Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Nineteenth : Of Title by Alienation
CHAPTER THE NINETEENTH.
OF TITLE BY ALIENATION.
THE moft ufual and univerfal method of acquiring a title to real eftates is that of alienation, conveyance, or purchafe 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 confent 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
, 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 feodalfervices, 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 eafily fruftrated and evaded b
. And, as he could not aliene it in his lifetime, fo neither could he by will defeat the fucceffion, by devifing his feud to another family ; nor even alter the courfe of it, by impofing particular limitations, or prefcribing an unufual path of defcent. Nor, in fhort, could he aliene the eftate, even with the confent of the lord, unlefs he had alfo obtained the confent of his own next apparent, or prefumptive, heir c
. And therefore it was very ufual in antient feoffments to exprefs, that the alienation was made by con-
See pag. 57.
Feud. l. 1. t. 27.
Co. Litt. 94. Wright, 168.
fent ofthe heirs of the feoffor; or fometimes for the heir apparent himfelf to join with the feoffor in the grant d
. 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 efteemed unreafonable to fubject 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 fervices were due, and be able to diftinguifh a lawful diftrefs for rent from a hoftile feifing of his cattle by the lord of a neighbouring clan e
. This confent of the vafal was expreffed by what was called attorning f
, or profeffing 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 refufed to attorn to the purchafor, and to become his tenant, the grant or contract was in moft cafes void, or at leaft incomplete g
: which was alfo an additional clog upon alienations.
BUT by degrees this feodal feverity is worn is worn off; and experience hath fhewn, that property beft anfwers the purpofes of civil life, efpecially in commercial countries, when it's transfer and circulation are totally free and unreftrained. The road was cleared in the firft place by a law of king Henry the firft, which allowed a man to fell and difpofe of lands which he himfelf had purchafed; for over thefe he was thought to have a more extenfive power, than over what had been tranfmitted to him in a courfe of defcent from his anceftors h
: a doctrine, which is coun-
d Madox, Formul. Angl. no
. 316. 319. 427.
e Gilb. Ten. 75.
f The fame doctrine and the fame denomination prevailed in Bretagne. poffeffiones in jurifdictionalibus non aliter apprebenci poffe, quam per attournances et avirances, ut loqui folent; cum vafallus, wjurato prioris domini obfequio et fide, nove fe facramento now item domino acquirenti abftringebat; idque juffu auctoris. D'Argentre Antiq. Confuet. Brit. apud Dufrefne. I. 819, 820.
g Litt. §. 551.
h emptiones vel acquifitiones fuas det cui magis velit. Terram autem quam ei parentes dederunt, non mittat extra cognationem fuam. LL. Hen. 1. c. 70.
tenanced by the feodal conftitutions themfelves j
: but he was not allowed to fell the whole of his own acquirements, fo as tofally to difinherit his children, any more than he was at liberty to aliene his paternal eftate i
. Afterwards a man feems to have been at liberty to part with all his own acquifitions, if he had previoufly purchafed to him and his affigns by name; but, if his affigns were not fpecified in the purchafe deed, he was not empowered to aliene k
: and alfo he might part with one fourth of the inheritance of his anceftors without the confent of his heir l
. By the great charter of Henry 111m
, no fubinfeudation was permitted of part of the land, unlefs fufficient was left to anfwer the fervices due to the fuperior lord, which fufficiency was probably interpreted to be one half or moiety of the land n
. But thefe reftrictions were in general removed by the ftatute of quia emptores o
, 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 p
. And even thefe tenants in capite were by the ftatute 1 Edw. 111. c. 12. permitted to aliene, on paying a fine to the king q
. By the temporary ftatutes 11 Hen. V11. c. 3. and 3 Hen. V111. 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. 11. c. 24. As to the power of charging lands with the debts of the owner, this was introduced fo early as ftatute Whftn. 2. which r
fubjected a moiety of the tenant's lands to ececutions, for debts recovered by law; as the whole of them was likewife fubjected to be pawned in a ftatute merchant by the ftatute de mercatonibus, made the fame year, and in a ftatute ftaple by ftatute 27 Edw. 111. c. 9. and in other fimilar recognizances
j Feud. l. 2. t. 39.
i Si queftum tantum babuerit is, qui partem terrae fuae donare voluerit, tune quidem boe ei licet; fed non totum queftum, quia non poteft filium fuum baeredem exbaeredare. Glanv. l. 7. c. 1.
k Mirr. C. 1. §. 3. This is alfo borrowed from the feodal law. Feud. l. 2. t. 48.
