yet to fall in], or to an undivided share in land, or to freeholds 
 intermixed and indistinguishable from lands of other tenure, 
 or to corporeal hereditaments, parcel of a manor, and included 
 in a sale of the manor as such." 
 
 (2) '' In this Act the expression 'personal representative ' 
 means an executor or administrator.'' 
 
 § 25. " This Act shall come into operation on January 1st, 
 1898." 
 
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CHAPTEK IX. 
 
 MFTH PERIOD CONCLUDED. THE LAW AS IT 
 STANDS TO-DAY. 
 
 The survey of the great legislative changes of the 
 present period which occupied our attention in the pre- 
 ceding chapter has placed us in a position to consider the 
 various titles in vogue at the present day. Repeated Efforts to 
 efforts have been made to simplify the methods of con- convey^ 
 veyance, and much of the complexity of earlier modes has ances. 
 been removed. IVo somewhat venerable forms — fines 
 and recoveries — have disappeared altogether \ and the 
 remaining ones have been stripped of much of their former 
 prolixity by such statutes as the Conveyancing Act of 
 1881^. Further than this, as a matter of practice a 
 deed of grant and an appointment under a power are 
 now almost the only forms employed, the others being 
 rarely met with except in abstracts of title. However, 
 none of these changes saves the conveyancer from the 
 labour of learning something of the earlier forms of 
 transfer, for without some historical knowledge the nature 
 and effect of the modern simplified forms cannot be 
 properly understood. 
 
 As to modes of conveyance inter vivos, a feoffment Feoffment. 
 with livery of seisin is still an effectual method of 
 transference. Until 1845 it was regularly used for 
 conveyances by corporations, as there was some doubt 
 
 1 See Fines and Recoveries Act, 1833, ante, p. 195. 
 
 2 Ante, p. 213. 
 
 15—2 
 
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228 FIFTH PERIOD 
 
 whether a corporation could be seised to a use ; and, 
 indeed, some corporations still use the feoffment. How- 
 ever the Keal Property Act, 1845', made the feoffment 
 void unless evidenced by deed^ so that from that date 
 it has disappeared from ordinary practice. Now that a 
 deed is necessary the feoffment is more cumbrous than 
 a deed of grant. Nor is there any such advantage as that 
 described in Sheppard's Touchstone'', for the Act of 1845^ 
 did away with the tortious operation of a feoffment. Thus 
 it has come about that this " most antient and most 
 solemn " mode of conveyance is now used only for 
 conveyances by infants under the custom of gavelkind, 
 in which case there is no need of a deed^ 
 Exchange. Title by exchange is dealt with by the Law of Property 
 Act of 1845* by which it is enacted that 
 
 " a partition and an exchange of any tenements or here 
 ditaments, not being copyhold, .. .ah.a)A. be void at law unless 
 evidenced by a deed.'' 
 
 Consequently exchanges are now usually effected by 
 mutual deeds of grant, so that the exchange as a separate 
 mode of conveyance may be said to have disappeared. 
 Confirma- -^-S to a confirmation the law is the same as in the 
 tion. preceding period. The confirmation must be made by a 
 
 deed duly sealed and delivered, hence a deed of grant 
 might equally well be used. 
 Surrender. In previous periods we have spoken of a surrender as 
 a means of conveyance, and nothing need be added to 
 the former accounts except that a deed is now required 
 to give validity to the surrender 
 
 "of any 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'." 
 
 Little need be added to the former accounts of 
 assurances operating by the Statute of Uses. The 
 
 1 Ante, p. 206. ^ jbid. § 3. » Ante, p. 151. 
 
 " Eeal Property Act, 1845, § 4. ' Ibid. § 3. 
 
 8 Ibid. § 3, ante, p. 206. ' Ibid. § 3. 
 
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DEED OF GRANT 229 
 
 covenant to stand seised and the bargain and sale remain 
 just as before, but are rarely employed. Lease and 
 release was the most popular mode of conveyance during 
 the preceding period. The chief objection to it was that 
 two distinct instruments were required and the common 
 law made a deed essential. In 1841 an effort was made 
 to simplify matters by doing away with the necessity for 
 a lease and enacting that every deed or instrument of 
 release of a freehold, expressed to be made in pursuance 
 of the act, should be as effectual as a lease and release'. 
 
 Conveyance by statutory release was not destined to Deed of 
 remain long in possession of the field. In 1845 the g'^*'^*- 
 legislature cut boldly at the root of old feudal notions and 
 declared 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^." 
 
 In consequence of this the deed of grant, which was 
 formerly restricted to the conveyance of incoi-poreal 
 hereditaments, has now practically superseded all other 
 forms except a bargain and sale and an appointment 
 under a power. The actual arrangement of the deed of 
 grant is merely a matter of custom and convenience. In 
 form it is usxially an indenture, but a deed poll may also 
 be employed. In practice the deed is nearly always dated, 
 but the fact of there being no date or an impossible date 
 does not invalidate the instrument, and the deed takes 
 effect from the time of its delivery and not of its date. 
 The parties to the deed are indicated by their names and Parties, 
 such description as is necessary to identify them. Before 
 the Act of 1845 no person could take an immediate 
 benefit under an indenture unless he were named as 
 one of the parties thereto, and, although this has been 
 changed ^ the practice of making every person that takes 
 
 1 Stat. 4 and 5 Viet. c. 21. Repealed by the Statute Law Revision 
 Act, 1874. 
 
 2 8 and 9 Vict. c. 106, § 2. " Ibid. § 5. 
 
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230 FIFTH PERIOD 
 
 aa immediate estate or interest in any hereditaments a 
 party to the indenture is still maintained. 
 
 Recitals. After the description of the parties come, as a rule, 
 
 the recitals ; but these are often omitted in simple cases, 
 their object being to explain the scope and aim of the 
 deed. When inserted care must be taken to ensure 
 accuracy, for if they deal with matters twenty years old 
 at the date of the contract they are taken to be sufficient 
 evidence of the truth of such matters', and, moreover, the 
 vendor is estojjped from setting up any title incompatible 
 with what he has laid down in the recital. After the 
 
 Considera- recital a statement of the consideration is made ; although 
 if there has been consideration this may be proved not- 
 withstanding that the statement has been omitted from 
 the deed. However, it is important to notice that some 
 consideration is necessary to prevent (a) a resulting use', 
 
 (b) the avoidance of the conveyance by creditors or by 
 a subsequent purchaser for value and without notice', 
 
 (c) a fine for not setting forth the consideration^ The 
 statement of the consideration is generally followed by 
 a simple receipt clause, " the receipt whereof is hereby 
 acknowledged." This is sufficient evidence of payment'; 
 but there must be something more than a general state- 
 ment that consideration has been given, specific sums or 
 items must be mentioned^ Before the Act of 1881 a 
 receipt did not prevent the person that acknowledged it 
 from showing in Equity that he had not been paid'. 
 
 1 See § 2 of Vendor and Purchaser Act, 1874, ante, p. 209. This rule 
 of law seems to have been extended by the decision in Bolton v. London 
 School Board, 7 Ch. D. 766 ; but the ruling in that case seems doubtful. 
 See also Be Marsh and JBarl Granville, 24 Ch. D. 11. 
 
 2 Ante, p. 182. 
 
 3 See Bankruptcy Act, 1883 [46 and 47 Vict. c. 52, § 47]. 
 
 " The Stamp Act, 1870, requires that the consideration be truly set 
 forth under a penalty of £10. 
 
 <> See Lloyd's Bank v. Bullock, 1896, 2 Ch. 192. 
 
 6 See Renner v. Tolley, W. N. 1893, 90. 
 
 ' See Winter v. Lord Anson, 3 Euss. 488 ; Stratton v. Bastall, 2 T. E. 
 366 ; Kennedy v. Green, 3 My. and K. 699, 716. 
 
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DEED OF GRANT 231 
 
 Following the receipt come the operative words of the Operative 
 conveyance, e.g. " A, as beneficial owner, hereby grants to ^°''^^' 
 the said B etc." Formerly there were a great number of 
 operative words at the disposal of the conveyancer, each 
 with a distinctive meaning and apt use ; but any phraseo- 
 logy that clearly indicates the intention to convey will 
 do, although of course certain words are usual\ The Parcels, 
 parcels or description of the subject of the conveyance are 
 generally inserted in the operative part of the deed ; but 
 in some cases they appear in the recitals. The description 
 is frequently given with the aid of a schedule to the deed 
 and a map drawn on the deed itself. Before 1882 it was 
 the practice to add to the description a number of ' general 
 words' with the object of insuring the conveyance of 
 reputed rights and easements and profits a j^rendre 
 enjoyed with the land. These general words are now 
 omitted in reliance on the Conveyancing Act of 1881 -, 
 and the same Act^ has also done away with the ' all 
 estate ' clause to be found in earlier deeds. 
 
 After the description of the property comes the Habendum 
 habendum clause" which marks out the estate to be taken 
 by the grantee, e.g. " to hold to A and his heirs " or " to 
 hold to A in fee simple." Formerly the clause read 
 " to have and to hold," the tenendum being of use to show 
 whether the grantee was to hold of the grantor or of his 
 lord ; but since Quia Emptores^ this distinction is useless. 
 We have already had occasion to lay stress on the fact 
 that in earlier deeds it was most important to use the 
 proper technical words of limitation. This is still true, 
 but the Conveyancing Act of 1881'' has shortened the 
 
 ^ By § 49 of C. A. 1881, ante, p. 216, there is no necessity to use the 
 word grant, except where it implies covenants under Acts of Parliament 
 [Land Clauses Consolidation Act, 1845 (8 and 9 Vict. c. 18, § 132); 
 Queen Anne's Bounty Act, 1838 (1 and 2 Vict. c. 20, § 22)]. 
 
 2 § 6, see ante, p. 218. s ibid. § 63. 
 
 * All ths parts of the deed before the habendum are classed together 
 and called the ' premises.' 
 
 5 Ante, p. 109. 
 
 * § 51, see ante, p. 216. The section does not apply to corporations, 
 the proper form of limitation for a fee simple to a corporation sole being 
 
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232 
 
 FIFTH PERIOD 
 
 Declara- 
 tion of 
 trusts. 
 
 Testi- 
 monium. 
 
 Form of 
 convey- 
 
 expressions necessary to create estates in fee simple, fee 
 tail, etc. 
 
 If the grant is to some other use than that of the 
 grantee the habendum is followed by the declaration of 
 uses or of trusts, but this declaration may be made by a 
 separate instrument. After the declaration of uses come 
 the covenants for title (if any); but the ordinary covenants 
 are usually dispensed with in virtue of the Conveyancing 
 Act of 1881'. 
 
 The document ends with the testimonium and attes- 
 tation clauses ; i.e. the acknowledgment of the deed as 
 that of the parties named, with their signatures and seals. 
 If there are any witnesses they append their signatures to 
 a clause endorsed on the deed and attesting its execution. 
 
 This somewhat lengthy description has been rendered 
 necessary by the fact, already noted, that the deed of grant 
 is now by far the most important means of conveyance of 
 land inter vivos. A model conveyance has already been 
 transcribed from the Conveyancing Act, 1881^. The 
 following is a slightly modified form of conveyance of a 
 freehold by the beneficial owner : 
 
 "This Indenture made the — day of — 19 — . Between 
 
 . of , hereinafter called the vendor of the one part, 
 
 and of , hereinafter called the purchaser of the 
 
 other part. 
 
 Whereas the vendor is now seised in fee simple in posses- 
 sion free from incumbrances of the hereditaments hereinafter 
 conveyed, and has agreed to sell the same to the purchaser 
 for the like estate in possession free from the incumbrances 
 at the price of £ — 
 
 Now This Indenture Witnesseth that in pursuance of the 
 said agreement, and in consideration of the sum of £ — paid 
 by the purchaser to the vendor (the receipt of which sum 
 the vendor hereby acknowledges), The Vendor as beneficial 
 owner hereby conveys unto the purchaser All that &c. 
 
 "to A and his successors,'' and to a corporation aggregate "to A and 
 their assigns " ; but the word ' successors ' may also be used in this case. 
 See Land Clauses Consolidation Act, 1845. 
 1 § 7. " Ante, p. 217. 
 
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LIMITED OWNERS 233 
 
 situated &c. containing &c. or thereabouts, and more par- 
 ticularly described in the [first] schedule hereto, and intended 
 to be delineated on the plan on these presents and to be 
 therein edged — To Hold unto and to the use of the purchaser 
 in fee simple. 
 
 In Witness etc." ' 
 
 It is a general rule that a person under no disability'' 
 may convey away any interest to which he is entitled ; but 
 he cannot as a rule give a better title than he has, 
 nor convey more than he possesses. However, although, 
 generally speaking, any attempt to give a larger estate 
 than that of the alienor is ineffectual, there are cases in 
 which this can be done provided the proper means are 
 employed. The most important of these are the enlarge- 
 ment of a fee tail into a fee simple by the tenant in tail, 
 the powers of disposition of a tenant for life of settled 
 land, and of other limited owners, and the enlargement of 
 the residue of a long term of years into a fee simple. 
 These each require special consideration, as the modes of 
 conveyance hitherto dealt with in this chapter are appro- 
 priate to conveyances by persons absolutely entitled to 
 the freehold. 
 
