religion, and being a Roman catholic, paid off a sum of £15,000 charged on the estate for his sisters' portions, without taking any assignment of the term by which that sum was secured; or any declaration of trust of it for himself. In 1751 Lord S. by deed, reciting that he was seised of the freehold, subject to this charge, that he had paid off the portion of one of his sisters, and part of the portion of another, and that as none of the portions had been raised under the term, he had a right to have them raised for himself: He in consideration of £1000 conveyed an advowson, being part of the premises comprised in the term, to one Robinson; the trustees consented, and were parties, upon condition that the consideration should go in discharge of the portions. Lord S. died in 1787, leaving a will, but without taking any notice of his right to be reimbursed this sum, or doing any other act by which his intention could be known. A bill was brought by his personal representative against the next tenant in tail, and the trustees of the term, praying that they might be compelled to raise such sums as were paid by the late earl to his sisters. Lord Thurlow said that, in the transaction of 1751 respecting the advowson, there was a perfect and distinct recognition that the circumstance of paying off the charge did make Lord S. a creditor; and 15 Ves. 173. decreed for the plaintiff. 44. It was formerly held, that a tenant in tail was not even bound to keep down the interest of any incumbrances charged on the estate. It has been since Tit. 15. c. 4. resolved, that in some cases he is bound to keep down the interest. TITLE II. ESTATE TAIL. CHAPTER II. Of the Power of Tenant in Tail over his Estate, and the Modes of barring it. 1. Can only alien for his own Life. 26. Unless he confirms them. 4. His Alienation not absolutely 29. Except Crown Debts. void. 6. Sometimes a Discontinuance. 9. Sometimes voidable by Entry. 11. Creates a base Fee. 13. Cannot create an Estate to commence after his Death. 16. Exception. 19. The Issue not bound by his 34. Tenants in Tail may make Leases. 35. Are subject to the Bankrupt Laws. 37. And to Forfeiture for Treason. 43. But not for Felony. 44. Modes of barring Estates Tail. 50. And Money entailed. Can only alien for his own Life. $650. Walsingham's case, Plowd. 561. contra. THE SECTION 1. HE statute De Donis, affecting a perpetuity, restrains the tenant in tail from alienating his estate, by any mode whatever, for a greater term than that of his own life. Thus Littleton says-" If tenant in tail grants all his estate to another, the grantee has no estate but for term of life of the tenant in tail, and the reversion of the tail is not in the tenant in tail, because he has granted all his estate and rights: But the reversion and inheritance of the tail, during the life of the tenant in tail, is in abeyance. 2. It is however observable that the words of the statute De Donis, by which the alienation of an estate T. Jones, tail is prohibited, only extend to the original donee, and not to his issue. Nec habeant illi, quibus tenementum sic fuerit datum, potestatem alienandi. But Plowd. 13. still the prohibition was extended by the judges to 239. the issue, in infinitum. And Broke says, the omis- Ab. Tit. Parsion of the heirs of the donee in the statute was a misprision of the clerk. liam. 91. 3. Lord Coke, in his comment on this statute, 2 Inst. 336. says "It was adjudged by Beresford that the issues in tail should not alien, no more than they to whom the land was given; and that was the intent of the makers of the act; and it was but their negligence that it was omitted, as there it is said. In this case, by way of purchase, the land is given to the donees, and by way of limitation to the issues in tail; and therefore, by a benign interpretation, the purview of this extends to the issues in tail.” tion not 4. Although the statute De Donis restrains tenants His Alienain tail from alienating their estates for any longer absolutely term than that of their own lives; yet this must void. not be understood literally, that the grantee has only an estate for the life of the tenant in tail, which 2 Ld. Raym. determines ipso facto by the death of the tenant in Vide Machill tail. All that is meant by it is, that the grantee's v. Clarke, estate is certain and indefeasible, during the life of the tenant in tail only; upon whose death it becomes defeasible by his issue. 779. infra. Bould, 5. It is however otherwise where a thing is Walter v. granted out of an estate that is entailed, as a rent; Bulst. 32. for such grant becomes absolutely void by the death of the grantor, and can never be made good. a Discon 6. The law considers the tenant in tail as having Sometimes not only the possession, but also the right of pos- tinuance. session and inheritance in him; he is therefore allowed to alienate them by certain modes of con Lit. § 595. 2 Inst. 335. veyance, so as to take away the entry of the issue, and drive him to his action; which is called a discontinuance. For, as Lord Coke says-" Seeing he had an estate of inheritance, the judges compared it to the case where a man was seised in right of his wife, or a bishop in right of his bishopric, or an 1 Inst. 325 a. abbot in right of his monastery. Driver v. 1 H. Black. Lit. § 625. 7. An estate tail may be discontinued by five different modes of conveyance; namely feoffment, fine, recovery, release, and confirmation. But it is a rule of law, that in order to work a discontinuance of an estate tail, the person discontinuing must be actually seised by force of the entail. 8. Where an estate tail is discontinued, the estates 1 Inst. 335 a. in remainder and the reversion are also in general Walsing ham's case, Plowd. 552-562. Sometimes voidable by Entry. Seyinour's Case, 10 Rep. 95. 2 Ld. Raym. 779-782. 7 Term R. 278. 1 Inst. 51 a. Creates a Base Fee. Plowd. 554-557. discontinued. But where they are not discontinued, the estate tail is not discontinued; and therefore, if the reversion or remainder be in the king, the tenant in tail cannot discontinue the estate tail: for the king is a body politic of all others most high and worthy, out of whose person no estate of inheritance or freehold can pass, or be removed, without matter of record. 9. A tenant in tail may also alienate his estate by other modes of conveyance which only transfer the possession, and not the right of possession. These alienations do not however become ipso facto void by the death of the tenant in tail, but may be avoided by the entry of the issue. 10. If a tenant in tail exchanges with a tenant in fee simple, it will be good, till it is avoided by the entry of the issue in tail. 11. In all cases of alienation by tenants in tail, the alienee has an estate of inheritance, descendible 10 Rep. 96 a. to him and his heirs, as long as the tenant in tail has heirs of his body, inheritable to the estate tail; which is called a base or qualified fee. In many cases this estate may be avoided, after the death of the person who created it, by the action or entry of the issue in tail; in some both the action and entry of the issue in tail are taken away. But till a base Tit. 35. c. 9. fee is determined, it has all the incidents of an estate in fee simple, 12. Where a tenant in tail makes a conveyance Sutton v. Stone, in fee for a valuable consideration, the Court of 2 Atk. 101. Chancery will decree him to make a good title. Mr. Justice Wright is reported to have said, that the court will not point out what title the tenant in tail shall make; but will decree him to make such title as he is capable of doing. Cannot create an 13. Where a tenant in tail limits an estate to commence after his own death; it is absolutely void, and he continues to be tenant in tail as before because there the issue in tail has a right paramount, Death. per formam doni. commence after his 14. A tenant in tail covenanted to stand seised Bedingfield's Case, Cro. to the use of himself for life, after to the use of Eliz. 895. his eldest son, and his heirs. It was resolved that 2 Rep. 52 a. the son should not have the land by this covenant; for when the tenant in tail covenanted to stand seised to the use of himself for life, it was as much as he could lawfully do; the limitation over was Blithman's void; and he was seised as before. Case, Clarke, 15. A tenant in tail covenanted, in consideration Machill v. of natural love and affection, to stand seised to the use of himself for life, remainder to his eldest son 778. in tail, &c. The question was, whether the tenant 11-19. in tail had made any alteration in his estate by this covenant. 7 Mod. 18. |