t estate.(j) Afterwards a man seems to have been at liberty to part with all his lutely sold for the benefit of trade and commerce by the several statutes of (5) Si questum tantum habuerit is, qui partem terræ suæ donare volueril, tunc quidem hoc ei licet: sed non totum questum, quia non potest filium suum hæredem exhæredare. Glanvil. 7. 7, c. 1. (*) Mirr. c. 1, 23. This is also borrowed from the feodal law. Feud. 1. 2, t. 48. () Mirr. ibid. ()9 Hen. III. c. 32. (*) Dalrymple of Feuds, 95. (°) 18 Edw. I. c. 1. () 13 Edw. I. c. 18. 1 An attornment at the common law was an agreement of the tenant to the grant of the seigniory or of a rent, or of the donee in tail, or tenant for life or years, to a grant of reversion or remainder made to another. Co. Litt. 309, a. And the attornment was necessary to the perfection of the grant. However, the necessity of attornments was in some measure avoided by the statute of uses, as by that statute the possession was immediately executed to the use, (1 Term R. 384, 386,) and by the statute of wills, by which the legal estate is immediately vested in the devisee. Yet attornment continued after this to be necessary in many cases, but both the necessity and efficacy of attornments have been almost totally taken away by the statute 4 & 5 Anne, c. 16, ¿? 9, 10, and 11 Geo. II. c. 19, 11. The first statute having made attornment unnecessary, and the other having made it inoperative, it is now held not to be necessary either to aver it in a declaration in covenant, or plead it in an avowry or other pleading whatever. Doug. 283, Moss vs. Gallimore. See Mr. Serjt. Williams's note, 1 Saund. 234, b., n. 4. Under the proviso in the first act, any notice to the tenant of his original landlord having parted with his interest is sufficient; and therefore the tenant's knowledge of the title of cestuy que trust as purchasor has been held sufficient notice to entitle his trustees to maintain an action of assumpsit for use and occupation as grantees of the reversion against the tenant, who had improperly paid over his rent to a vendor after such knowledge. 16 East, 99. Although the first-mentioned act renders an attornment unnecessary, yet it is still useful for a purchasor to obtain it, because after an attornment he would not in any action against the tenant be compelled to adduce full evidence of his title, (Peake's Law of Evid. 266, 267,) though the tenant would still be at liberty to show that he had attorned by mistake. 6 Taunt. 202.-CHITTY. In examining the nature of alienation, let us first inquire, briefly, who may aliene, and to whom; and then, more largely, how a man may aliene, or the several modes of conveyance. I. Who may aliene, 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 in possession are prima facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities. But, if a man has only in him the right of either possession or property, he cannot convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down and the weak oppressed. (s)3 Yet reversions and vested remainders may be () (Co. Litt. 214. But it is a rule of law that no person can vest an estate in another against his will; and consequently, if a grantee, lessee, or devisee refuses the estate intended to be vested in him, the grant, lease, or devise will be void. Thompson vs. Leech, 2 Vent. 198. An estate granted or devised to a person for his own benefit is seldom disclaimed; but it often happens that persons who are made grantees or devisees in trust for others decline to act, in which case they may disclaim by deed. See Nicolson vs. Wordsworth, 2 Swanst. 372. Townson vs. Tickell, 3 B. & A. 31. Smith vs. Smith, 6 B. & C. 112. Begbie s. Crook, 2 Bing. N. C. 70.-COLeridge. The doctrine maintained by the masterly argument of justice Ventris in Thompson vs. Leach, (2 Vent. 201,) and eventually established by the decision of that case in the house of lords, is, that a common-law conveyance put into the hands of an agent for transmission to the grantee takes effect the instant it is parted with, and vests the title, though the grantee be ignorant of the transaction; and that the rejection of such a grant has the effect of revesting the title in the grantor, it would seem, by a species of remitter. It has been held, therefore, that whenever the conveyance in such a case is in trust, and the grantee refuses to accept, equity, which always protects, where it can without disturbing a legal right, the interests of a cestuy que trust from the acts of the trustee, will support the trust as sufficiently created, and appoint a trustee in the place of him who has refused to accept. Read vs. Robinson, 6 Watts & Serg. 329. Where the grantee does accept, his title relates back to the execution of the deed, and in every case, whether the transfer is to the grantor beneficially or in trust, his acceptance will be presumed until the contrary appear. Wilt vs. Franklin, 1 Binn. 502.-SHARSWOOD. It is a very ancient rule of law that rights not reduced into possession should not be assignable to a stranger, on the ground that such alienation tended to increase maintenance and litigation, and afforded means to powerful men to purchase rights of action and oppress others. Co. Litt. 214, 265, a., n. 1, 232, b., n. 1. Our ancestors were so anxious to prevent alienation of choses or rights in action, that we find it enacted by the 32 Hen. VIII. c. 9 (which, it is said, was in affirmance of the common law, Plowd. 