of his body. so that an estate which had been granted to a man and his heirs descended, on his decease, not only to his offspring, but also, in default of offspring, to his other relations in a defined order of succession. Hence if it were wished to confine the inheritance to the offspring of the donee, it became necessary to limit the estate expressly to him and the heirs of his body (e), making To the donee what was then called a conditional gift, by reason of the and the heirs condition implied in the donation, that if the donee died A conditional without such particular heirs, or in case of the failure of gift. such heirs at any future time, the land should revert to the donor (f). The most usual species of grant appears, however, to have been that to a man and his heirs generally: but, as the right of alienation seems to have arisen in the same manner with regard to estates granted in both the above methods, it will be desirable, in considering the origin of this right, to include in our remarks as well an estate granted to a man and his heirs, as an estate confined to the heirs of the body of the grantee. lord. In whichever method the estate might have been Two other parties interested, granted, it is evident that, besides the tenant, there were the expectant two other parties interested in the lands; one, the person heir and the who was the expectant heir of the tenant, and who had, under the gift, a hope of succeeding his ancestor in the holding of the lands; the other, the lord, who had made the grant, and who had a right to the services reserved during the continuance of the tenancy, and also a possibility of again obtaining the lands on the failure of the heirs mentioned in the gift. An alienation of the lands by the tenant might therefore, it is evident, defeat the rights of one or both of the above parties. Let us, therefore, consider, in the first place, the origin and progress of the right of alienation as it affected the interest 290 b, n. (1), V. 1. (e) Bracton, lib. 2, cap. 6, fol. 17 b; cap. 19, fol. 47 a; Co. Litt. (f) 2 Black. Com. 110. Right of alienation as against the heir. of the expectant heir; and, secondly, the origin and proof this right as it affected the interest of the lord. gress The right of an ancestor to defeat the expectation of his heir was not fully established at the time of Henry II. For it appears from the treatise of Glanville, written in that reign (g), that a larger right of alienation was possessed over lands which a man had acquired by purchase, than over those which had descended to him as the heir of some deceased person: and even over purchased lands the right of alienation was not complete, if the tenant had any heir of his own body (h); so that if lands had been given to a man an his heirs generally, he was able to disappoint the expectation of his collateral heirs, but he could not entirely disinherit the heirs sprung of his own body. For certain purposes, however, alienation of part of the lands was allowed to defeat the heirs of his body; thus part of the lands might be given by the tenant with his daughter on her marriage, and part might also be given for religious uses (i). Such gifts as these were, however, as we shall presently see, almost the only kinds of alienation, in ancient times, which occasioned any serious detriment to the heir; and the allowing of such gifts may accordingly be considered as an important step in the progress of the right of alienation. For, when lands were given to a daughter on her marriage, the daughter and her husband, or the donees in frank-marriage, as they were called, held the lands granted, to them and the heirs of their two bodies free from all manner of service to the donor or his heirs (a mere oath of fealty or fidelity excepted), until the fourth degree of consanguinity from the donor was passed (k); and when lands were given to religious uses, the grantees Frankalmoign. in frankalmoign, as they were called, were for ever free (g) 1 Reeves's Hist. Eng. Law, Frank-marriage. 223. (h) Ibid. 105. (i) Glanville, lib. 7, c. 1; 1 Reeves's Hist. 104. (k) Litt. sects. 17, 19, 20. from every kind of earthly or temporal service (1). Little of alienation. or nothing, therefore, in these cases, remained for the heir of the grantor. But the other modes of alienation Other modes which then prevailed were very different in their results, as well from such gifts as above described, as from the ordinary sales of landed property which occur in modern times. Ready money was then extremely scarce; large fortunes, acquired by commercial enterprise, were not then expended in the purchase of country seats. The auction mart was not then established; such a thing as an absolute sale for a sum of money paid down was scarcely to be met with. The alienation of lands rather assumed the form of perpetual leases, granted in consideration of certain services or rents to be from time to time performed or paid. This method was, in feudal language, termed subinfeudation. In all the old convey- Subinfeudaances, almost without exception, the