Page images
PDF
EPUB

The case of an alien born is also peculiar. For he may purchase any thing; but after purchase he can hold nothingle except a lease for years of a house for

Acton vs. White, 1 Sim. & Stu. 432. And the assent of trustees to whom property is given for the separate use of a married woman is not necessary to enable her to bind that property as she thinks fit, unless such assent is required by the instrument under which she is beneficially entitled to that property. Essex vs. Atkins, 14 Ves. 547. Brown us Like, 14 Ves. 302. Pybus vs. Smith, 1 Ves. Jr. 194.

So, as Mr. Sugden, in the 3d chapter of his Treatise on Powers, adduces numerous authorities to prove, it has long been settled that a married woman may exercise a power over land, or, in other words, direct a conveyance of that land, whether the power be appendant, in gross, or simply collateral, and as well whether the estate be copyhold or freehold. Doe vs. Staple, 2 T. R. 695. Tomlinson vs. Dighton, 1 P. Wms. 149. Hearle vs. Greenbank, 3 Atk. 711. Peacock vs. Monk, 2 Ves. Sen. 191. Wright vs. Englefield, Ambl. 473. Driver vs. Thompson, 4 Taunt. 297. And it would operate palpable injustice if where a married woman held property in trust as executrix, or en autre droit, she could not convey and dispose of the same as the duties of her trust required. Scammel w. Wilkinson, 2 East, 557. Perkins, ch. i. & 7.

No doubt the separate estate of a feme covert cannot be reached as if she were a feme sole, without some charge on her part, either express or to be implied. It seems, however, to be settled, notwithstanding the dislike of the principle which has been often expressed, (Jones vs. Harris, 9 Ves. 497. Nantes vs. Corrock, 9 Ves. 189. Heatley vs. Thomas, 15 Ves. 604,) that when a wife joins with her husband in a security, this is an implied execution of her power to charge her separate property, (Greatley vs. Noble, 3 Mad. 94. Stuart vs. Lord Kirkwall, 3 Mad. 389. Hulme vs. Tennant, 1 Brown, 20. Sperling vs. Rochford, 8 Ves. 175;) and by joining in a sale with her husband by fine, & married woman may clearly come under obligations affecting her separate trustestate. Parkes vs. White, 11 Ves. 221, 224. A court of equity will certainly not interfere without great reluctance, for the purpose of giving effect to the improvident engagement of a married woman, for the accommodation of her husband; but where it appears in evidence that she was a free agent, and understood what she did, when she engaged her separate property, a court of equity, it has been held, is bound to give effect to her contract, (Essex vs. Atkins, 14 Ves. 547 ;) or rather, perhaps, it may be more correctly put to say, that although a feme covert cannot by the equitable possession of separate property acquire a power of personal contract, yet she has a power of disposition as incident to property, and her actual disposition will bind her. Aguilar vs. Aguilar, 5 Mad. 418. The distinction between the mere contract or general engagement of a married woman and an appropriation of her separate estate has been frequently recognised. Power vs. Bailey, 1 Ball. & Beat. 52. She can enter into no contract affecting her person: the remedy must be against her property. Sockett vs. Wray, 4 Brown, 485. Francis vs. Widville, i Mad. 263.

Where her husband is banished for life, (Countess of Portland vs. Prodgers, 2 Vern. 104,) or, as it seems, is transported beyond the seas, (Newsome vs. Bowyer, 3 P. Wms. 38. Lean vs. Schutz, 2 W. Bla. 1198,) or is an alien enemy, (Deerly vs. Duchess of Mazarine, 1 Salk. 116; and see Co. Litt. 132, b., 133, a.,) in all these cases it has been held that it is necessary the wife should be considered as a feme sole.—Chitty.

A married woman might formerly have conveyed an interest in lands by fine or recovery. Under the statute 3 & 4 Wm. IV. c. 75, she is enabled to dispose of lands by deed, and to release or extinguish any interest therein, as effectually as if she were a fene sole. But no such disposition can be made without the concurrence of her husband; and the deed, when made, must be acknowledged by her before a judge of the superior or county courts, or before a commissioner appointed for the purpose of taking such acknowledgments, by whom she is examined apart from her husband as to her voluntary consent to the deed. The court of chancery has also long recognised the power of a fcme coverte 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.-KERR.

