inconvenience of the rule, have in many points endeavoured to restrain it. (f) (5) (f) Comb. 469. 3 Mod. 310, 311. 1 Equ. cas. abr. 279. (g) Perkins, § 21 (k) Co. Litt. 2. (h) Co. Litt. 2. (5) The old doctrine that a man shall not be allowed to stultify himself by alleging his mental incompentency in avoidance of his contract, is no longer accepted in the law, either in England or in this country. As Mr. Parsons has well said, those who have no mind cannot agree in mind with another; and as this is the essence of a contract, they cannot enter into a contract. 1 Pars. on Cont. 383. And if one has not made a contract, it is difficult to discover any sound reason which should preclude his saying so when he is charged with having become a party to one. The modern authorities allow want of mental capacity to be made a defense at law as well as a ground for affirmative relief in equity, not only by the party himself while living, but by his representatives afterwards. Lang v. Whidden, 2 N. H., 435; Mitchell v. Kingman, 5 Pick. 431; Grant v. Thompson, 4 Conn. 203; Horner v. Marshall, 5 Munf. 466; Rice v. Peet, 15 Johns. 503. And if a man is so intoxicated at the time of entering into a contract as to be incapable of comprehending its meaning, nature or effect, and the other party is aware of that fact, this is sufficient answer to an action upon it. Gore v. Gibson, 13 M. and W. 623. And see Foot v. Tewksbury, 2 Vt. 97; Duncan v. McCullough, 4 S. and R. 484; Harrison v. Lemon, 3 Blackf. 54; Prentice v. Achorn, 2 Paige, 30; Reinicker v. Smith, 2 Har. and J. 421. (6) 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 v. 16 Ves. 159, citing Lady Strathmore v. Bowes, 1 Ves. Jun. 22. When an execution of a deed is prevented, or compelled, by force or artifice, equity will give relief, Middleton v. Middleton, 1 Jac. and Walk. 96; in favor of a volunteer, and even, in some cases, as against innocent parties: Meostaer v. 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 have derived from the fraud, imposition, or undue influence practiced by others. Huguenin v. Baseley, 14 Ves. 289; Stilwell v. Wilkins, Jacob's Rep. 282. Still, it would be pushing this principle too far to extend it to innocent purchasers: Lloyd v. 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 v. Symmons, 1 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 v. Saunders, 2 Ves. Jun. 457.] A contract made under duress is void, inasmuch as in such case the essential element of consent is wanting. As to what is duress, see note to book 1, p. 131. (7) There are several subsequent statutes prescribing and regulating the powers and duties of these committees. The same subject is also regulated by statute in the United States. 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. (8) (m) Perkins. ý 154. 1 Sid. 120. (8) [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 v. Cockell, 9 Ves. 375; Fettiplace v. Gorges, 1 Ves. Jun. 49; Tappenden v. Walsh, 1 Phillim. 352; Grigby v. Cox. 1 Ves. Sen. 518; Bell v. 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 favor 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 favor may be counteracted by this exercise of her power. Pybus v. Smith, 1 Ves. Jun. 194; Parker v. White, 11 Ves. 221, 222; Jackson v. Hobhouse, 2 Meriv. 487; Nantes v. Corrock, 9 Ves. 189; Sperling v. Rochfort, 8 id. 175; Sturgis v. Corp, 13 id. 190; Glyn v. Baxter, 1 Younge and Jerv. 332; Acton v. White, 1 Sim. and 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 v. Atkins, 14 Ves. 547; Browne v. Like, 14 id. 302; Pybus v. Smith, 1 Ves. Jun. 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 v. Staple, 2 T. R. 695; Tomlinson v. Dighton, 1 P. Wms. 149; Hearle v. Greenbank, 3 Atk. 711; Peacock v. Monk, 2 Ves. Sen. 191; Wright v. Englefield, Ambl. 473; Driver v. 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. Scammell v. Wilkinson, 2 East, 557; Perkins, ch. 1, § 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 . Harris, 9 Ves, 497; Nantes v. Corrock, 9 id. 189; Heatley v. Thomas, 15 id. 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 v. Noble, 3 Mad. 94; Stuart v. Kirkwall, 3 id. 389; Hulme e. Tenant, 1 Brown, 20; Sperling v. Rockford, 8 Ves. 175. And by joining in a sale with her husband by fine, a married woman may clearly come under obligations affecting her separate trust estate. Parker v. White, 11 id. 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 . Atkins, 14 id. 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 v. 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 recognized: Power v. Bailey, 1 Ball. and Beat. 52; she can enter into no contract affecting her person; the remedy must be against her property. Sockett . Wray, 4 Brown, 485; Francis v. Widville, 1 Mad. 263. Where her husband is banished for life: Countess of Portland v. Prodgers, 2 Vern. 104; or as it seems, is transported beyond the seas: Newsome v. Bowyer, 3 P. Wms. 38; Lean . Schutz, 2 W. Bla. 1198; or is an alien enemy: Derby v. Dutchess 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.] Since this note was first published the statute 3 and 4 Wm. IV, c. 75, has been passed, which allows a married woman to dispose of her land by deed, with the concurrence of her husband, but the deed must be acknowleged 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 to ascertain if her consent to the deed is voluntary. This statute establishes a mode of conveyance by married women in England, which has long been employed in the United States. In some of the states the statutes go farther, and allow married women to convey their lands without the concurrence of their husbands, and in the same manner as if they were unmarried. See Watson v. Thurber, 11 Mich. 457. Brummet e. Weaver, 2 Oregon 168. As regards the property settled to the separate use of the married woman, and called her separate estate, the married woman has substantially the same control over it that she would have if under no disability, and this whether it is vested in her directly, or in trustees. She may make contracts which have the effect to charge it, and she may make sale of it without the intervention or consent of the husband. The contracts, however, are not enforceable at The case of an alien born is also peculiar. For he may purchase any thing; but after purchase he can hold nothing (9) except a lease for years of law, but only in the courts of equity, and they do not bind her personally, but are to be enforced against the specific property only. See Gardner v. Gardner, 7 Paige, 112; Jaques v. Methodist Church, 17 Johns. 