that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner. (i)(42)

VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste: whereupon the lord may seise them without any presentment by the homage; (k) but also to peculiar forfeitures annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vassals, the marks of feodal dominion continue much the strongest upon this mode of property. Most of the offences, which occasioned a resumption of the fief by the feodal law, and were denominated feloniæ, per quas vasallus amitteret feudum, (l)(43) still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit. and service; (m) si dominum deservire noluerit:(n) by disclaiming to hold of the lord, or swearing himself not his copyholder;(o) si dominum ejuravit, i. e. negavit se a domino feudum habere:(p) by neglect to be admitted tenant within a year and a day;(q) si per annum et diem cessaverit in petenda investitura:(r) by contumacy in not appearing in court after three proclamations;(s)

si a domino ter citatus non comparuerit:(t) or by refusing, when sworn *285] of the homage, to present the truth according to his oath; (u)*si pares

veritatem noverint, et dicant nescire, cum seiant. (w) In these and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord's court-baron:(x) per laudamentum parium suorum;( y) or, as is more fully expressed in another place,(z) nemo miles cadinatur de possessione sui beneficii, nisi convicta culpa, quæ sit laudanda (a) per judicum parium suorum.(44)

(i) 2 Inst. 304.

(k) 2 Ventr. 38. Cro. Eliz. 439.

(1) Feud. 1. 2, t. 26, in calc.

(m) 3 Leon. 108. Dyer, 211.

(n) Feud. l. 1, t. 21.

(0) Co. Copyh. 3 57.

(p) Feud. 1. 2, t. 34, and t. 26, § 3.

(q) Plowd. 372.

(r) Feud. l. 2, t. 24.

(8) 8 Rep. 99. Co. Copyh. 2 57.

(t) Feud. 1. 2, t. 22.

(u) Co. Copyh. 57.

(w) Feud. l. 2, t. 28.

(x) Co. Copyh. 258.

(y) Feud. 1. 2, t. 21.

(z) Ibid. t. 22.

(a) i.e. arbitranda, definienda. Du Fresne, iv.

(42) 1 Washb. on Real Prop. 5 ed. 158 (1888). Webb's Pollock on Torts, enlarged Am. ed. 427 (1894). Jackson v. Tibbits, 3 Wend. (N. Y.) 342 (1829). Chipman v. Emrie, 3 Cal. 273–282 (1853).

But this remedy at common law has long fallen into disuse, the ends of justice being found to be better answered by a court of equity, which grants an injunction to restrain waste, and an account of the profits made; and very recently, by the 3 & 4 Wm. IV. c. 27, 36, the writ of waste has been abolished. An injunction to restrain waste will be granted at the suit not only of a remainderman in fee-simple or fee-tail, but also of a remainderman for life, or of trustees to preserve contingent remainders. Perrott v. Perrott, 3 Atk. 95. Stansfield v. Habergham, 10 Ves. 281. This is perhaps the only reason why it is in some cases desirable to have trustees since stat. 8 & 9 Vict. c. 106, ? 8, cited ante, p. 172, n.-STEWART.

[Felonies by which the vassal wouid lose his fee.]

(43) [No soldier shall be removed from the possession of his benefice unless convicted of some offence, which must be pronounced by the judgment of his peers.]

It is rather singular that in every instance in which ford Coke on copyholds is cited in this paragraph his authority is directly contradictory of the text. În his fifty-seventh chapter he divides forfeitures into those which operate eo instante [Instantaneously] and those which must be presented, and then enumerates those of the former class. Under this he ranges, among many others, disclaimer, not appearing after three proclamations, and refusing when sworn to present the truth. In his fifty-eighth chapter he enumerates the second class, and under it places treason, felony, and alienation. It is observable also that the references to Dyer, 211, and 8 Rep. 99, are not in point.—COLERIDGE.

VIII. The eighth and last method whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined; a trader who secretes himself, or does certain other acts tending to defraud his creditors. (45)

Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter; when we shall endeavor more fully to explain its nature as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements is transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.