 As the statute De Donis is still in force, a tenant in Tenant 
 tail cannot effectually pass the fee simple by an ordinary 
 conveyance^ The methods of barring the entail by a fine 
 or recovery were described at length at an earlier stage, 
 but these were swept away by the Fines and Recoveries 
 Act, 1833*. The provisions of that act, in so far as they 
 bear directly on title, have been set out in the last 
 chapter'' and need not be repeated here. In effect the act 
 gave to the tenant in tail as wide powers of disposition as 
 if he were tenant in fee simple, the main differences being 
 
 • See Wolstenholme's Conveyancing Forms, p. 155. 
 2 See post, p. 240 at seq. 
 
 ' Such a conveyance would pass to the purchaser an estate in fee 
 determinable on the death of the tenant in tail by the entry of the issue, 
 or of the remaindermen, or reversioner. 
 
 * Stat. 3 and i WiU. IV. c. 74. ^ Ante, p. 195 et seq. 
 
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234 FIFTH PERIOD 
 
 that, if there were a protector of the settlement, the consent 
 of the protector was necessary to pass the fee simple', and 
 that the conveyance must be effected by deed duly 
 enrolled in the Chancery Division of the High Court^ 
 within six months after its execution by the vendor. 
 Here is a short form of disentailing deed without recitals : 
 
 " This Indenture made under the — day of — 1 9 — , 
 Between [tenant in tail] of, &c., of the one part ; and 
 [grantee to uses] of, &c., of the other part ; Witnesseth that 
 the said [tenant in tail] hereby grants unto the said [grantee] 
 and his heirs ; All and Singular the messuages, lands, and 
 hereditaments in England or Wales of or to which he the 
 said [tenant in tail] is seised or entitled, at law or in equity, 
 for any estate in tail male or in tail under an indenture 
 dated, ifec, and made between [parties], being a settlement 
 made in consideration of the marriage which was shortly 
 afterwards solemnized between [A, £^ and [C, -S], both since 
 deceased, the late father and mother of the said [tenant in 
 tail] or otherwise, To Hold the same Unto the said [grantee] 
 and his heirs, freed and discharged from all estates in tail 
 male or in tail of the said [tenant in tail], at law or in equity, 
 and from all estates, rights, interests, and powers, to take 
 effect after the determination or in defeazance of such estates 
 in tail male or in tail. To the Use of the said [tenant in tail], 
 his heirs and assigns for ever. 
 
 In Witness, &c." ' 
 
 Quasi If an estate pur autre vie be given to a person and 
 
 entail. ^^^ heirs of his body, what is called a quasi entail is 
 created, and this estate is subject to the rules of descent 
 of an estate tail. But the Fines and Recoveries Act does 
 not refer to quasi entails, and these may be barred by 
 other means than those laid down by that act. The 
 owner of such an estate may, if in possession, bar his issue 
 and all remainders by an ordinary deed of conveyance. 
 
 1 Without the consent of the protector nothing more than a base fee 
 can be conferred. 
 
 ^ In " Chancery " at the time of the act. 
 3 Bythewood's Precedents, vi. 782. 
 
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LIMITED OWNERS 235 
 
 If, however, the estate be in remainder expectant on an 
 estate for life, then the concurrence of the tenant for 
 life in possession is necessary to bar the subsequent 
 remaindermen ; without this concurrence no more than 
 a quasi base fee can be created ^ 
 
 It was long usual in settlements to give the tenant Powers of 
 for life powers of sale, subject to various restrictions, over jffg"^ °^ 
 the settled lands, but these express powers are now settled 
 generally omitted in reliance on modern statutory powers. 
 A number of Acts of Parliament have been directed to 
 the object of enlarging the powers of the tenant for life. 
 The Settled Estates Act, 1877=, gave the Court power to 
 authorise sales of settled estates and made a conveyance 
 under the act operate as if the alienor had been specially 
 empowered by a clause in the settlement. The machinery 
 of this act was not found to work very satisfactorily and 
 so the Settled Land Act, 1882', was passed. This great 
 act contains the main body of the law as to dispositions 
 of settled land, although there are several explanatory 
 and amending acts*. Its general effect is to give to 
 the owner for the time being " beneficially entitled to 
 possession"" wide powers of disposition for the benefit 
 of all parties entitled under the settlements and in fact 
 a tenant for life of settled lands has now, as a rule, almost 
 as extensive powers of dealing with the property as a 
 prudent owner would care to exercise. He may grant 
 various leases for agricultural, mining, and building pur- 
 poses or he may sell the whole or any part of the estate 
 
 1 See Allen v. Allen, 2 Dr. and War. 307 et seq. 
 
 2 Stat. 40 and 41 Vict. c. 18. This replaced an act of 1856. 
 
 3 Stat. 45 and 46 Vict. c. 38. 
 
 * The Settled Land Act, 1884 [47 and 48 Vict. c. 18] ; The Settled 
 Land Acts (Amendment) Act, 1887 [50 and 51 Vict. o. 30] ; The Settled 
 Land Act, 1889 [52 and 53 Vict. c. 36] ; The Settled Land Act, 1890 
 [53 and 54 Vict. c. 69]. 
 
 5 "Possession" here includes receipt of rents and profits. Thus a 
 tenant for life does not lose his powers by a lease. 
 
 8 It is very important to ascertain what instruments constitute the 
 "settlement" (defined in § 2), for on this depend the powers of disposition 
 of the tenant for life. 
 
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236 
 
 FIFTH PERIOD 
 
 Powers 
 extended 
 to other 
 limited 
 owners. 
 
 at his own discretion\ except only that in disposing of 
 the principal mansion-house and the pleasure-grounds 
 and parks usually occupied therewith he requires the 
 consent of the trustees of the settlement or an order of 
 the Court. However, as the various powers of disposition 
 and the mode of exercising them were described in the 
 last chapter there is no necessity to add much here. It 
 may be noted that the motive of the tenant for life in 
 effecting a sale under the act is immaterial, that is, it 
 will not affect the validity of the sale, although the 
 tenant, as trustee^, will be responsible for any improper 
 exercise of his powers. The powers of the tenant for life 
 are not assignable ; they cease on a release to the im- 
 mediate remainderman in fee or when there is a complete 
 disentail. In case the powers of the trustees under the 
 settlement should conflict with the statutory powers of 
 the tenant for life it is enacted that the consent of the 
 tenant for life is necessary to the exercise by the trustees 
 of any power, conferred by the settlement, that might be 
 exercised in virtue of the act' 
 
 It should be noticed that all the powers of a tenant 
 for life under the Settled Land Act, 1882, are also ex- 
 pressly conferred on several other limited owners entitled 
 in possession*. Of these the chief are : — (a) a tenant in 
 fee simple, with an executory limitation over, on failure 
 of his issue, or in any other event ; (b) a person entitled 
 to a base fee ; (c) a tenant for years determinable on life, 
 not holding merely under a lease at a rent ; (d) a tenant 
 for the life of another not holding merely under a lease at 
 a rent ; (e) a tenant for his own or any other life, or for 
 years determinable on life, whose estate is liable to cease 
 or be defeated in any event during that life, or is subject 
 to a trust for accumulation of income, (/) a tenant in tail 
 after possibility of issue extinct, (g) a tenant by the 
 curtesy, (h) a person entitled to the income of land under 
 
 1 § 3 ; but every sale must be made at the best price that can 
 reasonably be obtained, § i. 
 
 2 §53. '§56(2). M 58 (ii.— ix.). 
 
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LIMITED OWNERS 237 
 
 a trust or direction for payment thereof to him during his 
 own or any other life, or until sale of the land, or forfeiture 
 of his interest therein. 
 
 In addition to these powers conferred by the Settled O'l^er 
 Land Acts, limited owners are also empowered by a conferred 
 number of statutes to sell for various specific purposes, e.g. °" 1™'*'='^ 
 
 ^ r r ' o owners. 
 
 (a) for sites for schools^ churchyards^ and places of 
 religious worship^, (b) to meet the expenses of inclo.sure 
 under the Commons Inclosure Acts^, (c) to free estates 
 from land tax under the Land Tax Eedemption Acts^ 
 (d) for defence of the realm". And by the Land Clauses 
 Consolidation Act, 1845'', limited owners are empowered 
 to sell land to the promoters of an undertaking of a public 
 nature which is authorised by a special Act of Parliament 
 in which the Act of 1845 is incorporated. 
 
 Before 1881 mortgage deeds usually contained powers Statutory 
 of sale enabling the mortgagee to sell the property of ^aie^by 
 mortgaged if payment were not made at a specified time, mort- 
 By Lord Cranworth's Act, 1860^ a power of sale became ' 
 incident to every mortgage made by deed after the passing 
 of the act, unless a contrary intention were declared by 
 the deed. This provision was, however, seldom relied on 
 in practice and it was repealed by the Conveyancing Act, 
 1881'. The powers of sale conferred on the mortgagee 
 by that act have been given in the last chapter '°. 
 
 The other example of the granting of a larger estate 
 than one possesses is the conversion into a fee simple 
 of the residue of a long term of years. This is per- 
 mitted in cases where it is practically impossible that 
 
 1 Stats. 4 and 5 Vict. c. 38 ; 12 and 13 Vict. c. 49. 
 
 2 Stat. 30 and 31 Viet. o. 133. 
 
 3 Stats. 86 and 37 Vict. c. 50; 45 and 46 Vict. c. 21. 
 ^ A very large number of these acts were passed in Victoria's reign. 
 
 Cp. p. 165. 
 
 ^ Stats. 1 and 2 Vict. e. 57 ; 16 and 17 Vict. cc. 74, 117 and earlier 
 acts of reign of Geo. III. 
 
 6 Stats. 5 and 6 Vict. c. 94 ; 18 and 19 Vict. u. 117 ; 23 and 24 Vict. 
 c. 112. 
 
 ' Stat. 8 and 9 Vict. o. 18. " Stat. 23 and 24 Vict. c. 145. 
 
 9 Stat, 44 and 45 Viot. o. 41, § 71. " See ante, p. 214. 
 
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238 FIFTH PERIOD 
 
 evidence of title to the reversion could exist when 
 the term of years runs out, or where the reversion 
 would be practically valueless. The method of effecting 
 the enlargement in the preceding period was by means 
 of a tortious feoffment', but this was rendered impossible 
 by the Real Property Act, 1 845 1 Now by the Convey- 
 ancing Act, 1881 ^ the term may be enlarged into a fee 
 simple by a declaration in a deed. 
 
 "Thereupon the term shall become and be enlarged accord- 
 ingly, and the person in whom the term previously vested 
 shall acquire and have in the land a fee simple instead of 
 the term-*." 
 
 Bank- The operation of the law of bankruptcy was discussed 
 
 ruptcy. ijj tjjg preceding period^ and a large number of Acts of 
 Parliament dealing with the subject were referred to. 
 Legislation as to bankrupts continued active in the 
 present period, but the earlier statutes" need not be 
 considered, as the law now in force is contained in the 
 Bankruptcy Acts, 1883 and 18901 Under these acts, 
 when bankruptcy proceedings have been instituted, the 
 Coiut may make a receiving order whereby the OflScial 
 Receiver is made receiver of the debtor's property. A 
 general meeting of creditors is held, and after this the 
 Court may adjudge the debtor a bankrupt®. His property 
 then becomes divisible among the creditors and vests 
 without any conveyance in a trustee appointed to ad- 
 minister the estate. This trustee is appointed by the 
 creditors, but his appointment must be approved and 
 certified by the Board of Trade ; and until his appoint- 
 ment the Official Receiver is the trustee for the purposes 
 of the act. The title of the trustee relates back to the 
 
 1 Ante, p. 152. ^ gtat. 8 and 9 Vict. c. 106, § 4. Ante, p. 206, 
 
 3 Stat. 44 and 45 Vict. o. 41, § 65. Ante, p. 217. 
 ■" Ibid. § 65 (3). 5 Ante, p. 168 et seq. 
 
 « Bankruptcy Acts, 1849, 1861, 1869. 
 ' Stats. 46 and 47 Vict. o. 52 ; 53 and 54 Vict. c. 71. 
 ' Adjudication is proved by an oftice copy of tire order, or by a copy 
 of the London Gazette in which it is published. 
 
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BANKEUPTCY 239 
 
 commencement of the bankruptcy. The trustee is en- 
 titled to all the real estate of the bankrupt, except what 
 is held by him in trust for another^ and he may exercise 
 any powers, in respect of property, that the bankrupt 
 might have exercised for his own benefit^ except the right 
 of nomination to a vacant ecclesiastical benefice. And 
 not only is the trustee entitled to all the realty belonging 
 to the bankrupt at the commencement of his bankruptcy, 
 but various alienations of the bankrupt's property, made 
 before bankruptcy, may be set aside in favour of the trustee. 
 Thus any transfer of or charge on property in favour 
 of a creditor made with a view of giving him a preference 
 over other creditors is void if the debtor becomes bankrupt 
 within three months afterwards. Further it is provided 
 that any settlement, not made before and in consideration 
 of marriage, nor in favour of a purchaser in good faith 
 and for valuable consideration^, shall be void as against the 
 trustee in bankruptcy if the settlor becomes bankrupt 
 within two years after the settlement; and if the settlor 
 becomes bankrupt within ten years after the settlement 
 it will be equally void, unless the parties claiming under 
 the settlement can prove that, at the time of settlement, 
 the settlor was able to pay all his debts without the aid 
 of the settled property, and that his interest in that 
 property really passed to the trustee of the settlement at 
 the time of execution. However a purchaser for value 
 from a beneficiary under the settlement has a good title 
 against the trustee in bankruptcy'. The act also provides 
 that any contract in consideration of marriage for the 
 future settlement, on the wife or children of the contractor, 
 of property in which he had no interest at the time of 
 
 1 This remains vested in the bankrupt. See 46 and 47 Viet. c. 52, 
 §44. 
 
 ^ If the power cannot be exercised for the bankrupt's own benefit 
 it remains vested in him. 
 
