[whom, or, in other words, who is capable of conveying and who of accepting such conveyance, we have to consider rather the incapacity than the capacity of the parties, all persons being primâ facie capable both of making and of accepting conveyances.

It is clear that attainted persons, though they might purchase lands, were at one period of our law disabled from holding them (n), the lands so purchased being subject to escheat and forfeiture, as already explained. Attainted persons were also incapable, from the time of the offence committed, of conveying away their lands, so as to affect the Crown or the mesne lord, because such conveyance might tend to defeat the Crown of its forfeiture, or the lord of his escheat (o). As regards the present state of the law, these positions require to be considered in connection with the modern statutes affecting escheat and forfeiture, which have been noticed in a former chapter.]

In like manner, corporations, religious or other, may purchase lands; yet, unless they have a licence to hold in mortmain, they cannot in general retain such purchase, but it shall be forfeited to the lord of the fee, unless, of course, in the excepted cases mentioned in the previous chapter. And, as regards the power of alienation by corporations, they might in general, at the common law, make estates at their pleasure of any lands and tenements they held in their corporate right, ecclesiastical corporations sole being, however, required to obtain certain consents, in order to make their alienations binding on their successors (p). But the powers of alienation belonging to ecclesiastical corporations are now regulated by a variety of Acts, of which an account will be given in that chapter of this work which treats of the endowments and provisions of the Church (q); and the

powers of alienation belonging to lay corporations (being colleges or hospitals) are also now regulated by statute. As regards such lay corporations as are municipal corporations, viz., incorporated towns, their powers of alienation were restricted by the Municipal Reform Act of 1835 (5 & 6 Will. IV. c. 76), as amended by the 6 & 7 Will. IV. c. 104, whereby they were disabled from selling or mortgaging their lands, and, in general, also from demising them for any term exceeding thirty-one years, except in pursuance of some agreement entered into by the body corporate before the 5th June, 1835, or else with the approbation of the lords of the Treasury, or of any three of them. The Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), which now regulates municipal corporations, substantially re-enacts these restrictions. It provides, by sects. 108, 109, that the corporation may not, without the approval of the Treasury, sell, mortgage, or alienate any corporate property, unless pursuant to some enabling Act of Parliament; or, without such approval, lease the corporate property, save for a term not exceeding, in the general case, thirty-one years or, in exceptional cases, seventy-five years; but with such approval, it may make any sale, mortgage, lease, or other alienation of the corporate property on terms approved by the Treasury, including (by sect. 111) leases for 999 years for workmen's dwellings. By the Local Government Act, 1888 (51 & 52 Vict. c. 41, s. 72), the consent of the Local Government Board has now, in all these cases, been substituted for the consent of the Treasury. An exception similar to that made by the Municipal Reform Act, 1835, is also made by sect. 110 of the Municipal Corporations Act, 1882, which enacts that, under any agreement for renewal in force on the 5th June, 1835, and binding on the corporation, or when there has been an established usage of renewal, the town council may grant leases in renewal of existing leases on the old accustomed terms, or on such other terms as the corporation might have done if the Act had not been passed.

By the Local Government Act, 1888 (51 & 52 Vict. c. 41, s. 64 (3)), and the Local Government Act, 1894 (56 & 57 Vict. c. 73, s. 8 (2)), the consent of the Local Government Board is in like manner required for the alienation of lands vested in the county councils and other local authorities constituted under those Acts.

Where the grantee does not give value, the conveyance of an insane person, when it is not made during a lucid interval, is void, excepting that if it be made by feoffment it is not absolutely roid, but, owing to the solemnity of the livery, is voidable only. Where, however, the grantee does give value, then the conveyance is good if the grantee was not aware that the grantor was insane; and, even if he was aware of this, the conveyance is only voidable (1). The practical difference between a void and a voidable transaction is, that the former is a mere nullity, and therefore incapable of confirmation, while the latter may be either avoided or confirmed ex post facto (s). When the conveyance is voidable, it may be avoided during the lunatic's life by the person legally authorized to act for him, or by the insane person himself should he regain his senses, or, after the lunatic's death, by his heir, or any other person interested. An insane person is competent to purchase (t), though he cannot be compelled to retain what he purchases; the transaction, if found to be disadvantageous to him, being liable to subsequent avoidance on the ground of his insanity (u).

