Commentaries on the Laws of England/Of Title by Alienation
Chapter the nineteenth.
Of TITLE by ALIENATION.
THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in it's limited sense: under which may be comprized any method wherein estates are voluntarily resigned by one man, and accepted by another; whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties.
This means of taking estates, by alienation, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law, a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; left thereby a feeble or suspicious tenant might have been substituted and imposed upon him, to perform the feodal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of alienation would have been easily frustrated and evaded. And, as he could not aliene it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent, or presumptive, heir. And therefore it was very usual in antient feoffments to express, that the alienation was made by consent of the heirs of the feoffer; or sometimes for the heir apparent himself to join with the feoffor in the grant. And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vasal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seising of his cattle by the lord of a neighbouring clan. This consent of the vasal was expressed by what was called attorning, or professing to become the tenant of the new lord; which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchasor, and to become his tenant, the grant or contract was in most cases void, or at least incomplete: which was also an additional clog upon alienations.
But by degrees this feodal severity is worn off; and experience hath shewn, that property best answers the purposes of civil life, especially in commercial countries, when it's transfer and circulation are totally free and unrestrained. The road was cleared in the first place by a law of king Henry the first, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power, than over what had been transmitted to him in a course of descent from his ancestors: a doctrine, which is countenanced by the feodal constitutions themselves: but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate. Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase deed, he was not empowered to aliene: and also he might part with one fourth of the inheritance of his ancestors without the consent of his heir. By the great charter of Henry III, no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one half or moiety of the land. But these restrictions were in general removed by the statute of quia emptores, whereby all persons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion. And even these tenants in capite were by the statute I Edw. III. c. 12. permitted to aliene, on paying a fine to the king. By the temporary statutes 11 Hen. VII. c. 3. and 3 Hen. VIII. c. 4. all persons attending the king in his wars were allowed to aliene their lands without licence, and were relieved from other feodal burdens. And, lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging lands with the debts of the owner, this was introduced so early as statute Westm. 2. which subjected a moiety of the tenant's lands to executions, for debts recovered by law; as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatoribus, made the same year, and in a statute staple by statute 27 Edw. III. c. 9. and in other similar recognizances by statute 23 Hen. VIII. c. 6. And, now, the whole of them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed, till the abolition of the military tenures. The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till, at last, they were made no longer necessary, by statutes 4 & 5 Ann. c. 16. and 11 Geo. II. c. 19.
In examining the nature of alienation, let us first enquire, 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, left pretended titles might be granted to great men, whereby justice might be trodden down, and the weak oppressed. Yet reversions and vested remainders may be 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.
Persons attainted of treason, felony, and praemunire, are incapable of conveying, from the time of the offence committed, provided attainder follows: 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 purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime. So also corporations, religious or others, may purchase lands; yet, unless they have a licence to hold in mortmain, they cannot retain such purchase; but it shall be forfeited to the lord of the fee.
Idiots and persons of nonsane 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. 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 infanity 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: and there is a writ in the register for the alienor himself to recover lands aliened by him during his infanity; dum fuit non compos mentis suae, 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 infanity: and, afterwards, a defendant in assise 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 assise; 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 when he gave it. 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; upon a question, whether the heir was barred of his right of entry by the feoffment of his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason, the maxim that a man shall not stultify himself hath been handed down as settled law: though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it. 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. 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. In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him. Persons also, who purchase or convey under duress, may affirm or avoid such transaction, whenever the duress is ceased. For all these are under the protection of the law; which will not suffer them to be imposed upon, through the imbecillity of their present condition; so that their acts are only binding, in case they be afterwards, agreed to, when such imbecillity ceases.
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. And, though he does nothing to avoid it, or even if he actually consents, the feme-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. But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable; and therefore cannot be affirmed or made good by any subsequent agreement.
The case of an alien born is also peculiar. For he may purchase any thing; but after purchase he can hold nothing, except a lease for years of a house for convenience of merchandize, in case he be an alien-friend: all other purchases (when found by an inquest of office) being immediately forfeited to the king.
Papists, lastly, and persons professing the popish religion, 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. But this statute is construed to extend only to papists above the age of eighteen; such only being absolutely disabled to purchase: yet the next protestant heir of a papist under eighteen shall have the profits, during his life; unless he renounces his errors within the time limited by law.
II. We are next, but principally, to enquire, 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. 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 life-time. 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 subjectmatter, 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 it's order.
- See pag. 57.
- Feud. l. 1. t. 27.
- Co. Litt. 94. Wright. 168.
- Madox, Formul. Angl. n°. 316. 319. 427.
- Gilb. Ten. 75.
- The same doctrine and the same denomination prevailed in Bretagne. — possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attournances et avirances, ut loqui solent; cum vasallus, ejurato prioris domini obsequio et fide, novo se sacramento novo item domino acquirenti obstringebat; idque jussu auctoris. D'Argentre Antiq. Consuet. Brit. apud Dufresne. i. 819, 820.
- Litt. §. 551.
- Emptiones vel acquisitiones suas dei cui magis velit. Terram autem quam ei parentes dederunt, non mittat extra cognationem suam. LL. Hen. I. c. 70.
- Feud. l. 2. t. 39.
- Si questum tantum habuerit is, qui partem terrae suae donare voluerit, tunc quidem hoc ei licet; sed non totum questum, quia non potest filium suum haeredem exhaeredare. Glanv. l. 7. c. 1.
- Mirr. c. 1. §. 3. This is also borrowed from the feodal law. Feud. l. 2. t. 48.
- Mirr. ibid.
- 9 Hen. 3. c. 32.
- Dalrymple of feuds. 95.
- 18 Edw. I. c. 1.
- See pag. 72.
- 2 Inst. 67.
- 13 Edw. I. c. 18.
- Co. Litt. 214.
- Sheppard's touchstone. 238, 239. 322. 11 Mod. 152. 1 P.Wms. 574. Stra. 132.
- Co. Litt. 42.
- Ibid. 2.
- Ibid. 247.
- Britton, c. 28. fol. 66.
- fol. 228.
- 5 Edw. III. 70.
- 35 Assis. pl. 10.
- 39 Hen. VI. 42.
- F. N. B. 202.
- Litt. §. 405. Cro. Eliz. 398. 4 Rep. 123.
- Comb. 469. 3 Mod. 310, 311. 1 Equ. cas. abr. 279.
- Perkins. §. 21.
- Co. Litt. 2.
- 2 Inst. 483. 5 Rep. 119.
- Co. Litt. 3.
- Perkins. §. 154. 1 Sid. 120.
- Co. Litt. 2.
- 1 P. Wms. 354.