 2 A settlement on or for the wife or children of the settler will not be 
 set aside if it deals with property that has accrued to the husband after 
 his marriage in right of his wife. 
 
 ■• And this whether he has notice of the settlement or not. 
 
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240 FIFTH PERIOD 
 
 marriage shall be void as against the trustee in bankruptcy 
 if the contractor becomes bankrupt before the property is 
 transferred under the contract. 
 
 The trustee is given wide powers over all the property 
 that vests in him. He may sell or transfer all or any 
 part of it ; he has the same powers as the bankrupt had 
 in dealing with the bankrupt's estates tail ; and what he 
 cannot advantageously sell he may divide among the 
 creditors. Further than this, he may disclaim onerous 
 property, and if the disclaimer be made in writing, signed 
 by the trustee and under the conditions of the act", it 
 determines the rights and liabilities of the bankrupt in 
 respect of the property disclaimed^ 
 
 A bankrupt may be discharged by order of the Court ^, 
 and he is entitled to any property acquired by or devolving 
 on him after the discharge. 
 Infants. Before leaving the subject of conveyances inter vivos 
 
 something must be said as to the modifications due to status. 
 A conveyance by an infanf as owner is voidable at his 
 option, and an infant purchaser can repudiate the con- 
 tracf*. However, by the Infant Settlements Act, 1855, a 
 male infant not under twenty or a female infant not 
 under seventeen is allowed, with the permission of the 
 Chancery Division of the High Court of Justice, to make 
 a valid settlement of property ; but if, in virtue of this 
 act, an infant tenant in tail makes an appointment or a 
 disentailing assurance it will be void in case the infant 
 dies under age. Since infants were not, as a rule", 
 permitted to alienate their property, it was customary in 
 settlements made for the benefit of infants to appoint 
 trustees to manage and, if advisable, dispose of the 
 property. Various powers for these purposes have been 
 
 1 Stats. 46 and 47 Vict. o. 52, § 55 (1), (4) ; 53 and 54 Viet. c. 71, § 13. 
 
 2 Ibid. § 55 (2). 
 
 ^ The discharge is proved by an oflSce copy of the order of discharge. 
 ■* Age is proved by a certificate of birth under the seal of the General 
 Begister Office or by a certificate of baptism. 
 
 5 See Infant's Belief Act, 1874 (37 and 38 Vict. c. 62, § 2). 
 * The custom of gavelkind was the chief exception. 
 
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STATUS 241 
 
 conferred on guardians and trustees by modern statutes. 
 Thus it was enacted that the guardian' of an infant could 
 act on his behalf for the purposes of the Settled Estates 
 Act, 1877 ^ and by the Conveyancing and Law of Property 
 Act, 18S1», 
 
 "where a person in his own right seised of or entitled to land 
 for an estate in fee simple is an infant, the land shall be 
 deemed to be settled estate within the Settled Estates Act, 
 1877." 
 
 The restriction in this clause to estates in fee simple was 
 removed'', and the provisions of former acts extended, by 
 the Settled Land Act, 1882^ This enables the trustees 
 of the settlement, or, if there are none, persons appointed 
 by the Court, to exercise the powers of tenant for life 
 under the act, in case the tenant for life is an infant". 
 
 A conveyance by a lunatic can be avoided by the Lunatic, 
 lunatic's representative or by the person himself on his 
 return to sanity, provided the alienee knew of the in- 
 sanity'; but if a purchaser for valuable consideration 
 had no notice of the insanity the conveyance is valid ^ 
 Similarly with a contract for purchase entered into by 
 a lunatic. Power to sell, exchange or partition a lunatic's 
 property, and to exercise any power vested in the lunatic 
 for his benefit, are given by the Lunacy Act, 1890^ to 
 the committee of the estate of a lunatic so found by 
 inquisition, and in case of a lunatic not so found to such 
 person as the Judge in Lunacy may appoint. The com- 
 
 1 The mother is now a guardian under the Guardianship of Infants 
 Act, 1886 [49 and 50 Viet. o. 27]. 
 
 2 Stat. 40 and 41 Viot. o. 18, § 49. 
 ' Stat. 44 and 45 Vict. e. 41, § 41. 
 
 ^ The only restriction is that the person must be " entitled in 
 possession," and copyholds as well as freeholds are included. However, 
 the infant must not be contingently entitled. 
 
 » Stat. 45 and 46 Vict. c. 38, §§ 59 and 60. Ante, p. 221. 
 
 " The disability of infancy remains, notwithstanding coverture. 
 
 ' This was not always the case. See ante, p. 152, note 1. 
 
 8 See Price v. Berrington, 3 Mac. and G. 486. 
 
 " This consolidates the principal acts dealiug with lunatics. 
 
 M. E. 16 
 
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tions. 
 
 242 FIFTH PERIOD 
 
 raittee of a lunatic may also act for him for the purposes 
 of the Settled Estates Act, 1877 \ and of the Partition 
 Acts, 1868 and 1876^ and of the Settled Land Acts, 1882 
 to 1890'; and by leave of the judge it may take pro- 
 ceedings to have the lunatic made a bankrupts- 
 Corpora- We have seen that in the earlier days the capacity of 
 a corporation to hold land was seriously restricted by the 
 law as to alienation in mortmain. As a corporation could 
 not die like an ordinary person, the lord lost the possibility 
 of regaining his land by escheat, and it was mainly for 
 this reason that the various restraints on alienations in 
 mortmain were imposed from the time of the statute De 
 Religiosis'^ onwards. The modern law on the subject is 
 contained in the Mortmain and Charitable Uses Act, 
 1888°, by virtue of which the conveyance of any realty to 
 a corporation, unless under special licence from the Crown 
 or special statutory power, is a cause of forfeiture to the 
 Crown. However, the Municipal Corporations Act, 1882'', 
 empowers a municipal corporation to purchase land, not 
 exceeding five acres, for certain specific purposes*, and 
 even when the corporation has not power to acquire land 
 a purchase may be effected with the consent of the 
 Treasury ^ The same act empowers the corporation, with 
 the approval of the Treasury, to dispose of its land'", the 
 advowsons attached thereto being sold as the Ecclesiastical 
 Commissioners direct". Under the Universities and 
 College Estates Act, 1858'^ amended by the Universities 
 and College Estates Act Extension, I860", restricted 
 powers of disposition of lands are given to the Universities 
 and Colleges of Oxford, Cambridge, and Durham, and the 
 colleges of Eton and Westminster, and the profits of any 
 such disposition are to be expended in the purchase of 
 
 1 40 and 41 Viet. c. 18, § 49. 2 39 and 40 Vict. c. 17, § 6. 
 
 3 45 and 46 Vict. 0. 38, § 62. « 46 and 47 Vict. c. 52, § 148. 
 
 5 Ante, p. 107. « 51 and 52 Vict. 0. 42. 
 
 !■ 45 and 46 Vict. c. 50. 8 ibj^, § iqS. 
 
 9 Ibid. § 107. i» Ibid. § 109. 
 
 " Ibid. § 122 (1). 12 21 and 22 Vict. c. 44. 
 
 13 23 and 24 Vict. c. 59. 
 
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STATUS 243 
 
 other lands for the corporations. The Act 14 and 15 
 Vict. 0. 104 gave similar powers to ecclesiastical cor- 
 porations acting with the approval, in writing, of the 
 Church Estates Commissioners^ The realty belonging to 
 a parish is vested in the churchwardens and overseers of 
 the poor, and these were empowered^ to purchase land to 
 the extent of fifty acres for the employment of the poor ; 
 but this power was afterwards' transferred to the guardians 
 of the poor, or if there are no guardians to the overseers 
 acting under the control of the Local Government Board. 
 
 Public companies incorporated by special Acts of 
 Parliament are usually empowered thereby to purchase 
 lands for the purposes of their business without special 
 licence from the Crown, and this provision applies to joint 
 stock companies registered under the Companies Act, 
 1862^- The power is, however, limited to trading com- 
 panies that have no tendency to withdraw the land from 
 the possibility of alienation, and the act provides that 
 a company formed for the promotion of science, art, 
 charity, religion, or the like may not hold more than 
 two acres unless with special licence from the Board of 
 Traded 
 
 It has been seen" that a long series of Acts of The 
 Parliament has taken from the Crown the powers of 
 disposing of its land, and vested them, with various re- 
 strictions, in commissioners. An act of Victoria's reign" 
 declares that none of the restraints on alienation imposed 
 on the Sovereign by the earlier acts are to extend to the 
 private estates of the Sovereign. These private estates 
 may be disposed of by the Sovereign in the manner 
 provided by § 4 of 39 & 40 Geo. III. c. 88 ; but a will 
 concerning such estates does not require publication, and 
 it is valid and effectual if signed by the testator or 
 
 1 §6. 
 
 ' By Stat. 59 Geo. III. c. 12, § 12 ; altered by Stat. 1 and 2 Will. IV. 
 
 c. 42. 
 
 ' By Stat. 5 and 6 Will. IV. o. 69. 
 
 * 25 and 26 Vict. o. 89, § 18. '^ Ibid- § 33. 
 
 6 ^nte, p. 156. ' 25 and 26 Vict, e. 37, § 2. 
 
 16—2 
 
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244 FIFTH PERIOD 
 
 testatrix, or by some other person in his or her presence, 
 and by his or her direction, in the presence of two 
 witnesses. On the demise of the Sovereign the private 
 estates descend according to § 5 of 39 & 40 Geo. III. c. 88^. 
 Married We have seen that at common law a married woman 
 
 Women, ^^g^g incapable of entering into any contract except as the 
 agent of another person, and that, until the Fines and 
 Kecoveries Act, 1833, the only way in which she could 
 convey a freehold, not settled to her separate use, was by 
 a fine. The Act of 1833, as amended by the Conveyancing 
 Act of 1882^, enables a married woman to dispose of her 
 freehold as if she were a feme sole ; but the disposition 
 must be made by a deed in which her husband concurs. 
 This deed must be acknowledged by the married woman 
 after she has been examined, apart from her husband, as to 
 her knowledge of its contents and her assent to the 
 disposition. The acknowledgment must be made before 
 a judge of a superior or county court, or a master in 
 Chancery, or a commissioner appointed for the purpose, 
 and a memorandum of the acknowledgment must be 
 indorsed on the deed^ These formalities were also 
 necessary in the case of a married woman, tenant in tail, 
 executing a deed to bar the entail^ and also in the 
 conveyance of future or contingent interests'. The 
 changes introduced by the Married Women's Property 
 Act, 1870^, affected the wife's equitable and not her 
 legal interests, and so will come more appropriately 
 under the head of Equity, and they have been rendered 
 insignificant hj the Married Women's Property Act of 
 1882' which came into operation on the 1st of January, 
 
 1 25 and 26 Vict. o. 37, §§ 5, 7. « 45 and 46 Vict. u. 39, § 7. 
 
 ^ An indorsed memorandum of acknowledgment is not sufficient 
 evidence of the acknowledgment. See Jolly i'. Handcock, 7 Ex. 820. 
 
 ^ 3 and 4 Will. IV. c. 74, § 40. Ante, p. 197. But see infra, 
 M. W. P. A. 1882, p. 245, note 2. 
 
 " 8 and 9 Vict. c. 106, § 6. Ante, p. 207. 
 
 " 83 and 34 Viot. 0. 93, repealed as from the 1st of Jan. 1883, without 
 prejudice to any right acquired wliile it was in force. 
 
 7 45 and 46 Vict. c. 75. Ante, p. 221. 
 
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STATUS 245 
 
 1883. This is an epoch in the history of married women's 
 property, for by the act every woman married after 1882, 
 and, as far as regards property acquired after 1882, every 
 woman married before 1883, is given the power of acquir- 
 ing, holding and disposing of any real property just as if 
 she were a /erne sole^. No trustee is necessary, and the 
 concurrence of the husband in any disposition is not 
 required''. Of course she may still be deprived of this 
 power of disposition by a restraint on anticipation. Such 
 a restraint frequently gives rise to difficulties when a 
 married woman wishes to acquire property, but notwith- 
 standing the restraint 
 
 " the Court may, if it thinks fit, where it appears to the 
 Court to be for her benefit, by judgment or order, with her 
 consent, bind her interest in any property^." 
 
