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executed on or before the day on which the assurance is made ;1 and unless, if a distinct deed, it is enrolled either at or before the time when the assurance is enrolled.2

Barring quasi estate tail.

A quasi estate tail cannot, any more than a regular estate tail, be barred by will,3 but it may be barred by deed, by any disposition of the land made by a tenant in tail in actual possession. But a tenant in tail not in actual possession must obtain the consent of the owner of the prior estate, in order to bar the reversions or remainders which are limited after the estate tail. A deed barring a quasi estate tail need not be enrolled 4

Involuntary alienation. Bankruptcy.

An estate tail may be also the subject of involuntary alienation. Thus the Abolition of Fines and Recoveries Act 5 contains 6 provisions for the event of a tenant in tail becoming bankrupt, and these are confirmed by the Bankruptcy Act 1869, which enacts 8 that the trustee of any bankrupt is to have power to deal with any property to which the bankrupt is beneficially entitled as tenant in tail, in the same manner as the bankrupt himself might have done, and that the sections of the Abolition of Fines and Recoveries Act relating to the bankruptcy of a tenant in tail are to apply to any proceedings under the Bankruptcy Act.

Judgments. Under the 1 & 2 Vict. c. 110, the creditor of any 1 & 2 Vict. c. tenant in tail can, after obtaining a judgmento against 110. 1 S. 42.

2 S. 46. 3 Campbell v. Sandys, 1 Sch. & L. 281; Allen v. Allen, 2 Dru. & War. 307, 326.

4 Allen v. Allen, 2 Dru. & War. 307. 5 8 & 4 Wm. IV. c. 74. 6 SS. 56-72. 7 32 & 33 Vict. c. 71.

8 S. 25. 9 The law relating to judgments will be more fully explained in the next chapter.

him, sue out a writ of elegit, in pursuance of which he is entitled to retain possession of his debtor's land, and repay himself his debt; and the land will be bound by the judgment as against any person whose estate the debtor might himself have barred. Under that act a registration of the judgment in the Court of Common Pleas would, alone, have bound the land against the same persons, and also against any purchaser for value who had notice of the registration. Now, however, the 27 & 28 Vict. c. 112, renders it 27 & 28 Vict.

c. 112. necessary for that purpose, that the land should be actually taken in execution.

22 & 23 Vict.

The 33 Hen. VIII. C. 39, made estates tail liable Crown Debts.

. for debts due to the Crown, and by the 2 & 3 Vict. 83 Hen, VIII.

2 & 3 c. 11, and the 22 & 23 Vict. c. 35, judgments ob- Vict. c. 11; tained by the Crown are put on the same footing as c. 35. other judgments; but under the 28 & 29 Vict. c. 104, 28 & 29 Vict. writs of execution obtained by the Crown may be registered immediately on being obtained, and thereupon bind the debtor's land, without the necessity of taking it in execution.

c. 104.

tion of ten

Lastly, the estate of a tenant in tail may be put an Determinaend to by his death. In that case the Apportionment ant's estate Acts 1 will apply to any leases which he has made, by his death.

Apportionsince although he might, if he pleased, have turned ment. his estate into a fee-simple, yet, not having done so, he was at the moment of his death merely a tenant for life. For the same reason, his executor or ad- Emblements. ministrator is entitled to emblements, as against the heir in tail, remainder-man, or reversioner.

a

1 11 Geo. II. c. 19; 4 & 5 Wm. IV. c. 22; 83 & 34 Vict. c. 35. ? Pagget v. Gee, 9 Mod. 482.

CHAPTER VI.

OF AN ESTATE IN FEE-SIMPLE.

WE have now arrived at the consideration of an estate in fee-simple, — the greatest which the law recognizes in a subject, and that out of which all other estates in land are derived.

Is absolute or This estate may be either "absolute,” which is the qualified.

more ordinary form, or “ qualified.” An instance of the latter kind occurs if an estate is given to A and his heirs " tenants of the manor of Dale : here, whenever the heirs of A cease to be tenants of that manor the grant is entirely defeated.1

Creation of a No person can create an estate in fee-simple, unless fee-simple.

he has himself that estate in the lands with which he By whom it may be

professes to deal. There are also certain persons who created.

are, more or less, unable to create such an estate, from the fact of their having only a limited power of

alienation. Thus any conveyance, or will of land, Idiots and made by an idiot or lunatic (unless made in a lucid Lunatics. Married interval) is absolutely void.2

A married woman, too, is unable to dispose by deed of her real estate, unless it is settled to her separate use (a point to be adverted to hereafter), or unless the previous owner has given her a power to appoint that it shall go to certain persons in which case she is merely acting as agent of the person who conferred the power), except

women.

