it is no waste for the tenant to continue digging them for his own use; (w) for it is now become the mere annual profit of the land. These three re the general heads of waste, viz.: in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value, of the inheritance is considered by the law as waste. Let us next see, who are liable to be punished for committing waste. And by the feudal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; "si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur." (x) But in our ancient common law the rule was by no means so large; for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, [ *283] tenant in dower, and tenant by the *curtesy; (y) and not in tenant for life or years. (z) And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. (w) Hob. 295. (x) Wright. 44. (y) It was however a doubt whether waste was punishable at the common law in tenant by the curtesy. Regist. 72. Bro. Abr. tit. waste, 88 2 Inst. 301. (z) 2 Inst. 299. Norway v. Rowe, id. 153; Countess of Strathmore v. Bowes, 1 Cox, 264. And as to matters which the plaintiff was acquainted with when he filed his bill, he ought at that time to have stated them upon affidavit, in order to give the defendant an opportunity of explaining or denying them by his answer: Lawson v. Morgan, 1 Price, 306; though, of course, acts of waste done subsequently to the filing of the bill would be entitled to a distinct consideration: Smythe v. Smythe, 1 Swanst. 253; and where allegations in an injunction bill have been neither admitted nor denied in the answer, there can be no surprise on the defendant; and it should seem that affidavits in support of those allegations may be read, though they were not filed till after the answer was put in. Morgan v. Goode, 3 Meriv. 11; Jefferies v. Smith, 1 Jac. and Walk. 300; Barrett v. Tickell, Jacob's Rep. 155; Taggart v. Hewlett, 1 Meriv. 499. Neither vague apprehension of an intention to commit waste, nor information given of such intention by a third person, who merely states his belief, but not the grounds of his belief, will sustain an application for an injunction. The affidavits should go (not necessarily, indeed, to positive acts, but, at least) to explicit threats. A court of equity never grants an injunction on the notion that it will do no harm to the defendant, if he does not intend to commit the act in question; an injunction will not issue unless some positive reasons are shown to call for it. Hannay v. M'Entire, 11 Ves. 54; Coffin v. Coffin, Jacob's Rep. 72. It was formerly held, that an injunction ought not to go against a person who was a mere stranger, and who consequently might, by summary legal process, be turned out of possession of premises which he was injuring. Such a person, it was said, was a trespasser; but, there not being any privity of estate, waste, strictly speaking, could not be alleged against him. Mortimer v. Cottrell, 2 Cox, 205. But this technical rule is overturned; it is now established by numerous precedents, that wherever a defendant is taking the substance of a plaintiff's inheritance or commiting or threating irremediable mischief, equity ought to grant an injunction, although the acts are such as, in correct technical denomination, ought rather to be termed trespasses than waste. Mitchell v. Dors, 6 Ves. 147; Hanson v. Gardiner, 7 id. 309; Twort v. Twort, 16 id. 130; Earl Cowper v. Baker, 17 id. 128; Thomas v. Oakley, 18 id. 186. Any collusion, by which the legal remedies against waste may be evaded, will give to courts of equity a jurisdiction over such cases, often beyond, and even contrary to, the rules of law; Garth v. Cotton, 3 Atk. 755; thus, trustees to preserve contingent remainders will be prohibited from joining with the tenant for life in the destruction of that estate, for the purpose of bringing forward a remainder, and thereby enabling him to gain a property in timber, so as to defeat contingent remainder-men; and wherever there is an executory devise over, after an estate for life subject to impeachment of waste, equity will not permit timber to be cut. Stansfield v. Habergham, 10 Ves. 278; Oxenden v. Lord Compton, 2 Ves. Jun. 71. So, though the property of timber severed during the estate of a strict tenant for life vests in the first owner of the inheritance; yet, where a party having the reversion in fee is, by settlement, made tenant for life, if he, in fraud of that settlement, cuts timber, equity will take care that the property shall be restored to, and carried throughout all the usage of, the settlement. Powlett v. Duchess of Bolton, 3 Ves. 377; Williams e. Duke of Bolton, 1 Cox, 73.] As to injunctions to restrain waste, see Eden on Injunctions, 179, et seq; Kerr on Injunctions, 235 et seq; Story Eq. Jur. §§ 912-920; Adams Eq. (5th Am. ed.) 208 note; Williard Eq. 369. And as to waste generally and the remedies therefor, see 1 Washb. Real Prop. 107, et seq; post, book III, c. 14. But in favour of the owners of the inheritance, the statutes of Marlbridge, 52 Hen. III, c. 23, and of Gloucester, 6 Edw. I, c. 5, provided that the writ of waste (15) shall not only lie against tenants by the law of England (or curtesy), and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him for waste, committed. But tenant in tail after possibility of issue extinct is not impeachable for waste; because his estate was at its creation an estate of inheriitance, and so not within the statutes. (a) Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account: (b) but it seems reasonable that it should lie for the reversioner, expectant on the determination of the debtor's own estate, or of these estates derived from the debtor. (c) The punishment for waste committed was, by common law and the statute of Marĺbridge, only single damages; (d) except in the case of a guardian, who also forfeited his wardship (e) by the provisions of the great charter; (f) but the statute of Gloucester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages to him that hath the inheritance. The expression of the statute is, "he shall forfeit the thing which he hath wasted;" and it hath been determined that under these words the place is also included. (g) And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a *house, the whole house shall be forfeited; (h) be cause it is impracticable for the reversioner to enjoy only the identical [*284] places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood (or perhaps in one room of a house, if that can be conveniently separated from the rest), that part only is the locus vastatus, or the thing wasted, and that only shall be forfeited to the reversioner. (¿) VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste: whereupon the lord may seise them without any presentment by the homage; (k) but also to peculiar forfeitures annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vassals, the marks of feudal dominion continue much the strongest upon this mode of property. Most of the offences, which occasioned a resumption of the fief by the feudal law, and were denominated feloniæ, per quas vassallus amitteret feudum, (1) still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service (m) si dominum deservire noluerit: (n) by disclaiming to hold of the lord, or swearing himself not his copyholder; (0) si dominnm ejuravit, i. e. negavit se a domino feudum habere: (p) by neglect to be admitted tenant within a year and a day; (q) si per annum et diem cessaverit in petenda investitura: (r) by contumacy in not appearing in court. after three proclamations; (s) si a domino ter citatus non comparuerit: (t) or by refusing, when sworn of the homage, to present the truth according to his oath: (u) *si pares veritatem noverint, et dicant se nescire, cum sciant. (w) In these and a variety of other cases, which it is impossible here to (a) Co. Litt. 27. 2 Roll. Abr. 826. 828. (e) Ibid. 300. (k) 2 Ventr. 38. (n) Feud. l. 1 t. 21. (g) Plowd. 372. (t) Feud. l. 2, t. 22. (f) 9 Hen. III. c. 4. (0) Co. Copyh. § 57. (r) Feud. 1. 2. t. 24. (u) Co. Copyh. 8 57. [ *285] (d) 2 Inst. 146. (i) 2 Inst. 304. Dyer, 211. (b) Co. Litt 54. (16) The writ of waste is now abolished by stat. 3 and 4 Wm. IV, c. 27, § 36. enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord's court baron: (x) per laudamentum parium suorum; (y) or, as it is more fully expressed in another place, (z) nemo miles adimatur de possessione sui beneficii, nisi convicta culpa, quæ sit laudanda (a) per judicium parium suorum. (17) VIII. The eighth and last method whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt; which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined, a trader who secretes himself, or does certain other acts, tending to defraud his creditors. Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter; when we shall endeavour more fully to explain its nature, as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements is transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him. By statute 13 Eliz. c. 7, the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use (or such interest therein [*286] as *he may lawfully part with), or purchased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and inrolled, or divide them proportionably among the creditors. This statute expressly included not only free, but customary and copyhold, lands; but did not extend to estate-tail, farther than for the bankrupt's life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I, c. 19, enacts, that the commissioners shall be empowered to sell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remainder-men, and reversioners, whom the bankrupt himself might (x) Co. Copyh. § 58 (y) Feud. 1. 2, t. 21 (a) i. e. arbitranda, definienda. Du Fresne, IV, 79. (z) Ibid. t. 22. (17) [It is rather singular that in every instance in which Lord Coke on Copyholds is cited in this paragraph, his authority is directly contradictory of the text. In his fifty-seventh chapter he divides forfeitures into those which operate eo instante, and those which must be presented; and then enumerates those of the former class. Under this he ranges among many others, disclaimer, not appearing after three proclamations, and refusing when sworn to present the truth. In his fifty-eighth chapter he enumerates the second class, and under it places treason. felony, and alienation. It is observable also, that the references to Dyer 211 and 8 Rep. 99, are not in point. With respect to the subject of the paragraph, if presentment is necessary in any case, it should seem in reason that the necessity would exist rather in case of treason and felony, where the conviction and attainder might take place far from the residence of the lord, than in case of disclaimer, &c., which must take place either in the lord's court, or in a suit to which he was a party. Of the first he might reasonably be supposed to remain ignorant until his homage by presentment informed him; of the latter he could hardly avoid taking instant notice. But, in fact, the better opinion seems to be, that in no case is presentment legally necessary. In every instance the forfeiture is referable back to a supposed determination of the will which the act, being inconsistent with the tenancy, demonstrates. If the lord is not aware of the act. it is the duty of the homagers to inform him; but the forfeiture exists in that case before the information given. As a matter of prudence, however, the lord will of course procure a presentment. See Scriven on Copyholds, 311, in which the opinions of Ch. Baron Gilbert and Watkins are stated.] have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged estates shall be at the disposal of the commissioners; for they shall have power to redeem the same as the bankrupt himself might have done, and after redemption to sell them. And also by this and a former act, (b) all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchaser bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptcy committed. By virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred by his commissioners to their assignees without his participation or consent. (18.) CHAPTER XIX. OF TITLE BY ALIENATION. THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense; under which may be comprised any method wherein estates are voluntarily resigned by one man, and accepted by another; whether that be effected by sale, gift, marriage, settlement, devise, or other transmission of property by the mutual consent of the parties. This means of taking estates by alienation, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feudal law, (a) a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feudal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for if he might, the feudal restraint of alienation would have been easily frustrated and evaded. (b) And as he could not aliene it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir. (c) And therefore it was very usual in ancient feoffments to express that *the alienation was made by consent [*288] of the heirs of the feoffor; or sometimes for the heir apparent himself to join with the feoffor in the grant. (d) And, on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not aliene or transfer (a) See page 57. (b) 1 Jac. I. c. 15. (b) Feud. l. 1, t. 27. (d) Maddox, Formul. Angl. No 316, 319, 427. (18) The English Bankrupt Acts were revised and consolidated by stat. 12 and 13 Vic. c 106, ander which the estate of the bankrupt becomes vested in the assignees appointed on behalf of creditors, in the manner directed by law, by virtue of such appointment alone, and without any deed or conveyance. These acts were again revised and consolidated by a new act, taking effect in 1870. The several states in the United States have insolvent laws, which are in the nature of bankrupt laws, and under which, when an assignee is appointed, the estate of the insolvent is transferred to such assignee, either by force of the appointment, or by a conveyance which the insolvent is required to execute. Congress, however, is empowered by the constitution of the United States to establish a uniform system of bankruptcy, and this power was exercised in 1867. The state laws are in consequence superseded, inasmuch as the system established by Congress cannot be "uniform" throughout the country so long as such state laws remain in force. Sturges v. Crowninshield, 4 Wheat. 132. The bankrupt's estate, under the act of 1867, is vested in the assignee by the appointment. his signiory 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 apprised of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seizing of his cattle by the lord of a neighboring clan. (e) This consent of the vassal was expressed by what was called attorning, (f) or professing to become the tenant of the new lord; which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incomplete: (g) which was also an additional clog upon alienations. But by degrees this feudal severity is worn off; and experience hath shown that property best answers the purposes of civil life, especially in commercial. countries, when its transfer and circulation are totally free and unrestrained. The road was cleared in the first place by a law of King Henry the First, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power than over what had been transmitted to him in a course of descent from his ancestors; (h) *a doctrine which is countenanced by the feudal con[*289] stitutions themselves; (i) but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate. (k) Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase deed, he was not empowered to aliene; () and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heir. (m) By the great charter of Henry III, (n) no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one half or moiety of the land. (0) But these restrictions were in general removed, by the statute of quia emptores, (p) whereby all persons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion. (q) And even these tenants in capite were by the statute 1 Edw. III, c. 12, permitted to aliene, on paying a fine to the king. (r) By the temporary statutes 7 Hen. VII, c. 3, and 3 Hen. VIII, c. 4, all persons attending the king in his wars were allowed to aliene their lands without license, and were relieved from other feudal burdens. And lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II, c. 24. Ás to the power of charging lands with the debts of the owner, this was introduced so early as statute Westm. 2, which (s) subjected a moiety of the tenant's lands to executions, for debts recovered by law; as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatoribus made the same year, and in a statute staple by statute 27 Edw. III, c. 9, and in And now, other similar recognizances by statute *23 Hen. VIII, c. 6. [*290] the whole of them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, (e) Gilb. Ten. 75. (f) The same doctrine and the same denomination prevailed in Bretagne-possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attournances et avirances. ut loqui solent; cum vasallus, ejurato prioris domini obsequio et fide, novo se sacramento novo item domino acquirenti obstringebat, idque jussu auctoris. D'Argentre Antiq. Consuet. Brit. apud Dufresne, i. 819, 820. (g) Litt. § 551. (h) Emptiones vel acquisitiones suas det cui magis velit. mittat extra cognationem suam. LL. Hen. I, c. 70. (i) Feud. 1., t. 39. Terram autem quam ei parentes dederunt, non (K) Si questum tantum habuerit is. qui partem terræ suæ donare voluerit, tunc quidem hoc ei licet; sed non totum questum. quia non potest filium suum hæredem exhæredare. Glanvil, 7. 7. c. 1. (1) Mirr. e. 1. § 3. This is also borrowed from the feudal law. Feud. 1. 2, t. 48. (n) 9 Hen. III. c. 32. (0) Dalrymple of Feuds, 95. (r) 2 Inst. 67 (8) 13 Edw. I, c. 18. (m) Mirr. ibid. (g) See pages 72, 91. (p) 18 Edw. I, c. 1. |