 Formerly a husband and wife were regarded for some 
 purposes as one person, and so could not convey lands 
 to one another directly; but this rule has now been 
 abandoned*. Further than this, on a gift of lands to 
 husband and wife they took by entireties, and not as joint 
 tenants; but, after the Act of 1882, they take like two 
 unmarried persons^ The change has not, however, been 
 carried out quite consistently, for husband and wife still 
 take only as one person if there is a gift to them and 
 others in joint tenancy or tenancy in common, unless 
 a contrary intention is clearly expressed''. Under the 
 Settled Land Act, 1882', where a married woman tenant 
 for life is entitled for her separate use, or under any 
 statute for her separate property, or as a feme sole, then 
 
 ^ Except where she is a trustee [other than a bare trustee ; see 
 Trustee Act, 1893, § 16], in which case an acknowledgment of the deed 
 is still necessary. 
 
 ^ e.g. in a case to which the act applies she may bar an estate tail 
 without acknowledgment of the deed. See Re Drummond and Davies' 
 Contract, 1891, 1 Ch. 524. 
 
 3 Conveyancing Act, 1881, § 39. '■ Ibid. § 50. 
 
 ii Re March, 27 Ch. D. 166 ; Thmnley v. Thornley, 1893, 2 Ch. 229. 
 
 « Re Jupp, 39 Ch. D. 148, and Re March, 27 Ch. T). 166. 
 
 ' Stat. 45 and 46 Vict. c. 38, § 61. 
 
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246 FIFTH PERIOD 
 
 she can exercise the powers of a tenant for life under the 
 act without her husband; but when she is otherwise 
 entitled then the husband and wife together have the 
 powers of a tenant for life^ A restraint on anticipation 
 does not prevent a married woman from exercising her 
 power, and she does not require the concurrence of her 
 husband in the execution of instruments". After the 
 Married Women's Property Act, 1882, the only case' in 
 which the concurrence of the husband is required is where 
 the wife is not entitled for her separate use and both 
 marriage and settlement are prior to 1883. 
 
 Felons. It has been observed that, from very early times, a 
 
 person attainted of high treason forfeited his lands to the 
 Crown, whether the lands were held in fee simple or fee 
 tail. In cases of petit treason or murder, and, until 54 
 Geo. III. c. 145, in all cases of felony, the lands escheated 
 on attainder of the tenant to the lord of the fee if held in 
 fee simple, but if held in fee tail they devolved on the 
 issue in tail. After the act just mentioned there were a 
 number of felonies in which no attainder took place, but, 
 except in these cases, a convict could not alienate realty 
 previously vested in him so as to defeat the rights of the 
 Crown or lord. The law was changed by the Forfeiture 
 Act of 1870'', forfeiture to the Crown or lord was abolished, 
 but convicts were still made incapable of alienating in any 
 other manner than that prescribed by the act. Provision 
 was made for the appointment of an administrator in whom 
 all the convict's property vests and who has absolute 
 power to deal with the property as he thinks fit^ The 
 property is preserved for the convict" and reverts to him 
 or to his representatives when he completes his sentence, 
 is pardoned, or dies. 
 
 Aliens. The powers of aliens to acquire and dispose of realty 
 
 1 Stat. 45 and 46 Vict. c. 38, § 61 (2), (3). = Ibid. § 61 (5), (6). 
 
 " But see post, p. 268, re trustee. * 33 and 34 Vict. u. 23. 
 
 '■ §§ 9, 12. The act, however, does not affect property acquired by 
 the convict while lawfully at large under a licence. 
 ^ Except he has been outlawed. 
 
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STATUS 247 
 
 have been entirely altered by the Naturalization Act, 
 1870', which places them on the same footing as natural- 
 born British subjects. The act, however, is not retrospec- 
 tive'', so that a knowledge of the earlier law is still 
 occasionally required. At common law aliens were 
 allowed to purchase real estate, but they could not hold 
 it securely as the Crown might at any time claim the 
 property'. And this insecurity was transmitted to any- 
 one who acquired the property from the alien, as the 
 conveyance did not affect the right of the Crown to 
 i-e-enter. However the rule was somewhat modified by 
 Stat. 32 Hen. VIII., c. 16, § 13, which allowed friendly 
 alien merchants to acquire and hold houses for their own 
 habitation. 
 
 We have been considering disabilities due to status. Disability 
 In addition to this it should be noted that there are a few statute or 
 cases in which special disabilities are imposed by stati^te. public 
 Thus the General Inclosure Act^ forbids the commissioners 
 acting under this statute to purchase any land, in respect 
 of which an inclosure is made, within five years of the 
 inclosure, and a similar disability is imposed on the 
 valuers under the Commons Inclosure Actl In some 
 cases, although there is no special act, a disability arises 
 from considerations of public policy. Thus a bishop may 
 not purchase an annuity upon a rectory, as his consent is 
 necessary to the charge of the annuity, and similarly an 
 arbitrator may not purchase the claims of the parties to 
 the arbitration until he has settled those claims. 
 
 Turning now from alienation inter vivos to alienation Wills. 
 by will, it should be noted that modern wills (made since 
 31st Dec. 1837) are governed by the Wills Act, 1837', the 
 
 1 33 Vict. c. 14, amended by 33 and 34 Vict. u. 102 ; 35 and 36 Vict. 
 c. 39 ; 58 and 59 Vict. c. 43. 
 
 2 See Sharp v. St Sauveur, L. B. 7 Ch. 343. 
 
 3 Coke, Littleton 2 b. 
 •" 41 Geo. III. i;. 100. 
 
 5 8 and 9 Vict. c. 118, § 120. The term is seven years in this case. 
 
 6 Stat. 1 Vict. c. 26. 
 
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248 FIFTH PERIOD 
 
 most important sections of which have been considered in 
 the last chapter^ From what was there said it will be 
 seen that although every instrument purporting to be a 
 will is not so regarded by the Courts, yet no special form 
 is necessary to the validity of the document, and, if the 
 provisions of the Wills Act are complied with, anything 
 that is intended not to take effect until the maker's death 
 is construed as a will, even although in form it is a 
 disposition inter vivos. The act makes it 
 
 "lawful for every person to devise by his will, executed in 
 proper manner, all real estate to which he shall be entitled, 
 either at law or inequity, at the time of his death, and which, 
 if not so devised, bequeathed, or disposed of, would descend 
 upon the heir at law or customary heir''." 
 
 Restraints However, in spite of this very wide power of disposition, it 
 tiou ^^^^' should be noted that there are some devises that the law 
 refuses to carry out from considerations of public policy. 
 Thus gifts to superstitious and charitable uses are dis- 
 couraged, the earlier law as to alienation of lands for 
 charitable purposes being repealed and replaced by the 
 Mortmain and Charitable Uses Act, 1888^. Every 
 assurance of realty, coming within the operation of the 
 statute, must be made strictly in accordance with the 
 provisions of the act, and a will was altogether prohibited. 
 This rigid rule was amended by an act of 1891* which 
 permitted an assurance of land for charitable purposes by 
 will, but provided that the land must, as a rule, be sold 
 within a year for the benefit of the testator^ Besides 
 these restrictions on alienation for charitable purposes, a 
 devise must not contain conditions contrary to the rule 
 
 ' Ante, p. 203 et seq. 
 
 - 1 Vict. u. 26, § 3 ; but as to trust estates (not being copyhold or 
 customary tenure) see 2'ost, p. 263. As to whether a quasi tenant in tai' 
 can devise without some other act to bar the entail, there is a conflict 
 of authorities. See Doe v. Luxton, 6 T. R. 293 ; Campbell v. Sandys, 
 1 Soh. and L. 274. 
 
 ■> Stat. 51 and 52 Vict. v. 42. * Stat. 54 and 55 Vict. c. 73. 
 
 '' The restrictions have been relaxed in favour of various charitable 
 institutions. See ante, p. 242, sab tit. Corporations. 
 
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WILLS 249 
 
 against perpetuities or that against accumulation', nor a 
 condition imposing an unqualified restriction on marriage^ 
 
 Not uncommonly a devise fails through uncertainty as Ambigui- 
 to the subject or object, and this defect cannot be remedied indefinite 
 by extrinsic evidence as to what was meant. In all cases, gifts in 
 however, the Courts are anxious to carry out the intention 
 of the testator, and in their efforts to do this they will 
 admit parol evidence to clear up difficulties arising from 
 the use of vague or inconsistent terms, wherever there is a 
 clear intention to dispose of the property. Before the 
 Wills Act, 1837, a devise in general terms did not convey 
 more than an estate for life, if the proper terms to create 
 a larger estate were not employed ; but this narrow rule ■ 
 of construction was set aside by that act'. Generally 
 speaking, a gift to several persons simply makes them 
 joint tenants; but in a will a slight indication of an 
 intention to create a tenancy in common suffices to do so. 
 
 In some cases an estate is created by a will although Estates 
 not explicitly mentioned at all. This occurs when the jmpiica- ^ 
 devise is such that there is a strong probability that the tion. 
 testator intended to create the estate*. Thus an estate 
 for life is often implied from a future devise to the heir- 
 at-law, e.g. if J., an owner in fee simple, devises the estate 
 to B, his heir-at-law, after the death of G and there is no 
 residuary devise, then G takes a life estate by implication, 
 for A would not have devised the estate to B in the future 
 unless he meant someone else to hold it in the meantime. 
 However a devise to B and others, to take effect after the 
 death of G, would raise no implication that C should take 
 a life estate. Under the earlier law, if A devised realty 
 to B in fee in case G (A's heir-apparent) should die without 
 
 1 Stat. 39 and 40 Geo. III. c. 98 (the Accumulations Act, 1800, 
 commonly called the Thellusson Act), also Stat. 55 and 56 Vict. c. 58. 
 
 2 See Jones v. Jones, 1 Q. B. D. 279. There is no objection to such 
 restraint in case the devisee is a widow or widower. See Newton 
 V. Marsden, 2 J. H. 356, and Allen v. Jackson, 1 Ch. D. 399. 
 
 3 § 28, ante, p. 205. 
 
 * See Lord Eldon, 1 Ves. and B. 466, and Gardner v. Sheldon in 
 Tudor's L. C. 625. 
 
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abilities. 
 
 250 FIFTH PERIOD 
 
 issue, then the heir-apparent took an estate tail by impli- 
 cation ' ; the words " die without issue '' being construed to 
 mean failure of issue at death or any time afterwards. 
 This rule of construction was altered by the Wills Act", 
 after which, where the prior devisee would formerly have 
 been tenant in tail with remainder over, he took an estate 
 in fee simple subject to an executory devise in the event 
 of his dying without leaving issue at his death. If 
 lands are devised to several persons as tenants in common 
 in tail, and, upon failure of their issue, to another person 
 A, and if it is intended that all the lands should pass 
 together to A but not until the failure of issue of all the 
 tenants in tail, then cross remainders are implied as- 
 between these tenants, so that each takes a vested 
 remainder in tail, expectant on the other's estate. 
 Dis- As to the effect of status on the validity of a will 
 
 something was said in the preceding period'; but impor- 
 tant changes have been effected since that time. Under 
 the old law the will of an infant was generally void, but 
 infants might devise by special custom. Now, by the Wills 
 Act, 1837*, no will made by an infant is valid. Before 
 1882 a married woman had, generally speaking, no power 
 to make a will, but now she can dispose of property coming 
 under the operation of the Married Women's Property 
 Act, 1882'^, as if she were a feme sole. It was held, 
 however, that the operation of the first section of this 
 act must be confined to property acquired during the 
 coverture', and so that the will of a feme covert must be 
 made or republished during widowhood in order to dispose 
 of property acquired after the determination of the 
 coverture'. This was altered by the Married Women's 
 Property Act, 1893', which enacted that 
 
 1 If however C were a stranger the ease was different, for then the 
 devise over was not to the heir, and it was void as an executory devise 
 taking effect after an indefinite failure of issue. 
 
 2 § 29, ante, p. 205. » Ante, p. 166. ■■ § 7, ante, p. 204. 
 Ante, p. 221. « Re Price, 28 Ch. D. 709. 
 ' See Willoclc v. Noble [L. E. 7 H. L. 680]. 
 8 56 and 57 Vict. c. 63, § 3. 
 
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WILLS 251 
 
 "§ 24 of the Wills Act, 1837, shall apply to the will of a, 
 married woman made during coverture, whether she is or is 
 not possessed of or entitled to any separate property at the 
 time of making it, and such will shall not require to be 
 re-executed or republished after the death of her husband'." 
 
 At common law the devise of lands by an alien was 
 voidable, as the Crown might seize the lands ; but this 
 incapacity was removed by the Naturalization Act, 1870'', 
 which also made aliens capable of acquiring realty in the 
 same way as a natural-born British subject. Lastly, it 
 should be noted that the disabilities of felons were 
 removed by the Forfeiture Act, 1870^ 
 
 It is not unquestionable that a testament, properly made Eevoca- 
 by a person under no disability, will be accepted as satis- ^°^ ° * 
 factory evidence of title, for it may have been revoked. A 
 will is revoked by marriage, except when made in exercise 
 of a power of appointment*. It may also be revoked by 
 burning, cancelling, tearing, or obliterating, provided this 
 is done with intent to revoke the will, a matter to be 
 proved by evidence. A subsequent will or codicil may 
 revoke the earlier one, and revocation is also effected 
 by alienating or altering the estate °. Formerly, too, a 
 conveyance even if void nullified the devise of the estate, 
 provided the invalidity in the conveyance arose merely 
 from the incapacity of the grantee or the want of some 
 ceremony ; but this has been altered by the Wills Act. 
 
