Page images

Lands wherein the King is in Reversion," or by any other act, 3 F: 4 Will. 4 are restrained from barring their estates tail, or to tenants in

c. 74, s. 18. tail after possibility of issue extinct (r).

(r) Whenever there is any reason to suspect that an estate has belonged to the crown, it is necessary to require the production of the original grant from the crown, or to search for it.

By statate 34 & 35 Hen. 8, c. 20, no feigned recovery by assent of parties Tenants in tail of against any tenant in tail of any lands giren by the croren, whereof the the gift of the reversion or remainder, at the time of such recovery had, shall be in the crown. king, shall bind the heirs in tail, whether any voucher be had in such re- 34 & 35 Hen. 8, covery or not; but after the death of such tenant in tail, the heirs in tail c. 20. may enter and enjoy the lands according to the form of the gift; the recovery or any other thing done or suffered by or against such tenant in tail notwithstanding. In order to bring an estate tail with a reversion in fee to the crown within the protection of the act, it must be clearly a gift or provision of the king; for where a grant made by the crown, reserving the reversion on failure of the issue of the grantee, was made neither as a gift nor as a reward for services, but as an act of justice in execution of some secret trust or obligation binding the crown, it was held not to be within that act, and that a recovery barred the reversion. (Perkins d. Voule v. Serell, 4 Burr. 2223; S.C., 1 Bl. Rep. 654; see Co. Litt. 372 b, 373 a; Cruise's Dig. tit. XXXVI. c. 10, s. 42-51; 1 Prest. Conv, 18, 19, 144-146, 221.) If the king, having made a gift in tail, reserving the reversion to himself, afterwards gave leave to the tenant in tail to suffer a common recovery, for the purpose of passing the reversion out of himself in order to be reconveyed to him, which was done accordingly, the tenant in tail or his issue might afterwards bar such reversion by a common recovery, notwithstanding the statute, because the reversion having been once severed from the crown the privity of estate was gone, and the statute was intended only to restrain where the reversion continued in the crown without any alteration. (Earl of Chesterfield's case, Hardr. 409.) That mode of barring the crown was prevented by statute í Anne, sess. 1, c. 7, which restrains the alienation of lands belonging to the crown, except for a term not exceeding thirty-one years or three lives, or for a term determinable upon one, two or three lives; but see statute 34 Geo. 3, c. 75; 39 & 40 Geo. 3, cc. 86, 88; 47 Geo. 3, C. 24.

A common recovery previously to the statute of Hen. 8, did not bar the Recoveries by reversion or remainder in the crown, because it was not like common per- tenants in tall sons bound by the fictitious recompense on which the effect of a recovery in crown. was founded. (2 Roll. Abr. 293, 294; Hob. R. 339.) It was decided that, where tenant in tail male with the reversion in the crown, before the statute 34 & 35 Hen. 8, c. 20, suffered a common recovery with single voucher, the recoveror gained a base fee determinable on failure of issue male of the donee; that such base fee was descendible and alienable; that the issue in tail were barred, and the ancient reversion remained in the crown, which might come into possession and take effect whenever there should be a failure of such issue. (Bro. Tail. 41; Cro. Car. 430; Plowd. 555; Dyer, 32 a; Neal d. Duke of Athol v. Wilding, 1 Wils. 275.) It was a question in a recent case, whether a reversion in an estate in Ireland (to which the statute 34 & 35 Hen. 8 does not extend, Co. Litt. 372 b, n. 3), after an estate tail, which had vested in the crown in consequence of the attainder of the reversioner, could be barred by a common recovery suffered by the issue in tail when in possession. The point was considered so doubtful by the House of Lords, that a purchaser, who objected to the title on that ground, was held not bound to accept it. (Blosse v. Clanmorris, 3 Bligh, 62. See 19 & 20 Vict. c. 120, s. 42, post.)

Where tenant in tail of the gift of the crown was disseised, and the dis- Tenant in tall of seisor levied a fine with proclamations, and five years elapsed: it was held, the gift of the that the issue in tail was not barred. (Stratfield v. Dover, Cro. Eliz. 595; crown disseised ;

fine by disseisor. bat see 1 Sid. 166; 1 Roll. R. 171; and the remarks on Stratfield v. Dover, in Earl of Abergavenny v. Brace, L. R., 7 Exch. 156, 176. By letters patent, King Charles the Second, in the 25th year of his reign,

Inalienable estates tail.

