trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail. And this waste is either voluntary, which is a crime of commission, as by pulling down a house, or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. If a house be destroyed by tempest, lightning, or the like, which is the act of Providence, it is no waste; but, otherwise, if the house be burnt by the carelessness or negligence of the lessee; though now by 14 Geo. III. c. 78, no action lies against a tenant for an accident of this kind. Timber is part of the inheritance, and therefore to cut down trees is waste; but underwood the tenant may cut, and he may take sufficient estovers for house-bote and cart-bote. To open the lands to search for mines of metal, coal, &c., is waste, for that is a detriment to the inheritance; but if the pits or mines were open before, it is no waste to continue them; as the produce is part of the profit of the land. These three, then, are the general heads of waste, viz., in houses, in timber, and in land; and for waste in either, all tenants for life or for any less estate are punishable or liable to be impeached, unless their leases be made without impeachment of waste, absque impetitivne vasti: that is, with a provision or protection that no man shall impetere, or sue him for waste committed. Yet even here the Courts will interfere, if the tenant attempt to commit spoil and destruction upon the estate.

VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor, For copyhold estates are liable 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. Enfranchisement being now compulsory alike on lord and tenant, if either party desire it, will in course of time do away altogether with this species of forfeiture.

VIII. The last method whereby lands may become forfeited, is that of bankruptcy, the nature of which will be better considered in a subsequent chapter. I shall only here add that all the lands of a bankrupt become by the bankruptcy vested in the trustee on behalf of the creditors without any deed or conveyance. So that in this way a bankrupt loses all his real estate, without his participation or consent,

CHAPTER XVI.

OF TITLE BY ALIENATION.

THE usual method of acquiring a title to real estate is alienation, or purchase in its limited sense; under which is comprised any sale, gift, marriage settlement, devise, or other transmission of property.

This mode of taking estates is not of equal antiquity with that of taking them by descent. For, by the feudal law, a feud could not be transferred without the consent of the lord, lest thereby a feeble or suspicious tenant might have been imposed upon him to perform the feudal services. And, as he could not alien it in his lifetime, so neither could he by will devise his feud to another family. Nor, in short, could he alien the estate unless with the consent of his next heir. And therefore it was usual in ancient feoffments to express that the alienation was made by consent of the heirs of the feoffor. On the other hand, the feudal obligation being considered reciprocal, the lord could not transfer his seigniory without the consent of his vassal; for it was unreasonable to subject a feudatory to a new superior, with whom he might be at enmity, without his consent; or even to transfer his fealty, without his being apprised of it, that he might know to whom his services were due. consent of the vassal was expressed by what was called attorning, or professing to become the tenant of the new lord; which attornment was afterwards extended to all lessees for life or years.

This

By degrees this feudal severity wore off; and experience has shown, that property best answers the purposes of civil life when its transfer is free and unrestrained. The road was cleared in the first place by a law of Henry I., which allowed a man to sell lands which he himself had purchased. Afterwards, he 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. At that time he might part with one-fourth of the inheritance of his ancestors without the consent of his heir; afterwards

with a moiety, and finally with the whole. By statutes of Henry VII. & VIII., persons attending the king in his wars were allowed to alien without licence; and finally, fines for alienations were abolished by 12 Car. II. c. 24. The power of charging lands with debts was introduced by the stat. West. 2, and they are now not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold, either for the payment of debts, or for division among creditors under the statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer, that not being totally removed till the abolition of the military tenures. Attornments continued till made unnecessary by 4 & 5 Ann. c. 16.

In considering, title by alienation, then, let us see first who may alien, and to whom; and then how a man may alien, or the several modes of conveyance.