 As to evidence of title, it should be remarked that the Evidence 
 original will itself is the proper evidence. However the ? -^ 
 Court of Probate Act, 18-57^, makes the probate after proof 
 
 ' This section applies to wills, whenever executed, of women dying 
 after the date of the act. Re Wylie [1895], 2 Ch. 116. 
 
 2 Stat. 33 Vict. c. 14. It should be observed that the act was not 
 retrospective. 
 
 3 Stat. 33 and 34 Vict. o. 28. 
 
 * Wills Act, § 18, ante, p. 204, and this revocation cannot be 
 prevented by any declaration to the contrary. 
 
 ^ The revocation applies only to the part of the will dealing with the 
 estate subsequently alienated or altered. See Wills Act, 
 
 6 Stat. 20 and 21 Vict. o. 77, §§ 62, 64, 
 
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252 
 
 FIFTH PERIOD 
 
 Devolu- 
 tion of a 
 devise. 
 
 Descent. 
 
 in solemn form conclusive evidence as against persons 
 cited to attend the proof; and if the validity of the will 
 is not in question the act also allows the probate, or an 
 office copy, of the will to be given in evidence. 
 
 It has been seen that the drift of modern legislation is 
 to assimilate the devolution of realty to that of personalty. 
 An important movement in this direction was made by 
 the Land Transfer Act, 1897' Before Jan. 1st, 1898, on 
 the death of the testator the land passed at once to the 
 devisee. Now, however, it devolves first on his personal 
 representatives as if it were a chattel reaP. The personal 
 representatives hold the realty as trustees for the devisee^, 
 but the latter is not entitled until the assent of all the 
 personal representatives has been obtained*. No special 
 form of assent is prescribed except in the case of registered 
 land^ If, however, the personal representatives fail to 
 convey within a year of the death of the testator, appli- 
 cation may be made to the Court to carry out the 
 conveyance ^ 
 
 Inheritance remains, as before, one of the most common 
 of titles. Some important changes in the rules of descent 
 were made by the Inheritance Act, 1833', and the de- 
 volution of an estate vested in a person solely as trustee 
 or mortgagee has been several times altered within the 
 present periods A change was introduced, too, by the 
 Intestates' Estates Act, 1890^ which gives the widow a 
 
 1 Stat. 60 and 61 Vict. c. 65, ante, p. 222. 
 
 ^ Ibid. § 1. Until administration is taken out the legal estate remains 
 in the heir. See John v. John [1898], 2 Ch. 573. 
 
 ■> Ibid. § 2 (1). ^ Ibid. § 2 (2) and § 3 (1). 
 
 = Ibid. § 3 (4) and § 6 (5), and see also Land Transfer Eules, i. 180, 
 form 46. 
 
 ^ Ibid. § 3 (2) ; § 4 also provides for the appropriation of part of the 
 residuary estate in satisfaction of a legacy or share in the residuary estate 
 with consent of the person entitled ; but before such appropriation is 
 effectual, notice must be given to all persons interested in the residuary 
 estate, and this notice is part of the title to the appropriated land. 
 
 ' Stat. 3 and 4 Will. IV. c. 106, ante, p. 202. s gee post, p. 264. 
 
 ^ 53 and 54 Vict. e. 29. The act does not apply to the case of partial 
 intestacy. See Re Twigg, Twigg v. Black [1892], 1 Ch. 579. 
 
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DOWER 253 
 
 title to £500 worth of the estate (or the whole estate if 
 its value does not exceed that amount) in case the 
 husband dies intestate and without issue. Lastly, it must 
 be noticed that all that has just been said under the head 
 of Wills with reference to the devolution of an estate 
 under the Land Transfer Act, 1897, applies equally to the 
 case of succession on intestacy. The heir does not 
 succeed at once, as the property must first pass to the 
 executor or administrator, whose assent to the conveyance 
 is necessary to complete the transfer. 
 
 The law as to dower, after remaining for centuries Dower, 
 very much as Littleton described it\ was almost entirely 
 changed at the outset of the present period by the Dower 
 Act, 1833^ The main provisions of that act were dis- 
 cussed in the last chapter and little further comment is 
 necessary. It may be added that, before the Dower Act, a 
 question often arose as to whether a widow was put to her 
 election between her dower and a benefit conferred by her 
 husband's will. After the act, however, the widow can 
 have no right in a freehold that cannot be defeated by the 
 husband's will. A dissohition of marriage under the 
 Divorce Act^ also destroys any right to dower. When 
 the Dower Act was discussed in the last chapter it was 
 pointed out that dower has lost most of its importance by 
 being placed completely in the hands of the husband; 
 but, of course, if the husband takes no steps to bar the 
 dower the right of his widow remains. In such a case, if 
 a conveyance is taken from the heir at law the con- 
 currence of the widow to release her dower should be 
 obtained, and this is usually done by inserting a clause in 
 the deed of conveyance, thus : — 
 
 "And whereas the said [dowress] being satisfied with the 
 provision made for her by the said [vendor] in lieu and 
 satisfaction of her dower (as she hereby acknowledges), has 
 
 1 Ante, p. 127. 
 
 2 3 and 4 Will. IV. o. 105, ante, p. 201. The act applies to gavelkind 
 land [see Farley v. Bovliam, 2 J. and H. 177], but not to copyhold. 
 
 s 20 and 21 Vict. c. 85. 
 
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254 FIFTH PERIOD 
 
 agreed to join in these presents for the purposes and in 
 
 manner hereinafter appearing : To Hold all the premises 
 
 unto and to the use of the said [purchaser], his heirs and 
 assigns, Freed and discharged from all dower of the said 
 [dowress] and all rights, claims and demands in respect 
 thereof." 
 
 Curtesy. Dower having been struck at in 1833, Curtesy received 
 
 an almost equally severe blow by the Married Women's 
 Property Act, 1882. Before that act the sphere of 
 operation of the rules as to curtesy had been somewhat 
 extended, rather than diminished, since our last reference 
 to the subject. In order that the husband could be 
 entitled the wife must, as a rule, have obtained actual 
 seisin, but if the circumstances were such that this was 
 impossible, then a seisin in law sufficed. This doctrine of 
 seisin in law was extended' to the case of a wife to whom 
 lands had been devised by her father and who had died 
 before the father, her existence being artificially con- 
 tinued, by § 33 of the Wills Act, so as to prevent a lapse. 
 The Married Women's Property Act, 1882^, contains 
 no explicit reference to curtesy, but it places the whole 
 matter in the hands of the wife by enabling her to 
 dispose of her property " as if she were a fe7ne sole, 
 without the intervention of any trusteed" She is now a 
 separate person, and the husband takes nothing during 
 the coverture. It is only when the wife dies intestate 
 that the husband gets the estate by the curtesy in cases 
 where he would have done so before the act. Thus the 
 old curtesy has practically disappeared, and the husband 
 has no present freehold in right of his wife, nor can he 
 have any remainder, as there is no particular estate to 
 support it. Dower and curtesy are now under control, 
 the former of the husband, the latter of the wife, and both 
 are practically merely rights of succession on intestacy. 
 As with dower, however, if no steps are taken to prevent 
 the right accruing the old rules maintain, and a purchaser 
 
 1 See Eager v. Furnivall, 17 Ch. D. 115. 
 
 -■ 45 and 46 Vict. u. 75, ante, p. 221. -^ Ibid. § 1. 
 
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PRESCRIPTION 255 
 
 is subject to the interest of the tenant by the curtesy 
 unless the latter concurs in the conveyance. 
 
 In the last chapter we began the survey of modern Prescrip- 
 legislation by an account of the Prescription Act, 1832\ ''""' 
 and, after what was there said, little need be added here. 
 As was pointed out before, the act is of importance in the 
 history of the subject, in that it sets up a new species of 
 prescription. At the same time it is merely supplementary 
 to the earlier law considered in previous periods, and that 
 earlier law is applied to all cases that do not come within 
 the provisions of the Act of 18321 
 
 Analogous to the operation of Prescription is the Limitation 
 action of Statutes of Limitation, by means of which 
 interests in realty are lost by a person otherwise entitled 
 against one in possession for a sufficient length of time. 
 In early times, as has been seen, no definite period of 
 years was fixed, but the limit was set at some notable 
 time, the beginning of the reign of a king. This principle 
 was abandoned in favour of a fixed interval of years in 
 the reign of Hen. VIII.^, and the law on the subject was 
 further modified by statute in the time of James I.^ On 
 this statutory basis the law remained until the present 
 period, but it was very confused and unsatisfactory. The 
 period of limitation was different for different actions as 
 well as for different rights, and a complicated doctrine of 
 adverse possession involved the subject in almost hopeless 
 confusion''- This doctrine of adverse possession in the old 
 sense was abolished, and the whole law on the subject 
 of limitations remodelled and greatly simplified, by the 
 Statute of Limitations, 1833". A more recent acf has 
 shortened the periods of limitation, but has not otherwise 
 seriously affected the earlier law. It should be noted that 
 
 1 Stat. 2 and 3 Will. IV. c. 71. Ante, p. 190. 
 
 2 See Aynsley v. Glover, L. E. 10 Ch. 283. 
 
 3 Stat. 32 Hen. VIII. e. 2. " 21 Jae. I. o. 16. 
 
 5 Even Lord Mansfield remarked, "The more we read the more we 
 shall be confounded." See Taylor d. Atkijns v. Horde, 2 Smith's L. C. 
 
 6 3 and 4 Will. c. 27, ante, p. 192. 
 
 ' 37 and 38 Vict. c. 57, ante, p. 208. 
 
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256 FIFTH PERIOD 
 
 these enactments do not extend to the Crown'; but a 
 period of limitation of sixty years has been fixed for 
 various Crown rights ^ 
 
 Copyholda. Several changes have been introduced in the methods 
 of alienating copyholds ^ although the main body of the 
 law remains as before. Surrender and admittance is still 
 the usual method, and custom' is supreme in regulating 
 the form and language used in the conveyance. A sur- 
 
 Surrender. render is evidenced by a copy of the Court roll signed 
 by the steward. Formerly, if the surrender were made 
 out of Court it was necessary that it should be presented 
 by the copyholders in attendance at the next Court, 
 but the necessity for this presentment was abolished by 
 Stat. 4 & 5 Vict. c. 35, § S9^ which makes an entry of the 
 surrender on the Court rolls suffice. Such an entry usually 
 runs somewhat as follows : — 
 
 " Manor of ■ 
 
 in the 
 County of 
 
 Be it remembered that on the — day of 
 (fee. A-£ [vendor] of (fee, one of the copy- 
 hold tenants of the .said manor, came 
 
 before C-D, gentleman, steward of the said manor, and in 
 consideration of the sum of £ — to the said A-£ then paid 
 by £!-F [purchaser] of, (fee, did out of Court surrender into 
 the hands of the lord of the said manor by the hands and 
 acceptance of the said steward by the rod, according to the 
 custom of the said manor. All That [here is inserted a 
 description of the lands from the copy of the Court rolls]*, 
 with the appurtenances. To The Use of the said M-F his heirs 
 and assigns, for ever. To Hold by Copy of Court Roll, at the 
 will of the lord, according to the custom of the said manor, 
 
 1 Cf. p. 174, note 1. 
 
 " Stats. 9 Geo. III. o. 16 ; 23 and 24 Vict. c. 53 ; 24 and 25 Viot. 
 0. 62. 
 
 3 Customary freeholds are subject to rules very similar to those 
 dealing with copyholds. 
 
 ■* Custom is proved by the steward's certificate. 
 
 " Replaced by the Copyhold Act, 1894, Stat. 57 and 58 Viot. c. 46, 
 §85. 
 
 " The lord can refuse to accept a surrender it the parcels are not 
 described as on the Court rolls. 
 
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COPYHOLDS 257 
 
 and at by and under the rents and services therefor due and 
 of right accustomed." 
 
 And to a certified copy is added, 
 " This surrender was taken and accepted | 
 the day and year above written i 
 
 By me, J-K, steward of the said manor." 
 
 Unless there be a custom to the contrary, the surrender 
 may be made by attorney. Once the surrender has been 
 made the vendor is a tru.stee for the surrenderee^ whose 
 title, after admittance, relates back to the date of the 
 surrender. 
 
 Admittance must be in accordance with the terms Admit- 
 of the surrender. When made immediately after the 
 surrender the record, of it proceeds thus : — 
 
 " Whereupon to the Court comes in his proper person the 
 said E-F and prays to be admitted tenant to the tenements 
 and premises hereinbefore described, to whom the said lord 
 of the manor by the steward thereof grants seisin thereof 
 by the rod according to the custom of this manor : To Hold 
 to him, his heirs and assigns, at the will of the lord, according 
 to the custom of the said manor, by the rents and services 
 therefor due and of right accustomed, and he pays — to a 
 fine, and his fealty is respited, and he is admitted tenant." 
 