It has been held, however, wherever the wife has a separate estate secured to her by a deed of trust she can exercise no power over the estate except what is clearly given to her hy the deed. The Methodist Episcopal Church vs. Jaques, 3 Johns. Ch. Rep. 108. Lancaster vs. Dolan, 1 Rawle, 231.-SHARSWOOD.

10 “If,” says lord Coke, (Co. Litt. 2, a. b., Com. Dig. Aliens, C. 2, see the reasons, Bac. Abr. Aliens, C.,)“ an alien purchase houses, lands, tenements, or hereditaments, to him ard his heirs, albeit he can have no heirs, yet he is of capacity to take a fee-simple, but not to hold; for upon office found—that is, upon the inquest of a proper jury—the king shall have it ly kis prerogative of whomsoever the land is holden; and so it is if the alien doth purchase land and die, the law doth cast the freehold and inheritance upon the

convenience of merchandise, in case he be an alien friend;" all other purchases (when found by an inquest of office) being immediately forfeited to the crown.(n)"

Papists, lastly, and persons professing the popish religion, and neglecting to take the oath prescribed by statute 18 Geo. III. c. 60, within the time limited for that purpose, are, by statute 11 & 12 W. III. c. 4, disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void.(0)18

II.' We are next, but principally, to inquire how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired ; *which, we have more than once observed, was that of occupancy or first possession.

[*294 But this possession, when once gained, was also necessarily to be continued; or else, upon one man's dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would ensue which property was introduced to prevent. For this purpose therefore of continuing the possession, the municipal law has established descents and alienations; the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons to whom the proprietor, by his own voluntary act, should choose to relinquish it in his lifetime. À translation, or transfer, of property being thus admitted by

(9) 1 P. Wms. 354.

(*) Co. Litt. 2.

king.”. And if an alien purchase to him and the heirs of his body, he is tenant in tail; and if he suffer a recovery, and afterwards an office is found, the recovery is good to bar the remainder, (9 Co. 141. Roll. 321. 4 Leon. 84. m. Dig. Aliens, C. 2;) but the estate purchased by an alien does not vest in the king till office found, until which the alien is seised and may sustain actions for injuries to the property. 5 Co. 52, b. 1 Leonard, 47. 4 Leon. 82. Com. Dig. Aliens, C. 4. But though an alien may take real property by purchase, yet he cannot take by descent, by dower, or by the curtesy of Eng. sand, which are the acts of the law; for the act of law, says Sir Edward Coke, (7 Co. 25, a. Com. Dig. Aliens, C. 1. Bac. Abr. Aliens, c. 2 Bla. Com. 249,) giveth the alien nothing. Therefore, by the common law, (Co. Litt. 8, a.,) an alien could not inherit to his father, though the father were a natural-born subject; and the statutes have made no alteration in this respect in favour of persons who do not obtain denization or naturalization. So that an alien is at this day excluded not only from holding what he has taken by purchase, after office found, but from even taking by descent at all; and the reason of this distinction between the act of the alien himself, by which he may take but cannot hold, and the act of the law, by which he cannot even take, is marked by lord Hale, in his judgment in the case of Collingwood vs. Pace, 1 Ventr. 417, where he says, though an alien may take by purchase by his own contract that which he cannot retain against the king, yet the law will not enable him by act of his own to transfer by hereditary descent, or to take by an act in law; for the law, quæ nihil frustra, (which does nothing in vain,) will not give an inheritance or freehold by act in law, for he cannot keep it.

The general rule of the law therefore appears to be, that an alien by purchase, which is his own act, may take real property, but cannot hold it; by descent, dower, or curtesy, or any other conceivable act of the law, he cannot even take any lands, tenements, or hereditaments whatsoever, much less hold them. The reason of the law's general exclusion of aliens we have seen, ante, 1 book, 371, 372.-Cutty.

11 In former times no alien was permitted even to occupy a house for his habitation; and the alteration in that law was merely in favour of commerce and merchants. See 1 Rapin, Hist. Eng. 361, n. 9. Bac. Abr. Aliens, C.-Cutty.

