Page images

Att. Gen. v. 25. It is now settled, that this act only extends to Pomfret, 2 Cox, 221.

cases where infants are bare trustees for the cestui Id. - 422.

que trust, and bound to convey to them; not to cases where there are any particular trusts to be exe

cuted. Idiots and 26. It was formerly held, that neither an idiot nor Lunatics. 1 Inst. 247 a.

lunatic could avoid his own deed. It is however now settled, that idiots are incapable of binding themselves by deed ; and also lunatics, unless they agree to such deed upon recovering their understanding ; that the

heir of an idiot or lunatic may avoid a deed executed Thompson by him, by pleading his disability. But if an idiot or v. Leach, Tit. 16. c. 6. lunatic makes a feoffment, and delivers seisin in

perinfra, c. 4. son, it is not absolutely void, but only voidable.

27. By the statute 4 Geo. II. c. 10., idiots, lunatics, and generally all persons who are non compos mentis, or their committees, being trustees or mortgagees, are compellable to convey, under the direction of the Court of Chancery, the estates of which they are seised as trustees or mortgagees only; and all such conveyances are declared to be good and valid.

28. By the statute 43 Geo. III. c.75.1. the Courts of Chancery of England and Ireland are enabled to order the freehold and leasehold estates of lunatics to be sold, or charged and incumbered by way of mortgage, or otherwise, for the purpose of raising such sums of money as shall be necessary for payment of the debts, and for performing the engagements of such persons; and to order the committee or committees of the estate of such persons respectively, to

execute proper conveyances of such estate. Married 29. All deeds executed by married women, except Women. i Inst. 42 . a queen consort, for the purpose of conveying their

estates, are absolutely void at law, not merely voidable. Deeds of this kind are also void in equity.

11. 4.

And no act of the wife, after the death of her husband, except in the case of a lease, will in general operate infra, c. 5. as a confirmation of them.

30. A husband and wife made a mortgage of a Drybutter v. share in the New River, which was the estate of the


mew, 2 P. wife, by a demise for 1,000 years, by deed. Upon Wms. 127. the death of the husband, the wife received the profits, and paid the interest of the mortgage. But she was held not to be bound.

31. The acknowledgement of a deed executed by a woman during her marriage, after the death of her husband, may however, in some cases, amount to a redelivery of it, and so render it valid. 32. A man and his wife being entitled to the re- Goodright v.

Straphan, version of a house, in right of the wife, by deed Cowp. 201. executed by the husband and wife, conveyed it to a person, by way of mortgage. After the death of the husband, the wife, by three different papers under her hand, acknowledged the mortgage. It was held by the Court of K. B. that these papers were equivalent to a redelivery of the deed.

33. By the custom of London, and of several other Hob. 225. cities, a married woman may bind herself by a deed enrolled ; being privately examined. This custom was confirmed in the reign of Henry VIII. by a 34, 35 H. 8. positive statute.

34. A married woman may execute a naked authothority, and a power to convey lands is now frequently given to-a married woman, by means of a conveyance Vide infra. to uses. · 35. If a husband abjures the realm, or is banished, Inst. 132 b.

2 Vern. 104. he is thereby become civiliter mortuus ; his wife is

3 P. Wms. considered as a feme sole; and may act in all things 37. as if her husband was naturally dead.

c. 22,

c. 13.

age, he

Persons 36. Persons attainted of treason, felony, or præs attainted.

munire, are incapable of conveying away their estates,

by deed, or otherwise, from the time when the of1 Inst. 390 b. fence was committed. For any conveyance by them

subsequent to that event, would tend to defeat the

king of his forfeiture, and the lord of his escheat. Who may be

37. By the common law all persons whatever may Grantees.

be grantees in a deed, because it is supposed to be 1 lnst. 2. for their benefit. Thus, Lord Coke says, an infant may purchase, and at his full


either agree thereunto, and perfect it ; or without any cause to be alleged waive, or disagree to the purchase. So

may his heir after him, if he agreed not thereto

after his full age. Idem.