By statute 13 Eliz. c. 7, the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as *he may lawfully part with,) or pur- [*286 chased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and enrolled, or divide them proportionably among the creditors. This statute expressly included not only free, but customary and copyhold, lands; but did not extend to estates-tail, further than for the bankrupt's life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I. c. 19 enacts, that the commissioners shall be empowered to sell or convey, by deed indented and enrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remaindermen, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged estates shall be at the disposal of the commissioners; for they shall have power to redeem the same as the bankrupt himself might have done, and after redemption to sell them. (46) And also by this and a former act, (b) all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchaser bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptcy committed.

By virtue of these statutes a bankrupt may lose all his real estate; which may at once be transferred by his commissioners to their assignees without his participation or consent.(47)

(b) 1 Jac. I. c. 15.

(45) Sackett v. Andross, 5 N. Y. (Hill) 342 (1843). (46) Sheppard's Touchstone, 226 (1820).

(47) By the Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106, when any person has been adjudged a bankrupt, all lands, tenements, and hereditaments (except copy or customary hold) in any of her majesty's dominions to which he is entitled, and any disposable interest he may have in any such property, or which may descend or come to him before he obtains his certificate of discharge, become vested in the assignees appointed on behalf of the creditors, in the manner directed by law, by virtue of such appointment alone, and without any deed or conveyance. As for his copy or customary hold lands, power is given to the commissioners in bankruptcy to sell them; and the

CHAPTER XIX.

V. 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 its limited sense; under which may be comprised any method wherein estates are voluntarily resigned by one man and accepted by another; whether that be affected by sale, gift, marriage, settlement, devise, or other transmission of property by the mutual consent of the parties. (48).

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) a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest 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. (b) 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 con

sent of his own next apparent or presumptive heir. (c) And therefore *288] it was very usual in ancent feoffments to express that *the alienation

was made by consent of the heirs of the feoffor: or sometimes for the heir-apparent himself 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 signiory without the consent of his vassal: 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 apprised 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 neighboring clan. (e) This consent of the vassal was expressed by what was called attorning, (f) or professing to

(a) See page 37.

(b) Feud. l. 1, t. 27.

(c) Co. Litt. 94. Wright, 168.

(d) Madox, Formul. Angl. No 316, 319, 427.

(e) Gilb. Ten. 75.

(f) 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. [Possessions with a right of jurisdiction can only be taken by attorning or professing to become tenant, as it is usually called; when the vassal resigning his former obedience and faith, bound himself by a fresh oath to the new lord, and that by the command of his ancient lord.] D'Argentre, Antiq. Consuet. Brit. apud Dufresne, i. 819, 820.

commissioner is enabled by the Fines and Recoveries Act to bar any estate-tail which the bankrupt may have in any lands, as far as the bankrupt himself might have done the

same.

A ninth method of forfeiture--that by insolvency-is of the same nature as that by bankruptcy. By insolvency is here meant generally the inability of a person to satisfy the demands of his creditors. Assignees are appointed either by the Court for the Relief of Insolvent Debtors in London, or by a judge of the county court, to be the depositaries of the estate and effects of the insolvent, and his whole real estate, immediately on such appointment, becomes vested in them without any conveyance in trust for the benefit of the creditors.-KERR.

(48) Masters v. Madison County Mutual Insurance Co., Barb. Sup. Ct. Rep. (N. V.) 624-629 (1852). Maydwell v. Maydwell, 9 Heiskell (Tenn.) 571-577 (1872). Adams v. Rockingham M. F. Ins. Co., 29 Me. 292-295 (1849). Burbank v. Rockingham M. F. Ins. Co., 24 N. H. 550-558 (1852). 5 Manitoba Rep. (Ewart) 365-422 (1889). ́ ́ Boone on Real Prop. 276 (1883).

become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. (49) 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 purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incomplete: (g) which was also an additional clog upon alienations.

