Page images
PDF
EPUB

fi pares veritatem noverint, et dicant se nefcire, cum fciant ". In these, and a variety of other cases, which it is impoffible here to enumerate, the forfeiture does not accrue to the lord till after the offences are prefented by the homage, or jury of the lord's court baron; per laudamentum parium fuerum: or, as it is more fully expreffed in another place, nemo miles adimatur de poffeffione fui beneficii, nifi convicta culpa, quae fit laudanda a per judicium parium fuorum.

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 perfon may, from the feveral descriptions given of him in our statute law, be thus defined; a trader, who fecretes himself, or does certain other acts, tending to defraud his creditors.

WHO shall be such a trader, or what acts are fufficient to denominate him a bankrupt, with the several connected confequences refulting from that unhappy fituation, will be better confidered in a fubfequent chapter; when we shall endeavour more fully to explain it's nature, as it most immediately relates to personal goods and chattels. I fhall only here observe the manner in which the property of lands and tenements are transferred, upon the fuppofition that the owner of them is clearly and indisputably a bankrupt, and that a commiffion of bankrupt is awarded and issued against him.

By the ftatute 13 Eliz. c. 7. the commiffioners for that purpose, when a man is declared a bankrupt, fhall 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 defcend 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 as

w Feud. 1. 2. t. 58.
x Co. Copyh. §. 58.
y Feud, l. 1. t. 21.

z Ibid. t. 22.

a i. e. arbitranda, definienda. Du Freine. IV. 79.

he

[ocr errors]

he may lawfully part with) or purchased with any other perfon upon fecret truft for his own ufe; and to cause them to be appraised to their full value, and to fell the fame by deed indented and inrolled, or divide them proportionably among the creditors. This ftatute expressly included not only free, but copyhold, lands: but did not extend to eftates-tail, farther than for the bankrupt's life; nor to equities of redemption on a mortgaged eftate, wherein the bankrupt has no legal intereft, but only an equitable reverfion. Whereupon the ftatute 21 Jac. I. c. 19. enacts, that the commiffioners fhall be impowered to fell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he fhall be feifed of an estate-tail in poffeffion, remainder, or reverfion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all fuch iffues in tail, remainder-men, and reverfioners, whom the bankrupt himself might 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 commiffioners; for they shall have power to redeem the same, as the bankrupt himself might have done, and after redemption to fell them. And alfo, by this and a former act ", all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchafor bona fide, for a good or valuable confideration, fhall be affected by the bankrupt laws, unless the commiffion be fued forth within five years after the act of bankruptcy committed.

By virtue of these statutes a bankrupt may lose all his real eftates; which may at once be transferred by his commiffioners to their affignees, without his participation or confent.

b 1 Jac. I. c. 15.

CHAPTER THE NINETEENTH.

OF TITLE BY ALIENATION.

HE moft ufual and univerfal method of acquiring a THE title to real estates is that of alienation, conveyance, or purchase in it's limited fenfe: under which may be comprized any method wherein eftates are voluntarily refigned by one man, and accepted by another; whether that be effected by fale, gift, marriage fettlement, devife, or other tranfmiffion of property by the mutual consent of the parties.

THIS means of taking eftates, 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 feodal law, a pure and genuine feud could not be transferred from one feudatory to another without the confent of the lord; left thereby a feeble or fufpicious tenant might have been fubftituted and imposed upon him to perform the feodal fervices, inftead 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 feodal restraint of alienation would have been eafily fruftrated and evaded. And, as he could not aliene it in his lifetime, fo neither could he by will defeat the fucceffion, by devifing his feud to another family; nor even alter the course of it, by impofing particular limitations, or prescribing an unusual path of descent. Nor, in fhort, could he aliene the estate, even with the confent of the lord, unless he had alfo obtained the confent of his own next apparent, or prefumptive, heir . And therefore it was very ufual in antient feoffments to exprefs, that

a See pag. 57.

↳ Feud. 1. 4. 27.

C Co. Litt. 94. Wright, 168.

the

the alienation was made by consent of the heirs of the feoffor; or sometimes for the heir apparent himself to join with the feoffor in the grant". And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his figniory without the consent of his vafal for it was esteemed unreasonable to subject a feudatory to a new fuperior, 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, and be able to distinguish a lawful diftrefs for rent from a hoftile feifing of his cattle by the lord of a neighbouring clan. This confent of the vasal was expreffed by what was called attorning, or profeffing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all leffees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the leffee or tenant refused to attorn to the purchafor, and to become his tenant, the grant or contract was in moft cafes void, or at leaft incomplete : which was also an additional clog upon alienations.

BUT by degrees this feodal severity is worn off; and experience hath fhewn, that property best answers the purposes of civil life, especially in commercial countries, when it's 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 extenfive power, than over what had been transmitted to him in a course of descent from his ancestors ↳ :

[blocks in formation]

a doctrine which is countenanced by the feodal conftitutions themselves: but he was not allowed to fell the whole of his own acquirements, fo as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate. Afterwards a man seems to have been at liberty to part with all his own acquifitions, if he had previously purchased to him and his affigns by name; but, if his affigns 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. By the great charter of Henry III", no fubinfeudation was permitted of part of the land, unless fufficient was left to answer the services due to the fuperior lord, which sufficiency was probably interpreted to be one half or moiety of the land". But these restrictions were in general removed by the ftatute of quia emptores, whereby all perfons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion P. And even these tenants in capite were by the ftatute 1 Edw. III. c. 12. permitted to aliene, on paying a fine to the king. By the temporary ftatutes 7 Hen. VII. c. 3. and 3 Hen. VIII. c. 4. all perfons attending the king in his wars were allowed to aliene their lands without licence, and were relieved from other feodal burdens. And, laftly, thefe very fines for alienations were, in all cafes of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging lands with the debts of the owner, this was introduced fo early as statute Westm. 2. which subjected a moiety of the tenant's lands to executions, for debts recovered by law as the whole of them was likewife fubjected to be pawned in a ftatute merchant by the ftatute de mercatoribus, made the fame year, and in a ftatute staple by ftatute 27 Edw. III. c. 9. and in other similar recognizances by statute 23 Hen,

:

j Feud. 1.2.1.39.

i Si queftum tantum habuerit is, qui partem terrae fuae donare voluerit, tunc quidem hoc ei licet; fed non totum quaeftum, quia non poteft filium fuum baeredem exbaeredare. Glanvil. /. 7. c. 1.

k Mirr. c.1. §. 3. This is also borrowea'from the feodal law. Feud. 1.2. t. 48. VOL. II.

T

1 Mirr, ibid.

m

г

I

9 Hen. III. c. 32.
» Dalrymple of feuds. 95.
o 18 Edw. I. C, T.
P See pag. 72, 91.
9 2 Inft. 67.
13 Edw. I. c, 18,

VIII.

« PreviousContinue »