lands are given to the grantee and his heirs, to hold as tenants of the grantor and his heirs, at certain rents or services (m); and when no particular service was reserved, it was understood that the grantee held of the grantor, subject to the same services as the grantor held of his superior lord (n). As, therefore, it cannot be supposed that gifts should be made without some fair equivalent, and as (1) Litt. sect. 135. (m) All the forms of feoffments given in Madox's Formulare Anglicanum, with the exception of Nos. 318 and 325, are in this form. No. 318 is a gift in frankalmoign, and was afterwards confirmed by the son of the grantor (see title, Confirmation, No. 119); and No. 325 appears to have been a family transaction between a father and his son. The curious questions mentioned in Glanville (lib. 7, c. 1) as to the descent of lands which had been granted by (n) Perkins's Profitable Book, tion. The power of over the expec the ancestor tations of his heirs becomes absolute. Alienation as affecting the interests of the lord. such equivalent, in the shape of rent or service, would descend to the heir in lieu of the land, we may fairly presume that alienation, as ordinarily practised in early times, was not so great a disadvantage to the heir as might at first be supposed: and this circumstance may perhaps help to account for that which at any rate is an undoubted fact, that the power of an ancestor to destroy the expectation of his heirs, whether merely collateral or heirs of his body, soon became absolute. In whichever way the grant were made, whether to the ancestor and his heirs, or to him and the heirs of his body, we find that by the time of Henry III. the heir was completely in his ancestor's power, so far as related to any lands of which the ancestor had possession. Bracton, who wrote in this reign, expressly lays it down, that the heir acquires nothing from the gift made to his ancestor (o). The very circumstance that land was given to a person and his heirs, or to him and the heirs of his body, enabled him to convey an interest in the land, to last as long as his heirs in the one case, or the heirs of his body in the other, continued to exist. And from the time of Bracton, a gift to a man and his heirs generally has enabled the grantee, either entirely to defeat the expectation of his heir by an absolute conveyance, or to prejudice his enjoyment of the descended lands by obliging him to satisfy any debts or demands, to the value of the lands, according to his ancestor's discretion. With respect to lands granted to a man and the heirs of his body, the power of the ancestor is not now so complete. The means by which this right of alienation was in this case curtailed will appear in the account we shall now give of the origin and progress of the right of alienation as it affected the interest of the lord. The interest of the lord was evidently of two kinds; (0) Bracton, lib. 2, cap. 6, fol. 17 a. Nihil acquirit ex donatione facta antecessori, quia cum donatorio non est feoffatus. Interest of the lord in the rent and services first affected. his interest in the rent and services during the continuance of the tenancy, and his chance or possibility of again obtaining the land on failure of the heirs of his tenant. On the former of these interests, the inroad of to have been first made. The tenants, alienation appears by taking upon themselves to make grants of part of their lands to strangers to hold of themselves, prejudiced the security possessed by the lord for the due performance of the services of the original tenure. And accordingly we find it enacted in Magna Charta (p), that no freeman should give or sell any more of his land than so as what remained might be sufficient to answer the services he owed to his lord. The original services reserved on any conveyance were, however, always a charge on the land while in the hands of the undertenants, and could be distrained for by the lord (q); although the enforcement of such services was doubtless rendered less easy by the division of the lands into various ownerships. The in- Infringement fringement on the lord's interest, expectant on the failure of the heirs of his tenant, appears to have been the last tant on failure step in the progress of alienation. As the advantages of a free power of disposition became apparent, a new form of grant came into general use. The lands were given not only to the tenant and his heirs, but to him and his heirs, or to whomsoever he might wish to give or assign the land (r), or with other words expressly conferring on the tenant the power of alienation (s). In this case, if the tenant granted, or underlet as it were, part of his land, then, on his decease and failure of his heirs, the tenant's grantee had still a right to continue to hold as tenant of the superior lord; and such superior lord then (p) Chap. 32. (9) Perkins's Profitable Book, sect. 674. (r) Bract. lib. 2, c. 6, fol. 17 b. (s) Madox's Formulare Anglicanum, Preliminary Dissertation, p. 5. The tendency towards the interest expec of heirs. |