3 & 4 Will. 4, c. 74, s. 18.

Inalienable estates tail.

Tenants in tall

issue extinct.

in consideration of natural love and affection, granted an estate tail in certain 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.)

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 c. 8, (repealed by 26 & 27 Vict.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 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, devised 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. Powles, 2 Maule & S. 65.)

Power after 31st December, 1833, 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 as to enlarge the base fee into a fee simple absolute (s); 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.

(8) The remainder of the corresponding section of the Irish statute 4 & 5 Will. 4, c. 92, s. 16, runs thus:-"including the king's most excellent majesty, 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 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."

Disposition by Heirs Expectant restrained.

Issue inheritable ancies.

not to bar expect

20. Provided always, and be it further enacted, that nothing in this act contained shall enable any person to dispose of any lands entailed in respect of any expectant interest (t) 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

clause of the Irish

Act.

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 & 4 Will. 4, c. 74, s. 20.

When fine barred collateral heirs of

cognisor.

Alienation of possibilities at

Martyn, 2 Mann. & R. 485; 8 B. & C. 497; Christmas v. Oliver, 10 B. & 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. Wivel's case, Hob. 45; Perk. s. 65; 1 Anstr. 11; 3 Term Rep. 365.) A fine would in some cases have barred the collateral heirs of the cognisor, thongh he was never seised of the entail, provided the right to such entail 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 his 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. Scovel, Cro. Car. 434.)

A mere possibility could be only bound or extinguished at law by estoppel, by a fine, or a recovery (Weale v. Lower, 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. (Meek 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 Harwood 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 uses of the settlement, as well of the lands to which she was then entitled, as of other lands belonging to her father, one moiety of such lands having 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, but it had an ulterior operation when the contingency happened; that the estate 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; Trevivian v. Lawrence, 6 Mod. 258; Ld. Raym. 1051; Vick v. Edwards, 3 P. Wms. 372; Doe d. Christmas v. Oliver, 10 Barn. & Cress. 181; Doe v. Howell, 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.

3 & 4 Will. 4,

c. 74, s. 20.

Fines by contingent remainder

men.

Contingent interests now alien

Contingent interests in any tenements or hereditaments are now made alienable by deed. (8 & 9 Vict. c. 106, s. 6, post.) And all contingent, executory or other future interests in any real or personal estate are devisable. devisable. (1 Vict. c. 26, s. 3, post.)

able by deed and

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 the 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 a 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 Estoppel by 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 had 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 doctrine 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 man represents himself as the owner of an estate, and affects to convey it for valuable consideration, having at the time no possession or interest in the estate, and where nothing therefore can pass, whatever be the nature of 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

Estoppel by deed. Conveyance by lease and release by estoppel.

does not operate

3 & 4 Will. 4, c. 74, s. 20.

Estoppel by deed.

Effect of an estoppel.

own averment in it, that he had not such interest at the time of its execution. A conveyance by lease and release will operate as an estoppel; and where the releasee can have the benefit of the conveyance at law, a court of equity will not interfere in his behalf. (Bensley v. Burdon, 2 Sim. & Stu. 519, afterwards affirmed by the Lord Chancellor; see 2 B. & Ad. 282.) But where A., having an equitable fee in certain lands, mortgaged the same to B., by lease and release, and the latter recited that A. was legally or equitably entitled to the premises conveyed; and the releasee covenanted that he was lawfully and equitably seised in his demesne of and in and otherwise well entitled to the same, and the legal estate was subsequently conveyed to A., and he afterwards, for a valuable consideration, conveyed the same to C.: upon an ejectment brought by B. against C., it was held, first, that there being in the release no certain and precise averment of any seisin in A., but only a recital and covenant that he was legally or equitably entitled, C. was not thereby estopped from setting up the legal estate acquired by him after the execution of the release, and that the release did not operate as an estoppel by virtue of the words granted, bargained, sold, aliened, remised, released, &c., because the release passed nothing but what the releasor had at the time, and A. had not the legal estate in the premises. (Right d. Jefferys v. Bucknell, 2 B. & Ad. 278.) In this case there was a want of that certainty which is requisite to create an estoppel, the recital being in the alternative, "that the mortgagor was lawfully or equitably entitled," and the covenant for title was to the same effect. Sir E. Sugden, L. C., observed, "an innocent conveyance by lease and release could not operate by estoppel. It is true that Sir J. Leach, in Bensley v. Burdon, did hold the contrary, and decided that an estoppel could be worked by lease and release. The point was subsequently ruled the other way in Right v. Bucknell, and it is now clearly settled, that a conveyance of this nature has no effect upon the legal estate which the party subsequently acquires." (Lloyd v. Lloyd, 4 Dru. & War. 369; Stackpoole v. Stackpoole, 4 Dru. & War. 347.)

The party is not estopped by a deed upon the face of which the truth appears; for if the deed alleges the truth, it is obvious that the truth cannot be alleged against the deed, and the case of an estoppel cannot arise. While A. was in possession, B. and his eldest son, by deed truly reciting the facts, released their interest to trustees; it was admitted, that this being a release of a possibility to a party not privy in estate, and the whole truth appearing by the deed, no legal interest passed either by way of conveyance of interest, or by way of estoppel. (Doe d. Lumley v. Earl of Scarborough, 3 Ad. & Ell. 2; 4 Nev. & M. 730. See Doe d. Barber v. Lawrence, 4 Taunt. 23.) The recital of a particular fact in a deed will estop the party making the statement. (1 Show. 57; Shelley v. Wright, Willes, 9; Lainson v. Tremere, 1 Ad. & Ell. 792; 3 Nev. & M. 603; Bowman v. Taylor, 2 Ad. & Ell. 278; 4 Nev. & M. 264; Hill v. Manchester and Salford Waterworks Company, 2 B. & Ad. 544; Pargeter v. Harris, 7 Q. B. 708.) A party taking under a conveyance is not estopped by recitals in a previous deed, on which the title conveyed is founded, when the suit relates to other lands than those comprised in such conveyance. (Doe d. Shelton v. Shelton, 4 Nev. & M. 857; 3 Ad. & Ell. 265.) Where an untrue recital has been introduced into a deed by mistake, and without fraud, there is no estoppel in equity. (Brooke v. Haymes, L. R., 6 Eq. 25.) The execution by the lessee of the counterpart of a lease granted in exercise of a power given by a will, recited in the lease, was held an admission of the execution of such will. (Bringloe v. Goodson, 5 Bing. N. C. 738; 8 Scott, 71.) A married woman is bound by estoppel by a recital in a deed duly executed and acknowledged by her. (Jones v. Frost, L. R., 7 Ch. 773.)

An estoppel is always in some action or proceeding based on the deed in which the fact in question is recited. In a collateral action or proceeding there can be no estoppel. (Carter v. Carter, 3 Kay & J. 618.)

The effect of an estoppel is to prevent the party who has executed it from impugning the general effect of the deed, or any particular statement or clause it contains. (Cowp. 600; Co. Litt. 47 b; Doe v. Ford, 3 Ad. & Ell. 649; Gwyn v. Neath Canal Navigation Co., L. R., 3 Ex. 209.) The