But by degrees this feodal severity is worn off; and experience hath shown that property best answers the purposes of civil life, especially in commercial countries, when its 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: (h) *a doctrine which is countenanced by the feodal [*289 constitutions themselves: (i) 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. (j) 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:(k) and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heir. (7) By the great charter of Henry III.,(m) 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. (n) But these restrictions were in general removed by the statute of quia emptores, (o) 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. (p) And even these tenants in capite were by the statute 1 Edw. III. c. 12, permitted to aliene, on paying a fine to the king.(g) By the temporary statutes 7 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 license, 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 stat. 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 [*290 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

(49) Thomas v. Blackemore, 5 Yerger (Tenn.) 113–126 (1833).

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 to complete the grant or conveyance, by statute 4 & 5 Anne, c. 16;(50) nor shall, by statute 11 Geo. II. c. 19, the attornment of any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice. (51)

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 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. (52) But, if a man has only

(50) Thomas v. Blackemore, 5 Yerger (Tenn.) 113–126 (1833).

(51) An attornment at the common law was an agreement of the tenant to the grant of the seigniory or of a rent, or of the donee in tail, or tenant for life or years, to a grant of reversion or remainder made to another. Co. Litt. 309, a. And the attornment was

necessary to the perfection of the grant. However, the necessity of attornments was in some measure avoided by the statute of uses, as by that statute the possession was immediately executed to the use, (1 Term R. 384, 386,) and by the statute of wills, by which the legal estate is immediately vested in the devisee. Yet attornment continued after this to be necessary in many cases, but both the necessity and efficacy of attornments have been almost totally taken away by the statute 4 & 5 Anne, c. 16, ?? 9, 10, and II Geo. II. c. 19, & II. The first statute having made attornment unnecessary, and the other having made it inoperative, it is now held not to be necessary either to aver it in a declaration in covenant, or plead it in an avowry or other pleading whatever. Doug. 283, Moss v. Gallimore. See Mr. Serjt. Williams's note, I Saund. 234, b., n. 4. Under the proviso in the first act, any notice to the tenant of his original landlord having parted with his interest is sufficient; and therefore the tenant's knowledge of the title of cestuy que trust [The one who benefits by the trust] as purchaser has been held sufficient notice to entitle his trustees to maintain an action of assumpsit for use and occupation as grantees of the reversion against the tenant, who had improperly paid over his rent to a vendor after such knowledge. 16 East, 99. Although the first-mentioned act renders an attornment unnecessary, yet it is still useful for a purchaser to obtain it, because after an attornment he would not in any action against the tenant be compelled to adduce full evidence of his title, (Peake's Law of Evid. 266, 267,) though the tenant would still be at liberty to show that he had attorned by mistake. 6 Taunt. 202.-CHITTY. See also Hogsett v. Ellis, 17 Mich. (Jennison) 351-364 (1868).

(52) But it is a rule of law that no person can vest an estate in another against his will; and consequently, if a grantee, lessee, or devisee refuses the estate intended to be vested in him, the grant, lease, or devise will be void. Thompson v. Leech, 2 Vent. 198. An estate granted or devised to a person for his own benefit is seldom disclaimed; but it often happens that persons who are made grantees or devisees in trust for others decline to act, in which case they may disclaim by deed. See Nicolson v. Wordsworth, 2 Swanst. 372. Townson v. Tickell, 3 B. & A. 31. Smith v. Smith, 6 B. & C. 112. Begbie v. Crook, 2 Bing. N. C. 70.-COLERIDge.

It has

The doctrine maintained by the masterly argument of justice Ventris in Thompson v. Leach, (2 Vent. 201,) and eventually established by the decision of that case in the house of lords, is, that a common-law conveyance put into the hands of an agent for transmission to the grantee takes effect the instant it is parted with, and vests the title, though the grantee be ignorant of the transaction; and that the rejection of such a grant has the effect of revesting the title in the grantor, it would seem, by a species of remitter. been held, therefore, that whenever the conveyance in such a case is in trust, and the grantee refuses to accept, equity, which always protects, where it can without disturbing a legal right, the interests of a cestuy que trust from the acts of the trustee, will support the trust as sufficiently created, and appoint a trustee in the place of him who has refused to accept. Read v. Robinson, 6 Watts & Serg. 329. Where the grantee does accept, his title relates back to the execution of the deed, and in every case, whether the transfer is to the grantee beneficially or in trust, his acceptance will be presumed until