l Mirr. ibid.
m 9 Hen. 111. c. 32.
n Dalrymple of feuds. 95.
o 18 Edw. 1. c. 1.
p See pag. 72.
q 2 Inft. 67.
r 13 Edw. 1. c. 18.
by ftatute 23 Hen. V111. c. 6. And now, the whole of them is not only fubject to be pawned for the debts of the owner, but likewife to be abfolutely fold for the benefit of trade and commerce by the feveral ftatutes of bankruptcy. The reftraint of devifing lands by will, except in fome places by particular cuftom, 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 troublefome, though many methods were invented to evade them; till, at laft, they were made no longer neceffary, by ftatutes 4 & 5 Ann. c. 16. and 11 Geo. 11. c. 19.
IN examining the nature of alienation, let us firft enquire, briefly, who may aliene and to whom; and then, more largely, how a man may aliene, or the feveral modes of conveyance.
1.WHO may aliene, and to whom; or, in other words, who is capable of conveying and who of purchafing. And herein we muft confider rather the incapacity, than capacity, of the feveral parties: for all perfons in poffeffion are, prima facie, capable both of conveying and purchafing, unlefs the law has laid them under any particular difabilites. 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 e
. Yet reverfions and vefted remainders may be granted; becaufe the poffeffion of the particular tenant is the poffeffion of him in reverfion or remainder: but contingencies, and mere poffibilities, though they may be releafed, or devifed by will, or may pafs to the heir or executor, yet cannot (it hath been faid ) be affigned to a ftranger, unlefs coupled with fome prefent intereft f
PERSONS attainted of treafon, felony, and praemunire, are incapable of conveying, from the time of the offence committed,
e Co. Litt. 214.
f Sheppard's touchftone. 238, 239, 322. 11 Mod. 152.
. 574. Stra. 132.
provided attainder follows t
: for fuch conveyance by them may tend to defeat the king of his forfeiture, or the lord of his efcheat. But they may purchafe for the benefit of the crown, or the lord of the fee, though they are difabled to hold: the lands fo purchafed, ifafter attainder, being fubject to immediate forfeiture; if before, to efcheat as well as forfeiture, according to the nature of the crime u
. So alfo corporations, religious or others, may purchafe lands; yet, unlefs they have a licence to hold in mortmain, they cannot retain fuch purchafe; but it fhall be forfeited to the lord of the fee.
IDIOTS and perfons of nonfane memory, infants, and perfons under durefs, are not totally difabled either to convey or purchafe, but fub modo only. For their conveyances and purchafes are voidable, but not actually void. The king indeed, in behalf of an idiot, may avoid his grants or other acts w
. But it hath been faid, that a non compos himfelf, though he be afterwards brought to a right mind fhall not be permitted to allege his own infanity in order to avoid fuch grant: for that no man fhall be allowed to ftultify himfelf, or plead his own difability. The progrefs of this notion is fomewhat curious. In the time of Edward I, non compos was a fufficient plea to avoid a man's own bond x
: and there is a writ in the regifter y
for the alienor himfelf to recover lands aliened by him during his infanity; dum fuit non compos mentis fuae, ut dicit, b c. But under Edward 111 a fcruple began to arife, whether a man fhould be permitted to blemifb himfelf, by pleading his own infanity z: and, afterwards, a defendant in affife having pleaded a releafe by the plaintiff fince the laft continuance, to which the plaintiff replied ( are tenus, as the manner then was ) that he was out of his mind when he gave it, the court adjourned the affife; doubting, whether as the plaintiff was fane both then and at the commencement of the fuit, he fhould be permitted to plead an intermediate deprivation of reafon; and the queftion
t Co. Litt. 42.
u Ibid. 2.
w Ibid. 247.
x Britton, c. 28. fol. 66.
y fol. 228.
z 5 Edw. 111. 70
N n 2
The RIGHTS of THINGS
was afked, how he came to remember the releafe, if out of his fenfes when he gave it a. Under Henry V1 this way of reafoning (that a man fhall not be allowed to difable himfelf, by pleading his own incapacity, becaufe he cannot know what he did under fuch a fituation) was ferioufly adopted by the judges in argument b ; upon a queftion, whether the heir was barred of his right of entry by the feoffment of his infane anceftor. And from thefe loofe aughorities which Fitzherbert does not foruple to reject as being contrary to reafon c, the maxim that a man fhall not ftultify himfelf hath been handed down as fettled law d: though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to reftrain it e. And, clearly, the next heir, or other perfon interefted, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant f . And fo too, if he purchafes under this difability, and does not afterwards upon recovering his fenfes agree to the purchafe, his heir may either waive or accept the eftate at his option g. In like manner, an infant may waive fuch purchafe 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 h . Perfons alfo, who purchafe or convey under durefs is ceafed i . For all thefe are under the protection of the law; which will not fuffer them to be impofed upon, through the imbecillity of their prefent condition; fo that their acts are only binding, in cafe they be afterwards agreed to, when fuch imbecillity ceafes.
