il. By bankruptcy, all the estates of the bankrupt are transferred to the assignees of his commissioners, to be sold for the benefit of his creditors ............. ....................... Page 286 CHAPTER XIX. 287 to 294 OF TITLE BY ALIENATION 1. Alienation, conveyance, or purchase, in its more limited sense, is a means of transferring real estates, wherein they are voluntarily resigned by one man and accepted by another 287 This formerly could not be done by a tenant, without license from his lord; nor by a lord, without attornment of his tenant 287 All persons are capable of purchasing; and all that are in possession of any estates are capable of conveying them; -unless under peculiar disabilities by law: as being attainted, non compotes, infants, under duress, feme-coverts, aliens, or papists......... 4. Alienations are made by common assurances; which are, I. By deed, or matter in pais. II. By matter of record. III. By special custom. IV. By devise.........293-294 CHAPTER XX. OF ALIENATION BY DEED .................. 295 to 342 1. In assurances by deed may be considered, I. Its general nature. II. Its several species...... 2. A deed, in general, is the solemn act of he parties: being, usually, a writing sealed and delivered; and it may be, I. A deed indented, or indenture. II. A deed-poll... 295 ..295-296 8. The requisites of a deed are, I. Sufficient parties, and proper subject-matter. II. A good and sufficient consideration. III. Writing on paper, or parchment, duly stamped. IV. Legal and orderly parts; which are usually, 1st, the premises; 2dly, the habendum; 3dly, the tenendum; 4thly, the reddendum; 5thly, the conditions; 6thly, the warranty, (which is either lineal or collateral); 7thly, the covenants; 8thly, the conclusion, (which includes the date.) V. Reading it, if desired. VI. Sealing, and, in many cases, signing it also. VII. Delivery. VIII. Attestation......... ....296-307 Exchanges. VI. Partitions.-Derivative are, VII. Releases. VIII. Confirmations. IX. Surrenders. X. Assignments. XI. .... ..... ... Page 310 8. A feoffment is the transfer of any corporeal hereditament to another, perfected by livery of seisin, or delivery of bodily possession from the feoffor to the feoffee; without which no freehold estate therein can be created at common law.............. 810 9. A gift is properly the conveyance of lands in tail...n a......................... ............... ..................... 10. A grant is the regular method, by common law, of conveying incorporeal hereditaments..... 11. A lease is the demise, granting, or let- 13. A partition is the division of an estate 816 317 817 328 828 14. A release is the discharge or conveyance of a man's right in lands and tenements to another that hath some former estate in possession therein.................. 824 15. A confirmation is the conveyance of an estate or right in esse, whereby a voidable estate is made sure, or a particular estate is increased........ 825 16. A surrender is the yielding up of an estate for life, or years, to him that hath the immediate remainder or reversion; wherein the particular estate may merge 826 17. An assignment is the transfer, or making over to another, of the whole right one has in any estate; but usually in a lease, for life or years......... 18. A defeazance is a collateral deed, made at the same time with the original conveyance; containing some condition upon which the estate may be defeated.......... 19. Conveyances by statute depend much on the doctrine of uses and trusts; which are a confidence reposed in the terre-tenant, or tenant of the land, that he shall permit the profits to be enjoyed, according to the directions of cestuy que use, or cestuy que 326 827 327 20. The statute of uses, having transferred all uses into actual possession, (or, rather, having drawn the possession to the use,) has given birth to divers other species of conveyance: I. A covenant to stand seised to uses. II. A bargain and sale, enrolled. III. A lease and release. IV. A deed to lead or declare the use of other more direct conveyances. V. A revocation of uses; being the execution of a power, reserved at the creation of the use, of recalling at a future time the use or estate so creating. All which owe their present operation principally to the statute of uses............... ................ .......837-839 844 344 ÛF ALIENATION BY MATTER OF RECORD. 844 to 363 1. Assurances by matter of record are, where the sanction of some court of record is called in to substantiate and witness the transfer of real property. These are, I. Private acts of parliament. II. The king's grants. III. Fines. IV. Common recoveries............................ ........................................... 2. Private acts of parliament are a species of assurances, calculated to give (by the transcendent authority of parliament) such reasonable powers or relief as are beyond the reach of the ordinary course of law.... 8. The king's grants, contained in charters or letters-patent, are all entered on record, for the dignity of the royal person and security of the royal revenue.......... 4. A fine (sometimes said to be a feoffment of record) is an amicable composition and agreement of an actual or fictitious suit; whereby the estate in question is acknowledged to be the right of one of the parties 348 5. The parts of a fine are, I. The writ of covenant. II. The license to agree. III. The concord. IV. The note. V. The foot. To which the statute hath added, VI. Proclamations.........................350–352 6. Fines are of four kinds: I. Sur cognizance de droit, come ceo que il ad de son done. IL Sur cognizance de droit tantum. III. Sur concessit. IV. Sur done, grant, et render; which is a double fine 7. The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizee, by barring the respective rights of parties, privies, and strangers. 