Dowtie's 1 Inst. 372 b. Hawk. P. C. B. 2. c. 49. lands, tenements, and hereditaments which any such offender or offenders shall have, of any estate of inheritance, in use or possession, by any right, title, or means, &c. at the time of any such high treason committed, or any time after." 39. By the statute 34 & 35 Hen. VIII. c. 20. estates tail of the gift of the crown were protected from forfeiture for treason. But by the statute 5 & 6 Edw. VI. c. 11. the former statute is repealed as to estates tail of the gift of the crown; which are again made forfeitable for treason. 40. The statute 26 Hen. VIII. does not extend 3 Rep. 10 6. to attainders by parliament, or where the party stood mute. But by the statute 33 Hen. VIII. c. 20. estates tail are forfeited by all manner of attainders of treason; the actual possession is also transferred, and vested in the crown presently by the attainder. 41. Lord Coke has stated the effect of these statutes in the following words: "If tenant in tail in possession, or that hath a right of entry, be attainted of high treason, the estate tail is barred, and the land is forfeited to the king." It has however been determined that where a tenant in tail, with remainder to a subject, discontinues his estate before his attainder, his issue, having only a right of action, is not affected by it. But where the immediate reversion is in the crown, the tenant in tail cannot create a discontinuance; so that a right of entry remains in the issue, which is forfeited by the attainder. 3 Rep. 2 b. Cro. Car. 428. ante, § 8. Plowd. 557. 42. Estates in remainder are not forfeited by the attainder of the person having the first estate tail : therefore if a tenant in tail, with remainder over, be attainted of high treason, the crown will thereby acquire a base fee, as long as there is issue of the person attainted; but upon failure of heirs of the body of the person attainted, inheritable to the estate tail, the person in remainder, or his issue, will become entitled. 48. The statute 26 Hen. VIII. only extends to But not for cases of high treason; therefore, as to felonies, the I Inst. 392 b. statute De Donis still remains in force, so that, by attainder of felony, estates tail are only forfeited during the life of the tenant in tail; the inheritance being preserved to the issue. And Lord Coke says, Id. 345 a. if tenant in tail of lands holden of the king be attainted of felony, and the king, after office, seizeth the same, the estate tail is in abeyance. 44. Estates tail had not existed a long time before Modes of barring they were found to be productive of all those incon- Estates Tail. veniences which must ever attend property that is unalienable. Thus Lord Coke says-" The true 6 Rep. 40 b. policy of the common law was overturned by the statute De Donis Conditionalibus, 13 Edw. I., which established a general perpetuity, by act of parliament, for all those who had or would have it; by force whereof all the possessions in England, in effect, were entailed accordingly; which was the occasion and cause of the said and divers other mischiefs and the same was attempted and endeavoured to be remedied at divers parliaments; and divers bills were exhibited accordingly, (which I have seen), but they were always, on one pretence or other, rejected. But the truth was, that the lords and commons, knowing that their estates tail were not to be forfeited for felony or treason, as their estates of inheritance were, before the said act, (and chiefly in the time of Henry III. in the barons wars); and finding that they were not answerable for the debts or incumbrances of their ancestors; nor did the sales, alienations, or leases of their ancestors bind Vol. 2. p. 142. them, for the lands which were entailed to their ancestors; they always rejected such bills." 45. It appears from the Rolls of Parliament, that in 17 Edw. III. the commons petitioned the king that the statute of Westm. 2. might be declared, in what degree the issue in tail might alien; to which his majesty answered, that the law formerly used in this case should continue. 46. The impossibility of obtaining a legislative repeal of the statute De Donis induced the judges to adopt various modes of evading its effects; and of enabling tenants in tail to charge or alien their Tit. 32. c. 24. estates. The first of these was founded on the idea of a recompence in value; in consequence of which the judges held that the issue in tail was bound by the warranty of his ancestor, where assets of equal value descended to him from such warranting an Tit. 36. Tit. 35. Tit. 36. c. 10. cestor. 47. The next was, that a feigned recovery should bar the issue in tail, and the remainders and reversion; a doctrine established in the reign of Edward IV. The last was by the legislature, who made two acts of parliament in the reigns of Henry VII. and Henry VIII., by which a fine is declared to be a bar to the issue in tail. 48. By the statute 34 & 35 Hen. VIII. c. 20. estates tail granted by the crown, as a reward for services, are protected from the general operation of fines and recoveries, and are by that means rendered absolutely unalienable. 49. By the statute 42 Geo. III. c. 116. § 52. tenants in tail are enabled to convey such parts of their estates as shall be deemed eligible and necessary to be sold for the redemption of the land tax charged thereon, by deed indented and enrolled, or registered in the manner prescribed by this act, in which it is declared that every such deed shall be as effectual as if the tenant in tail had levied a fine, or suffered a recovery thereof. entailed. Warwick, 50. It has been stated that money, agreed or And Money directed to be laid out in the purchase of land, is Tit. 1. 6. considered in equity as land. In cases of this kind, Edwards v. where the land was directed to be conveyed to a 2 P. Wins. person in tail, it was a settled rule in Chancery, that 171. wherever a fine, which may be levied at any time, would have rendered the party absolute owner of the land, he was entitled to receive the money immediately. If a recovery, which can only be suffered in term time, was necessary, there the Court of Chancery would direct the money to be actually laid out in the purchase of land; in order to give the persons in remainder their chance of the first tenant in tail's dying before he could suffer a recovery. 51. By the statute 39 & 40 Geo. III. c. 56. reciting the practice of courts of equity, as stated in the preceding section, it is enacted, that courts of equity, on petition of the first tenant in tail, and of the party having any prior estate, being adults, or of femes covert, being separately examined, may order such money to be paid to them, or applied as they shall appoint. Lowton, 5 Ves. 12. n. 52. Upon a petition under this act, by a tenant Lowton v. for life, and the first of several tenants in tail in remainder, Lord Rosslyn said, that having consulted Lord Kenyon, Lord Eldon, and the Master of the Rolls, as to the manner in which the act should be executed, they had agreed that it would be proper not to order the money to be paid out of court, till such time as the tenant in tail might actually have suffered a recovery of the land. The court made 6 Ves. 116, 576. the order; but directed that it should have no effect, unless the tenant in tail should be living on the second day of the next term. It is also now settled that in cases of this kind 8 Ves. 609. there must be a reference to the master to inquire whether the parties had in any manner incumbered their interests in the money. |