dium of the Court of Chancery. To such new trustee, the technical property, called the legal estate, in whomever resident, is to be conveyed. (a)

The heir, however, may be a married woman, an infant, or a lunatic. In the first instance, the process of a fine was formerly necessary. In the two latter cases, any conveyance at all was impracticable, and, consequently, the title of the beneficial owner was rendered defective from the incapacity of a stranger. To remedy this mischief, various acts were successively passed, but especially two recent statutes, (b) whereby infant trustees, and mortgagees, and persons acting on behalf of insane trustees and mortgagees, or of trustees out of the jurisdiction, or whose existence is uncertain, are authorized to convey under the direction of the Court of Chancery, or, in specified cases, of other equitable jurisdictions. (c)

The land also will pass at law by the will of a deceased trustee, containing a general devise of all his real estate, unless an intention to the contrary can be collected from expressions in the will, or the purposes or objects of the testator. (d)

Next, as to the capacity of persons to act as trustees. At the common law uses were considered as annexed to the estate of the feoffees in the land, and not to the land itself. (e) But since the statute of uses, (f) courts of equity have held, that a trust shall never fail on account of the disability or non-appointment of the trustee, (g) and that, if a trustee is wanting, the court will execute the office. The relief is administered by considering the land, in whatever person vested, as

(a) Humph. on Real Prop. p. 20.

(b) 6 Geo. 4, c. 74. 1 Wm. 4, c. 60.

(e) Humph. on Real Prop. 20.

(d) Ib. 21. Braybrooke v. Inskipp, 8 Ves. 417.

(e) 1 Co. 127 a.

(f) 27 Hen. 8, c. 10.

(g) Moggridge v. Thackwell, 3 Bro. C. C. 517. 1. Saund. Us. 349.

bound by the trust, and compelling the heir, or other person having the legal estate, to perform it. (a)

So it is held, that the king, (b) or a corporate body, (c) may be a trustee; and where an estate was devised to the separate use of feme-covert, without the intervention of trustees, it was held that the husband should be a trustee for his wife. (d)

The rule of the trust attaching upon the land itself has an exception in the case of a conveyance by a trustee for a valuable consideration to one who has no notice of the trust. (e) In this instance, the purchaser shall not be affected by the trust. On the other hand, notice, even where there is a valuable consideration, (ƒ) or the want of a valuable consideration, though there be no notice, (g) will, in all cases, render the legal seisin of the grantee subject to the performance of the trust. (h)

(a) Co. Litt. 113 a, n. 2. Cole v. Wade, 16 Ves. 27.

(b) Kildare v. Eustace, 1 Vern. 439. 1 Ves. 453. 3 Atk. 309.

(c) 1 Ves. 467, 468, 536. 2 Vern. 412.

(d) Bennet v. Davis, 2 P. Wms. 316. 2 Ves. 665. 1 Saund. Us. 350.

(e) 2 Freem. 43, pl. 47, 1 P. Wms. 278, 279, and generally 2 Sug. V. and P. 25 8, 259.

(f) Saunders v. Dehew, 2 Vern. 271. Langton v. Astrey, 2 Cha. Rep. 30. 3 Atk. 238.

(g) 1 Co. 122 b. Pye v. George, 2 Salk. 680.

(h) 1 Saund. Us. 350.

SECTION VI.

MODIFICATIONS OF, OR ESTATES AND INTERESTS IN REAL PROPERTY, IN THE COLONIES AND UNITED STATES.

I. The several colonies mentioned in which the law of England is adopted with certain deviations.

II. Mode of barring estates tail.-Colonies enumerated in which fines and recoveries not resorted to, but deeds effectual for that purpose. -Effect of not registering within the time required by the acts.— Death of tenant in tail before the deed registered.-Effect of sales in execution.