548. The circumstance that the wife has a separate estate for her support, does not, at the common law, relieve the husband from the obligation he would otherwise be under to answer for her contracts, and, in many cases, it becomes a matter of no little difficulty to determine whether, under the particular circumstances, a debt is to be regarded as contracted on behalf of the husband, or, on the other hand, as a charge on her separate estate. The following are believed to be correct rules on this subject. 1. Where a married woman contracts a debt, apparently for the benefit of the family, though really for the benefit of her separate estate, but this fact is not known to the creditor, and the circumstances are such as fairly to authorize him to infer the authority and consent of the husband, the creditor has a right to treat the wife as the agent of the husband for the purpose of contracting the debt, and to hold him liable for the payment of the same. And the husband, if he would protect himself against any such liability, must take care that those dealing with the wife have no reason to suppose from his acts, or the manner which she transacts business, that she is acting as his agent, and not on her own behalf. 2. But where the debt is contracted expressly on the faith of the separate estate, the credi tor cannot look to the husband for payment, inasmuch as he has not trusted to his responsibility, and had no reason to rely upon it. Bentley v. Griffin, 5 Taunt. 356; Petty v. Anderson, 3 Bing. 170; Lillia v. Airey, 1 Ves. 277; Dyatt v. N. A. Coal Co., 20 Wend. 570. And whether the husband or the wife's separate estate was credited in any particular case is a question of fact. 3. Where a married woman contracts a debt for the benefit of her separate estate, it is presumed that she intended to charge that estate; the like presumption is a reasonable one in any case where the debt is contracted for her own benefit, and no other or different intent is manifested at the time. Story Eq. Juris. § 1400; Owens v. Dickinson, 1 Craig. and Phil. 48; Vanderheyden v. Mallory, 1 N. Y. 452. But it seems that no such presumption can be entertained where she signs a note merely as surety for her husband; and in such case her estate is not liable. Yale v. Dederer, 18 N. Y. 265. See Wolf v. Van Metre, 23 lowa, 397. (9) [If, says Lord Coke: Co. Litt. 2, a. b.; Com. Dig. Aliens, C. 2; see the reasons, Bac. Ab. Aliens, C.; "an alien purchase houses, lands, tenements, or hereditaments, to him and 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 by his 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 king." And if an alien purchase to him and the heirs of his body, he is tenant in tail; and if he suffer a recov ery, and afterwards an office is found, the recovery is good to bar the remainder; 9 Co. 141; 2 Roll. 321; 4 Leon. 84; Com. 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 England, 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. Ab. 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 favor 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 v. Pace, 1 Vent. 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 or by hereditary descent 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, book 1, 371, 2.] By statutes 7 and 8 Vic. c. 66, alien friends are now permitted to take and hold lands, for residence or business, for twenty-one years; and a person born out of the ream, whose mother is a natural born subject, may take any estate, by devise, purchase, inheritance or succession. The law regarding the holding of property by aliens in the United States is not uniform in the different states, but the disability is removed, wholly or in part, in most of them. See 1 Washb. Real Prop. 51. a house for convenience of merchandise, in case he be an alien friend; (10) all other purchases (when found by an inquest of office) being immediately forfeited to the king. (n) (11) 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 and 12 Wm. 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. (o) (12) 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 [*294] have more than once observed, was that of occupancy or first possession. 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, shall choose to relinquish it in his lifetime. A translation, or transfer, of property being thus admitted by 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 transferred; or with regard to the subject-matter, as to 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. (10) [In former times no alien was permitted even to occupy a house for his habitation, and the alteration in that law was merely in favor of commerce and merchants. See 1 Rapin Hist. Eng. 361, n. 9; Bac. Ab. Aliens, Č.] (11) [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.] (12) These disabilities are now entirely removed. See the statutes 10 Geo. IV, c. 7, and 2 and 3 Wm. IV, c. 115; 23 and 24 Vic. c. 134; 32 and 33 Vic. c. 109. 526 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, Kar' εçoxny, 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. (b) 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 manner as to leave half the word on *one part and half on the [*296] other. Deeds thus made were denominated syngrapha by the canonists; (c) and with us chirographa, 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 grantor is usually called the original, and the rest are counterparts: though of 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, put polled or shaved quite even; and therefore called a deed-poll, or a single deed. (e) (1) 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 the 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; (g) nor upon fraud or collusion, either to deceive purchasers bona fide, (h) or just and lawful creditors; (i) any of which bad considerations will vacate the deed, and subject such persons as put the same in use, to forfeitures, and often to imprisonment. (2) A deed also, or other (a) Co. Litt. 171. (b) Plowd. 434. (c) Lyndew. l. 1. t. 10, c. 1. (1) Generally, at the present time, deeds for the conveyance of lands simply, though called indentures, are executed only by the grantors, and counterparts are not made and not needful. (2) But a deed in fraud of purchasers or creditors is not void as between the parties thereto, nor even as to third persons who are not concerned in the fraud. Only the parties who would be defrauded by it can allege its invalidity, and as to them it is avoided only so far as is needful for their protection. |