13. Neither magna charta, nor the statute of quia emptores, extended to the king's immediate tenants; who seem to have been so strictly restrained from alienation, that they were not permitted to dispose of their lands even to their eldest sons. Thus it appears from the Rolls of Parliament, that in 18 Edw. I. Vol. 1. 54. Gilbert de Humfraville petitioned the king for licence to enfeoff his eldest son, and his wife, of the manor of Overton; to hold of the said Gilbert during his life, and after his death, of the chief lord, by the usual services; to which the king answered Rer non vult Fitz. N. B. aliquem medium, et ideo non concessit. 175. 14. This restraint upon the king's immediate Fines for tenants is supposed to have been indirectly removed Alienation. by the statute de prerogativa regis; by which it was 17 Edw. 2. declared, that no person who held of the king in capite, Wright, 162. by military service, should alien the greater part of the land, so that the remainder were not sufficient to answer his services, without the king's licence. In consequence of this law, the king's consent was necessary to every alienation of his tenants in capite; and it Idem. 165. became a question, whether if such tenant aliened without licence, the land was not forfeited; or whether the king should only seize it by way of distress, till a fine should be paid for the contempt. This was settled by the statute 1 Edw. III. c. 12., by which it was enacted, that in all cases of alienations by tenants in capite, the king should not hold the land as forfeited, but should have a reasonable fine in the Chancery. 15. It remained much longer a doubt whether the Idem, 166. king's tenants might have aliened any part of their lands, to hold of themselves; as the tenants of inferior lords might, before the statute of quia emptores. But such alienations made by tenants who held of Ten.166. 2 Inst. 67. Different King Hen. III. or other kings before him, were at length made good by the statute 34 Edw. III. c. 15. ; saving to the king his prerogative of the time of his grandfather, and of his own time. 16. Sir Martin Wright observes, that it is extremely doubtful what prerogative was here saved to the Crown, but it is perfectly clear that fines for alienation were established by the statute 1 Edw. III.: and after this act, Lord Coke says, writs of quo titulo ingressus est, issued from the Exchequer, to help the king to his reasonable fine; whereupon the feoffee was driven to plead, to his great charge and trouble. It was therefore, upon conference with the king's officers and the judges, ordained, seeing the king's tenants could not aliene, without licence, for if they did they should pay a fine; that for a licence to be obtained, the king should have a third part of the annual value of the land, which was holden reasonable if the alienation was without licence, then a reasonable fine, by the statute, was to be paid by the alienee; which they resolved to be one year's value. 17. Thus continued the law till the abolition of military tenures by the statute 12 Cha. II. c. 24, which takes away all fines for alienations, seizures, and pardons for alienations, and all charges incident thereunto; saving fines for alienation due by the customs of particular manors and places; so that all freehold estates became thereby alienable without licence or fine. 18. With respect to the different modes of alienation, or rather the legal evidences of the transmission of real property, they are called the common assurances of the realm, whereby every man's estate is assured to him; and all controversies, doubts, and difficulties are either prevented or removed. Of these there are four kinds : 1. Deeds or matters in pais, which are assurances transacted between two or more private persons, in the country; that is, according to the old law, upon the very spot or piece of land to be transferred. 2. Matters of record, or assurances transacted only in the King's public courts of record. 3. Assurances deriving their effect from special custom, obtaining in some particular places; and relating only to some particular species of property. 4. A devise contained in a person's last will and testament, which does not take effect till after his death. Touch. 50. 19. A deed is a writing on parchment or paper, of a Deed. sealed and delivered, to prove and testify the agreement of the parties, whose deed it is, to the 1 Inst. 35 6. things therein contained. It is sometimes called a charter, charta, from its materials; but most usually, when applied to the transactions of private persons, it is called a deed; in Latin, factum; because it is the most solemn and authentic act that a man can perform, in the disposal of his property. 20. It is probable that every alienation of land was very soon accompanied with some written evidence; though, in the time of the Saxons, a legal transfer might be made of lands by certain ceremonies, without any charter or writing. Thus, Ingulphus in his History of the Abbey of Croyland, says— Conferebantur multa prædia nudo verbo, absque scripto vel charta; tantum cum domini gladio, galea, vel cornu, vel cratera; et plurima tenementa cum calcari, cum strigili, cum arcu; et nonulla cum sagitta. Deeds or charters were notwithstanding in use at that time. These were generally called gewrite or writings; the particular deed, by which a free estate might be conveyed, was called landboc, libellus de terra, a do Madox For- nation or grant of land; and the land thus granted was called bockland. mull. 283. 21. Upon the introduction of the Norman customs, the solemn and public delivery of the possession, in imitation of the feudal investiture, became essentially necessary to the transfer of land; and was alone sufficient for that purpose. But as written charters constituted a much better species of evidence Dissert. c. 1. of the agreement; a charter or deed, in imitation of $ 45. the breve testatum of the feudal law, was usually prepared and executed, and delivered to the purchaser, at the same time with the land. Deed Poll. 22. The increase of commerce and wealth having introduced a greater degree of refinement of manners, agreements and conveyances became more complex, which produced an universal practice of reducing them into writing: but still lands might have been transferred by a verbal contract only, provided it was attended with a solemn and public delivery of the possession, till the latter end of the reign of King Charles II. 23. Deeds are divided into two sorts; deeds poll, or cut in a straight line; and deeds indented. A deed poll is not, strictly speaking, an agreement between two persons; but a declaration of some one particular person, respecting an agreement made by him. with some other person. Thus, a feoffment from A. to B. by deed poll, is not an agreement between A. and B., but rather a declaration by A. addressed to all mankind, informing them that he thereby gives and enfeoffs B. of certain lands therein described. It was formerly called charta de una parte, and usually began thus, Sciant præsentes et futuri quod ego, A. &c.; and now begins in these words, Know all men by these presents that I, A. B. have given, granted, and enfeoffed, and by these presents do give, grant, and enfeoff, &c. Lit. 370. 24. An indenture is a mutual agreement between Indenture, two or more persons, whereof each party has usually a copy. Formerly, when deeds were more concise than they are at present, it was usual to write both parts on the same skin of parchment, with some words or letters of the alphabet written between them, through which the parchment was cut in acute angles, instar dentium, from which they acquired the name of indentures, or deeds indented, in such a manner as to leave half the word on one part, and half on the other. 229 a. 25. Lord Coke says, to constitute an indenture it 1 Inst. 143 b. is absolutely necessary that the paper or parchment, on which the deed is written, be cut instar dentium on the top or side. And in Stile's case, where a 5 Rep. 20. deed was produced as an indenture, which was not indented, beginning with the words hæc indentura, it was adjudged that it was not an indenture, although it was in two parts, for the words of a deed cannot make it indented; but to the making of an indenture there ought to be a manual act of indenting the parchment or paper. 26. The practice has long been to cut the first skin of parchment on which an indenture is written in an undulating line. And it is said by Sir H. Gwillim, that if only the form of indenting the parch- 4 Bac. Ab. ment or paper be wanting, this is not material; for it might even be done in court. No exception is therefore now taken on such a trifling omission. 27. In the case of an indenture, there ought regu larly to be as many copies of it, as there are parties: and when the several parts are interchangeably executed by the several parties, that part or copy which 51. |