PART III.

Title by Purchase.

CHAPTER III.

ALIENATION. WHO MAY Take, Hold and Convey.

26. Introduction. Definitions of Term Alienation.

Title by purchase we have seen includes all methods of acquiring title except by title by descent and by adverse possession. It is, therefore, the most common method of acquiring title. Before considering in detail the method of acquiring, we must first consider what persons or bodies have the power or right to hold, acquire or convey title to real estate. The capacity to take, to hold and to convey title to real estate, as Professor Mitchell in his excellent lectures on conveyancing says, depends upon a variety of circumstances. "Some persons can take title but cannot hold it. Others can take and hold but cannot convey it." This capacity to take, hold and convey lands is called the capacity to alien or to alienate land and the method of transferring land is technically called the alienation of land which means substantially what we now understand by the term Conveyancing.

27. Who May Take, Hold and Convey. Individuals. In General. Any person who has the legal capacity to bind himself by con

tract, may convey his real estate. The same disabilities which incapacitate him from making a legal contract, incapacitate him from making a valid deed. Keeping in mind the general rule, therefore, that any individual not under a fegal, disability may freely alienate land, it becomes important to see and understand what these disabilities are. Classified under their respective disabilities, we have: Aliens, Persons of Unsound Mind, Drunkards, Persons Under Duress, Infants, Married Women, Feme Sole Traders, Fiduciaries. Since not all of these individuals are not absolutely prevented from alienating, it becomes necessary to consider each one separately.

28. Aliens.

At common law, it was deemed for the welfare of England that aliens, that foreign-born residents should be forbidden to hold land or inherit land. Blackstone, however, points out they could purchase land but the moment they did so it was liable to be forfeited to the sovereign (2 Blackstone 293). The harshness of this rule has been greatly relaxed and in most states the alien friend is now under no disability. In Pennsylvania, by statute (Act Feb. 28, 1791, 3 Sm. L. 4), alien friends may take by descent without limit. But under the Act of May 1, 1861, they are permitted to hold by purchase only 5,000 acres and not exceeding $20,000 in net annual value (P. L. 433). Up to this limit they may take, hold and convey as freely as a native born or a naturalized citizen.

29. Person of Unsound Mind.

This heading should be taken to include not only lunatics but idiots and all persons of unsound mind. The law presumes every one sane and the burden is upon him who seeks to establish the want of sufficient mental capacity to execute a deed and such incapacity must be established beyond a reasonable doubt (In re Gangwere's Estate, 14 Pa. 417). In most jurisdictions, laws have been enacted providing for methods in which a person may be legally adjudged insane, and such a decree when made is conclusive and binding upon all the world and renders deeds of the lunatic absolutely void. By Pennsylvania statutes the appointment of a committee after inquisition or a guardian by the court, is a decree which establishes the lunacy of the party absolutely and from that time all capacity to contract is gone and

his deed is absolutely void (Imhoff v. Witmer, 31 Pa. 243). The inquisition and decree are recorded and this is notice to all the world of the party's insanity and incapacity to contract. The law also provides that it is the duty of the commissioner and jury, sitting to determine the lunacy, to find how long the party has been insane and if he has lucid intervals. During the period from the time of the commencement of insanity so found to the time of the decree, there is a presumption that the party was without capacity to contract, but this presumption may be overcome by proof that the contract or deed was made in a lucid interval. Where the party has never been legally declared insane the question of whether he was or was not insane at the time of the execution of the deed is, of course, a question of fact to be decided by the jury, the burden being upon him who seeks to set the deed aside. The several acts of assembly give to the committee of the lunatic all the powers necessary to manage his estate, but the real estate cannot be sold or mortgaged without authority from the court.

30. Habitual Drunkards.

Drunkenness is really a species of temporary mental derangement. To relieve himself from a contract or deed made while intoxicated a party must prove that he was so drunk as not to know what he was doing. The deed of a person executed while drunk is not void but voidable, i. e., it may be confirmed or made good when the grantor becomes sober. To set the deed aside he must disavow it promptly; otherwise the law presumes he means to ratify it. Where, however, a person is habitually intoxicated and is declared an habitual drunkard by decree of court, then he is in the same position as a person adjudged a lunatic, and all his deeds are void.