12 But not before the inquest, (5 Co. 52, b.;) and if the purchase be made with the king's license, there can be no forfeiture. 14 Hen. IV. 20. Harg. Co. Litt. 2, b., n. 2.Chitty.

But alien friends are now, by stat. 7 & 8 Vict. c. 66, 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.-KERR.

18 But these disabilities have now been entirely swept away. 10 Geo. IV. c. 7. 2 & 3 Wm. IV. c. 115.-KERR.

law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was trans ferred; or with regard to the subject matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.

These common assurances 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 king's public courts of record. 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. We shall treat of each in its order.

CHAPTER XX.

OF ALIENATION BY DEED.

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.(a) 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, xa7' 50xn, 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 any thing in contradiction to what he has once so solemnly and deliberately avowed. (6) 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 should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to *296]

leave half the word on *one part and half on the other. Deeds thus

made were denominated syngrapha by the canonists;(c) and with us chi. rographa, or hand-writings;(d) the word cirographum or cyrographum being usually that which is divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose than to give name to the species of the deed. When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the jirantor is usually called the original, and the rest are counterparts: though of (a) Co. Litt. 171.

Lyndew. L. 1, t. 10, c. 1. (6) Plowd. 434.

(d) Mirror, c. 2, 2 27.

Co. Litt. 35.

late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed.

II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with for tho purposes intended by the deed: and also a thing, or subject matter, to be contracted for; all which must be expressed by sufficient names. (f). 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 usurious contract;(9) nor upon fraud or collusion, either to deceive purchasers bona fide, (h) or just and lawful creditors;(() any of which bad considerations will vacate the deed, and subject such persons, as put the same in ure, to forfeitures and often to imprisonment. 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 bimself.(k)? 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

[*297 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:(1) and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fide purchasers.' Mirror, c. 2, & 27. Litt. 371, 372.

(Stat. 13 Eliz, c. 8.

(*) Perk. & 533. ) Stat. 13 Eliz. c. 8.

(9) 3 Rep. 83. (*) Stat. 27 Eliz. c. 4. Now a deed purporting to be an indenture shall have the effect of an indenture, and an immediate estate or interest in any tenements or hereditaments, and the benefit of a covenant or of a condition, may be taken, although the taker thereof be not named a party to the indenture. 8 & 9 Vict. c. 106, s. 5.-Stewart.

? This sentence is not quite accurately worded. From the expression "deed, or other grant," it might be inferred that a deed was a species of grant; whereas a grant is only one mode of conveyance by deed. Next, it is not true that all deeds or all grants made without consideration are of no effect; for, 1st. As to all deeds which operate at common law or by transmutation of possession, I imagine that they will be valid at law to pass the estates they profess to pass as against the grantor, though made without any consideration; and, 2d. As to deeds which operate under the statute of uses, they create a use which results to the grantor. To all appearance, indeed, no change is made in the grantor's title or rights by such a deed; yet that it is without effect in law cannot be said, because it works such an alteration in the grantor's estate from that which he had before, that any devise of the lands made before the date of the deed will take no effect unless the will be republished,—that is, in fact, new-made.-COLERIDGE.

8 This, I conceive, is only true of a bargain and sale ; for "herein it is said to differ from a gift, which may be without any consideration or cause at all; and that [a bargain and sale] hath always some meritorious cause moving it, and cannot be without it.” Shep. Touch. 221. But, otherwise, a voluntary conveyance is good both in law and equity against the party himself. Tr. of Eq. b. 1, c. 5, s. 2. It used to be thought if a person made a voluntary grant of lands, although he could not resume them himself, yet, if he afterwards made another conveyance of them for a valuable consideration, tho first grant would be void with regard to this purchaser under the 27 Eliz. c. 4. But it was determined by lord Mansfield and the court that there must be some circumstance of fraud to vacate the first conveyance, the want of consideration alone not being sufficient. See Cowp. 705. But it has since been decided (9 East, 59) that a voluntary settlement of lands, made even in consideration of natural love and affection,-even as a provision for the nearest relations, parents or children,-is void as against a subsequent purchaser for a valuable consideration, although such purchaser had notice of the prior settlement. If a person is indebted at the time of making a voluntary grant, or becomes so soon afterwards, it will be considered fraudulent and void with respect to creditors under the 13 Eliz. c. 5. And if a person makes a voluntary grant, and afterwards becomes bankrupt, whether he was indebted or not at the time, it will be void by the 1 Jac. c. 15, and the estate granted may be conveyed by the commissioners to the assignees for the benefit of the creditors. 1 Atk. 93.-CHRISTIAN.