88) that no person should buy or sell, or by any means obtain any right or title to, any manors, lands, tenements, or hereditaments, unless the person contracting to sell, or his ancestor, or they by whom he or they claim the same, had been in possession of the same, or of the reversion or remainder thereof, for the space of one year before the contract; and this statute was adjudged to extend to the assignment of a copyhold estate (4 Co. 26, a.) and of a chattel interest, or a lease for years of land whereof the grantor was not in possession. Plowd. 88. At what time this doctrine, which it is said had relation originally only to landed estates, (2 Woodd. 388,) was first adjudged to be equally applicable to the assignment of a mere personal chattel not in possession, it is not easy to decide: it seems, however, to have been so settled at a very early period of our history, as the works of our oldest text-writers, and the reports, contain numberless observations and cases on the subject. Lord Coke says (Co. Litt. 214, a.; see also 2 Bos. & Pul. 541) that it is one of the maxims of the common law that no right of action can be transferred, "because, under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down and the weak oppressed, which the common law forbiddeth."CHITTY. But now, by statute 8 & 9 Vict. c. 106, contingent, executory, and future interests and possibilities, coupled with an interest in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, and rights of entry, whether vested or contingent, may be disposed of by deed; and, by statute 1 Vict. c. 26, estates contingent as to the person, and rights of action and entry, which before were not devisable, may now pass by will.-KERR. The ancient policy, which prohibited the sale of pretended titles, and held the convey ance to a third person of lands held adversely at the time to be an act of maintenance, was founded upon a state of society which does not exist in this country. A right of granted; because the possession of the particular tenant is the possession of him in reversion or remainder; but contingencies, and mere possibilities, though they may be released, or devised by will, or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest.(t)5 Persons attainted of treason, felony, and præmunire are incapable of conveying, from the time of the offence committed, provided attainder follows:(u) for such conveyance by them may tend to defeat the king of his 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 [*291 purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime.(w) So also corporations, religious or others, may purchase lands; yet, unless they have (*) Sheppard's Touchstone, 238, 239, 322. 11 Mod. 152. 1 P. Wms. 574. Stra. 132. Co. Litt. 42. (w) Ibid. 2. entry was not assignable at common law, because, said lord Coke, "under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down and the weak oppressed." The repeated statutes which were passed in the reigns of Edward I. and Edward III. against champerty and maintenance arose from the embarrassments which attended the administration of justice in those turbulent times, from dangerous influence and oppression of men in power. The doctrine that a conveyance by a party out of possession and with an adverse possession against him is void, prevails equally in Connecticut, Massachusetts, Vermont, Maryland, Virginia, North Carolina, Tennessee, Kentucky, Mississippi, Alabama, Indiana, and probably in most of the other States. In some States-such as New Hampshire, Pennsylvania, Ohio, Illinois, Missouri, and Louisiana-the doctrine does not exist; and a conveyance by a disseisee would seem to be good, and pass to the third person all his right of possession and of property, whatever it might be. 4 Kent Com. 457.-SHARSWOOD. It is now well established, as a general rule, that possibilities (not meaning thereby mere hopes of succession, Carleton vs. Leighton, 3 Meriv. 671. Jones vs. Roe, 3 T. R. 93, 96) are devisable; for a disposition of equitable interests in land, though not good at law, may be sustained in equity. Perry vs. Phelips, 1 Ves. Jr. 254. Scawen vs. Blunt, 7 Ves. 300. Moor vs. Hawkins, 2 Eden, 343. But the generality of the doctrine that every equitable interest is devisable requires at least one exception: the devisee of a copyhold must be considered as having an equitable interest therein; but it has been decided that he cannot devise the same before he has been admitted. Wainwright vs. Elwell, 1 Mad. 627. So, under a devise to two persons, or to the survivor of them, and the estate to be disposed of by the survivor by will, as he should think fit, it was held that the devisees took as tenants in common for life, with a contingent remainder in fee to the sur vivor, but that such contingent remainder was not devisable by a will made by one of the tenants in common in the lifetime of both. Doe vs. Tomkinson, 2 Mau. & Sel. 170.—CHITTY. 