 If the admittance is not made immediately after surren- 
 der then the record of the admittance must contain recitals 
 showing when and at what Court the surrender was made, 
 etc. Admittance may be by attorney ^, and, whereas formerly 
 it must take place in the customary Court, it may now be 
 effected anywhere'. Unless there is a custom to the 
 contrary the admittance of a particular tenant suffices for 
 all remaindermen, so also one of several joint tenants for 
 all ; but tenants in common must be admitted separately. 
 
 1 The surrenderee may alienate his equitable right inter vivos, or 
 allow it to descend to his heir, or devise it by will. See Wills Act, 1837, 
 Stat. 1 Viet. o. 26, §§ 3, 4, 5. 
 
 2 Copyhold Act, 1887, Stat. 50 and 51 Vict. c. 73, § 2. 
 
 3 Copyhold Act, 1841, replaced by Stat. 57 and 58 Vict. c. 46 (Copy- 
 hold Act, 1894). 
 
 M. E. 17 
 
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258 FIFTH PERIOD 
 
 Special provision has been made by statute for ad- 
 mitting an infant either in person or by attorney or 
 guardian ^ and of a lunatic by his committee or by attorney 
 appointed by the lord of the manor^. 
 
 A married woman may also be admitted', and under 
 the Married Women's Property Act, 1882, she may dispose 
 of copyholds which are her separate property under that 
 act as if she were a feme sole. Corporations aggregate 
 cannot be copyholders^, but there is not the same dis- 
 ability with corporations sole. As copyholds are with- 
 in the Mortmain Act (9 Geo. II. c. 36) the provisions of 
 that act must be complied with for a valid conveyance to 
 charitable uses. 
 
 In case of a grant of a copyhold by the lord, a 
 
 memorandum of the grant is entered on the Court rolls 
 
 as in the case of an ordinary admittance^ If the lord be 
 
 an infant, his guardian, or, if he have no guardian, a 
 
 person appointed by the Board of Agriculture, may act on 
 
 his behalf, and if a lunatic, his committee may do so^ 
 
 By the Copyhold Act, 1894, a married woman, lady of a 
 
 manor, is for the purposes of that act to be deemed a. feme 
 
 sole. 
 
 other It was noticed in earlier periods that custom ruled the 
 
 modes of copyholder, and that it was not possible to depart from 
 
 anoe inter the Customary modes of conveyance, any attempt to do so 
 
 VIVOS. being a cause of forfeiture to the lord of the manor. In 
 
 some cases, however, the legislature has interfered, and 
 
 introduced new methods of dealing with copyholds, (a) 
 
 Thus the Fines and Recoveries Act, 1833^ enabled an 
 
 1 Stats. 11 Geo. IV. and 1 WiU. IV. e. 65, §§ 3—8. 
 
 2 Lunacy Act, 1890, Stat. 53 and 54 Vict. c. 5, § 125. 
 
 3 Stat. 11 Geo. IV. and 1 Will. IV. o. 65, §§ 3—5. 
 
 " But they may have an equitable estate iu copyholds. 
 
 " By the Copyhold Act, 1887 (50 and 51 Vict. c. 73, § 6) the consent 
 of the Lands Commissioners is necessary before a new grant of lands, not 
 previously of copyhold tenure, may be held by copy of Court roll. 
 
 « Copyhold Act, 1894, Stat. 57 and 58 Vict. u. 46, § 45. 
 
 ' Lunacy Act, 1890, Stat. 53 and 54 Vict. u. 5. 
 
 8 § 60, ante, p. 198. 
 
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COPYHOLDS 259 
 
 estate tail to be barred by surrender even although the 
 custom of the manor might have presented some other 
 mode. If the property is held under a settlement the 
 consent of the protector is required and must be evidenced 
 by deed, and this deed must be produced to the lord 
 of the manor (or his steward or deputy steward), endorsed 
 by him, and then entered on the Court rolls \ (6) The 
 Real Property Act, 1845'^, enables 
 
 "a contingent, an executory and a future interest and a 
 possibility coupled with an interest in any tenements or 
 hereditaments of any tenure" 
 
 to be disposed of by deed, (c) Copyholds are included in 
 the Settled Lands Act, 1882, and, by § 20 of that act, the 
 tenant for life is empowered to convey by deed entered on 
 the Court rolls, and, when this has been done and the 
 customary fines paid, 
 
 " any person whose title under the deed requires to be 
 perfected by admittance shall be admitted accordingly." 
 
 (d) When copyholds are purchased under compulsory 
 powers they are conveyed by deed under the Land Clauses 
 Consolidation Act, 1845'; but the deed must be entered 
 by the steward on the Court rolls of the manor, (e) The 
 Bankruptcy Act, ISSS'', gives the trustee in bankruptcj'- 
 full power to dispose of the bankrupt's copyhold for the 
 benefit of the creditors, and the trustee cannot be com- 
 pelled to be admitted to the property, 
 
 " but may deal with it in the same manner as if it had been 
 capable of being and had been duly surrendered or otherwise 
 conveyed to such uses as the trustee may appoint ; and any 
 appointee of the trustee shall be admitted to or otherwise 
 invested with the property accordingly ^" 
 
 1 The inrolment of the disentailing deed may be compelled by 
 mandamus. 
 
 2 Ante, p. 207. " Stat. 8 and 9 Vict. e. 18, § 95. 
 " Stat. 46 and 47 Vict. c. 52, § 56. ^ Ibid. § 50. 
 
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260 
 
 FIFTH PERIOD 
 
 Curtesy 
 and free- 
 bench. 
 
 Wills. 
 
 Limita- 
 tions. 
 
 Such an appointment by the trustee is made by deed. 
 In addition to these cases dealt with by statute there are 
 others in which the ordinary conveyance by surrender and 
 admittance is not employed. Thus a deed is often used 
 when one of several co-owners wishes to convey his share 
 to another, and on a sale of copyholds by executors under 
 a power given by will, the conveyance is usually made by 
 a bargain and sale at common law, and this gives the 
 purchaser the right to admittance. 
 
 The right to freebench was not affected by the 
 Dower Act of 1833, and curtesy remains as before, except 
 that the Married Women's Property Act, 1882, places it 
 completely under the control of the wife, as she may 
 alienate her property and so defeat the husband's ex- 
 pectations. 
 
 The Wills Act, 1837 S requires that wills of copyholds 
 be executed and attested in the same manner as wills of 
 freeholds, and the same act empowers a surrenderee or 
 devisee to devise his interest although he has not been 
 admitted^ Formerly it was customary for a devisee to 
 bring the will into the Court and make a presentment of 
 the decease of the testator and of the part of the will 
 relating to the devise of the copyhold, after which he was 
 admitted. Now, however, this presentment is unnecessary, 
 all that is required being that a copy of the will be 
 delivered to the lord or his steward or deputy steward, 
 when it will be entered on the Court rolls and the devisee 
 admitted ^ 
 
 The Statute of Limitations applies to copyholds as 
 well as to freeholds'- 
 
 1 Stat. 7 Will. IV. 1 Viot. o. 26, §§ 2—5, 9. ' Ibid. § 3. 
 
 3 Copyhold Act, 1841, Stat. 4 and 5 Viot. c. 35, §§ 88—90 ; replaced 
 by Copyhold Act, 1894, Stat. 57 and 58 Vict. c. 46, §§ 84, 85. 
 ■' See Rex v. Lord of Manor of Agarsdley, 5 Dowl. 19. 
 
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EQUITY 261 
 
 Equity. 
 
 Our task will be done when we have noted the principal 
 changes since the last period within the domain of equity. 
 In the first place it should be observed that the Judicature 
 Acts' that came into force in 1875 abolished the old courts 
 of equity and enacted that law and equity should be 
 administered in the same court. The acts did not effect 
 any important change in the substance of the law ; but 
 they altered the procedure, and as 'law' and equity are 
 now on the same footing they should perhaps be discussed 
 together and not apart. In the field of title to realty, 
 however, equity is almost synonymous with the law of 
 trusts, and there is still some convenience in dealing with 
 this in a section by itself. As in earlier periods, a trust Creation 
 estate may be created by a conveyance inter vivos '■, or ^f trustee, 
 by will, or again by operation of law under the doctrines 
 of implied and constructive trusts. The rules as to trusts 
 created by construction of law have been altered in one 
 respect by the Voluntary Conveyances Act, 1893"- Ac- 
 cording to the early law, a voluntary settlement by way 
 of trust might be set aside, in virtue of 27 Eliz. c. 4, in 
 favour of a subsequent purchaser for value even with 
 notice of the settlement. Equity however stepped in 
 and made the purchaser a trustee by a somewhat violent 
 presumption of fraud ; but the Act of 1893 declares that 
 
 " no voluntary conveyance of any lands, tenements or here- 
 ditaments, whether made before or after the passing of this 
 Act, if in fact made honA fide and without any fraudulent 
 intent, shall hereafter be deemed fraudulent or covinous 
 within the meaning of the Act 27 Eliz. c. 4 by reason of 
 
 1 Stats. 36 and 37 Vict. c. 66, § 16 ; 87 and 38 Vict. c. 83 ; 38 and 39 
 Vict. c. 77. 
 
 2 A person intending to create a trust may now apply to the Court to 
 appoint a suitable trustee. See Judicial Trustees Act, 1896 [59 and 60 
 Vict. .;. 35]. 
 
 3 Stat. 56 and 57 Vict. t. 21. 
 
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262 FIFTH PERIOD 
 
 any subsequent purchase for value, or be defeated under any 
 of the provisions of the said Act by a conveyance made upon 
 any such purchase, any rule of law notwithstanding." 
 
 It is an old rule that a trust estate shall never fail for 
 want of a trustee, and the Trustee Act, 1893', which 
 consolidated various enactments relating to trustees, 
 provides^ for the appointment of new trustees in various 
 contingencies. The appointment must be made in writing^ 
 by some person that has power to appoint, or by order of 
 the Court. As to the vesting of the trust property in 
 new or continuing trustees it is enacted that 
 
 "where a deed by which a new trustee is appointed to 
 perform any trust contains a declaration by the appointor 
 to the effect that any estate or interest in any land subject 
 to the trust shall vest in the persons who by virtue of the 
 deed become and are the trustees for performing the trust, 
 that declaration shall without any conveyance or assignment, 
 operate to vest in those persons, as joint tenants, and for the 
 purposes of the trust, that estate or interest^" 
 
 Nature of As to the nature of the trust estate, the rule of 
 e es a e. cQng^j-uption that, in the absence of express limitations, 
 gives to the trustee an estate sufficient, but not more than 
 sufficient, for the execution of the trust is still in force, 
 but it has been somewhat modified by |§ 30 & 31 of the 
 Wills Act. In virtue of these sections 
 
 " where any real estate (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 
 
 1 Stat. 56 and 57 Vict. c. 53. 
 
 " Ibid. §§ 10, 25. 
 
 '■* This does not include a will. See Re Parker's Trusts [1894], 
 1 Ch. 707 and infra re will of trust estates. 
 
 •" 56 and 57 Vict. c. 53, § 12 (1). It should be observed that, though 
 the appointment of the trustee may be by writing only, the declaration 
 vesting the legal interest is required to be by deed. 
 
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EQUITY 263 
 
 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 "where any 
 real estate shall be devised to a trustee without any express 
 limitations 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 shall be given for life, but for the purposes of the trust 
 may continue beyond the life of such person, such devise 
 shall be construed to vest in such trustee the fee simple or 
 other the whole legal estate which the testator had power to 
 dispose of by will, and not an estate determinable when the 
 purposes of the trust shall be satisfied." 
 
 As a general rule a trust estate has the same pro- Differ- 
 perties as an ordinary legal estate, but this rule has been between 
 considerably modified at various times during the present *™^' 
 
 •' . estates 
 
 period. Thus long before the Forfeiture Act, trust estates and other 
 were saved from forfeiture and escheat'; and the Bank- ggf^J^g 
 ruptcy Acts of 1869 and 1883^ expressly declared that 
 a trust estate should remain in the bankrupt and not vest 
 in the assignee in bankruptcy. Also various acts made a 
 difference between the devolution of a trust estate and 
 that of an ordinary legal estate. The Vendor and Pur- 
 chaser Act, 1874', made the estate of a hare trustee seised 
 in fee simple devolve on his death like a chattel real upon 
 his legal personal representative. This was repealed by 
 the Land Transfer Act 1875^, but re-enacted with an 
 amendment confining its operation to a bare trustee 
 dying intestate. This, in turn, was repealed by the Con- 
 veyancing Act 1881 '^j which removed the distinction 
 
 1 By Stat. 4 and 5 Will. IV. u. 23, replaced by 13 and 14 Vict. o. 60, 
 §§ 15, 46, which give the Court of Chancery power to transfer the legal 
 estate in case of failure of heirs of the trustee. However, this is rendered 
 unnecessary by later enactments which make the estate descend like a 
 chattel real to the personal representatives. See infra. 
 
 2 Stats. 32 and 33 Vict. u. 71, and 46 and 47 Vict. c. 52. 
 » Stat. 37 and 38 Vict. c. 78, § 5, ante, p. 209. 
 
 ^ Stat. 38 and 39 Vict. c. 87, § 48, ante, p. 212. 
 5 Stat. 44 and 45 Vict. c. 41, § 30, ante, p. 214. 
 
