168 Disentailing Deed-Alienation by Married Women. sent (a). Where a married woman, as in the case before adverted to, is sole protector, she may consent as a feme sole (b). The consent of a protector by a distinct deed is void, unless enrolled with or before the assurance (c). Courts of Equity are excluded from giving any effect to dispositions by tenants in tail or consents of protectors of settlements, which in courts of law would not be effectual (d). When the Lord Chancellor is protector, *he has power to consent to a disposition [*169] by a tenant in tail, and to make such orders as shall be thought necessary, and if any other person is joint protector, the disposition will not be valid without the consent of such person (e); and the order of the Lord Chancellor is declared to be evidence of his consent (ƒ). Next, as to the Powers of alienation given to married women. By sect. 77 it is enacted that it shall be lawful for every married woman in every case, (except that of being a tenant in tail, for which provision is made by the 40th sect. of the Act, before referred to,) by deed to dispose of lands of any tenure and money subject to be invested in lands, and also to dispose of, release or surrender or extinguish any estate which she alone, or she and her husband in her right, may have in any lands of any tenure, or in any such money as aforesaid; and also to release or extinguish any power which may be vested in or limited to her, as fully and effectually as if she were a feme sole; but no such disposition, release, or surrender is valid unless the husband concur (g). Every such deed must be produced and acknowledged before a judge of one of the superior courts at Westminster, or a Master in Chancery, or before two of the perpetual commissioners, or two special commissioners, to be appointed under the Act (h); and such Judge, Master in Chancery, or Commissioners, before they shall receive such acknowledgment, shall examine her apart from her husband touching her knowledge of such deed, and shall ascertain whether she voluntarily consents to such deed, and unless she so consents, shall not permit her to acknowledge the same; and in such case the deed, so far as it relates to the execution thereof by the married woman, is void (i). Certain formalities are then prescribed, which being complied with, the deed by relation is to take effect from the time of acknowledgment (k). The Act also provides for barring entails of copyhold estates. If the entail be of a legal estate, a surrender is made necessary; if of an equitable interest, then a surrender, or a deed of disposition (such deed to be entered on the Court Rolls) may be adopted (1). Though the new law, says Mr. Hayes, perhaps its most able commentator, is formed generally on the basis of the old, yet it must not be considered as a dry substitute, but rather as the result of a comprehensive plan, which, after rejecting certain exceptionable parts of the former system, at once reconstructs what remains in a less technical *form, and extends the range of its utility by applying disentailing as [*170] Old and New Law-Statutes for shortening Conveyances. 170 surances, as well as the assurances of married women, to cases not contemplated or not effectually met by the machinery of Fines and Recoveries (a). The Act professedly institutes the whole law of alienation, as well by tenants in tail as married women-a law assimilated in its general principles to the old law, but at once more simple and more comprehensive (b). The same intelligent writer has particularly noticed many variations from the old law which have been introduced by the Act in question. Amongst the rest, he observes, the protectorship is a personal privilege, neither transferable to assigns nor transmissible to representatives; whereas the capacity of making a tenant to the præcipe was inherent in the seisin of the freeholder for the time being (c). Again, according to the old system, the freeholder was obliged to depart with the immediate freehold to a stranger,-a step often attended with inconvenience in practice; but the protector need only consent, and there is consequently no disturbance of his estate (d). So by the old law a tenant in tail in remainder expectant upon an estate less than freehold was competent of himself to make a valid tenant to the præcipe, and consequently the owner of such an inferior estate was not invested with any controlling power. In that respect the protectorship established by this Act does not conform to the old law (e). So the fine of an heir expectant in tail with proclamations, (though levied in the lifetime of the ancestor,) would have barred the estate tail in the event of its devolving upon him or upon his issue in tail; but his assurance, made in the lifetime of the ancestor, will not have any operation under the new Act (ƒ); and in the case of a base fee and the immediate remainder or reversion centering in the same person, the Act enlarges the base fee into a fee-simple, to the exclusion of the remainder or reversion (g), without any act equivalent to a Recovery, which was necessary for this purpose under the old law. This may suffice to show the nature and the importance of the Act in question, and to point out where the student and the practitioner may obtain the completest information as to the effect of its enactments and the general state of the law as to barring entails. It is further to be observed, that by § 7 of the stat. 8 & 9 Vict. c. 106, married women are enabled to disclaim by deed estates or interests in any tenements and hereditaments, a power which appears to have been omitted in the Act for abolishing fines and recoveries (h). *Two statutes, which promise to be productive of considerable benefit in ordinary cases, have been passed in the present [*171] year relating to the form of conveyances of real property and the granting of leases. The object of them is to enable persons (for they are not compulsory) to effect in a short form all that might be accomplished by the lengthened clauses hitherto used in conveyances and leases. For this purpose the most approved ordinary forms have been selected and placed in the schedules to the Acts, with short forms of words in the margin expressive in each case of the longer form, and by force of the (a) Introd. to Convey. i. 194. Some important illustrations follow. (b) Ibid. p. 149. (c) Ibid. p. 181. (d) Ibid. p. 182. Ibid. p. 169, 170. f) See § 20; Hayes, i. 186. § 39; Hayes, i. 187. h) Neale on Real Prop. Acts, p. 56. 