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CHAP. VIII.

Of a Bond and Recognizance.

CHAP. IX.

Of a Bargain and Sale.

CHAP. X.

Of a Covenant to stand seised.

CHAP. XI.

Of a Lease and Release.

CHAP. XII.

Of a Declaration of Uses.

CHAP. XIII.

Of Powers of Revocation and Appointment.

CHAP. XIV.

Of Powers to jointure.

CHAP. XV.

Of Powers to lease.

CHAP. XVI.

Of the Execution of Powers.

CHAP. XVII.

Where Equity will support a defective Execution.

CHAP. XVIII.

How Powers are extinguished and destroyed.

CHAP. XIX.

Of the Construction of Deeds.

(3)

CHAP. XX.

Construction-of the formal Parts of a Deed.

CHAP. XXI.

Construction-by what words different Estates may be created.

CHAP. XXII.

Construction-of the Rule in Shelley's Case.

CHAP. XXIII.

Construction-of Perpetuities.

CHAP. XXIV.

Construction-of the Reddendum, Condition, and

Warranty.

CHAP. XXV.

Construction-of Covenants.

CHAP. XXVI.

How Deeds may be avoided.

CHAP. XXVII.

What Deeds are void as to Creditors and Purchasers.

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Alienation of
Lands.

TH

SECTION 1.

HE third mode of acquiring an estate by pur chase, is alienation; under which is comprised every method whereby estates are voluntarily resigned 1 Inst. 118 b. by one person, and accepted by another. Lord Coke says, the word alienation is derived from alienare, id est, alienum facere; vel ex nostro dominio in alienum transferre, sive rem aliquam in dominium alterius transferre.

2. It is admitted by all our legal writers, that an unlimited power of alienation existed in England in the time of the Saxons: that upon the settlement of the Normans, and the establishment of the feudal Wright, 154. ław, all lands became unalienable; and that, during the reigns of William I. and his sons, the doctrine of non-alienation was, for various reasons, strictly enforced.

§ 1.

3. The greater part of the real property of the kingdom had been distributed among the Norman Dissert. c. 2. barons, as strict and proper feuds; upon condition of military service. And as a considerable jealousy prevailed against all those who were of Saxon origin, lest they should attempt to reinstate themselves in their ancient possessions; great care was taken during that period, that all the vassals of the crown, who could alone be depended on, in case of any insurrection, should be in a situation to perform their military services.

4. The first step towards a liberty of alienation, was that by which the tenant was permitted to aliene, with the consent of his lord. This rule was adopted from the maxims which then prevailed on the Continent, and gave rise to fines for alienation. But in England the tenant could not dispose of his land,

even with the consent of his lord, unless he had also Glany, Lib. 7. obtained the consent of his next heir: it was therefore

very common, in ancient feoffments, to express that the alienation was made, with the consent of the feoftor's heir.

5. The power of alienation was farther extended by a law of Hen. I. c. 70., which allowed a man to dispose of lands purchased by himself. Emptiones vero, vel deinceps acquisitiones suas det cui magis velit. Si Bockland habeat, quam ei parentes sui dederunt, non mittat eum extra cognationem suam.

c. 1.
Mad. Form.

No 316.

Wright, 167.

6. Glanville has given us a very circumstantial Lib.7. c. 1. account of the law, as it stood in the reign of Hen. II., respecting alienation; from which it appears that the power of disposing of lands was then considerably enlarged; and a right of alienation seems to have been soon after extended to all lands which a person had himself acquired, provided they had been conveyed to him and his assigns; and also to a fourth part of all lands acquired by descent; without the consent of the heir.

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7. There was also a particular mode of alienation, Subinfeudawhich appears to have been always allowed; and in the tion. feudal law is called subinfeudation:-Where the pro- Dissert, c. 2, prietor of a feud granted a proportion of it, to be $14. held of himself. The king's chief tenants adopted this practice, immediately after the Conquest, in order that they might be able to perform their renders; for most of them held their lands by the service of several knights.

8. Thus it appears from the Black Book of the Exchequer, published by Hearne, that in the reign of Henry II. the king's tenants had created a vast number of knights fees, to be held of themselves.

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9. The practice of subinfeudation produced a grievance, much complained of in those days. The persons who held of the king's chief tenants began to grant to others still more minute estates, to be held of themselves, and were so proceeding downwards in infinitum, till the superior lords observed, that by this method they lost all their feudal profits; which fell into the hands of these mesne or middle lords. Besides, these mesne lords were by this means less able to perform their military services.

10. This caused an article to be inserted in magna charta, prohibiting subinfeudation, unless sufficient was left to answer the services due to the superior lord. Nullus liber homo det de cetero amplius alicui, vel vendat alicui de terra sua, quam ut de residuo terræ suæ possit sufficienter fieri domino feodi servitium ei debitum, quod pertinet ad feodum illud.

11. The inconveniences which followed from the practice of subinfeudation, produced the statute of quia emptores terrarum; which, reciting the losses sustained by the great lords, enacted-Quod de cetero liceat unicuique libero homini terras suas seu tenementa sua, seu partem inde ad voluntatem suam vendere: ita tamen quod feoffatus teneat terram illam seu tenementum illud de capitali domino feodi illius, per eadem servitia et consuetudines, per que feoffator suus illa prius tenuit.

12. Sir Martin Wright observes, that this statute took from the tenants of common lords the feudal liberty they claimed, of disposing of part of their lands, to hold of themselves and instead of it, gave them a general liberty to sell all, or any part, to hold of the next immediate lord; which they could not have done before, without consent.

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