3 of 4 Will. 4, in consideration of natural love and affection, granted an estate tail in cerc. 74, 8. 18. tain lands to his illegitimate son, H. F., afterwards created Duke of Grafton.

It was held, that such estate and all other estates tail and remainders, and reversions thereupon expectant or depending, were effectually barred and extinguished by indentures of bargain and sale under 3 & 4 Will. 4, c. 74, s. 15, notwithstanding the stat. 34 & 35 Hen. 8, c. 20. (Duke of Grafton v. London and Birmingham R. Co., 6 Scott, 719. See Com. Dig. Estates, B. 21; Bac. Abr. Fines and Recoveries, 2nd division, C.)

In several acts of parliament conferring estates on eminent individuals, tenants in tail are restrained from aliening such estates, except for their own lives, as in the case of the Duke of Marlborough, by 5 Anne, cc. 3, 4 (see Davis v. Duke of Marlborough, 1 Swanst. 74), the Duke of Wellington (see statutes 41 Geo. 3, c. 59, s. 6; 42 Geo. 3, c. 113, s. 6; 54 Geo. 3, c. 161, s. 28), and the Earl of Abergavenny. (2 & 3 Ph. & M. c. 23. See Earl

of Abergavenny v. Brace, L. R., 7 Exch. 145.) Tenants in tall By statute 14 Eliz. c. 8, (repealed by 26 & 27 Vict. c. 125,) it is provided after possibility of that recoveries against tenant by the curtesy, tenant in tail after possibility Issue extinct.

of issue extinct, or otherwise, for term of life, or estate determinable upon life, or with voucher over against any such particular tenant, shall be void against him in reversion or remainder. But this act shall not be prejudicial to any person who shall by good title recover lands by reason of a former right: and recoveries of lands by assent of him in reversion or remainder (so as such assent appear of record) shall be of like force against such person so assenting as before this act. A common recovery with double voucher, suffered by a bare tenant for life as vouchee, without feoffment or fine, was held to destroy contingent remainders immediately expectant on the life estate, notwithstanding the statute 14 Eliz. c. 8. (Doe d. Davis v. Gatacre, 5 Bing. N. C. 609.) A tenant in tail after possibility of issue extinct has no power of barring the estate tail or the remainders expectant thereon, but for all purposes of alienation is considered merely as tenant for life (Co. Litt. 28 a; 11 Rep. 80): although not impeachable for waste.

Thus where by a settlement before marriage the husband's estate was conveyed to trustees to the use of the husband for life, without impeachment of waste, remainder to trustees to preserve contingent remainders; remainder to the use of the wife for life for her jointure and in bar of dower; remainder to the first and other sons of the marriage in tail male; remainder to the first and other daughters in tail male; remainder to the heirs of the body of the husband and wife; remainder to the right heirs of the husband: the wife survived the husband, and had no issue: and it was held, that she was tenant in tail after possibility of issue extinct, and that she was unimpeachable of waste, and entitled to the property of the timber when cut by her. (Williams v. Williams, 15 Ves. 419; s. C., 12 East, 209; 3 Madd. 519.) Where a testator, being seised in fee of the reversion of an estate, derised it to his wife during her natural life, and after her decease to the heirs of her body by the testator lawfully begotten or to be begotten, and for want of such issue with remainder over, the wife was held to be a tenant in tail after possibility, after the period from her husband's death when she might have had issue by him, though there never was any issue of the marriage. (Platt v. Ponles, 2 Maule & S. 65.)

Power after 31st December, 1883, to enlarge base fees; saving rights of certain persons.

