complete freedom of alienation, influences are at work, which after several experiments and failures enable landowners in the seventeenth century to reimpose on the land the fetters of the will of a dead owner, checked only by the rule that those fetters cannot last for a perpetuity. To the history of Family Settlements and of the "Rule against Perpetuities" therefore we now turn.

CHAPTER VIII.

FAMILY SETTLEMENTS.

THE 16th and 17th centuries in England were years of almost complete freedom of alienation. Estates Tail, the great device by which landowners had kept lands in their family or under their control, had been broken down by the introduction of Fines and Recoveries, as devices for barring the entail. The absence of the power of devise, which had imposed on the land a line of succession fixed either by the State or the donor, had been at first supplied by the introduction of Uses, and then the incapacity had been deliberately destroyed by the provisions of the Statute of Wills. The tenant could therefore alienate his land freely during his life and devise it at his death to the successor of his choice.

But this freedom of alienation and devise was not congenial to the spirit in which great landowners viewed their land. To preserve their family name and position, to "keep the land in the family" seemed to them a desirable and even laudable object; to restrain any individual holder of the land from dealing with it so as to interfere with the interest of subsequent generations of the family in the family land was a necessary means to this end. To contrive restraints on alienation and succession which the law would enforce, to ascertain the furthest limits up to which the law would allow the grasp of the dead hand to be kept on the land of the living, was the task set by the great landowners before their legal advisers. The judges on the other hand endeavoured to protect the interests of the community and of the living tenant, by refusing to recognize many of these

ATTEMPTS TO RESTRAIN ALIENATION.

109

attempted restraints, and by bounding those devices which they did allow by a limit beyond which no restraints would be valid, that the land of England might not be tied up in perpetuity.

The endeavour to impose restraints on the land was made along three lines, on one of which it failed completely, while on the other two it achieved considerable success. These three

lincs were:

I. Attempts to deprive estates tail of their capacity of suffering fines and recoveries, which failed on all points.

II. Attempts to prevent any particular tenant from having the power to alienate the land, by the device of Life Estates and Contingent Remainders.

III. Attempts to attain the same end, and defeat any alienations, if attempted, by the System of Executory Devises, founded on Uses and Trusts.

The two latter methods achieved considerable success, and between them account for the present ingenious and fairly effective device of family settlements, which is further supported by the customary law of the landowning class. A definite limit however was imposed on its operation by the rule, to which the Courts gradually gave great precision in dealing with repeated attempts to evade it, which is known as the "Rule against Perpetuities."

I propose briefly to deal with each of these three methods without going too minutely into the technicalities of the law, to explain the limits of the Rule against Perpetuities and to give the history of its growth, concluding this part of the subject with an examination of the present position of the law, and the method in which the system of Family Settlements has been dealt with by Lord Cairns' "Settled Land Act."

I. It was attempted by landowners and their legal advisers to create estates tail, which had as an incident that they could not be barred by a common recovery suffered by the tenant-in-tail'. But all these attempts were defeated by the

1 Fearne on Contingent Remainders, p. 257 note. Taylor d. Atkins v.

Horde, 1 Burr. 84; Mildmay's Case, 6 Rep. 40; Corbet's Case, 1 Rep. 83.

110

ATTEMPTS TO MAINTAIN

judges, who stoutly adhered to a rule, justified rather by policy than by logic, that the power to suffer a common recovery was a privilege, inseparably incident to an estate tail, of which its tenant could not be deprived. Thus in Corbet's Cuse' in 1599, the indenture creating the estate tail contained a provision that if the tenant-in-tail or any of his heirs should attempt any alienation by which the estate tail should be barred such estate tail should cease as if he were dead. The judges held such a condition to be void, for a condition to be good must defeat the whole of the estate to which it was annexed, whereas this condition did not destroy the estate tail, for the death of the tenant-in-tail would not determine it, but only his death without issue.

This case is believed to have been a fictitious one to obtain the opinion of the Court and pave the way for Mildmay's Case in 1605, in which a condition in a gift in tail not to suffer a common recovery was held repugnant and against law. In Sonday's Case' in 1610 an attempt was made to evade common recoveries by leaving land to "A., and if he marry and have issue lawfully begotten then his son to have the land after his decease, if he have no male issue, then B. to have the land ...if any of his sons or their heirs male went about to alien or mortgage the land, then the next heir to enter." But the judges held that this ingenious attempt to make a tenantin-tail with only a life estate failed, and that A. could at once alienate by recovery, so as to bar the estate tail; for tenantin-tail could not be restrained from alienating by recovery, either by condition or limitation or devise.

. In Mary Portington's Case in 1613, the devise in estate tail was made on the condition that if the tenant-in-tail should agree to suffer any recovery, his estate should at once be forfeited, as if he were dead without heirs of his body": but the judges held that no condition or limitation could

1 1 Rep. 83.

2 It might be good to restrain discontinuances, though not common recoveries. Co. Litt. 223, b, 224, a.

2 See note to Mildmay's Case, 6

Rep. 40, a.

49 Rep. 127, &.

10 Rep. 35, &.

This was contrived to meet the argument in Corbet's Case.

restrain a tenant-in-tail from suffering a recovery, nor therefore also from attempting' or agreeing to suffer it.

Attempts were also made to take away the power of suffering a common recovery, by obtaining from each tenantin-tail an agreement in binding form that he would not alien, but these also were held not to bind the tenant-in-tail. Thus in 1608 a case came before Coke', in which the donor of an estate tail had made tenant-in-tail enter into a statutory recognizance that he would not alien, "et quia ceux statutes fuerunt en substance de faire un perpetuity, quel le State d'Angleterre ne poit porter, ideo les statutes per le advice de Coke fuerunt cancell." In 1708 a similar attempt was made by means of a covenant against suffering a recovery entered into by the tenant-in-tail in the instrument creating the estate tail, and it was held that the covenant was void.

The same end was sought in Taylor v. Shawʻ, (1664), where it was alleged that by custom, certain copyhold lands held in tail could only be barred by the lord's seizure for forfeiture and not otherwise, and the Court held that the law would create a liability to suffer recovery, by the custom of the Court: "if you will allow a customary tail you must allow customary recovery,......otherwise we shall have a fine device of making perpetuities of copyhold estates."

While these attempts were in progress Bacon detected and condemned their object. "There is started up," he said, "a device called perpetuity, which is entail with a conditional proviso tied to his estate not to put away the land from his next heir, and if he do, to forfeit his own estate, which perpetuities, if they stand, would bring in all the former inconveniences subject to entail and far greater." They did not however "stand," for, as Fearne sums up, the power of the tenant-in-tail to suffer a common recovery, or to agree or

1 Corbet's Case, 1 Rep. 83.

2 Cited Moore, 810.

3 Collins v. Plummer, 1 P. Wms. 104.

Carter, 6, 22.

Compare with this the custom in 30 Liber Assisarum, p. 47. Digby, R.

P., 3rd ed. p. 227. H. was seised of tenements in Winchester, devisable by custom by will, where there was also a custom that he who is seised by devise cannot make alienation by warranty or otherwise, which shall be a bar to the remainderman or reversioner.