[* 550 ] *CHAPTER XXII. ALIENATION BY MATTER OF RECORD. ASSURANCES by matter of record are such as do not entirely depend on the act or consent of the parties themselves: but the sanction of a court of record Of assurance by is called in to substantiate, preserve, and be a perpetual testimony matter of record. of the transfer of property from one man to another; or of its establishment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king's grants. 3. Orders made by the Court of Chancery under certain acts. Private acts of Private acts of parliament are a not uncommon mode of assurance. For it may sometimes happen, that, by the ingenuity of some, and the blunders of other practitioners, an estate is most grievously entangled by a parliament. multitude of contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances; so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that, by the strictness or omission of family settlements, the tenant of the estate is abridged of some reasonable power (as, letting leases, making a jointure for a wife, or the like), which power cannot be given him by the ordinary judges either in common law or equity. Or, it may be necessary, in settling an estate, to secure it against the claims of infants or other persons under legal disabilities, who are not bound by any judgments or decrees of the ordinary courts of justice. This practice was carried to a great length in the year succeeding the restoration; by setting aside many *conveyances alleged to have been made [* 551] by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as the noble historian expresses it (a), every man had raised an equity in his own imagination, that he thought was entitled to prevail against any descent, testament, or act of law, and to find relief in parliament: which occasioned the king, at the close of the session, to remark (b), that the good old rules of law are the best security; and to wish, that men might not have too much cause to fear, that the settlements which they make of their estates shall be too easily unsettled when they are dead, by the power of parliament. Acts of this kind are, however, at present carried on, in both houses, with great deliberation and caution. Nothing, also, is done without the consent. expressly given, of all parties in being, and capable of consent, that have the remotest interest in the matter: unless such consent shall appear to be perversely and without any reason withheld. And an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by this act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever, except those whose consent is so given or purchased, and who are therein particularly named: though it has been held, that, even if such saving be omitted, the act shall bind none but the parties (c). (a) Lord Clar. Contin. 162. (b) Ib. 163. (c) Co. 138; Godb. 171. A law, thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not, therefore, allowed to be a public, but a mere private statute: it is not printed or published among the other laws of the session; it has been relieved against, when obtained upon * fraudulent suggestions (d); it has been held to be void, if contrary to law and reason (e); and no judge or [* 552] jury is bound to take notice of it, unless the same be specially set forth and pleaded to them. It remains, however, enrolled among the public records of the nation, to be for ever preserved as a perpetual testimony of the conveyance or assurance so made or established. (382) The acts which we have alluded to in our disquisition upon leases, and particularly the Leases and Sales of Settled Estates Act (f), have gone far to meet the requirements which experience has pointed out as commonly occurring in the way we have mentioned; and private acts of parliament are therefore now less frequent than previously to that act. Nevertheless, it is still sometimes necessary to resort to the transcendent power of parliament to cut some Gordian knot in the title or in the management of an estate. Letters patent. The king's grants are also matter of public record. For, as St. Germyn says (g), the king's excellency is so high in the law, that no freehold may be given to the king, nor derived from him, but by matter of The king's grants. record. (383) And to this end a variety of offices have been from time to time erected, communicating in a regular subordination one with another, through which all the king's grants must pass, and be transcribed, and inrolled; that the same might be narrowly inspected by his officers; so as to inform him if any thing contained therein was improper or unlawful to be granted (h). These grants, whether of lands, honours, liberties, franchises, or ought besides, were always contained in charters, or letters patent, that is, open letters, literae patentes: so called because they were not sealed up, but exposed to open view, with the great seal pendant at the bottom; and usually directed or addressed by the king to all his subjects at large. And therein they differ from certain other [*553] letters of the king, sealed also with his great seal, but directed to particular persons, and for particular purposes; which, therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literae clausae, and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls. Grants by letters patent such as we describe are, as regards lands and other hereditaments of the nature of property, now antiquated. For alienations of lands and other hereditaments enjoyed by the sovereign in right of the crown, Writs close. (d) Richardson v. Hamilton, Canc. 8 Jan. 1733; McKenzie v. Stuart, Dom. Proc. 13 Mar. 1754. (e) 4 Rep. 12. (f) 19 & 20 Vict. c. 120. (g) Dr. & Stud. b. 1, d. 8. (h) See stats. 