346 353 854 3. A common recovery is by an actual, or fictitious, suit or action for land, brought against the tenant of the freehold; who thereupon vouches another, who undertakes to warrant the tenant's title; but upon such vouchee's making default, the land is recovered by judgment at law against the tenant; who, in return, obtains judgment against the vouchee to recover lands of equal value in recompense...357-359 9. The force and effect of a recovery are to assure lands to the recoveror, by barring estates tail, and all remainders and reversions expectant thereon; provided the tenant in tail either suffers, or is vouched in, such recovery........ 10 The uses of a fine or recovery may be directed by, I. Deeds to lead such uses; which are made previous to the levying or suffering them II. Deeds to declare the uses; which are made subsequent..... 868 CHAPTER XXII. 861 ALIENATION BY SPECIAL CUSTOM ...365 to 371 1 Assurances by special custom are confined to the transfer of copyhoki estates.. 365 2. This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law, under Henry VIII. since made more universal by the statute of tenures under Charles II., with the introduction of additional solemnities by the statute of frauds and perjuries in the same reign..............875-876 3. The construction of all common assur ances should be, I. Agreeable to the intention, II. to the words, of the parties. III. Made upon the entire deed. IV. Bearing strongest against the contractor V. Conformable to law. VI. Rejecting the latter of two totally repugnant clauses in a deed, and the former in a will. VII. Most favourable in case of a devise...379-381 Owners times subsist, and at other times not subsist................. ...... Page 391 5. This may arise, I. Where the subject is incapable of absolute ownership. II. From the peculiar circumstances of the .........391-396 5. Property in action is where a man hath not the actual occupation of the thing; but only a right to it, arising upon some contract and recoverable by an action at law. 7. The property of chattels personal is liable to remainders, expectant on estates for life; to joint-tenancy, and to tenancy in common............... CHAPTER XXVI. 396 398 400 OF TITLE TO THINGS PERSONAL BY OCCU- CHAPTER XXVII. OF TITLE BY PREROGATIVE, AND FORFEIT- URE............. ........................... ........................ 420 1. By prerogative is vested in the crown, CHAPTER XXVIII. or 421 OF TITLE BY SUCCESSION, MARRIAGE, AND OF TITLE BY GIFT, GRANT, AND CON- 8. Hiring or borrowing is a contract where- 451 458 471 OF TITLE BY BANKRUPTCY......... .471 to 488 1. Bankruptcy (as defined in Ch. XVIII.) is the act of becoming a bankrupt. 2. Herein may be considered, I. Who may become a bankrupt. II. The acts whereby he may become a bankrupt. III. The proceedings on a commission of bankruptcy. IV. How his property is transferred thereby........ 8 Persons of full age, using the trade of merchandise, by buying and selling, and seeking their livelihood thereby, are liable to become bankrupts for debts of a sufficient amount....... 4 A trader who endeavours to avoid his creditors, or evade their just demands, by any of the ways specified in the several statutes of bankruptcy, doth thereby commit a bankruptcy... 5 The proceedings on a commission of bankrupt, so far as they affect the bankrupt himself, are principally by, I. Petition. II. Commission. III. Declaration of bankruptcy. IV. Choice of assignees. V. The bankrupt's surrender. VI. His examination. VII. His discovery. VIII. His certificate. IX. His allowance. X. His indemnity......... 471 473 478 .479-485 4. The property of a bankrupt's personal estate is, immediately upon the act of bankruptcy, vested by construction of law in the assignees: and they, when they have collected, distribute the whole by equal dividends among all the cre.........485-488 CHAPTER XXXII. OF TITLE BY TESTAMENT, AND ADMINISTRA- 3. The goods of intestates belonged antiently to the king, who granted them to the prelates to be disposed in pious uses: but, on their abuse of this trust, in the times of popery, the legislature compelled them to delegate their power to administrators expressly provided by law......... 493 4. All persons may make a testament, unless disabled by, I. Want of discretion. II. Want of free will. III. Criminal conduct....... ........496-497 .......... 5. Testaments are the legal declaration of a man's intentions, which he wills to be performed after his death. These are, I. Written. II. Nuncupative........ 499-500 6. An executor is he to whom a man by his will commits the execution thereof........ 502 7. Administrators are, I. Durante minore ætate of an infant executor or administrator; or durante absentia; or pendente lite. II. Cum testamento annexo; when no executor is named, or the executor refuses to act. III. General administrators; in pursuance of the statutes of Edward III. and Henry VIII. IV. Administrators de bonis non; when a former executor or administrator dies without completing his trust .........503-507 8. The office and duty of executors (and, in many points, of administrators also) are, I. To bury the deceased. II. To prove the will, or take out administration. III. To make an inventory. IV. To collect the goods and chattels. V. To pay debts; observing the rules of priority. VI. To pay legacies, either general or specific; if they be vested, and not lapsed. VII. To distribute the undevised surplus, according to the statute of distributions..508-520 |