4. And be it further enacted by the authority aforesaid, That all tenures hereafter to be created by the King's Majesty, his heirs or successors, upon any gifts or grants of any manors, lands, tenements or hereditaments, of any estate of inheritance at the common law, shall be in free and common socage, and shall be adjudged to be in free and common socage only, and not by knight-service, or in capite1, and shall be discharged of all wardship, value and forfeiture of marriage, livery, primer seisin, ousterlemain, aide pur faire fitz chivalier and pur file marrier; any law, statute, or reservation to the contrary thereof in any wise notwithstanding.

5. Provided nevertheless, and be it enacted, That this Act, or anything herein contained, shall not take away, nor be constrained to take away, any rents certain, heriots, or suits of court, belonging or incident to any former tenure now taken away or altered by virtue of this Act, or other services incident or belonging to tenure in common socage due or to grow due to the King's Majesty, or mean lords, or other private person, or the fealty and distresses incident thereunto; and that such relief shall be paid in respect of such rents as is paid in case of a death of a tenant in common socage.

6. Provided always, and be it enacted, That anything herein contained shall not take away, nor be construed to take away any fines for alienation due by particular customs of particular manors and places, other than fines for alienations of lands or tenements holden immediately of the king in capite.

7. Provided also, and be it further enacted, That this Act, or anything herein contained, shall not take away, or be construed to take away, tenures in frank-almoign2, or to subject them to any greater or other services than they now are; nor to alter or change any tenure by copy of court-roll, or any services incident thereunto; nor to take away the honorary services of grand serjeanty, other than of wardship, marriage, and value of forfeiture of marriage, escuage, voyages royal, and other charges incident to tenure by knight-service; and other than aide pur faire fitz chivalier, and aide pur file marrier.

8. And be it further enacted by the authority aforesaid; That where any person hath or shall have any child or children under the age of one and twenty years, and not married at the time 2 See above, p. 39.

1 See note 4, p. 361.

See above, p. 39.

of his death; that it shall and may be lawful to and for the father of such child or children, whether born at the time of the decease of the father, or at that time in ventre sa mere, or whether such father be within the age of one and twenty years // or of full age, by deed executed in his life-time, or by his last will and testament in writing, in the presence of two or more credible witnesses, in such manner, and from time to time as he shall respectively think fit, to dispose of the custody and tuition of such child or children for and during such time as he or they shall respectively remain under the age of twenty-one years, or any lesser time, to any person or persons in possession or remainder, other than Popish recusants; and that such disposition of the custody of such child or children, made since the twenty-fourth of February one thousand six hundred and fortyfive, or hereafter to be made, shall be good and effectual against all and every person or persons claiming the custody or tuition of such child or children, as guardian in socage or otherwise: And that such person or persons to whom the custody of such child or children hath been or shall be so disposed or devised as aforesaid, shall and may maintain an action of ravishment of ward or trespass against any person or persons which shall wrongfully take away or detain such child or children, for the recovery of such child or children; and shall and may recover damages for the same in the said action for the use and benefit of such child or children 1.

9. And be it further enacted, That such person or persons to whom the custody of such child or children hath been or shall be so disposed or devised, shall and may take into his or their custody to the use of such child or children the profits of all lands, tenements and hereditaments of such child or children; and also the custody, tuition and management of the goods, chattels and personal estate of such child or children, till their respective age of one and twenty years, or any lesser time, according to such disposition aforesaid, and may bring such action or actions in relation thereunto as by law a guardian in common socage might do.

10. Provided also, That this Act, or anything herein contained, shall not extend to alter or prejudice the custom of the City of London, nor of any other city or town corporate, or of

1 See above, p. 42; and compare Chap. II. § 4 (2), (3), and Chap. III. § 2.

the town of Berwick-upon-Tweed, concerning orphans; nor to discharge any apprentice from his appenticeship.

11. Provided also, That neither this Act, nor anything therein 'contained, shall infringe or hurt any title of honour, feodal or other, by which any person hath or may have right to sit in the Lords' House of Parliament, as to his or their title of honour or sitting in Parliament, and the privilege belonging to them as Peers; this Act or anything therein contained to the contrary in any wise notwithstanding.

15-52. Provisions for recompense to his Majesty for the Court of Wards and purveyances by an excise duty upon beer, ale, etc.

CHAPTER X.

TITLES OR MODES OF ACQUISITION OF RIGHTS OVER THINGS REAL.

THE subject of titles or modes of acquisition of rights follows in logical order next upon the discussion of the history and nature of the rights themselves. It is proposed in this chapter to present in outline a brief account of the various modes of acquisition of rights over land recognised by English law. For this purpose it will be necessary to refer back to many points which have been explained in the preceding chapters, and also to notice the main changes in the law which have taken place subsequent to those which have been already mentioned.

A title to a right or a collection of rights over land is, according to Blackstone', 'the means whereby the owner of lands hath the just possession of his property.'

According to the fuller definition given by Austin, it is the collection of facts or events on which by the dispositions of the law rights arise or come into being, and also the facts or events on which by the dispositions of the law they terminate, or are extinguished". For practical purposes the inquiry may be confined to the different modes of acquiring rights over land. For, according to English law, rights over land are never lost or abandoned so as to become res nullius. A mode of losing a right of this class is always a mode of acquisition by somebody

1 ii. p. 195.

2

Austin, ii. p. 902.

else. For example, if lands cease to have an owner by reason of a failure of heirs, they at once escheat to the lord1. For the purposes of this chapter, therefore, the word 'title' may be taken to mean simply 'mode of acquisition.'

Many classifications have been given of the groups of facts or events to which the law attaches as a consequence the loss or acquisition of rights over land. The following arrangement may perhaps be accepted in default of a better. There are some recognised modes of acquisition which cannot well be brought under one head. To attempt to do so would be to present a false conception of a uniformity which does not exist 2.

Titles or modes of acquisition may perhaps be most conveniently classed under the heads of title by alienation, title by succession, or devolution from a person dying intestate, and the remaining modes of acquisition must be thrown into a miscellaneous class.

§1. Title by alienation.

By alienation is meant the intentional and voluntary transfer of a right by the person or persons in whom the right resides to another person or persons 3.

In order that title by alienation may be effectual in any given case, the following conditions must be present. The person having the right intended to be conveyed must be of full capacity to convey it; the person to whom the right is to be conveyed must be of capacity to take and keep it; the purpose of the conveyance must be such as the law recognises as affording a sufficient motive for the transfer of the property; and,

1 See above, p. 85.

2 See Austin, ii. p. 931.

3 See Austin's Jurisprudence, ii. 904. Sometimes alienation is divided into voluntary and involuntary alienation. I prefer to treat of the different kinds of so-called involuntary alienation separately under the miscellaneous kinds.