III. Different mode of barring entails in Dominica, Nova Scotia, Prince Edward's Island, Tobago, Bahamas, and Bermuda.

IV. The law of real property in Upper Canada.

V. Lower Canada, St. Lucia, and Mauritius.

VI. Jersey and Guernsey.

VII. British Guiana, Cape of Good Hope, Ceylon, and Trinidad.

VIII. Gibraltar, Newfoundland, Sierra Leone, and Australian Settlements. IX. Isle of Man.

X. United States.

I. THE modifications of real property admitted by the law of England, and of which the preceding section. contains a summary, exist in the colonies of Jamaica, Barbadoes, Antigua, Montserrat, St. Christopher, Nevis, Tortola, and the other Virgin Islands, St. Vincent, Grenada, New Brunswick, Dominica, Nova Scotia, Prince Edward's Island, Tobago, Bermuda, Bahamas, Upper Canada, Gibraltar, Newfoundland, Sierra Leone, and the settlements in Australia. There are, in some of these possessions, certain deviations from the law of England, which, so far as they are connected with this branch of our inquiry, are now to be stated.

The lands which are situated in them are allodial, and held in free and common socage of the crown, on payment of a certain quit rent. In Jamaica and some of the earlier settled colonies, it was one of the con

ditions of the grant by the crown that the land should be settled and cultivated, and, in some cases, that a certain number of negroes should be worked on it.

The fictitious process of fines and recoveries was not adopted as the means of barring estates tail, but, from a very early period in the history of all these possessions, except Bermuda, the Bahamas, Upper Canada, and Prince Edward's Island, this object was effected by a simple conveyance.

II. The mode of barring estates tail in Jamaica, Barbadoes, Antigua, Montserrat, St. Christopher's, Nevis, Virgin Islands, St. Vincent, Grenada, and New Brunswick, is by deed, and not by fine or recovery.

In Jamaica, all bills of sale, and conveyances whatsoever, made by husband and wife, and acknowledged before the judge of any court of record within the island, and duly recorded, are good and valid in law against all persons whatsoever, that can or may pretend to claim any estate in the lands or tenements so conveyed, to all intents and purposes whatsoever, as if the same had passed by fine and recovery in any

minster. (a)

of the courts of West

By a subsequent act it is enacted, "that all bills of sale, deeds, and other conveyances whatsoever, at any time theretofore made, by any persons in the island, or in any other part of the world, and duly executed, acknowledged, proved, and recorded, pursuant to the true intent and meaning of the above act, although no valuable consideration be therein respectively inserted, and all deeds and other conveyances whatsoever, thereafter to be made, for valuable consideration, of any lands, tenements, negroes, or hereditaments within the island, (excepting such as have or shall be made by infants during their infancy, and persons of non-sane memory,

(a) Jamaica Act, 33 Car. 2, c. 22, s. 3.

during the time they continue so,) such lands, tenements, negroes, and hereditaments are thereby enacted and declared to have passed, and to be conveyed by the same, as fully, to all intents and purposes, as any real estate in the kingdom of Great Britain might or could pass by fine and recovery in the Court of Common Pleas in Westminster Hall. (a)

In Barbadoes a deed, in due form of law made, and within three months from its date acknowledged before the governor, or one of the chief judges of one of the courts of the island, and recorded at length in the secretary's office within three months from its date, and if made in any other place, within twelve months from its date, will as effectually bar an estate tail in lands as a fine or recovery. (b)

In Antigua, Montserrat, St. Christopher, Nevis, and the Virgin Islands, which were formerly comprized in the government of the Leeward Carribbee Islands, (c) a deed, in due form of law made and executed by the husband and wife, of the plantations, lands, and tenements, negroes, and other hereditaments, whereof the husband was solely and in his own right seised at any time during the coverture, or whereof the husband, or husband and wife, were seised in right of the wife, or the husband jointly with the wife, or by tenant in tail, general or special, and by the party or parties, and each of them from whom the interest passes, acknowledged before the persons, and in the manner therein mentioned, is, to all intents and purposes, as effectual and valid in the law to pass all the estate, right, title, interest, and claim therein of the party or parties, and of each of them, as if a fine had been levied with proclamations, or common

(a) Jamaica Act, 2 Anne, c. 7, § 15. 10 Anne, c. 12, § 3. 4 Geo. 2, c. 5, § 5, 6, 7. 16 Geo. 2, c. 5. 24 Geo. 2, c. 9, § 1, 2. 34 Geo. 3, c. 11. 42 Geo. 3, c. 26, § 6.

(b) Barbadoes Act, No. 47 and 50.

(c) Leeward Island Act, n. 32, 3, June 21st, 1705.

n. 270, § 1, 2.

Antigua Act,