Thirdly, the deed must be written, or I presume printed, for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed.(m) Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular 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 handle to a variety of frauds, the statute 29 Car. II. c. 3 enacts, that no lease estate or interest in lands, tenements, or hereditaments, made by livery of seisin, or by parol only, (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value, shall be looked upon as of greater force than a lease or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid: unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorized in writing."

(9) Co. Litt. 229. F. N. B. 122. The better American doctrine seems now to be that voluntary conveyances of land bonâ fide made and not originally fraudulent are valid against subsequent purchasers with notice either actual or constructive. Jackson vs. Town, 4 Cowen, 603. Richer vs. Ham, 14 Mass. 139. Cathcart vs. Robinson, 5 Peters, S. C. Rep. 280. 4 Kent's Com. 463.

There are some deeds to the validity of which a consideration need not have been stated. It was not required at common law in feoffments, fines, and leases, in consideration of the fealty and homage incident to every such conveyance. The law raised a consideration from the tenure itself and the solemnity of the act of conveyance. The necessity of a consideration came from the courts of equity, where it was held requisite to raise a use; and, when uses were introduced at law, the courts of law adopted the same idea, and held that a consideration was necessary to the validity of a deed of bargain and sale. It has been long the settled law that a consideration expressed or proved was necessary to give effect to a modern conveyance to uses. Lloyd vs. Spillet, 2 Atk. Rep. 148. Jackson vs. Alexander, 3 Johns. 491. Preston on Abst. vol. 3, 13, 14. The consideration need not be expressed in the deed; but it must exist. Fink vs. Green, 5 Barb. S. C. Rep. 455. The mention of the consideration in a deed was to prevent a resulting trust; but it is only prima facie evidence of the amount, and may be varied by parol proof. Meeher vs. Meeher, 16 Conn. 383. 4 Kent Com. 465.-SHARSWOOD.

* Com. Dig. Fait, A., 3 Chitty's Com. L. 6. There seems no doubt that it may be printed, and that, if signatures be requisite, the name of a party in print at the foot of the instrument would suffice. 2 M. & S. 288.-Chitty.

5 Courts of equity, though the practice has been lamented, have long been in the habit of deciding, upon equitable grounds, in contradiction to this positive enactment. The earliest case of the kind appears to have been that of Foxcraft vs. Lyster, (Colles's P. C. 108.) By the highest tribunal of the realm it was held to be against conscience to suffer a party who had entered into lands and expended his money on the faith of a parol agreement to be treated as a trespasser, and for the other party, in fraud of his engage ment, (although that was only verbal,) to enjoy the advantage of the money so laid out. This determination, though in the teeth of the act of parliament, was clearly founded on sound abstract principles of natural justice, and, confirmed as it has been by an almost daily succession of analogous authorities, is not now to be questioned.

It is settled, also, that trusts of lands arising by implication, or operation of law, are not within the statute of frauds : if they were, it has been said that statute would tend to promote frauds rather than prevent them. Young vs. Peachy, 2 Atk. 256, 257. Willis vs Willis, 2 Atk. 71. Anonym. 2 Ventr. 361.

The statute of frauds enacts that no agreement respecting lands shall be of force un. less it be signed by the party to be charged; but the statute does not say that every agree ment so signed shall be enforced. To adopt that construction would be to enable any person who had procured another to sign an agreement to make it depend on his own will and pleasure, whether it should be an agreement or not. Lord Redesdale, indeed, has intimated a doubt whether in any case (not turning upon the fact of part performance) an agreement ought to be enforced which has not been signed by, or on behalf of, both parties. Lawrenson vs. Butler, 1 Sch. & Lef. 20. O'Rourke vs. Percival, 2 Ball. & Beat. 62. Lord Hardwicke and Sir Wm. Grant held a different doctrine. Backhouse vs

[ocr errors]
« PreviousContinue »