THE cafe of a feme-covert is fomewhat different. She may purchafe an eftate without the confent of her hufband, and the conveyance is good during the coverture, till he avoids it by fome act declaring his diffent k. And, though he does nothing to avoid
a 35 Affif. pl. 10.
b 39 Hen. V1. 42.
c F. N. B. 202.
d Litt. §. 405. Cro. Eliz. 398. 4 Rep. 123.
e Comb. 469. 3 Mod. 310, 311. 1 Equ. Caf. Abr. 270.
f Perkins. §. 21.
g Co. Litt. 2.
i 2 Inft. 483. 5 Reo. 119.
k Co. Litt. 3.
The RIGHTS of THINGS
it, or even if he actually confents, the feme- covert herfelf may, after the death of her hufband, waive or difagree to the fame: nay, even her heirs may waive it after her, if fhe dies before her hufband, or if in her widowhood fhe does nothing to ewprefs her confent or agreement l . But the coveyance or other contract of a feme-covert (except by fome matter of record) is abfolutely void, and not merely voidable m; and therefore cannot be affirmend or made good by any fubfequent agreement.
THE cafe of an alien born is alfo peculiar. For he may purchafe any thing; but after purchafe he can hold nothing, except a leafe for years of a houfe for convenience of merchandize, in cafe he be an alien-friend: all other purchafes ( when found by an inqueft of office) being immediately forfeited to the king n.
PAPISTS, laftly, and perfons profeffing the popifh religion, are by ftatute 11 & 12 W. 111. c. 4. difabled to purchafe any lands, rents, or hereditaments; and all eftates made to their ufe, or in truft for them, are void. But this ftatute is conftrued to extend only to papifts above the age of eighteen; fuch only being abfolutely difabled to purchafe: yet the next proteftant heir of a papift under eighteen fhall have the profits, during his life; unlefs he renounces his errors within the time limited by law o.
II. WE are next, but principally, to enquire, how a man may aliene or convey; which will lead us to confider the feveral modes of conveyance.
IN confequence of the admiffion of property, or the giving a feparate right by the law of fociety to thofe things which by the law of nature were in common, there was neceffarily fome means to be devifed, whereby that feparate right or exclufive property fhould be originally acquired; which, we have more than once obferved was that of occupancy or firft poffeffion. But this pof-
m Perkins. §. 154. 1 Sid. 120.
n Co. Litt. 2.
o I p. Wms . 354.
The RIGHTS of THINGS
feffion, when once gained, was alfo neceffarily to be continued; or elfe, upon one man's dereliction of the thing he had feifed, it would again become common, and all thofe mifchiefs and contentions would enfue, which property was introduced to prevent. For this purpofe therefore, of continuing the poffeffion, the municipal law has eftablifhed defcents and alienations: the former to continue the poffeffion in the heirs of the proprietors, after his involuntary dereliction of it by his death; the latter to continue it in thofe perfons, to whom the proprietor, by his own voluntary act, fhall choofe to relinquifh it in his lifetime. A tranflation, or transfer, of property being thus admitted by law, it became neceffary that this transfer fhould be properly evidenced: in order to prevent difputes, either about the fact, as whether there was any transfer at all; or concerning the perfons, by whom and to whom it was transferred; or with regard to the fubjectmatter, as what the thing transferred confifted of; or, laftly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what eftate and intereft) the conveyance was made. The legal evidences of this tranflation of property are called the common affurances of the kingdom; whereby every man's eftate is affured to him, and all controverfies, doubts, and difficulties are either prevented or removed.
THESE common affurances are of four kinds: 1. By matter in pais, or deed; which is an affurance tranfacted between two or more private perfons in pais, in the country; that is (according to the old common law) upon the very fpot to be transferred. 2. By matter of record, or an affurance tranfacted only in the king's public courts of record. 3. By fpecial cuftom, obtaining in fome particular places, and relating only to fome particular species of property. Which three are fuch as take effect during the life of the party converying or affuring. 4. The fourth takes no effect, till after his deathm, and that is by devife, contained in his laft will and teftament. We fhall treat of each in it's order.