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264 
 
 FIFTH PERIOD 
 
 Trustee's 
 powers 
 of dis- 
 position. 
 
 between a bare trustee and any other trustee and made 
 the trust estate^ vest in the legal personal representative 
 irrespective of the will of the trustee. Thus a will of a 
 trust estate is now inoperative (except in the case of 
 copyholds^), and where a trust or mortgage estate vests in 
 the personal representatives of the trustee these repre- 
 sentatives are "deemed in law his heirs and assigns within 
 the meaning of all trusts and powers'." However the 
 rules as to the devolution of a trust estate and an Ordinary 
 estate have again been assimilated by the Land Transfer 
 Act, 1897, which makes an ordinary legal estate devolve 
 like a chattel real^ 
 
 Subject to what has just been said as to a will of 
 a trust estate, the trustee has very wide powers of dis- 
 position, for he may convey the estate by any of the 
 methods inter vivos. However the doctrine of con- 
 structive trusts prevents him from effectually conveying 
 to himself, or to his agent, except when he is simply the 
 owner of a dry legal estate and not a trustee for sale. 
 The special powers of a trustee in bankruptcy have 
 already been considered ^ as also those of the tenant for life 
 under the Settled Land Act, 1882^ this tenant being 
 
 estate. 
 
 " in relation to the exercise of any power under the Act, 
 deemed in the position and to have the duties and liabilities 
 of a trustee for all parties entitled under the settlement'." 
 
 The -A-S to the properties and modes of disposition of an 
 
 RBtn'tp'''^ equitable estate, the analogy of the law is still followed 
 in most cases. Hence such statutory changes as those 
 
 1 And in the case of a contract for the sale of the fee simple or other 
 freehold interest, if the vendor die before the conveyance is complete, the 
 estate vests in his personal representative, although the vendor may not 
 be a trustee in such a case. See C. A. 1881, § 4, ante, p. 213. 
 
 2 See post, p. 266. 
 
 ^ Although a freehold trust estate now passes to the personal repre- 
 sentative, it is still necessary to convey it to the trustees "and their 
 heirs " or " in fee simple " in order to give them the fee simple. 
 
 ^ Ante, pp. 222 and 252. « Ante, p. 238. 
 
 " Ante, p. 235. ' The Settled Land Act, 1882, § 53, ante, p. 220. 
 
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EQUITY 265 
 
 introduced by the Fines and Recoveries Act and the 
 Wills Act, and the Real Property Act, 1845, affect equit- 
 able in the same way as legal estates. And in several 
 instances the legislature has assimilated the law as to 
 equitable estates to that as to legal estates where formerly 
 there was a difference. Thus in earlier periods an equit- 
 able interest in freeholds was exempt from dower, but this 
 anomaly was removed by the Dower Act, 1833'. Formerly, 
 too, the estate of cestui que trust was not subject to escheat, 
 but this was altered by the Intestates Estates Act, 1884, 
 and the doubts" as to whether such an estate was or was 
 not forfeitable on attainder of high treason were removed 
 by the Forfeiture Act, 1870'. Some complications as to 
 the law of assets were got rid of by Stat. 3 & 4 Will. IV. 
 c. 104, which laid it down clearly that the whole of a person's 
 estate or interest should be assets for the payment of debts. 
 Before the present period, although the earlier statutes of 
 limitation did not apply directly to equitable estates, yet 
 the analogy of the law on the subject of limitations was 
 followed. This practice was made statutory by Stat. 3 & 
 4 Will. IV. c. 27^ However, except in the case of money 
 charged upon land, the application of the statute was 
 confined to equitable interests arising by operation of law. 
 It did not apply to a cestui que trust in an action against 
 his trustee, and the act for the fusion of law and equity 
 declared that 
 
 "no claim of a cestui que trust against his trustee for any 
 property held upon an express trust, or in respect of any 
 
 1 Ante, p. 201. ' See ante, p. 183. 
 
 3 See ante, p. 246. It has also been settled, after some conflict, that 
 the husband should have curtesy of the wife's separate equitable estate in 
 fee, if she has not disposed thereof in her lifetime or by will. See 
 Cooper V. Macdonald, 7 Ch. D. 288. 
 
 ■* Ante, p. 192. It should be noted that in cases where there is no 
 limitation of actions imposed by statute, the Court will sometimes 
 presume something to have been done which would be a bar to the 
 action. The period after which this presumption will be raised depends 
 on the circumstances of the case, and as a rule relief will not be granted 
 where it would lead to great inconvenience, 
 
 17—5 
 
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holds. 
 
 266 FIFTH PERIOD 
 
 breach of such trust, shall be held to be barred by any statute 
 of limitations'." 
 
 A change was introduced after 1889 by the Trustee Act, 
 1888^, which gives the defendant the same benefit of any 
 statute of limitations as if he had not been a trustee, or 
 person claiming through a trustee, unless the plaintiff can 
 prove either (a) fraud or fraudulent breach of trust or 
 (b) that, at the time when the action is brought, the trust 
 estate is still retained by the trustee, or that he still has 
 the proceeds of its sale, or (c) that, before the action, the 
 property was received by the trustee and converted to his 
 use. 
 Copy- If the subject of the trust is a copyhold there is some 
 
 modification of the above rules'- Thus § 5 of the Vendor 
 and Purchaser Act, 1874, which made the estate of a bare 
 trustee vest in his personal representative, applied only to 
 trustees " seised in fee simple " and so excluded copy- 
 holders and customary freeholders. These, however, were 
 included in § 30 of the Conveyancing Act, 1881, so that 
 on the death of the trustee a copyhold devolved, notwith- 
 standing any will, on the personal representative. But 
 this, again, was altered by the Copyhold Act, 1887*, which 
 expressly excluded copyhold and customary land from the 
 operation of § 30 of the Conveyancing Act, 1881. Thus 
 once more a trust estate may be devised, and, in case of 
 intestacy, it devolves on the customary heir, and this has 
 not been affected by the Land Transfer Act, 1897, for 
 that does not apply to copyholds ^ Another difference in 
 the law of trusts relating to copyholds and freeholds 
 respectively is that the provisions of the Trustee Act, 
 1893^ for the vesting of trust property in new trustees, 
 do not apply to a legal estate in copyhold or customary 
 land'. 
 
 1 Stat. 36 and 37 Viet. u. 66 (Judicature Act, 1873), § 25 (2). 
 ^ Stat. 51 and 52 Vict. i>. 59, § 8. » See ante, p. 187. 
 
 '' Bepealed, but this clause re-enacted, by the Copyhold Act, 1894. 
 5 § 1 (4). See ante, p. 223. <* Ante, p. 262. 
 
 ' See § 12 (3) of the Act. 
 
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EQUITY 267 
 
 As to the equitable estate, an equitable tenant in tail 
 may bar the entail either by siirrender or by deed, and 
 where a deed is employed the same formalities as to 
 inrolment etc. must be observed as when dealing with 
 a legal estate". It was observed^ that in the preceding 
 period there were some anomalies in the law of wills 
 dealing with equitable estates in copyholds. These have 
 been removed by the Wills Act, 1837, which makes 
 the requirements of a valid will uniform in all such 
 cases. The same act also removed the difficulty^ as to 
 the doctrine of resulting trusts where estates pur autre 
 vie were involved. It was enacted that where there is no 
 special occupant, an estate pur autre vie, whether in 
 freehold or copyhold, shall, if not disposed of by the will of 
 the grantee, go to his personal representative. It should 
 be noted that the rule that trusts of copyholds were not 
 assets by descent was altered by 3 & 4 Will. IV. c. 104, 
 and finally that, as the Dower Act, 1833, does not apply 
 to copyholds, an equitable interest is, as before, saved from 
 the incidence of freebench. 
 
 The most important modifications of the rules of status. 
 equity due to status must now be considered. The 
 sovereign may grant his private property in trust for 
 another, but this must be done by letters patent and the 
 trust must appear upon the face of the letters patent and 
 cannot be proved by parol evidence. The sovereign may 
 be a trustee, that is he may take and execute a trust; but 
 it is doubtful whether a subject can enforce the per- 
 formance of the trust by ordinary legal process ^ A 
 trustee of the private estates of the sovereign was ex- 
 pressly declared^ to be within the provisions of the Trustee 
 
 ' See Fines and Eecoveries Act, §§ 1, 42, 46, 50, 53, and Green 
 V. Paterson, 32 Ch. D. C. A. 95. 
 
 2 Ante, p. 187. ' Ibid. 
 
 * See Kinlock v. Sec. of State for India, 15 Ch. D. C. A. 1 ; Rmtomjee 
 V. The Queen, 2 Q.B.D. C. A. 69. Of course the subject may proceed by 
 petition of right. 
 
 5 25 and 26 Vict. c. 37, § 10. 
 
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268 
 
 FIFTH PERIOD 
 
 Act, 1850^ The powers of an infant to make a settlement 
 have already been discussecl^ and as an infant is not 
 suited to act as a trustee the Court will remove him if 
 appointed. Under the Trustee Act, 1893^ the Court may- 
 make an order for the vesting in any person of land held 
 by an infant upon trust, and by a vesting order the estate 
 of an infant tenant in tail may be barred*; and, under the 
 Fines and Recoveries Act, where an infant is protector of 
 a settlement and not owner of a prior estate under the 
 settlement, his place as protector is taken by the Chancery 
 Division of the High Court '*. Provision has also been 
 made by the Conveyancing Act, 1881, and the Settled 
 Land Acts, for the management of the estate when cestui 
 Lunatics, que trust is an infant". A lunatic is, of course, unfit to 
 act as trustee, and the Lunacy Act, 1890, contains pro- 
 visions for the vesting of the trust estate of a lunatic in 
 new trustees by order of the judge in lunacy'. The 
 equitable estate of a lunatic is, like his legal estate^ 
 managed either by the committee of the estate of the 
 lunatic or by some person specially appointed by the judge. 
 Under the old law of uses, a corporation ' having no soul ' 
 could not be seised to a use ; but there is no such doctrine 
 as to modern trusts. However, a corporation cannot 
 acquire an equitable estate unless the conditions imposed 
 by the Mortmain and Charitable Uses Act, 1888', are 
 fulfilled. Formerly, if a married woman were a trustee 
 of land, the legal estate vested in her husband, although 
 in equity he was merely a trustee and could be compelled 
 
 Corpora- 
 tions. 
 
 Married 
 Women. 
 
 ' The greater part of this was repealed and replaced by the Trustee 
 Act, 1893. 
 
 ''■ Ante, p. 240. It should be noted that before the Fines and 
 Eecoveries Act, if an infant levied a fine or recovery and made a 
 declaration of trusts, he was bound by the declaration, unless on coming 
 of age he reversed the fine or recovery. 
 
 3 56 and 57 Vict. c. 53, §§ 26, 28. 
 
 * See Re Montagu, Faher v. Montagu [1896], 1 Ch. 549. 
 
 5 3 and 4 Will. IV. o. 74, § 33. 
 
 6 See ante, p. 221. ' 53 and 54 Vict. c. 5, g§ 135, 140, 141. 
 
 8 See ante, p. 241. » 51 and 52 Vict. c. 42, See ante, p. 243, 
 
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EQUITY 269 
 
 to execute the trust. A change was made by the Vendor 
 and Purchaser Act, 1874, which enacted that 
 
 " when any freehold or copyhold hereditament shall be vested 
 in a married woman as a hare trustee, she may convey or 
 surrender the same as if she were a feme sole^." 
 
 Except the woman is a bare trustee this law does not 
 help her, and thus an acknowledgment of deeds by the 
 husband is necessary to their validity. The rule has not 
 been extended by the Married Women's Property Act, 
 1882^, so that it is still inconvenient to have a married 
 woman as a trustee other than a bare trustee. As to the 
 equitable estate of a married woman, the law is similar to 
 that dealing with a legal estate. According to the earlier 
 law, the husband acquired an equitable estate in lands 
 held in trust for the wife, unless the property were 
 limited to the separate use of the wife. The husband 
 could, without the wife's consent, convey an estate for 
 their joint lives, or, after the birth of issue, for his own life, 
 and after the Fines and Recoveries Act the husband and 
 wife conjointly could bar an equitable entail by deed 
 enrolled in Chancery, in the same manner as with a legal 
 estate"- If, however, the estate were held in trust for the 
 wife's separate use then, as we have seen", equity enforced 
 this trust and the married woman was free to dispose of 
 her estate. But at the close of the last period many 
 important questions connected with this doctrine were 
 not yet finally settled. Thus supposing lands were settled 
 on a feme sole for her separate use in case of marriage, 
 what were the rights of the husband if the woman failed 
 
 1 37 and 38 Vict. c. 78, § 6, replaced by § 16 of Trustee Act, 1893 
 [56 and 57 Vict. c. 53, § 16]. 
 
 2 Be Harhiess [1896], 2 Ch. 358 ; see, however. Me Brooke [1898], 
 1 Ch. 647. 
 
 3 The Fines and Eecoveries Act [§ 90] enabled a married woman to 
 dispose of her equitable estate in copyholds in the same way as with 
 legal estates. 
 
 ■* Ante, p. 186. 
 