5 Mr. Ritso remarks that, independently of thus confounding contingencies and mere possibilities, as if they were in pari ratione,-which they certainly are not, there is here a great mistake; first, in describing mere possibilities to be such as may be released or devised by will, &c.; and, secondly, in supposing devisable possibilities to be incapable of being assigned to a stranger. For, in the first place, there is this wide difference between contingencies (which import a present interest of which the future enjoyment is contingent) and mere possibilities, (which import no such present interest,) namely, that the former may be released in certain cases, and are generally descendible and devisable, but not so the latter. Suppose, for instance, lands are limited (by executory devise) to A. in fee, but if A. should die before the age of twenty-one, then to C. in fee: this is a kind of possibility or contingency which may be released or devised, or may pass to the heir or executor, because there is a present interest, although the enjoyment of it is future and contingent. But where there is no such present interest as the hope of succession which the heir has from his ancestor in general, this, being but a mere or naked possibility, cannot be released or devised, &c. Fearne, 366. Secondly, contingencies or possibilities which may be released or devised, &c. are also assignable in equity, upon the same principle; for an assignment operates by way of agreement or contract, which the court considers as the engagement of the one to transfer and make good a right and interest to the other. As where A., possessed of a term of 1000 years, devised it to B. for 50 years, if she should so long live, and after her decease to C., and died; and afterwards C. assigned to D.; now, this was a good assignment, although the assignment of a possibility to a stranger. The same point was determined, in the case of Theobald vs. Duffay, in the house of lords, March, 1729-30. Ritso, Introd. 48. SHARSWOOD. a license to hold in mortmain, they cannot retain such purchase; but it shali be forfeited to the lord of the fee. Idiots and persons of non-sane 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 voidable, but not actually void. The king indeed, on behalf of an idiot, may avoid his grants or other acts.(x) But it hath been said that a non compos himself, though he be afterwards brought to a right mind, shall not be permitted to allege his own insanity in order to avoid such grant: for that no man shall be allowed to stultify himself, or plead his own disability The progress of this notion is somewhat curious. In the time of Edward I, non compos was a sufficient plea to avoid a man's own bond:(y) and there is a writ in the register(z) for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suæ, ut dicit, &c. But under Edward III. a scruple began to arise, whether a man should be permitted to blemish himself by pleading his own insanity :(a) and, afterwards, a defendant in assize having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus, as the manner then was) that he was out of his mind when he gave it, the court adjourned the assize; doubting whether, as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked how he came to remember the release, if out of his senses *292] when he gave it.(b) Under Henry VI., this way of *reasoning (that a man shall not be allowed to disable himself by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument;(c) upon a question, whether the heir was barred of his right of entry by the feoffment of his insane ancestor. from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason, (d) the maxim that a man shall not stultify himself hath been handed down as settled law :(e) though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it.(ƒ)' 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.(g) 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.(h) In like manner an infant may waive such purchase or conveyance when he comes to full age; or, if he does not actually agree to it, his heirs may waive it after him.(i) Persons also, who purchase or convey under duress, may affirm or avoid such transaction whenever the duress is And This doctrine does not seem to prevail in our ecclesiastical courts; for in Turner vs. Meyers, 1 Hagg. 414, lord Stowell annulled a marriage by reason of insanity of the husband, the husband himself being the promovent in the suit: and his lordship says expressly, “It is, I conceive, perfectly clear in law that a party may come forward to maintain his own past incapacity." This case is entitled to the more consideration because the suit had been first instituted by Turner's father, probably with a view to this very objection, and lord Stowell then dismissed it. And the student will understand the rule even in our common-law courts to be restrained to the party's specially pleading his own insanity on the record; because I imagine it to be quite clear that any one may show himself in evidence to have been in such a state at the time of an act done as that the act itself is void. As if A.,a lunatic, seals a bond and is sued upon it, when he recovers his intellect he may plead that it is not his bond, and show his incapacity at the time of sealing it.