1 2 Bi. Com. 109.

? Yates v. Boen, Str. 1104.

with her husband's consent, and by a deed acknowl-
edged in manner provided by the Fines and Recov-
eries Abolition Act. She cannot dispose by will of
any land other than that over which she has a power
of appointment, or which is settled to her separate
use. And an infant cannot, as a rule, make a con- Infants.
veyance, by deed, of land, which will be binding
upon him if he chooses to repudiate it at, or before,
coming of age, although it will be binding upon a
purchaser from him. But we have already seen, in
previous chapters, that an infant may, under the 18 &
19 Vict. c. 43, make a binding settlement of land,
and thus create an estate in fee-simple, in contempla-
tion of his marriage. An infant cannot dispose of
land by will, being incapable of making a valid will."

At Common Law all persons are capable of acquir- Who may

have an estate ing lands, but various restrictions have been imposed in fee-simple. on this capacity by statute. We must notice these, in order to understand the difficulties which they oppose to the creation of estates in fee-simple. From an early period, the feudal lords objected to lands being acquired by the monasteries and other religious Corporations. houses who made up the greater number of the earlier corporations; for the fact that these bodies were perpetual, made it impossible that their lands should ever escheat as in ordinary cases, and lands held by them were consequently said to be in mortmain (in mortuâ manu). Hence we find a provision in Magna Charta, 6 forbidding gifts to them, and Magna

Charta. afterwards it was enacted by the Statute De Religi

Statute De osis, that no persons, religious or other ecclesiastical Religiosis.

13 & 4 Wm. IV. c. 74, SS 77, 79, 91.
? Sug. Pow. 163; 7 Wm. IV. & 1 Vict. c. 26, § 8.
3 Taylor v. Meads, 13 W. R. 394.
• Zouch v. Parsons, Burr. 1794; Allen v. Allen, 2 Dru. & War. 807.
57 Wm. IV. & 1 Vict. c. 26, $ 7.
6 9 Hen. III. c. 36.

7 7 Edw. I. c. 1.

8

corporation, body politic, ecclesiastical, or lay, sole or aggregate, should buy or sell lands, whereby the

same should come into mortmain, under pain of for15 Ric. II. c. 5. feiture. This was extended by the 15 Ric. II. c. 5,

to all lands purchased by guilds or fraternities, on the ground that mayors, bailiffs, and commons of cities,

boroughs, and other towns, were as perpetual as License from people of religion. Consequently, it became cusCrown.

tomary, on the foundation of a lay corporation, to insert in its charter a license from the Crown to hold

lands, and the validity of these licenses was recog7 & 8 Wm.III. nized by the 7 & 8 Wm. III. c. 37, which permits c. 37.

the Crown, when it thinks fit, to grant to any persons, or bodies politic or corporate, license to alien in mortmain, and also to purchase, acquire, take, and hold, in perpetuity or otherwise, any hereditaments whatever.

Charitable With respect to religious corporations, the old law Corporations. still obtains to a great extent; the principal act relat

ing to this subject being that generally known as the Mortmain Mortmain Act,passed in the reign of George the Act.

Second. This act only applies to gifts of land, or any interest in land, or of money to be invested in land, although it would appear from the preamble that it was the intention of its framers to give it a wider application. It enacts 3 that no manors, lands, tenements, rents, advowsons, or other hereditaments, corporeal or incorporeal, or any sum or sums of money, or personal estate whatever, to be laid out or disposed of in the purchase of any lands or hereditaments, shall be given, granted, or in any ways conveyed to any persons, bodies politic or corporate, or otherwise, for any estate or interest whatever, in trust for, or

3

1 9 Geo. II. c. 36. ? See the judgments in Jefferies v. Alexander, 8 H. L. C. 594. 8 S. 1.

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