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270 FIFTH PERIOD 
 
 to exercise her power of alienation before marriage and 
 how was the problem affected if there was a restraint on 
 anticipation ? After much conflict of opinion' it was finally 
 settled^, in 1838, that the separate use (with the ac- 
 companying restraint on anticipation, if any) would revive 
 at the marriage. And the exact extent of the wife's 
 powers of disposition of a freehold estate settled to her 
 separate use was not settled^ till 1864, when it was held* 
 
 " that where real estate is vested in trustees upon trust for 
 the separate use of a married woman (without a restraint 
 on anticipation^) she has, as incident to her separate use, 
 and without any express power being conferred on her, a 
 complete right of alienation, either by instrument inter vivos, 
 not acknowledged under the Fines and Recoveries Act, or by 
 wilP, and that there is no distinction in this respect between 
 an equitable fee and any other property^." 
 
 Originally a trust for the separate use of a married woman 
 could be created only by act of parties. This was 
 altered by the Married Women's Property Act, 1870^ 
 which settled for the wife's separate use the rents and 
 profits of any realty that descended upon her, after the 
 passing of the act, as heiress or co-heiress of an intestate. 
 The great step, liowever, was taken by the Married 
 Women's Property Act, 1882, by virtue of which the 
 whole interest in the real estate given to a married 
 woman belongs to her as her separate estate, and she can 
 
 1 See Massey v. Parker, 2 Mylne and Keen, 174, and Davies 
 V. Thornycroft, 6 Simons, 420. 
 
 ^ Tuller V. Armstrong, 1 Beavan, 1. 
 
 ■* See Adams v. Gamble, 12 Irish Ch. Kep. 102 ; Leachm^re v. Brothe- 
 ridgc, 32 Beavan, 353 ; Hoare v. Osborne, 33 Law Journal (W. S.), Ch. 586. 
 
 ■■ Taylor v. Meads, 5 New Eeports, 348, extended in Hall v. Waterhouse 
 [1865], 5 Giff. 64, to the case where there are no trustees for the wife's 
 separate estate. 
 
 ° The C. A. 1881, § 39, enabled the Court to set aside a restraint on 
 anticipation, for the benefit of the wife. 
 
 '^ See Cooper v. Macdonald, 7 Ch. D. 288. 
 
 ' Haynes, Outlines of Equity, Lecture vii. 
 
 8 33 and 34 Vict. c. 93, § 8. 
 
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EQUITY 271 
 
 dispose of it accordingly as a feme sole. The exception 
 from the operation of this act contained in | 19 should be 
 noticed. This section leaves a settlor free to impose 
 restrictions on the interest given to a married woman, but 
 apparently it means merely that the construction of the 
 settlement is not to be affected, and that the act is not to 
 apply except where the wife is bound by the settlement 
 or has assented thereto ^ 
 
 The changes in the law of forfeiture for felony have Felons. 
 been noted already. In earlier periods if a trustee was 
 attainted or convicted he forfeited his lands, and as the 
 lord or the Crown, to whom they reverted, was not bound 
 by the trust the cestui que trust lost everything. This 
 state of affairs was altered at the close of the fourth period^ 
 and a few years later an amending act^ was passed which 
 provided that, on the attainder or conviction of any trustee, 
 the land should not be forfeited, but should remain in the 
 felon or survive to his co-trustee or devolve upon his 
 representatives as if no such attainder or conviction had 
 taken place. The act did not prevent the forfeiture of 
 the equitable estate of a felon, but this was effected by 
 the Forfeiture Act, 1870, which abolished forfeiture of 
 equitable as well as of legal estates*. The Forfeiture 
 Act did not deal with a trust estate, which remains 
 vested in the trustee in spite of his conviction, although 
 the court may appoint a new trustee". The Naturaliza- Aliens. 
 tion Act, 1870, places aliens on the same footing as 
 natural born British subjects. 
 
 In addition to the restrictions on the creation of trust Unlawful 
 
 Trusts 
 
 estates that have been considered in the discussion of 
 status, there are some trusts that will not be enforced as 
 
 ' Ante, p. 222 ; and Re Lumlcy [1896], 2 Ch. D. 690 ; Ee Queade's 
 Trust, W. N. [1884], 225; but see Stevens v. Trevor-Garrick [1893], 
 2 Ch. 307. 
 
 2 Ante, p. 186. 
 
 << Stat. 4 and 5 Will. IV. e. 23. 
 
 ■• See ante, p. 246. 
 
 5 See Trustee Act, 1893, 56 and 57 Vict. o. 53, §§ 25, 48, replacing 
 earlier enactments to the same effect. 
 
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272 FIFTH PERIOD 
 
 being against the policy of the law. Thus property 
 cannot be settled on illegitimate children to be thereafter 
 born. Trusts for "superstitious" uses, as for the purpose 
 of saying masses or requiems for the souls of the dead, are 
 void, and so are trusts "adverse to the foundation of all 
 religion and subversive of all morality'." Restraints on 
 alienation are, as a rule, distasteful to the law, and so the 
 rule against perpetuities applies to trusts. Nor can a 
 trust be created with a proviso that cestui que trust shall 
 not alienate his interest, although an estate may be settled 
 upon him until alienation. 
 
 1 See Lewin [10th edit.], p. 113, and cases there cited. 
 
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INDEX 
 
 [First Period, pp. 7-26 ; Second, pp. 27-105 ; Third, pp. 106-141 ; 
 Fourth, pp. 142-189; Fifth, pp. 190-272] 
 
 Advowson 59, 60, 61, 93 et seq. (eases), 97 (dower-case), 97 (ourtesy-oase), 133 
 Alienation 9 (early modes), 22 (bookland), 58 (seignory), 43, 156 (restraints) 
 Aliens 166 (wills), 173, 184 n. 3, 246, 251 (wills), 271 (equity) 
 
 Bankruptcy 168-173, 199, 212 (trustee), 238, 259 (copyhold), 263 (trusts) 
 Bargain and Sale 143, 144, 163 
 Booliland 15, 17, 22 
 
 Caesar 5 (description of early Germans) 
 
 Case-law 76 (importance) 
 
 Charters 7 (exotic character of early), 15 (nature of), 16 (form), 17 (nature of 
 
 estates granted in), 19 (some complete charters), 29, 33, 34, 35, 55 
 
 (Templars), 56, 57, 77-9 (cases), 94, 112 (feoffment Hen. VI.) 
 Clans 3 
 
 Commendation 13 
 Common 62 (rights of), 63 (appendant), 66 ('pro vicinitate '), 66 (in gross), 
 
 67 (turbary and piscary), 98 (cases), 104 (oases, villeinage), 134 
 Confirmation 29, 93, 118, 119, 160, 228 
 Constructive Trusts 183 
 Conveyance 213 (Act, 1881), 217 (model) 
 Copyhold 75, 134-5, 174-8, 187-9, 198-201, 203 (wills), 220 (settled land), 
 
 222 (L. T. A. 1897), 228, 256 et seq. , 266 (equity) 
 Corporations 153, 167 (devises to), 216 n. 1, 227, 242, 258 (copyhold), 268 
 
 (equity) 
 Covenant to stand seised 162 
 Crown 14, 29, 34, 155 et seq., 186 (trusts), 243, 267 (equity) 
 
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274 INDEX 
 
 Curtesy 51, 72 (villeinage), 88-90 (oases), 97 (advowson-caae), 107, 129, 141 
 
 (equity), 164, 254, 260 (copyhold) 
 Custom 45 (gavelkind), 45 (in London), 72 (villeinage) 
 
 Deed 58, 173, 216, 229 et seq., 234 (disentailing) 
 
 Descent 12, 46, 73 (villeinage), 80, 82 (oases), 93 (advowson-case), 101 (villeinage- 
 case), 130, 141 (equity), 164, 202 (Inheritance Act), 222 (L. T. A. 
 1897), 252 
 
 Dower 49, 60 (advowson), 86-8 (oases), 97 (advowson-case), 126, 127 (Littleton), 
 141 (equity), 164, 201 (Dower Act), 253, 265 (equity) 
 
 Easements 100, 101 (cases) 
 
 Elegit, tenancy by 115 n. 
 
 Enrolment 143, 197 
 
 Equity 136 et seq., 179 et seq., 261 et seq. 
 
 Escheat 27, 85 (cases), 183, 186, 263-5 
 
 Exchange 120, 121, 158, 228 
 
 Fee tail 108, 122, 129, 152, 153, 183, 196-200, 205 
 
 Felons 153, 173, 183, 246, 251 (wills), 265, 271 (equity) 
 
 Feoffment 30, 77 et seq. (charters of), 110, 112 (charters), 150-1, 206, 227 
 
 tortious 152, 206, 228, 238 
 Fines 38-42, 51, 59, 61, 81 (cases), 94 (advowson-case), 98 (commons-case), 
 
 112-3, 152, 195 (Fines and Becoveries Act), 227, 233 
 Polkland 7, 9 et seq. 
 Forfeiture 183, 263 
 Franchises 91 (cases) 
 Frauds (Statute of) 148-50 
 Freebeneh 72, 104 (oases), 189, 260 
 
 Gavelkind 45, 72 n. 2, 228 
 
 Grants (Royal) 15, 19, 23, 24, 29, 34, 55, 57, 91-3, 98, 155, 156 et seq. (restraints 
 on), 186 
 
 Heir-Apparent 46 (rights of) 
 
 Infants 36, 45, 153, 159, 166 (will), 173, 193, 204 (will), 208, 221 (tenant for 
 
 life), 240, 250 (will), 258 (copyhold), 268 (equity) 
 Inheritance Act 202 
 
 Jus Tertii 84 
 
 Land Transfer Act (1875) 210, (1897) 222 et seq. 
 
 Lease and Release 116, 163, 229 
 
 Legitimacy 48 
 
 Limitation of Actions 52, 192, 208, 255, 260, 265 
 
 Long Terms (enlargement of) 152, 217, 237 
 
 Lunatics 36, 45, 152, 159, 166, 173, 193, 198, 208, 221, 241, 258, 268 
 
 Marriage Settlement 218 (model) 
 
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INDEX 275 
 
 Married Women 45, 51, 141, 153, 166 (wills), 173, 175 (copyhold), 186 (trust for 
 separate use), 193, 197, 200, 204 (wills), 208 (M. W. P. A. 1870), 
 210 (bare trustee), 212 (registration), 215 (power of Court to bind 
 interest), 221 (tenant for life), 221 et seq. (M. W. P. A. 1882), 244 
 et seq., 250 (wills), 258 (copyhold), 268 et seq. (equity) 
 
 Military tenures abolished 148 
 
 Mortmain 107 see also Corporations 
 
 Occupancy 2, 131, 167 
 Origin of Property 2 
 
 Precatory Trusts 181 
 
 Prescription 52, 65 (Incorporeals), 98-100 (commons-eases), 174, 190 (Act), 255 
 
 Primitive society 1 et seq. 
 
 Private Acts of Parliament 154 
 
 Quit claim 37, 95 (advowson-oase) 
 
 Real Property Act 206; Limitation Act (1874) 208 
 
 Eecoveries 114, 123, 153, 195 (Fines and Recoveries Act), 227, 233 
 
 Registration 210, 211, 224 et seq. 
 
 Release 37, 116, 117, 159 
 
 Remainder 125, 126 
 
 Bents 132 
 
 Resulting trusts 182 
 
 Reversion 1 24 
 
 Roman Catholic 165 
 
 Sake and soke 15 
 
 Seignory 55, 132 
 
 Seisin 30-2, 58, 59, 66, 77, 78, 84, 93 (franchise-case), 95, 96 (advowson-case), 
 
 110, 130 
 Servitudes 68 
 
 Settled land 218 et seq. (Act 1882), 235, 259 
 Surrender 38, 74, 105 (cases), 121, 161, 228 
 Symbolism 9, 77 
 
 Tacitus 6 (description of Germans) 
 
 Taltarum's case 123 
 
 Trusts 149, 150 (Stat, of Frauds), 180 (how introduced), 181 (creation of), 
 181 (precatory), 182 (by operation of law), 183 (constructive), 
 184 (alienation of), 185 (estate of trustee), 186 (wife's separate 
 use), 194 (Limitation Act), 198 (copyhold in tail), 208 (wife's 
 separate use), 210 (married woman trustee), 212 (registration of 
 title of trustee), 215 (appointment of new trustee), 261 (creation 
 of estate of trustee), 262 (appointment of new trustees), 262 (nature 
 of estate), 272 (unlawful) 
 
 Tyrell's case 180 n. 
 
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276 INDEX 
 
 Unfree 69 
 
 Uses 142-4 (Statute of), 145 (future and shifting), 162-4 (modes of conveyance 
 introduced by Statute of Uses) 
 
 Vendor and Purchaser Act, 1874 209 
 
 Village communities 4, 8 
 
 Villeinage 70, 72, 74, 101 et seq. (oases) 
 
 Warranty 107 
 
 Wills 10, 24, 43, 45, 131, 137 (equity), 146 (Statute of Uses), 146-7 (Acts), 148, 
 165-7, 188 (copyhold), 203 et seq. (Act), 247 et seq., 251 (revocation), 
 260 (copyhold), 264 (trustee), 266 et seq. (copyhold) 
 
 Writ 23, 29 
 
 CAMBRIDGE : PHINTED BT J. AND C. F. CLAT, AT THE UNIVEKSITT PKESS. 
 
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