18 Hen. 6, c. 1; 27 Hen. 8, c. 11; 57 Geo. 3, c. 63; 2 Will. 4, c. 49. (382) In this country the power to transfer the title to private estates is controlled and limited by constitutional provisions. There are instances in which the legislature may prescribe the mode in which the property of infants, lunatics, or other persons under a legal disability, may be transferred, or disposed of for their advantage. For a full and accurate discussion of this subject, see Cool. on Const. Lim. 97-108; 3 Washb. Real Prop. (3d ed.) 193–200. (383) See 3 Washb. Real Prop. (3d ed). 163–189. or of the principality of Wales, duchy of Lancaster, or duchy of Cornwall, have been from time to time regulated by divers acts of parliament, restricting them within certain limits, and making them subject to various conditions (i). And we may also remember that the income of crown lands was, by the first act passed in the reign of George III. (k), made to constitute part of the General Aggregate Fund then established. The disposal of crown lands has been, therefore, of late vested in divers public officers, entitled successively surveyor-general of land revenues of the crown, and surveyor-general of woods, forests, parks, and chases, and afterwards commissioners of woods, forests, and land revenues (7). *The private estates of the queen and her predecessors have, how[*554] ever, been preserved from the operation of the acts we have alluded to, and may be disposed of with as ample a power as if they were the estates of subjects (m); and they are also subject to the like taxes and assessments, whether parliamentary or parochial, as those of private persons. The practice in Royal grants, therefore, by letters patent apply only now to a few incorporeal hereditaments, such as dignities, offices, and the like. The manner of making the grant has been prescribed by act of parliament (n). A warroyal grants. rant, addressed to the lord chancellor, is first prepared by the attorney or solicitor-general, setting forth the tenor of the intended letters patent; it is then signed with the queen's own sign manual, and countersigned by a principal secretary of state: it is afterwards sealed with her Majesty's privy seal: the patent then immediately passes under the great seal; so that the sign manual, thus countersigned, is the warrant to the privy seal, and the privy seal is the warrant to the great seal (o). But there are some grants which only pass through certain offices, as the admiralty or treasury, in consequence of a sign manual, without the confirmation of either the great, or the privy seal. The remaining instance of alienation by matter of record need not detain us long; it is the result of a device of the legislature in order to overcome certain Alienation under obstacles which the ordinary chances of human life present in the Trustee Acts. the management of trust property. When any lunatic or person of unsound mind, or any idiot, is seised or possessed of any property, or entitled to any contingent interest in property, upon trust or by way of mortgage, the Lord Chancellor or Lords Justices of Appeal in Chancery may make an order vesting the property in such person as he or they may [* 555 ] direct (p), and such an order has the same effect as if the trustee or mortgagee had been sane, and had executed a conveyance of the property. (i) 1 Hen. 4, c. 6; 36 Ed. 3, st. 1, c. 13; 8 Hen. 6, c. 16; 1 Hen. 8, c. 10; 1 Anne, c. 7, s. 5; 34 Geo. 3, c. 75 (repealed by 24 & 25 Vict. c. 101); 38 Geo. 3, c. 60; 42 Geo. 3. c. 116; 47 Geo. 3, stat. 2, c. 24; 48 Geo. 3, c. 73; 50 Geo. 3, c. 65; 52 Geo. 3, c. 161; 55 Geo. 3, c. 190; 10 Geo. 4, c. 50 (repealing several of the older acts); 8 & 9 Vict. c. 99; 11 & 12 Vict. c. 102; 14 & 15 Vict. c. 42; 14 & 15 Vict. c. 46; 15 & 16 Vict c. 28; and many special acts directed to the management of particular estates. (k) 1 Geo. 3, c. 1. (7) 50 Geo. 3, c. 65; 2 & 3 Will. 4, c. 1; 14 & 15 Vict. c. 42, which separated the direction of her Majesty's works and public buildings from the management of the crown (0) As to the old practice, see 2 Rep. 176; 9 Rep. 18; 2 Inst. 553. See vol. iii. c. 4, as to the court of the petty bag in chancery. (p) 13 & 14 Vict. c. 60, ss. 3, 4, 7, 8. The act is an enlargement and consolidation of previous acts having somewhat similar objects. 