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of paramount proprietorship. When issued to a confirmee of a foreign grant, it operates like the deed of any other grantor, and passes only such interest as the government possessed, the deed taking effect by relation from the initiation of the series of proceedings for confirmation, and of which it forms the last act.'
SECTION 60. PRIVATE GRANTS. A deed is a conveyance of lands from one individual to another. Deeds may be either voluntary or involuntary. A voluntary deed is one made in pursuance of an agreement between the parties; an involuntary deed is one made under an order of court. The various forms of conveyances,' and the constituent parties of a deed 8 will be discussed later in this subject.
Where an individual transfers property to the public, such a grant is called a dedication. Such a dedication may be either a statutory dedication, in which case, the exact provisions of the statutes must be followed, or a common law dedication which requires no particular formalities.
A dedication may convey either the fee or only an easement. 6 Warvelle on Real Property, pp.
some writers make this the pri160, and 161, 2nd Ed.
mary classification; but a criti? See Chapter X.
cal examination will demons8 See Chapter VII.
trate that statutory dedication “Dedications are susceptible of
is but one form of express several classifications. The
dedication, and differs from a first, and most general, is a
common law dedication, not so division into express and im
much in the method of perplied; the former being where
formance as in its effect. A the act is performed by deed
third distinction exists between or other writing, vote, overt
dedications absolute and to acts, or declarations; the latter
specific uses, and by far the rests on a presumption, and
greatest amount of litigation results from acquiescence in
which has attended this branch the public use. A further dis
of the law has originated in tinction is made in the United
questions growing out of this States between common-law
distinction.' and statutory dedications, and
SECTION 61. DEVISE.
The right of owner of land to dispose of it by will is a comparatively late addition to the common law. This right of willing away land, while existing in England during the Anglo-Saxon period, was taken away at the time of the Norman Conquest. The statute of Wills (1540) gave to landowners the power of alienation by will of all land held in socage and two-thirds of the land held in chivalry. In 1660 all distinction between estates in chivalry and socage were swept away and a landowner thus acquired the complete right to dispose of all of his land by will.10
Wills disposing of real estate must be in writing, and various formalities in the making of wills are provided by the statutes of the various states. The validity of a will so far as it concerns any particular piece of real property is determined by the law of the place where the land is situated.
The title to lands devised rests in the devisee immediately upon the death of the testator.
SECTION 62. EXECUTORY DEVISES.
The rules governing transfers of land by devise are much more liberal and elastic than those governing such transfers by deeds. Certain estates which would be void if created by deed are valid when created by a will. Estates of this character are known as executory devisees. 10 England and the United States
to his wife or children, if any. are practically the only coun
For an illustration, of such tries where this right exists to
provision, see the subject of such a complete extent. In
Spanish-American Law, Vol. countries whose laws are based
XII, Sub. 40. upon the Roman or civil law, a 11 Sze statutes of particular States certain portion of the land
and also subject of Wills, Vol. owned by a testator must go
X, Subject 32.
"Before the close of this chapter, it may be proper to advert to the doctrine of Executory Devises; which seems to have originated in the indulgence shown to testators in effectuating their intentions, whereby the judges were induced in cases of wills, as well as in limitations of uses, to dispense with the strict rules of the common law, according to which no remainder could be limited over after an estate in fee-simple, nor a freehold be created to commence in future. An executory devise, or bequest, therefore, is such a limitation of a future estate or interest in lands or chattels, as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law. Fearn. Exec. Dev., 4.