38. A man of nonsane memory may also, without the consent of any other, purchase lands ; nor can he himself waive it. If he die in his madness, or after his memory recover, without agreement thereunto, his heir may waive it, without any cause showed. So of an idiot. But if the man of nonsane memory recover his memory, and agree, it is un

avoidable. Iden.

39. An alien may be grantee in a deed, though he cannot hold the land; for upon office found the king shall have it by his prerogative. If an alien be

made a denizen, he then becomes capable of holding Golds, 29. lands purchased after his denization. But it seems,

that if an alien purchases land, and before office found the king makes him a denizen and confirms

his estate, the confirmation will be good. 1 løst. 2 b. 40, If a man commits felony, afterwards .pur

chases lands, and after is attainted, he had capacity to purchase, but not to hold it; for the lord, of the fee shall have it by escheat. If a man be ats tainted of felony, yet he hath capacity to purchase to him and his heirs; but he cannot hold it, for in that case the king shall have it by his prerogative, and Pimb's Case,

Tit. ll. c. 3. not the lord of the fee, because a man attainted has no capacity to purchase ; being civiliter mortuus, except for the benefit of the king.

41. A married woman may be grantee in a deed 1 Inst. 3 a. made by a stranger, without the consent of her husband; who may however disagree thereto, and devest the whole estate. If he neither agree nor disagree, the purchase is good. After the death of the husband, although he agreed thereto, yet the wife may, without any cause alleged, waive the same ; and so may her heirs, if after the decease of her husband, she herself agreed not.

42. A wife cannot by the common law be the Idem, 112 a. iminediate grantee of her husband; but she


take an estate from him through the medium of the statute of uses. Thus a man may covenant with others to Tit. 11. c. 3. stand seised to the use of his wife; or make a feoff. 28.

infra, c. 13. ment, or other conveyance, to the use of his wife. 43. In consequence of the several statutes against Conveyances

to charitable mortmain, all corporations, whether lay and civil, or Uses. religious and eleemosinary, have for a long time been incapable of taking lands by deed, without licence 7 & 8 Wm. 3.

c. 37. from the Crown. But as these statutes did not extend to charitable uses, lands might still be given for the maintenance of a school, hospital, or other purpose of that nature.

44. It was therefore enacted by the statute 9 Geo. II. c. 36. that no lands or tenements, or money to be laid out thereon, shall be given for, or

Sir W. Blackstone says, that even a licence from the Crown is not in all cases sufficient, i Comm. 479.

more on


charged with, any charitable use whatever, unless by deed indented, executed in the presence of two witnesses, twelve months before the death of the

donor, and enrolled in the Court of Chancery within Vide High six months after its execution; and unless such

gifts be made to take effect immediately, and be Mortmain. Grieves v.

without power of revocation. And that all other Case, 2 Cox gifts shall be void. R. 301.

45. The two universities, their colleges, and the colleges of Eaton, Winchester, and Westminster, are excepted out of this act. With this proviso, that no college shall be at liberty to purchase more advowsons than are equal in number to one moiety of the fel

lows and students upon their respective foundations. 2° Conside- 46. At common law a consideration was not essenration.

tially necessary to the validity of a deed. Thus in Plowden it is said arguendo that, by the law of England, there were two ways of making contracts for lands or chattels; the one by words, the other by writing: and because words were often spoken inadvisedly, and without deliberation, the law had provided that a contract by words should not bind

without consideration. But where the agreement Bac. Read. was by deed, there was more time for deliberation;

for which reason deeds were received as a lien final to the party, and were adjudged to bind him, without examining upon what cause or consideration they

were made. Year Book, 47. Thus, in 17 Edw, IV. where a person promised 17 Ed.4.4 b. by deed to give another twenty pounds, it was held

that an action of debt lay upon the deed; and that

the consideration was not examinable ; for in the 3 Burr. 1670. deed there was a sufficient consideration, namely, 7 Term R.

the will of the party who made the deed. A doctrine 350. note.

which has been assented to in modern times.



« PreviousContinue »