the creditors. This statute exprefsly included not only free, but customary and copyhold, lands; but did not extend to eftates-tail, farther than for the bankrupt's life; nor to equities of redemption on a mortgaged eftate, wherein the bankrupt has no legal intereft, but only an equitable reverfion. Whereupon the ftatute 21 Jac. I. c. 19. enacts, that the commiffioners fhall be impowered to fell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in poffeffion, remainder, or reverfion, unless the remainder or reverfion thereof fhall be in the crown; and that fuch fale fhall be good against all fuch iffues in tail, remainder-men, and reverfioners, whom the bankrupt himself might have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged eftates, fhall be at the difpofal of the commiffioners; for they fhall have power to redeem the fame, as the bankrupt himself might have done, and after redemption to fell them. And alfo, by this and a former act, all fraudulent conveyances to defeat the intent of these ftatutes are declared void; but that no purchafor bona fide, for a good or valuable confideration, fhall be affected by the bankrupt laws, unless the commiflion be fued forth within five years after the act of bankruptcy committed (15). By virtue of thefe ftatutes a bankrupt may lofe all his real estates; which may at once be transferred by his commiffioners to their affignees, without his participation or confent. bi Jac. I. c. 15. (15) If the wife of a bankrupt has lands before marriage, unlefs they are fettled upon her for her feparate ufe, the husband's intereft in them fhall be fold, fo that the wife can have no farther enjoyment of them until the furvives her husband. CHAPTER THE NINETEENTH. OF TITLE BY ALIENATION. THE HE most usual and univerfal method of acquiring a title to real eftates is that of alienation, conveyance, or purchase in it's limited fenfe: under which may be comprized any method wherein eftates are voluntarily refigned by one man, and accepted by another: whether that be effected by fale, gift, marriage fettlement, devife, or other tranfmiffion of property by the mutual consent of the parties. THIS means of taking eftates, by alienation, is not of equal antiquity in the law of England with that of taking them by defcent. 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 confent of the lord; left thereby a feeble or fufpicious tenant might have been fubftituted and impofed upon him to perform the feodal fervices, inftead of one on whofe abilities and fidelity he could depend. Neither could the feudatory then fubject the land to his debts; for, if he might, the feodal reftraint of alienation would have been easily frustrated and evaded. And, as he could not alicne it in his life-time, fo neither could he by will defeat the fucceflion, by devifing his feud to another family; nor even alter the courfe of it, by imposing particular limitations, or prefcribing an unusual path of defcent. Nor, in fhort, could he aliene the eftate, even with the confent of the lord, unlefs he had alfo obtained the consent of his own next apparent, or prefumptive heir. And therefore it was very ufual in antient feoffments to exprefs, that c Co. Litt. 94. Wright. 168. a See pag. 57. the the alienation was made by confent of the heirs of the feoffor; or fometimes 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 figniory without the confent of his vafal: for it was esteemed unreasonable to subject a feudatory to a new fuperior, 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 diftress for rent from a hoftile seifing of his cattle by the lord of a neighbouring clan. This confent of the vasal was expreffed by what was called attorning, or profefling to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all leffees for life or years. For if one bought an eftate with any leafe for life or years. ftanding out thereon, and the leffee or tenant refused to attorn to the purchafor, and to become his tenant, the grant or contract was in moft cafes void, or at leaft incomplete s which was also an additional clog upon alienations. BUT by degrees this feodal feverity is worn off; and experience hath fhewn, that property beft answers the purposes of civil life, efpecially 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 firft, which allowed a man to fell and difpofe of lands which he himself had purchased; for over these he was thought to have a more extenfive power, than over what had been tranfmitted to him in a courfe of defcent from his ancestors": a doctrine which is countenanced by the feodal conftitutions themselves but he was not allowed to fell the whole of his own acquirements, fo as totally to difinherit his children, any more than he was at liberty to aliene his paternal estate *. Afterwards a man feems to have been at liberty to part with all his own acquifitions, if he had previously purchased to him and his affigns by name; but, if his affigns were not fpecified in the purchase deed, he was not empowered to aliene and alfo he might part with one-fourth of the inheritance of his ancestors without the confent of his heir ". By the great charter of Henry III", no fubinfeudation was permitted of part of the land, unless fufficient was left to anfwer the fervices due to the fuperior lord, which fafficiency was probably interpreted to be one half or moiety of the land. But thefe reftrictions were in general removed by the ftatute of quia emptores P, whereby all perfons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own difcretion 9. And even these tenants in capite, were by the ftatute 1 Edw. III. c. 12. permitted to aliene, on paying a fine to the king'. By the temporary ftatutes 7 Hen. VII. c. 3. and 3 Hen. VIII. c. 4. all perfons attending the king in his wars were allowed to aliene their lands without licence, and were relieved from other feodal burdens. And, laftly, thefe very fines for alienations were, in all cafes of freehold tenure, entirely abolifhed by the ftatute 12 Car. II. c. 24. As to the power of charging lands with the debts of the owner, this was introduced fo early as statute Westm. 2. which subjected a moiety of the tenant's lands to executions, for debts recovered by law as the uhole of them was likewife fubjected to be pawned in a statute merchant by the ftatute de mercatoribus, n 9 Hen. III. c. 32. • Dalrymple of feuds. 95. 9 See pag. 72.91. 1 made made the fame year, and in a statute staple by ftatute 27 Edw. III. c. 9. and in other fimilar recognizances by ftatute 23 Hen. [290] VIII. c. 6. And, now, the whole of them is not only fubject to be pawned for the debts of the owner, but likewise to be abfolutely fold for the benefit of trade and commerce by the several statutes of bankruptcy. The reftraint of devifing lands by will, except in fome places by particular cuf tom, lafted longer; that not being totally removed, till the abolition of the military tenures. The doctrine of attornments continued ftill later than any of the reft, and became extremely troublesome, though many methods were invented to evade them; till at last, they were made no longer neceffary to complete the grant or conveyance, by statute 4 & 5 Ann. c. 16. nor fhall, by ftatute 11 Geo. II. c. 19. the attornment of any tenant affect the poffeffion of any lands, unless made with confent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of juftice. IN examining the nature of alienation, let us first inquire, briefly, who may aliene and to whom; and then, more largely, how a man may aliene, or the feveral 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 confider rather the incapacity, than capacity, of the feveral parties: for all perfons in poffeffion are prima facie capable both of conveying and purchasing, unless the law has laid them under any particular difabilities. But, if a man has only in him the right of either poffeffion or property, he cannot convey it to any other, left pretended titles might be granted to great men, whereby juftice might be trodden down, and the weak oppreffed. Yet reverfions and vested remainders may be granted; because the poffeffion of the particular tenant is the poffeffion of him in reversion or remainder: but contingencies, and mere poffibilities, though they may be releafed, or devifed by will, or may pass to the heir or executor, yet cannot (it hath been faid) be VOL. II. Co. Litt. 24. affigned |