11 Geo. 4; 1 Will. 4, c. 60; 4 & 5 Will. 4, c. 23; and 1 & 2 Vict. c. 69. Again, where a trustee is an infant or is out of the jurisdiction, or cannot be found, or when it is uncertain which of several trustees was the survivor, or whether the last trustee is alive or dead, or when a trustee has died intestate without an heir, or the heir or devisee cannot be found in any of these cases the Court of Chancery may make an order vesting the property, subject to the trust, in such person as the court may direct; and the order has the same effect as if the trustee or the heir or devisee had executed a conveyance (q). Where lands have been directed by a court of equity to be sold for any purpose whatever (r), or where the court has made a decree for specific performance of a contract concerning lands, the person in whom they may happen to be vested is declared to be a trustee within the meaning of the act, and the court can deal with the lands accordingly, and it may discharge the contingent right, under the will of any deceased debtor, or of any unborn person (s). This provision has greatly facilitated the working out of the statute which gives the court power to apply real estate in payment of the debts of a deceased debtor. The like order may be made in cases where a mortgagee has died without having entered into possession, and there is a similar difficulty in obtaining a conveyance of the legal estate (t); and so also when a trustee refuses to convey the trust property when duly required to do so (u). Where the property in question is situate within the * duchy of Lancaster, in the counties palatine of Lancaster or Durham, the court of [*556] the duchy or the courts of chancery of the counties palatine are the courts in which the order is to be made (x). The rights of the lord of the manor are duly preserved under these acts in the case of copyhold lands (y). *CHAPTER XXIII. ALIENATION BY DEVISE. [* 557] THE last method of conveying real property is by devise, or disposition contained in a man's last will and testament. And, in considering this subject, we will shortly inquire first into the origin and antiquity of devising real estates by will, and then set forth the present law, which wholly depends upon a recent statute. (384) We may here remark that, now, the same rules govern the validity of a will in dealing with real property, as when it comprises personal property; though the history of the power of devising land materially differs from that of bequeathing personal chattels, and leasehold interests in land. (q) Ib. ss. 9, 16. (r) 15 & 16 Vict. c. 55, s. 1. (8) 13 & 14 Vict. c. 60, ss. 29, 30. (t) Ib. s. 19. (u) 15 & 16 Vict. c. 55, s. 2. (384) A general discussion of this subject will be found in 3 Washb. Real Prop. (3d ed.) 426-461; 1 Redf. on Wills (3d ed.), 1–163; 1 Kent's Com. 504. restrained on introduction of It seems sufficiently clear, that, before the conquest, lands were devisable by will (a). But, upon the introduction of the military tenures, the restraint of Power to devise devising lands naturally took place, as a branch of the feudal doctrine of non-alienation without the consent of the lord (b); feudal system. though the feudists were not the inventors of this restriction, as we may trace it even from the ancient Germans (c). And the ancient law of the Athenians directed that the estate of the deceased should always descend to his children; or, on failure of lineal descendants, should go to the collateral relations: which had an admirable effect in keeping up equality, and preventing the accumulation of estates. But it is said that when Solon (d) made a slight alteration, by permitting them (though only on failure of issue) to dispose of * their lands by testament, and devise away estates from the collateral [* 558] heir, the result was to produce an excess of wealth in some and corresponding poverty in others, and thence divers political evils involving an overthrow of liberty. An argument, founded on the political effect of limiting a power of devise, as also the like effect of primogeniture, has been used on both sides in the various controversies that have arisen upon what ought to be the law on these points, and modern nations differ very materially in the views adopted by their respective systems of jurisprudence. We need here only remark, that whatever may be the political consequences of a restriction upon a man's power of dealing with his property, it is now too late, in England, to say that a very considerable amount of freedom in disposition by will shall not be enjoyed. Certainly whilst the law of primogeniture continues to hold sway over the devolution of land, it would be to the highest degree inexpedient to interfere with the present extensive liberty enjoyed by every possessor of property in respect to its distribution after his death. And experience does not show that testators by their wills often commit an injustice to members of their family greater than that which, according to the opinion of many at least, is involved in this rule of primogeniture. Moreover, the power of dealing, within reasonable limits, with his property by will, is generally esteemed to be, and doubtless is, a great incentive to a man to be energetic, and at the time prudent, during the active period of his life. In the feudal times, many influences operated upon men wholly different from those which in the present peaceful and commercial state of society are of primary importance; and, accordingly, we find that, by the common law of England since the conquest, no estate, greater than for a term of years, could be disposed of by testament (e); except only in Kent, and 12 some ancient burghs, and a few *par[* 559] ticular manors, where their Saxon immunities by special indulgence subsisted (f). And though the feudal restraint on alienations by deed vanished very early, yet this on wills continued for some centuries after: from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious (g). Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descents is appar ent to the neighbourhood, and which the simplicity of the common law always required in every transfer and new acquisition of property. |