Power to enlarge Base Fees. 19. After the thirty-first day of December, one thousand eight hundred and thirty-three, in every case in which an estate tail in any lands shall have been barred and converted into a base fee, either before or on or after that day, the person who, if such estate tail had not been barred, would have been actual tenant in tail of the same lands, shall have full power to dispose of such lands as against all persons, including the king's most excellent majesty, his heirs and successors, whose estates are to take effect after the determination or in defeasance of the


base fee into which the estate tail shall have been converted, so 3 f 4 Will. 4, as to enlarge the base fee into a fee simple absolute (s); saving c. 74, s. 19. always the rights of all persons in respect of estates prior to the estate tail which shall have been converted into a base fee, and the rights of all other persons, except those against whom such disposition is by this act authorized to be made.

(8) The remainder of the corresponding section of the Irish statute 4 & 5 Corresponding Wìl. 4, c. 92, s. 16, runs thus:-"including the king's most excellent ma- clause of Irish jesty, his heirs and successors, as regards the title to* his majesty to any reversion or remainder created or reserved by any settlement or will, and * Sic. which reversion or remainder shall have come or shall hereafter come to the crown in consequence of the attainder of any person to whom the forfeited reversion or remainder was previously to such forfeiture limited by any settlement or will, but not in any other case, or where the title to the crown shall have accrued by any other means; saving always the rights of all persons in respect of estates prior to the estate tail which shall have been converted into a base fee and the rights of all other persons, except those against whom such disposition is by this act authorized to be made: provided always, that nothing in this act contained shall authorize any tenant in tail or other person to defeat or bar any estate or interest which may at the time of passing this act have been granted to any person or persons by his majesty, or any of his predecessors, in any reversion or remainder which may have come to the crown by attainder or otherwise.”

clause of the Irish Act.

Disposition by Heirs Expectant restrained. 20. Provided always, and be it further enacted, that nothing Issue inheritable in this act contained shall enable any person to dispose of any ancies.

not to bar expectlands entailed in respect of any expectant interest (i) which he may have as issue inheritable to any estate tail therein (u).

(t) The words in the corresponding section of the Irish stat. 4 & 5 Will. 4, Corresponding c. 92, s. 17, are “expectant interest or possibility."

By sect. 22 of the same statute it is enacted, “that from and after the 31st day of October, 1834, it shall be lawful for any person, either before or after he shall become entitled in any manner, except as expectant heir of a living person, or as expectant heir of the body of a living person, to an estate in lands, not being a vested estate, and whether he be or be not ascertained as the person or one of the persons in whom the same may become vested, to dispose of such lands for the whole or any part of such estate therein by any assurance, whether deed, will, or any other instrument by which he could have made such disposition if such estate were a vested estate in possession: provided nevertheless, that no such disposition shall be valid or have any effect where the person making the same shall not at the time of the disposition have become entitled to such estate, unless the deed, will, or other instrument by virtue of which he may become entitled be existing and in operation at the time of the disposition.” As to the nature of this provision, see 1 Hayes, Conv. 219, 5th ed., and compare 8 & 9 Vict. c. 106, s. 6, post. This provision is not in terms confined to Ireland, but from the context it would probably be held to be so confined. (Sugd. R. P. Stat. 243.)

(u) Sect. 20 of 3 & 4 Will. 4, c. 74, and the abolition of fines will have the effect of putting an end to some powers of alienation which previously might have been exercised by persons having only expectant interests, such as the eldest son of a tenant in tail or fee simple has during the life of his father. It may be useful to advert to the power of alienation pos- Alienation of sessed by persons having expectant or contingent interests, although all of expectant or conthem do not come within the operation of this act. A fine levied by a tingent interests. person who afterwards became heir was an estoppel. (1 Roll. Abr. 482 (S.) pl. 2; Helps v. Hereford, 2 B. & Ald. 242; W. Jones, 456; Doe v.

