A DIGEST OF THE MOST USEFUL LEARNING BY JOSIAH W. SMITH, B.C.L., Q.C., JUDGE OF COUNTY COURTS. (EDITOR OF FEARNE'S CONTINGENT REMAINDERS AND EXECUTORY DEVISES, AND MITFORD'S COMMON LAW, AND A MANUAL OF BANKRUPTCY; AND ONE OF THE Fourth Edition. IN TWO VOLUMES. VOL. II. LONDON: STEVENS AND SONS, 119, CHANCERY LANE, Law Booksellers and Publishers. TITLE X. OF ALIENATION; AND FIRST OF ALIENATION GENERALLY, A CHAPTER I. GENERAL OBSERVATIONS ON ALIENATION. Т. 10, Сн. 1. How con may be made. IN former times, many conveyances were made by parol PART III. or word of mouth only, without writing; but as this occasioned a variety of frauds, it was enacted by the stat. 29 veyances Car. 2, c. 3, that no lease, estate, or interest in lands, tenements or hereditaments, made by livery of seisin or by parol only, (excepting leases not exceeding three years from the making, and whereon the reserved rent is at least two thirds of the real value,) shall be of greater force than an estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid; unless in both cases the same be put in writing, and signed by the party granting or his agent lawfully authorised in writing (a). And by ss. 3 and 4 of the stat. 7 & 8 Vict. c. 76, and s. 3 of the stat. 8 & 9 Vict. c. 106 (by which the stat. 7 & 8 Vict. c. 76, was repealed as from the 1st of October, 1845), feoffments, partitions, exchanges, leases, assignments, and surrenders (subject to certain exceptions) are required to be by deed (b). At the common law, on the grant of a seigniory, rent, Attornment remainder, or reversion, an attornment or consent to the (a) 2 Bl. Com. 297. See infra, p. 621. VOL. II. (b) See the different sections on these conveyances, T. 12, c. 2, infra. B T. 10, CH. 1. PART III grant was necessary on the part of the tenant of the particular estate, in tail, for life, or for years. But attornment is rendered unnecessary by the statute 4 & 5 Anne, c. 16, ss. 9, 10 (c). A person cannot derogate from his own grant. A person cannot derogate from his own grant; and hence he cannot, by parting with his estate, prejudice those in whose favour he has created estates, interests, or charges out of that estate (d). The rule, Cessante statu primitivo cessat et derivativus, applies only when the original estate determines by limitation or is defeated by a condition or by forfeiture. It does not apply when the owner of the estate does any act which amounts to an alienation or transfer, even though such an alienation or transfer produces an extinguishment of the original estate (e). ` Therefore, if one who has a lease for life or years of the manor to which an advowson is appendant, grants the next avoidance that shall happen during the lease, or grants a rent out of the manor, and then surrenders the manor so that his estate is gone, the grant of the next avoidance or of the rent continues good, and the grantee shall enjoy it according to the grant as long as the estate that is surrendered would have had continuance if not surrendered (ƒ). So, if a lessee for years of an advowson grants the next avoidance if it shall happen to become void during the term, and afterwards surrenders the estate to the person who has the inheritance, the grantee shall have the next avoidance, if it happen before the term would have expired in regular course (7). So, if a tenant for life or lessee for years grants (c) 1 Steph. Com. 448, 450; 3 Jarm. & Byth. by Sweet, 36; 2 Pres. Shep. T. 297; Burton, § 41; Watk. Conv. 3rd ed. by Prest. 171; Co. Litt. 309 a. In Co. Litt. a large space is given to the subject of attornment, see 309 a-325 a. (d) See 2 Pres. Shep. T. 285-6; Co. Litt. 233 b; 238 b; Watk. Conv. 3rd ed. by Prest. 24; Newby v. Harrison, 1 Johns. & Hem. 393. (e) 2 Pres. Shep. T. 285; Watk. Conv. 3rd ed. by Prest, 24, 25. (f) 2 Pres. Shep. T. 285. (g) 2 Pres. Shep. T. 286. T. 10, CH. 1. a rentcharge to a stranger, and afterwards surrenders his PART III. estate, still the rent continues as long as the estate would have lasted if not surrendered (h). So, if a lessee makes an underlease reserving rent, and afterwards surrenders the original lease, the underlease shall continue in force; but by the old law, prior to the stat. 7 & 8 Vict. c. 76, s. 12, and 8 & 9 Vict. c. 106, s. 9, the reversion was merged, and the remedies incident to it were extinguished (2), unless the surrender were for the purpose of renewal (k), alienation. A feme covert may be restrained from alienation with- Restraint on out any clause of cesser, but a person not under coverture cannot (1). of settled It may be stated in this place, that subject to excep- Alienation tions where tenants in tail are restrained by statute from estates. defeating their estates tail, or where the reversion is in the Crown (s. 42), it is enacted by the stat. 19 & 20 Vict. c. 120, ss. 11, 14, &c., that the Court of Chancery may authorise the sale of settled estates, that is, of estates limited by any instrument to or in trust for any persons in succession, or of timber growing on them, or may direct any part of settled estates to be laid out for streets, roads, paths, squares, gardens, or other open spaces, sewers, drains, or watercourses, either to be dedicated to the public or not. And the stat. 19 & 20 Vict. c. 120, is amended and extended by the stat. 21 & 22 Vict. c. 77. By s. 1 of this amending Act, "all estates or interests in remainder or reversion not disposed of by the settlement and reverting to the settlor, or descending to the heir of a testator, shall be deemed to be estates coming to such settlor or heir under or by virtue of the settlement." And by the stat. 27 & 28 Vict. c. 45, (h) 2 Pres. Shep. T. 286; Co. Litt. 185 a, 338 b. (i) 2 Pres. Shep. T. 285; Watk. Conv. 3rd ed. by Prest. 24; see Part III. Tit. 12, c. 2, s. 5, infra, on Leases. (k) Platt on Leas. 787-8. (7) 11 Jarm. & Byth. by Sweet, 473; Renaud v. Tourangeau, L. R. 2 Ap. Ser. (P. C.) 4; see supra, pp. 98-101. |