171 Crown Grants, &c.-Statutes of 27th and 30th of Elizabeth. Acts the short form has the effect of its corresponding longer form (a), I shall have occasion again to call the attention of the reader to the subject of conveyances in treating of the Doctrine of Uses. Following Sir William Blackstone's plan, I proceed shortly to notice Assurances by Matter of Record, amongst which Fines and Recoveries were classed, but which, of course, must now be omitted. The highest kind of assurances of this description are private Acts of Parliament (b). Grants from the king to a subject are also assurances by matter of record; by the rules of the Common Law, the king can only give by matter of record. These grants are made by charters or letters patent, differing little from the ancient Anglo-Saxon charters, excepting that they are now universally under the great seal, and there are no witnesses; they are usually addressed to all the king's subjects. The king's letters patent need no delivery (c). It is hardly necessary to add that the crown never grants the dominium directum in land, nor perhaps would a subject be capable of taking it. Sir William Blackstone classes Bonds under deeds which do not convey, but only charge real property (d). It is to be observed, however, that a bond does not, like a recognizance or a judgment (e), specifically charge any of the lands of the obligor or maker of the bond, either during his life or after his death, it merely creates a debt which binds the heir of the obligor (if the heirs are mentioned but not otherwise) [*172] on a deficiency of personal assets (f) to the extent of the value of the real estate which has descended to him, and by consequence, it does not follow the land if conveyed to a bona fide purchaser either by the obligee or his heirs (g). Two important statutes affecting the right of alienation of lands, were passed in the reign of Elizabeth, and are now in force, for the protection, the one of purchasers, the other of creditors (h). The statute 27 Eliz. c. 4, made perpetual by 30 Eliz. c. 18, enacts that every conveyance, limitation, or charge of any lands, tenements, or other hereditaments (including copyholds) for the intent and purpose to defraud and deceive such persons as shall purchase the said lands, or any rent, profit, or commodity in or out of the same, shall be deemed only against such said persons and their representatives who shall so purchase for money, or any good consideration to be wholly void. The (a) To Mr. Vansittart Neale and Mr. Stewart must the credit of these Acts be mainly attributed; I therefore refer to Mr. Neale's work on the Real Property Acts, p. 87-107, for a full explanation as to the reasons on which they are founded and for directions for their use. A specimen of a deed prepared under the 8 & 9 Vict. c. 119, is added, p. 103 of Mr. Neale's work. (b) As to which see 2 Bla. Comm. 344; and Cruise's Digest, v. p. 1. The subject of Acts of Parliament generally will be treated of in a subsequent Chapter. (c) Cruise, v. p. 45. § 1. & § 3, 4th ed. The doctrines as to the powers of the crown to alien as regard crown property and the private property of the sovereign, and the nature and formalities required in crown (d) 2 Bla. Comm. 340. "In venditione itaque pignorum captorum facienda, primo quidem res mobiles— capi jubent-si non sufficerit etiam soli pignora capi jubent et distrahi," &c., Dig. xlii. 1. 15, 2. (g) 2 Bla. Comm. 340, and Sweet's notes. (h) Fraudulent conveyances to uses had been provided against by stat. 50 Edw. III. c. 6, but this subject will be separately considered. Involuntary Alienation—Ancient Law. 172 mere absence of consideration coupled with the subsequent sale, has been held sufficient evidence of fraudulent intention to avoid the deed, even though the prior voluntary conveyance is expressly communicated to the purchaser before he makes his bargain and pays his money (a). The same statute makes void all conveyances, with absolute powers of revocation (b), as against subsequent purchasers for value, with a saving in favor of bona fide mortgages. The statute 13 Eliz. c. 5, also made perpetual, (which, as it relates to personal estate also, will be more particularly noticed in the next Chapter,) enacts, that all feoffments, &c., of lands, tenements, and hereditaments, made by any one with intent to delay, hinder, or defraud creditors of their just actions, &c., shall be as against that person, his heirs, &c., whose actions, &c., are or might be disturbed, utterly void, but with a saving in favor of purchasers on bona fide sales without notice. The mode of affecting lands by recognizance, which may be ranked as a means of voluntarily charging lands, will be adverted to in a future page of this Chapter. The power of alienation of lands by Devise which, excepting as regards lands in particular places, as before noticed, is founded entirely on statutory enactments, and which, as will be seen, was brought about by the Court of Chancery, is reserved for a future Chapter. *It