3 f. 4 Will. 4, Martyn, 2 Mann. & R. 485; 8 B. & C. 497; Christmas v. Oliver, 10 B. & c. 74, s. 20. C. 181.) But where a tenant in tail of an advowson and his son and heir

joined in a grant of the next avoidance, and the tenant in tail died, it was adjudged that the grant was utterly void against the son and heir who joined in the grant, because he had nothing in the advowson neither in possession or right, nor in actual possibility at the time of the grant. (Sir

M. Wirel's case, Hob. 45; Perk. s. 65; i Anstr. 11; 3 Term Rep. 365.) When fine barred A fine would in some cases have barred the collateral heirs of the cognisor, collateral heirs of thongh he was never seised of the entail, provided the right to such entail cognisor.

had descended upon him. For in a formedon in the descender the demandant had to mention every one to whom any right to the entail descended, by which means he became privy to all such persons. (8 Rep. 88 b.) Thus if a father, tenant in tail, had three sons, and the eldest levied a fine in his father's lifetime, if he or any of bis issue, inheritable to the entail, survived the father, the younger sons and their issue would have been barred by the fine, because "by the death of the father a right to the entail descended to the elder brother and his issue, and so the younger brothers became privies to him. But where neither the cognisor nor any of his issue ever acquired a right to the entail, such fine would not have barred any of his collateral heirs, because in making out their title and pedigree to the person last seised of the entail, they need not have mentioned the person who levied the fine or any of his descendants, and consequently were not privies to them. So were an eldest son levied a fine of an estate tail, which was then vested in his mother, and then died in her lifetime, so that the estate tail never descended on him, it was held that such fine did not bar the second brother, because the estate tail never having descended to the elder brother, the younger was not privy to him. (Bradstock v. Scorel,

Cro. Car. 434.) Alienation of A mere possibility could be only bound or extinguished at law by possibilities at

estoppel, by a fine, or a recovery (Weale v. Lover, Pollex. 54), or in equity law and in equity. by contract. (Beckley v. Newland, 2 P. Wms. 182; Hobson v: Trevor, Id.

191; see Lyde v, Mynn, 1 M. & Keen, 693; 1 Madd. Ch. 437; 3 Mer. 671.) But when a possibility is coupled with an interest, as where the person is fixed and ascertained, it may not only be bound by estoppel or contract, but may be released (Jewson v. Moulson, 2 Atk. 417), or be devised, though it cannot be granted or transferred by the ordinary rules of the common law. (Lampet's case, 10 Rep. 46.) A contingent remainderman conveyed his interest to secure a debt. The remainder was afterwards destroyed by the tenant of the prior estate. The interest which the remainderman afterwards acquired under the will of such tenant was held to be available by the creditor. (Noel v. Bewley, 3 Sim. 103. See Smith v. Baker, 1 Yo. & Coll. C. C. 223.) A testator bequeathed a sum of money to trustees in trust for his daughter for life, and in case she died without leaving issue, for her next of kin, exclusive of her husband. During the lifetime of the daughter, her mother, as presumptive next of kin, by a voluntary deed, assigned her expectant interest in reversion to the husband. It was held, on the death of the daughter, without leaving issue, that the assignment operated only as an agreement to assign; and consequently, that being voluntary, a court of equity would not enforce it. (Meck v. Kettlewell, 1 Phill. C. C. 342; 1 Hare, 464.) An agreement, of which the subject is in expectancy contingent upon the will of a living person, is not illegal, but will be enforced in equity. (Lyde v. Mynn, 1 My. & Keen, 683. See Pope v. Whitcombe, 3 Russ. 124.) A specific performance was decreed of an agreement between two sons to share equally whatever property they might derive from their father either in his lifetime or at his decease. ( Wethered v. Wethered, 2 Sim. 183; see Harnood v. Tooke, 2 Sim. 192; Alexander v. Duke of Wellington, 2 Russ. & M. 55; Carleton v. Leighton, 3 Mer. 667.) If an heir apparent levied a fine of lands, and survived his ancestor, he was bound by estoppel after the descent to him. (Edwards v. Rogers, Sir W. Jones, 756; Wright v. Wright, 1 Ves. sen. 412.) But where, in pursuance of an agreement made before marriage, certain estates belonging to the wife, and other lands belonging to her father, in which she had no interest, were conveyed by lease and release according to the


articles, and then a fine was levied by the husband and wife to the nses of 3 & 4 Will. 4, the settlement, as well of the lands to which she was then entitled, as of c. 74, 8. 20. other lands belonging to her father, one moiety of such lands baving descended to her on his death as one of his co-heiresses: it was held that such moiety became subject to and bound by the uses of the settlement, the fine having operated as an estoppel. (Helps v. Hereford, 2 Barn. & Ald. 242.)

