the assignees, appointed on behalf of the creditors in the manner directed by law, by virtue of such appointment alone, and without any deed or conveyance. So that in this way a bankrupt loses all his real estates, without his participation or consent.

CHAPTER XVI.

OF TITLE BY ALIENATION.

Feudal restraints or alienation-Attornment-Who may alien, and to whom Corporations-Infants-Femes-covertes-Aliens.

THE most usual method of acquiring a title to real estates is that of alienation, or purchase in its limited sense, under which may be comprised any sale, gift, marriage settlement, devise, or other transmission of property.

This mode of taking estates is not of equal antiquity with that of taking them by descent. For, by the feudal law, a feud could not be transferred without the consent of the lord, lest thereby a feeble or suspicious tenant might have been imposed upon him to perform the feudal services. And, as he could not alien it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family. Nor, in short, could he alien the estate unless he had also obtained the consent of his own next heir. And therefore it was usual in ancient feoffments to express that the alienation was made by consent of the heirs of the feoffor. And, on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not transfer his seigniory without the consent of his vassal; for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due. This consent of the vassal was expressed by what was called attorning, or professing to become the tenant of the new lord; which doctrine of attornment was afterwards extended to all lessees for life or years.

By degrees this feudal severity wore off; and experience has shown, that property best answers the purposes of civil life when its transfer is totally free and unrestrained. The road was cleared in the first place by a law of Henry I., which allowed a man to sell lands which he himself had purchased. Afterwards, he seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name. At that time he might

part with one-fourth of inheritance of his ancestors without the conзent of his heir; afterwards with a moiety, by the statutes 18 Edw. I. c. 1, and 15 Edw. III. c. 12; and finally, with the whole. By statutes 7 Hen. VII. c. 3, and 3 Hen. VIII. c. 4, persons attending the king in his wars were allowed to alien without license. And lastly, fines for alienations were abolished by statute 12 Car. II. c. 24. The power of charging lands with debts was introduced by the statute of Westminster the second, 13 Edw. I. c. 18; and they are now not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold, either for the payment of debts, or for division among creditors under the statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer, that not being totally removed till the abolition of the military tenures. The doctrine of attornments continued still later, till at last they were made no longer necessary by the statute 4 & 5 Ann. c. 16.

In examining the nature of alienation then, which is now entirely free, let us first inquire briefly, who may alien, and to whom; and then, more largely, how a man may alien, or the several modes of conveyance.

I. Who may alien, and to whom; or, in other words, who is capable of conveying and who of purchasing. And herein we must consider rather the incapacity, than capacity, of the several parties; for all persons are primâ facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities.

Persons, then, attainted of treason and murder are incapable of conveying, from the time of the offence committed, provided attainder follows; for such conveyance by them may tend to defeat the crown of the forfeiture, or the lord of his escheat. But they may purchase for the benefit of the crown, or the lord of the fee, though they are disabled to hold: the lands so purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat, as well as forfeiture, according to the nature of the crime. In other felonies, no attainder extends to the disinheriting of any heir nor to the prejudice of the right or title of any other person or persons than the offender during his natural life. So, also, corporations, religious or others, may purchase lands; yet, unless they have a license to hold in mortmain, they cannot retain such purchase, but it shall be forfeited to the lord of the fee. Lay corporations, other than municipal, have, in general, power to alien their lands as freely as private owners; but municipal corporations are, by the statute 5 & 6 Will. IV. c. 76, s. 94, restrained from alienation for any term exceeding thirty-one years. Ecclesiastical and eleemosynary corporations, both sole and aggregate, are restrained, except under

certain conditions, from alienation beyond the life of the person constituting the corporation sole, or of him who is the head of the corporation aggregate, except by way of lease for a term not exceeding twenty-one years, or three lives.