I. Who may alien, and to whom. And herein we must consider rather the incapacity, than capacity, of the parties; for all persons* are primâ facie capable both of conveying and purchasing, unless the law has laid them under any disabilities. A corporation may purchase lands; but unless it has a licence to hold in mortmain, it cannot retain such purchase, but it is forfeited to the lord of the fee. Lay corporations, other than municipal, have, in general, power to alien their lands as freely as private owners; but municipal corporations are, by the statute 5 & 6 Will. IV. c. 76, s. 94, restrained from alienation for any term exceeding thirty-one years. Ecclesiastical and eleemosynary corporations, both sole and aggregate, are restrained, except under certain conditions, from alienation beyond the life of the person constituting the corporation sole,

*Till recently, persons attainted of treason and murder were incapable of conveying, from the time of the offence committed, provided attainder followed, for such conveyance by them tended to defeat the crown of the forfeiture, or the lord of his escheat. But they might purchase for the benefit of the crown, or the lord of the fee, though they were disabled to hold: the lands so purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat, as well as forfeiture, according to the nature of the crime. In other felonies, no attainder extended to the disinheriting of any heir nor to the prejudice of the right of any person other than the offender during his natural life.

or of him who is head of the corporation aggregate, except by lease for not exceeding twenty-one years, or three lives.

Idiots, infants, and persons under duress, are not totally disabled either to convey or purchase, but sub modo only. Their conveyances and purchases are voidable, but not always void. It has been said, that a non compos, though he be afterwards brought to a right mind, shall not be permitted to allege his own insanity in order to avoid his grant; for that no man shall be allowed to stultify himself, or plead his own disability; but it has been held to be clear law that a party may come forward to maintain his own past incapacity. And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant. And so, too, if he purchases under this disability, and does not afterwards, upon recovering his senses, agree to the purchase, his heir may either waive or accept the estate at his option. In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him. Persons, also, who purchase or convey under duress may affirm or avoid such transactions, whenever the duress has ceased. For all these are under the protection of the law, which will not suffer them to be imposed upon, through the imbecility of their present condition; so that their acts are only binding, in case they be afterwards agreed to, when such imbecility ceases.

The case of a feme-covert is different. She may purchase without the consent of her husband, and the conveyance is good during the coverture, till he avoids it by some act declaring his dissent. And, though he does nothing to avoid it, or even if he actually consents, the feme-covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement. But the conveyance or other contract of a feme-covert, unless it be made under the provisions of 3 & 4 Will. IV. c. 75, is absolutely void, and not merely voidable, and therefore cannot be affirmed by any subsequent agreement. The law, however, recognises the power of a feme-covert to deal at her own pleasure with her separate property.

An alien formerly could purchase anything; but could hold nothing except a lease for years of a house for convenience of merchandise, all other purchases, when found by an inquest of office, being immediately forfeited to the crown. But aliens are now enabled to take and hold lands as freely as a naturalborn subject.

II. The second head of title by alienation is, how a man may alien or convey, in other words, the several modes of conveyance recognised by our law. These are:-1. By matter in pais, or deed. 2. By matter of record. 3. By special custom. 4. By devise; that is by last will and testament. Of each, in its order, separately, in the succeeding chapters.

CHAPTER XVII.

OF ALIENATION BY DEED,

IN treating of deeds I shall consider, first, their general nature; and, next, the several kinds of deeds, with their respective incidents. And, in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and thirdly, how it may be avoided.

I. First, then, a deed is a writing sealed and delivered by the parties; sometimes called & charter, carta, from its materials; but most usually a deed, factum, because it is the most authentic act that a man can perform with relation to the disposal of his property. Therefore a man shall be estopped by his own deed, that is not permitted to aver anything in contradiction to what he has once so solemnly avowed. If a deed be made by more parties than one, there ought regularly to be as many copies as there are parties, and each was formerly cut or indented to correspond with the other; which deed, so made, was called an indenture. This name is retained, though indenting has been abandoned. A deed by one party, not being indented, but polled or shaved quite even, is called a deed-poll.

II. The requisites of a deed are, firstly, that there be persons able to contract and be contracted with, and also a subject