remains shortly to notice the state of the Law as regards Involuntary Alienation. [*173] The same principle which prevented direct alienation, originally operated to prevent lands held to a man and his heirs being aliened indirectly by being subjected to debts (c). In all actions by common persons (for as to the king it was different) where judgment for money alone was obtained, satisfaction could only be obtained of the goods and chattels of the defendant, and the growing profits of his land; but the possession could not be taken. Even after the restrictions on alienation had been removed, still a judgment creditor could only levy from the growing profits, and if the debtor aliened his lands the creditor lost even this (d). By the Statute of Westm. the Second, (13 Ed. I. c. 18) (e), it was enacted, that when a debt was recovered or acknowledged (f) in the King's Court, it should be at the election (g) of the creditor to have a writ of fieri facias to levy the debt of the goods of the debtor, or that the sheriff should deliver to him all the chattels of the debtor, save his oxen and beasts of the plough, and the one half of his land, until the debt were levied (viz. out of the profits) upon a reasonable price or extent, that is, valuation (h). This statute was the first which subjected lands to execution on a judgment (i) as against the debtor. However, in an action of debt against the heir, upon an obligation binding the heirs made by the ancestor, the plaintiff, by the Common Law, might have in (a) 2 Bla. Comm. 296, and Sweet's note (4), where the principal authorities are cited. (b) See Tarback v. Marbury, 2 Vern. 510, which, though it relates to a power, affords an illustration of the spirit of this clause of the statute. (e) This is expressly recognized, Lib. Feud. i. t. 27, et v. 2 Bla. Comm. 287. (d) Cruise, ii. p. 50, § 16. (e) Ed. Pickering, i. 194. (f) Hence the origin of cognovits. (g) Hence the writ of execution called elegit. See 2 Inst. 395. (h) Cruise, i. p. 61. 80. () Herbert's Ca. 3 Co. R. 11. By the stats. 13 Eliz. c. 4, § 2; 27 Eliz. c. 3; 25 Geo. III. c. 35, the crown was enabled to sell the lands of the debtor. 173 Statutes-Recognizances—Liability of Land for Debts. execution all the land which descended to the heir, though in such case the creditor could not have had that remedy against the debtor himself (a): the heir might defeat this right by alienation of the land before suit (b). In the 11th of Edw. I., by the statute of Acton Burnell it was enacted that the chattels and devisable burgages of a debtor might be sold for the payment of his debts in the mode there pointed out (c). By stat. 13 Edw. I. stat. 3, c. 1, de mercatoribus (d), every merchant to whom the money was due might cause his debtor to enter into a Recognizance to be enrolled; and if the debtor did not pay in a quarter of a year from the time limited, his lands and goods were to be delivered to the merchant to hold till the debt was satisfied,—this security was called a Statute Merchant (e). *A Statute Staple, which had its origin [*174] from the stat. 27 Edw. III. stat. 2, c. ix., was a similar security taken before the mayor of certain cities and towns which for political purposes were appointed for the sale of English commodities. The stat. 24 Hen. VIII. c. 6, created a new kind of security for persons not merchants called a recognizance, which was an obligation acknowledged before the justices of the King's Bench or Common Pleas, the mayor of the staple at Westminster, or the recorder of London, and enrolled, on which the same advantages might be had as upon statute staple. The estates so acquired were chattel interests, and vested in the personal representatives. Estates tail by the effect of the statute de donis were preserved from incumbrances by statute merchant, staple and recognizances (f). Some further regulations as to recognizances were made by stat. 29 Car. II. c. 2 (Stat. of Frauds), and by 8 Geo. I. c. 25 (g). Several Acts have subsequently been passed relating to judgments as affecting lands, particularly as to their being docketed so as to give notice of them (h). Now the remedy of the judgment creditor is extended to the whole of the lands, copyhold as well as freehold, of his debtor, and over which he has an absolute disposing power, including therefore unprotected estates tail (i). Perhaps it may be proper as connected with this subject, though a little in anticipation, here to observe, that since lands have become alienable by devise, various statutes have been passed to prevent debtors from defrauding their creditors of their rights by devising away their lands; particularly the stat. 3 & 4 William and Mary, c. 14, which, however, only applied to debts on bond. The stat. 11 Geo. IV. and 1 Will. IV. c. 47, repealed the former Acts, and declared (§ 3) that all devises should be void as against all creditors by bond and other specialties, and gave an action to the creditor against the heir at law and the devisee.By the same Act the heir was made liable for the value of the lands (a) 3 Co. R. 13 a; Cruise, ii. 51; and see Finch's Law, 471. (b) 1 P. Williams, 777; Shelf. 478. (e) By the assizes of Jerusalem, c. cxciv. cxcv. a fief might be sold for payment of debts acknowledged in Court, or proved, and for that only; the sale was conducted in the Court of the Lord, and the creditors called in. (f) 1st Roll. Ab. 842. (g) Of modern recognizances, see Williams on Executors, p. 806. (h) 7 & 8 W. & M. c. 20, and 1 & 2 Vict. () 1 & 2 Vict. c. 110. The Act for Abolition of arrest for debt. By the stat. 2 & 3 Vict. c. 11, purchasers and mortgagees without notice of a judgment are protected from the operation of the stat. 1 & 2 Vict. These statutes will be more particularly noticed hereafter. |