Idiots and persons of nonsane memory, infants, and persons under duress, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases are in general voidable, but not always actually void. It has been said, that a non compos, though he be afterwards brought to a right mind, shall not be permitted to allege his own insanity in order to avoid his grant; for that no man shall be allowed to stultify himself, or plead his own disability; but it has been held to be clear law that a party may come forward to maintain his own past incapacity. And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant. And so, too, if he purchases under this disability, and does not afterwards, upon recovering his senses, agree to the purchase, his heir may either waive or accept the estate at his option. In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him. Persons, also, who purchase or convey under duress may affirm or avoid such transactions, whenever the duress has ceased. For all these are under the protection of the law, which will not suffer them to be imposed upon, through the imbecility of their present condition; so that their acts are only binding, in case they be afterwards agreed to, when such imbecility ceases.

The case of a feme-covert is somewhat different. She may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids it by some act declaring his dissent. And, though he does nothing to avoid it, or even if he actually consents, the feme-covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement. But the conveyance or other contract of a feme-covert, unless it be a conveyance made under the provisions of the statute 3 & 4 Will. IV. c. 75, is absolutely void, and not merely voidable, and therefore cannot be affirmed or made good by any subsequent agreement. The Court of Chancery, however, has long recognised the power of a feme-covert to deal at her own pleasure with property vested in trustees for her separate use, provided the settlement itself does not restrain her from alienation; and equity also recognises her contracts relating to such property.

The case of an alien born is also peculiar. For he may purchase anything; but after purchase he could formerly hold nothing except a lease for years of a house for convenience of merchandise, in case he were an alien friend: all other purchases, when found by an inquest of office, being immediately forfeited to the crown. But alien friends are now enabled to take and hold lands for residence or business for twenty-one years; and a person born out of the kingdom whose mother is a natural-born subject, is enabled to take any estate by devise, purchase, inheritance, or succession.

II. We are next, but principally, to inquire, how a man may alien or convey, which will lead me to consider the several modes of conveyance. These are of four kinds :—1. By matter in pais, or deed, which is an assurance transacted between two or more private persons in pais, in the country; that is, according to the old common law, upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the public courts of record, or under the authority of a public board or commission empowered by act of parliament to record its proceedings. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect till after his death; and that is by devise, contained in his last will and testament. I shall treat of each in its order, and, for convenience' sake, separately in the succeeding chapters.

CHAPTER XVII.

OF ALIENATION BY DEED.

Nature of deeds-Contracting parties-Consideration-Writing-Contents of deeds-Premises-Habendum-Tenendum — Reddendum-ConditionsCovenants-Conclusion-Sealing and delivery of deeds-Witnesses-How deeds avoided.- -Original Conveyances, viz.: Feoffment-Gift-GrantLease Exchange-Partition.-Derivative Deeds, viz.: Release-Confirmation-Surrender-Assignment-Defeazance.- -Deeds under Statute

of Uses: Covenant to stand seised to uses-Bargain and sale-Lease and release-Bargain and sale at common law.-Other Deeds: BondsRecognizances-Defeazances.

IN treating of deeds I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And, in explaining the former, I shall examine, first, what

a deed is; secondly, its requisites; and thirdly, how it may be avoided.

I. First, then, a deed is a writing sealed and delivered by the parties. It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemnly and deliberately avowed. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each was formerly cut or indented on the top or side, to tally or correspond with the other; which deed, so made, was called an indenture; and this name is still retained, though the practice of indenting has been abandoned. A deed made by one party only, not being indented, but polled or shaved quite even, is called a deed-poll.

II. We are next to consider the requisites of a deed, the first of which is, that there be persons able to contract and be contracted with, for the purposes intended by the deed, and also a thing or subject-matter to be contracted for. So, as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised.

Secondly, the deed must be founded upon good and sufficient consideration, not upon an illegal contract, nor upon fraud or collusion, to deceive purchasers or creditors, any of which bad considerations will vacate the deed. A deed also, or other grant, made without any consideration, is, as it were, of no effect; for it is construed to enure, or to be effectual, only to the use of the grantor himself. The consideration may be either a good or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation, being founded on motives of generosity, prudence, and natural duty: a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant, and is therefore founded on motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors and bonâ fide purchasers.

Thirdly, the deed must be written or printed, for it may be in any character or any language; but it must be upon paper or parchment. It must also have the proper stamps imposed on it by the several statutes for the increase of the public revenue, else it cannot be given in evidence. Formerly, many conveyances were made by parol, or word of mouth only, without writing; but this giving a

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