A fine by a contingent remainderman did not operate by estoppel only, Fines by continbut it had an ulterior operation when the contingency happened; that the gent remainderestate which then became vested fed the estoppel, so that the fine operated upon that estate as if it had been vested in the cognisors at the time the fine was levied. (Rawlin's case, 4 Rep. 52; Weale v. Lower, Pollex. 54; Trerivian v. Larrence, 6 Mod. 258; Ld. Raym. 1051; Vick v. Edwards, 3 P. Wms. 372; Doe d. Christmas v. Oliver, 10 Barn. & Cress. 181; Doe v. Honell, Id. 191; Doe v. Martyn, 8 B. & C. 527; Davies v. Bush, 1 M'Clel. & Y. 58; see Fearne, 365.) A fine by a contingent remainderman passed nothing, but left the right as it found it, and therefore was no bar when the contingency happened in the mouth of a stranger to the fine against a claim in the name of such remainderman; as the fine operated by estoppel only, which was available only by parties and privies. (Doe d. Brune v. Martyn, 8 B. & C. 527.)

A contingent interest in terms of years may be assigned in equity for valuable consideration, or for love and affection between parent and child. (1 Ves. sen. 411; Wind v. Jekyl, 1 P. Wms. 572.)

As to the alienation of contingent interests by married women, see sect. 77, post; Crofts v. Middleton, 8 D., M. & G. 192; Jones v. Frost, L. R., 7 Ch. 773.

Contingent interests in any tenements or hereditaments are now made Contingent intealienable by deed. (8 & 9 Vict. o. 106, s. 6, post.) And all contingent, rests now alienexecutory or other future interests in any real or personal estate are

able by deed and

devisable. devisable. (1 Vict. c. 26, s. 3, post.)

The doctrine of estoppel is a curious and important head of the law, and ESTOPPEL. well deserving attention. It would exceed the limits of these annotations to discuss it at large, but it may be useful to state some of its principles. An estoppel is when one is concluded and forbidden in law to speak against his own act or deed, even though it be to say the truth. (Terms of thc Law, 157; Litt. s. 667; Co. Litt. 352 a.) There are three kinds of estoppels, by matter of record, by deed, whether an indenture or deed poll (Bonner v. Wilkinson, 5 B. & Ald. 682; 1 D. & R. 328), with this difference, that in the case of a deed poll only the party making the deed is estopped, while by a deed indented both parties are concluded (Co. Litt. 47 b; Lewis v. Willis, 1 Wils. 314; Litt. s. 693); and by matter in pais, as by livery, by entry, by acceptance of rent, by partition, &c. (Co. Litt. 352.)

The acts in pais, which bind parties by way of estoppel, are but few, and Estoppet dy these acts are of notoriety, not less formal and solemn than the execution matter in pais. of a deed, such as livery, entry, acceptance of an estate, and the like. (Co. Litt. 352 a.) Whether a party bad or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed. (Lyon v. Reed, 13 Mees. & W. 285, see p. 309. See Nickells v. Atherstone, 10 Q. B. 944.) Titles would be placed in uncertainty and peril by the extension of the doetrine in Thomas v. Cooke, 2 B. & Ald. 119. The doctrine of this and subsequent cases as to what constitutes a surrender by operation of law within the stat. 29 Car. 2, c. 3, s. 3, will be taken to be law until it shall be overruled by a court of error. (Darison v. Gent, 1 H. & N. 744; 3 Jur., N. S. 342; 26 L. J., Exch. 122.) See further, 2 Smith, L. C. 755 et seq., 6th ed.

It was held by Leach, Master of the Rolls, that where by deed indented a Estoppel by deed. man represents himself as the owner of an estate, and affects to convey it Conveyance by for valuable consideration, having at the time no possession or interest in lease and release the estate, and where nothing therefore can pass, whatever be the nature of by estoppel. the conveyance, there, if by any means he afterwards acquire an interest in the estate, he is estopped in respect of the solemnity of the instrument from saying, as against the other party to the indenture, contrary to his

« EelmineJätka »