-COLERIDGE. The party himself may set up as a defence and in avoidance of his contract that he was non compos mentis when it was alleged to have been made. The principie advanced by Littleton and Coke that a man shall not be heard to stultify himself has been properly exploded, as being manifestly absurd and against natural justice. 4 Kent Com. 451.-SHARSWood. ME ceased.(j) 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 condi tion; so that their acts are only binding in case they be afterwards agreed to, when such imbecility ceases. Yet the guardians or committees of a lunatic, by the statute of 11 Geo. III. c. 20, are empowered to renew in his right, under the directions of the court of chancery, any lease for lives or years, and apply the profits of such renewal for the benefit of such lunatic, his heirs or executors. 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.(k) And, though he does nothing to avoid it, or even if he actually consents, the feme- [*293 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.(1) But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable;(m) and therefore cannot be affirmed or made good by any subsequent agreement." ()2 Inst. 483. 5 Rep. 119. Co. Litt. 3. 'Where a deed has been prepared in pursuance of personal instructions of the conveying party, yet if it be proved that such party, though appearing to act voluntarily, was in fact not a free agent, but so subdued by harshness and cruelty that the deed spoke the mind, not of the party executing, but of another, such deed cannot in equity stand, though it may be difficult to make out a case of legal duress. Peel vs. -——— 16 Ves. 159, citing Lady Strathmore vs. Bowes, 1 Ves. Jr. 22. When the execution of a deed is prevented or compelled by force or artifice, equity will give relief (Middleton vs. Middleton, 1 Jac. & Walk. 96) in favour of a volunteer, and even, in some cases, as against innocent parties, (Mastaer vs. Gillespie, 11 Ves. 639;) for it would be almost impossible ever to reach a case of fraud, if third persons were allowed to retain gratuitous benefits which they had derived from the fraud, imposition, or undue influence practised by others. Huguenin vs. Bazeley, 14 Ves. 289. Stillwell vs. Wilkins, Jacobs's Rep. 282. Still, it would be pushing this principle too far to extend it to innocent purchasors, (Lloyd vs. Passingham, Coop. 155) it is only when an estate has been obtained by a third person without payment, or with notice of fraud, that a court of equity will take it from him to restore it to the party who has been defrauded of it, (Mackreth vs. Symmons, 15 Ves. 340;) a bona fide purchaser, for valuable consideration and without notice, will not be deprived of the advantage which his legal title gives him. Jerrard vs. Saunders, 2 Ves. Jr. 457.-CHITTY. And by virtue of the statute of 29 Geo. II. c. 31, the committee of a lunatic may surrender existing leases in order to obtain renewals thereof, to the same uses, and liable to the same trusts and conditions, as the former leases. By the statute of 43 Geo. III. c. 75, the sale or mortgage of the estates of lunatics is authorized for certain purposes; and it is enacted that committees may not only grant leases of tenements in which a non compos has an absolute estate, but, where the lunatic has a limited estate with a power of grantng leases on fines, for lives or years, such power may be executed by his committee under the direction of the great seal. This power is extended to lands in ancient demesne by statute 59 Geo. III. c. 80, and the power of selling or mortgaging the estates of lunatics, given by the statute of 43 Geo. III. c. 75, is extended by the 9 Geo. IV. c. 78, and may be exercised for any such purposes as the lord chancellor shall direct. Where estates are vested in trustees who are infants, idiots, lunatics, or trustees of unsound mind, or who cannot be compelled or refuse to act, the conveyance and transfer of such estates is provided for by the statute of 6 Geo. IV. c. 74, which consolidates and amends the previous enactments on the subject.-CHITTY. The rule laid down in the text must be understood with some obvious qualifications. The possession by a married woman of property settled to her separate use may, as a necessary incident, carry with it the right of disposition over such property. Rich vs. Cockell, 9 Ves. 375. Fettiplace vs. Gorges, 1 Ves. Jr. 49. Tappenden vs. Walsh, 1 Phillim. 352. Grigby vs. Cox, Î Ves. Sen. 518. Bell vs. Hyde, Prec. in Cha. 330. A court of equity has no power to set aside, but is bound to give effect to, a disposition made by a feme covert of property settled to her separate use, though such disposition be made in favour of her husband, or even of her own trustee; notwithstanding it may be plain that the whole object of the settlement in the wife's favour may be counteracted by this exercise of her power. Pybus vs. Smith, 1 Ves. Jr. 194. Parkes vs. White, 11 Ves. 221, 222. Jackson vs. Hobhouse, 2 Meriv. 487. Nantes vs. Corrock, 9 Ves. 189. Sperling vs. Rochfort, 8 Ves. 175. Sturgis vs. Corp, 13 Ves. 190. Glyn vs. Baxter, 1 Younge & Jerv. 332. |