a law of Hen. I. c. 70, which allowed every person to dispose of such lands as had been purchased by himself. Emptiones vero, vel deinceps acquisitiones suas det cui magis velit. Si bockland habeat, quam ei parentes sui dederunt, non mittat eam extra cognationem suam. 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 selling land was then considerably enlarged; and the 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. c. 3. 7. There was also a particular mode of alienation which appears to have been always allowed, and called in the feudal law Subinfeudation; that is, where the proprietor of a feud granted a portion of it to be Dissert. e. 2. held of himself, by which manors were created. And it appears from the Black Book of the Exchequer, published by Hearne, that in the reign of Hen. II., the king's tenants had created a vast number of knights' fees to be held of themselves. 8. The practice of Subinfeudation produced a grievance, much complained of in those days; the persons who held of the king's tenants began to grant still smaller estates, to be held of themselves, and were so proceeding downwards, in infinitum, till the superior lords observed that, by this, they lost all their feudal profits, which fell into the hands of these mesne or middle lords. Besides, these mesne lords were thereby less able to perform their military services. 2 56. 9. This caused an article to be inserted in Magna Charta prohibiting alienation, unless sufficient was left 1 Inst. 43. a. 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 feudi, servitium ei debitum, quod pertinet ad 1 Inst. 98. b. feudum illud. But as the inconveniences which attended the practice of subinfeudation continued, an effectual remedy was at length adopted by the statute 2.66.500. quia emptores terrarum, 18 Edw. I., which, reciting the Dissert. c. 2. losses sustained by the great lords, enacted—Quod de § 13. 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 quæ feoffator suus illa prius tenuit. Ten. 161. 10. 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 superior lord, which they could not have done before without consent. But neither Magna Charta, nor the statute 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. 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,Fitz. N. B. 175. Rex non vult aliquam medium, et ideo non concessit. Vol. i. 54. 11. This restraint upon the king's immediate tenants is supposed to have been indirectly removed by the stat. De Prerogativa Regis, 17 Edw. II. c. 6., by which it was declared that no person who held of the king Wright, 162. in capite, 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 which the king's consent was necessary to every alienation made by his tenants in capite. And it became a question, whether, if such tenant Ibid. 165. 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 stat. 1 Edw. III. c. 12., by which it was enacted that in all cases of alienation, by tenants in capite, the king should not hold the lands as forfeited, Lords' Report but should have a reasonable fine in Chancery on Peerages, 398.403. 12. It remained much longer a doubt whether the Wright, 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 quia emptores. But such alienations made by tenants who held of King Hen. II. or other kings before him, were at length made good by the stat. 34 Edw. III. c. 15. saving to the king his prerogative of the time of his grandfather, and of his own time. 13. Sir M..Wright observes, that it is extremely Id. doubtful what prerogative was here saved to the crown; but it was perfectly clear that fines for alienation were established by the stat. 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 alien 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. 14. Thus continued the law till the abolition of military tenures by the stat. 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 Different kinds of assurances. Of a Deed. of particular manors and places; so that all freehold estates became thereby alienable without licence or fine. 15. 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 respecting them 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. II. Matters of record or assurances transacted only in the king's public courts of record. III. Assurances deriving their effect from special custom, obtaining in some particular places; and relating only to some particular species of property. iv. A devise contained in a person's last will and testament, which does not take effect till after his death. 16. A deed is a writing on parchment or paper, sealed and delivered, to prove and testify the agreement of the parties whose deed it is, to the 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. 17. 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 nonnulla 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 donation or grant of land; Madox Formul and the land thus granted was called bockland. 283. 18. 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 of the Dissert, c. 1. § 45. agreement; a charter or deed, in imitation of the breve testatum of the feudal law, was usually prepared and executed, and delivered to the purchaser, at the same time with the land. But 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: 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. 19. Deeds are divided into two sorts; deeds poll, Deed 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 to B. certain lands therein described. It was formerly called charta de una parte, and usually began thus:-Sciant præsentes et futuri quod ego A. dedi, &c., and now begins in these words :-Know all men by these pre Lit. 370-2. |