31. Weakness of Mind and Senility.

Mere weakness of mind due to old age, accident or disease is not of itself sufficient to set aside a deed (Nace v. Boyer, 30 Pa. 99; Kleckner v. Kleckner, 212 Pa. 518; there must be some fraud or mistake before a formal instrument such as a deed can be set aside. However, the court is alert to protect the aged or weak-minded and the chancellor will usually seize on slight circumstances of fraud to set aside a deed so secured (Hettrick's Appeal, 58 Pa. 477). In Pennsylvania, by the Act of May 28,

1907, P. L. 290, a method of protecting the property of the aged and weak-minded is now provided. Upon proper application made to the court, by petition filed setting forth that the party is unable by reason of insanity, feeble-mindedness or other mental defectiveness from taking care of his property, the court will fix a time for a hearing, and if convinced that the allegations of the petition are correct will appoint a guardian to protect and conserve the estate of such person. Such guardian has the same powers and is subject to the same duties as a committee on lunacy.

32. Infants.

An infant in a legal sense is a person under twenty-one years of age. The law provides that an infant cannot make a contract, the theory being that he is too immature and must be protected against his own folly. There is a certain exception, viz: that he may contract for necessaries. But for our purpose we may disregard this. Remembering that his disability results from his incapacity to contract, it follows he can neither contract to acquire title by deed nor convey it by deed. He may, however, acquire title by deed of gift or by devise or by descent since in such cases no capacity to contract is required. The deed of an infant is not void but voidable and he has it in his power when he reaches the age of twenty-one years to either ratify his deed, in which event it becomes good, or disaffirm it in which event it becomes void absolutely; but he must do one or the other within a reasonable time after he arrives at the age of twenty-one years, else the law presumes his failure to act to be a ratification (Dolph v. Hand, 156 Pa. 588). The contract, however, is voidable only on the part of the infant. An adult party with whom the contract is made is bound. Upon disaffirmance an infant should return the purchase money received for the property, but if he has spent or lost it, his action in disaffirming is nevertheless effectual even though no return can be made for the consideration (Shaw v. Boyd, 5 S. & R. 309; Ruchezky v. DeHaven, 97 Pa. 202).

33. Persons Under Duress.

Deeds made by persons under duress are voidable and may be set aside by action of the party if done within a reasonable time after the removal of the restraint. By duress is meant some undue compulsion such as threats, actual violence, imprisonment, which prevents the free exercise of the will power of a person

and makes him execute the deed or contract through fear alone. A person, however, is supposed to possess ordinary firmness unless it is shown by reason of age or other sufficient cause he is weak or infirm. The constraint that takes away free agency must be one that is imminent and without immediate means of protection, and such as would operate upon the mind of a person of reasonable firmness (Sulzner v. Cappeau Lemly, Etc., Co., 234 Pa. 162).

34. Married Woman.

At common law a married woman was under many disabilities for, as said by Mitchell (Real Estate & Conveyancing in Penna. by E. C. Mitchell 372), “at common law the husband and wife were one person and that one was the husband." In Pennsylvania, step by step married women's rights were increased until the Act of June 8, 1893 (P. L. 344, sec. 5), completed her emancipation. That act provided, "Hereafter a married woman shall have the same right and power as an unmarried person to acquire, own, possess, control, use, lease, sell or otherwise dispose of any property of any kind, real, personal or mixed and either in possession or expectancy and may exercise the said right and power in the same manner and to the same extent as an unmarried person, but she may not mortgage her real property unless her husband joins in such mortgage or conveyance. The second section of the act provides, "Hereafter a married woman may in the same manner and to the same extent as an unmarried person make any contract in writing or otherwise which is necessary, appropriate, convenient or advantageous to the exercise and enjoyment of the rights and powers granted by the foregoing section, but she may not become accommodation indorser, maker, guarantor or surety for another, and she may not execute or acknowledge a deed or other written instrument conveying or mortgaging her real property unless her husband joins her in such mortgage or conveyance." This act is so clear as to require little or no explanation. With the exception of her inability to mortgage her property without joinder of her husband and her inability to become accommodation indorser, maker of a note, guarantor or surety for another, she may do whatever an unmarried woman may do. As Chief Justice Paxson said in Milligan v. Phipps, 153 Pa. 208, "It (the Act of June 8, 1893) has emancipated her from the shackles of the common law so far