The conveyances and purchases of infants,—that is, of persons under twenty-one,-are in general not void, but voidable, and may be avoided either by themselves in their lifetime, or by their representatives after their death (); but if a voidable purchase has not been avoided by an infant within a reasonable time after his

(r) Imperial Loan Co., Ltd. v. Stone, [1892] 1 Q. B. 599.

(s) Whelpdale's Case, (1603) 5 Rep. 119; 2 Inst. 483; Moor, 43. (f) Co. Litt. 3 b.

(a) Beavan v. M'Donnell, (1853)

9 Exch. 309; 10 Exch. 184.
(e) Moor, 43; Gibbs v. Merrill,
(1811) 3 Taunt. 307.

coming of age, then on his death it cannot afterwards be impeached by his representatives, on the ground of its having been effected during infancy (y). And in this we are to be understood as speaking of conveyances strictly so called; for many of the contracts of an infant are now, by the Infants' Relief Act, 1874, absolutely void, and are not confirmable by the infant, even upon his attaining full age (z). Finally, lands held in gavelkind may, by the custom of Kent, be conveyed by feoffment by an infant on attaining the age of fifteen, and by the Infant Settlement Act, 1855, an infant not under twenty, if a male, or not under seventeen if a female, may, with the consent of the Chancery Division of the High Court, make a valid settlement of his or her property in contemplation of marriage.

[A married woman, both as regards her purchases and her alienations, was very peculiarly situated at the common law. She might purchase an estate without the consent of her husband; and the conveyance to her was good during the coverture, till the husband avoided it by some act declaring his dissent (a). And, though he did. nothing to avoid it, or even if he actually consented to it, the married woman herself might, after the death of her husband, have disagreed to the same; nay, even her heirs might have disagreed to it after her, if she died before her husband, or if during her widowhood she had done nothing to express her ratification of the transaction (b). On the other hand, the alienation of a married woman was absolutely void, unless made in such particular method as the law specifically appointed for that purpose (c).] This was formerly by fine or recovery; but, by the Fines and Recoveries Act, 1833, it was by deed executed with the concurrence of her husband and

(y) 2 Inst. 483; 5 Rep. 119. () Infants' Relief Act, 1874 (37 & 38 Vict. c. 62). See post, bk. ii., pt. ii., ch. v., sect. 1.

(a) Co. Litt. 3 a.
(b) Ibid.

(e) 2 Bl. Com. 293.

separately acknowledged by her, that is to say, by deed acknowledged (d). And, by the Real Property Act, 1845, s. 7, a disclaimer by a married woman is likewise by deed acknowledged.

[The case of an alien was also peculiar. For, though he has always been able to acquire property of any description by purchase, yet after purchase he could not, at one time, hold any land, save only in case he was an alien friend and a merchant, when he might hold a lease for years of a house for convenience of merchandise. All other purchases, when found by an inquest of office, were immediately forfeited to the king, whether they had, in the meantime, been conveyed away by the alien or not (e); also, by the 32 Hen. VIII. c. 16, s. 13, a lease made to an alien artificer was absolutely void (ƒ).] Latterly, however, by the 7 & 8 Vict. c. 66, aliens might take and hold leases of lands for twenty-one years, provided they were for the purposes of trade or residence; and now, by the Naturalization Act, 1870 (33 & 34 Vict. c. 14), an alien may not only acquire and hold real and personal property of every description in the same manner in all respects as a natural freeborn British subject, but may also as freely dispose of the same.

And in connection with the capacity or incapacity to purchase, it may be fit here to advert to the principle of our law, that no person can be compelled to take an estate by purchase against his will. If, therefore, land be conveyed in invitum, the effect of the conveyance may always be avoided, by the execution of a deed of disclaimer on the part of the dissentient alienee (g). It was, on the other hand, a doctrine of the common law that the heir could not disclaim an estate which came to him by descent. Whether this doctrine has been implicitly abolished by the Land Transfer Act, 1897 (60 & 61 Vict.

(d) 3 & 4 Will. 4, c. 74, ss. 77,

9, 91.

(e) Anon., 4 Leon. 84.

(f) Co. Litt. 2 b.

(g) Begbie v. Crook (1835) 2 Bing. N. C. 70.