There are three kinds of executory devises; the 1st is, where the devisor disposes of the whole fee, but upon some future contingency qualifies that disposition, and devises the estate over to some other person, 23 Eliz. Dyer, 127 a. Hoe vs. Gerils, cited Palm., 136. Pells vs. Brown, Cro. Jac., 590; Hanbury vs. Cockerill, 1 Rol. Abr., 835; Heath vs. Heath, 1 Bro. C. C., 147; Doe vs. Weston, 2 Bos. & P., 324. And though the first estate be not vested, but contingent, yet, if the ulterior devise is limited so as to take effect in defeazance of the estate first devised, on an event subsequent to its becoming vested, it will be deemed an executory devise. Gulliver vs. Wicket, 1 Wils., 105. But it is a settled rule of law that no devise is deemed executory, which can be supported as remainder. 2 Bos. & P., 298; Denny, d. Agar, vs. d. Agar 12 East., 253; Crump vs. Norwood, 2 Marsh., 161; Romilly, knt. vs. James, 6 Taunt., 263. It may be further observed, that an executory devise cannot be barred. Pells vs. Brown, supra. Mullinix's case, cited Palm., 136; Anto, vol. 1, p. 515,
516, n. (7). And therefore, in order to prevent their being used as a means of creating perpetuities, it was established, that an executory devise must vest within the compass of a life, or lives in being, and twenty-one years and nine months after. Pells vs. Brown, supra. Fairfax vs. Heron, Prec: in Ch., 67; Taylor, d. Smith vs. Biddall, 2 Mod., 289; Stephens vs. Stephens, Forr., 228; Leake vs. Robinson, 2 Meriv., 363. For the principle on which these limits have been fixed, see Mr. Hargrave's second argument in the Thelluson causes, p. 57; ante, vol. 1, p. 515-516, n. (7). A devise after a general failure of heirs or issue, is too remote, 6 Cru. Dig., 449; and we have seen, that the words “dying without issue," or "without leaving any issue,” are construed, as to the freehold, to mean a dying without issue generally, by which there may be at any time a failure of issue, ante, vol. 1, p. 548, n. (N); though as to the personal estate it is different, for there the same words shall be construed to mean a dying without leaving issue at his death; the reason of which difference in the case of personalty is, in order to support the devise over, which otherwise would be too remote. Forth vs. Chapman, 1 P. Wms., 663; Atkinson vs. Hutchison, 3 P. Wms., 261; Southby vs. Stonehouse, 2 Ves., 615; Earl of Stafford vs. Buckley, Ibid., 180; Exel v. Wallace, Ibid., 120; Read vs. Snell, 2 Atk., 616; Sheffield vs. Lord Orrery, 3 Atk., 288; Dansey vs. Griffiths, 4 Maul. & S., 61; Crooke vs. De Vandes, 9 Ves., 197, 203. The reason wherefore, in the case of a devise of lands of inheritance to one, or to one and his heirs and if he die without issue, then to another, the subsequent words, "if he die without issue,” shall either reduce or enlarge his estate to an estate-tail, is, because they are supposed to be inserted in favour of the issue, that they shall have it; and the intent shall take place. S. C. 4 Maul. & S., 62. In the case of a devise in fee, with an executory devise over, curtesy attaches on the first estate, and is not defeated by its determination. Buckworth vs. Thirkell, 1 Collec. Jur., 332; Ante, vol. 1, p. 561, n (G).
The 2d sort of executory devises, is that of a devise of a freehold estate to commence in futuro; as where the devisor, without departing with the immediate fee, gives a future estate, to arise either upon a contingency, or at a period certain, unpreceded by, or not having the requisite connexion with, any immediate freehold; to give it effect as a remainder. Fearn. Ex. Dev. 4th ed., 17, 24. Pay's case, Cro. Eliz., 878. Clarke vs. Smith, 1 Lutw., 798; 1 Freem., 244; 1 Wils., 206. Devises of this sort are sometimes supported as remainders. See Purefoy vs. Rogers, 2 Saund., 380; Doe, d. Mussell vs. Morgan, 3 T. R., 763. And whereever the first devise can be construed to pass an estate-tail only, the devise over will be deemed a remainder expectant on the determination of that estate-tail, and not an executory devise. Spalding vs. Spalding, Cro Car., 185; Wealthy vs. Bosville, Rep. Temp. Hardw., 258; Doe, d. Mussell vs. Morgan, supra; Ante, vol. 1, p. 547, 8 n. (w). Executory devises of this sort must vest within the same time, as was mentioned to be prescribed for those of the first kind. But it should be observed, that "by the time of vesting,” is meant, the vesting of the freehold. For although land should be limited for a long term of years, with the remainder to the unborn son of a person then living, this executory devise to such unborn son would be good; because the vesting of the freehold is confined to the period of a life in being; for upon