7. An action for breach of a covenant for title (0) will not be barred by the bankruptcy and certificate of the covenantor, although the cause of action accrued before the bankruptcy.

Lastly, it has been lately determined by the Court of King's Bench, that an action of covenant does not lie against a devisee upon the statute of fraudulent devises (p). No such remedy lies at common law, and therefore, although a vendor die seised of real estates, yet if they are devised by his will, a purchaser will not have any remedy against them, notwithstanding that the covenants for title are broken, and there is no other fund to which he can resort for damages. This construction of the act must, in many instances, prove highly injurious to purchasers, for certainly this point has never been adverted to in practice (I). A purchaser may, however, guard against the effect of a devise of the vendor's real estates, by taking a bond conditioned to be void if the vendor is seised in fee, and has good right to convey, &c. The penalty would be a debt recoverable under the statute. Such a bond is however scarcely ever taken at the present day.

(0) Hammond v. Toulmin, 7 Term Rep. 612; Mills v. Auriol, 1 Hen. Blackst. 433.

(p) 3 W. and M. c. 14; Wilson v. Knubley, 7 East, 128.

(I) The author in the last sessions prepared a bill to remedy this defect in the statute of fraudulent devises, which passed the House of Com. mons, but was not read a second time in the House of Lords.

CHAPTER XIV.

OF THE PERSONS INCAPABLE OF PURCHASING.

UNDER this head we may consider, Ist, Who are inca pable of purchasing absolutely for their own benefit by the general rules of law: and, 2dly, Who are incapable of purchasing particular property, except under particular restraints, on account of the rules of equity.

SECTION I.

Of Persons incapable of Purchasing by the general Rules of Lare.

THIS incapacity is of three kinds: 1st, An absolute incapacity: 2dly, An incapacity to hold, although an ability to purchase: and, 3dly, An incapacity to purchase, except sub modo.

I. First then, With respect to persons who are altogether incapable of purchasing.

The parishioners, or inhabitants of any place, or the churchwardens, are incapable of purchasing lands (a) by those names.

But it seems that in London, the parson and churchwardens are a corporation to purchase lands (b). And churchwardens and overseers are enabled, by statute law (c), to purchase a workhouse for the poor, but this is merely as trustees, and does not affect the general rule of law.

II. With respect to persons who are capable of purchasing, but incapable of holding: They are,

1st, Aliens: for although they may purchase, yet it can only be for the benefit of the king; and upon an office found, the king shall have it by his prerogative (d). And it seems that an alien cannot protect himself by taking the conveyance in the name of a trustee, for the mischief is the same as if he had purchased the lands himself (e).

But if an alien be made a denizen by the king's letters patent, he is then capable of holding lands (f) purchased after his denization.

And it seems, that if an alien purchase lands, and before office found the king make him a denizen by letters patent, and confirm his estate, the confirmation will be good; as the land is not in the king till office found (g).

2dly, Persons who have committed felony, or treason, or have been guilty of the offence of premunire, and afterwards purchase lands, and then are attainted; for they have ability to purchase, although not to hold; and for that reason the lord of the fee shall have the lands; but if they purchase after they are attainted, they

(b) Warner's case, Cro. Jac. 532; Hargrave's n, 4. to Co. Litt. 3a.

(c) 9 Geo. I. c. 7. s. 4, (d) Co, Litt. 2 b.

(e) The King v. Holland, All. 14; Sty. 20, 40, 75, 84, 90, 94; 1 Ro. Abr. 194, pl. 8. (f) Co. Litt. 2 b. (g) Goulds, 29. pl. 4.

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are

are then in the same situation with aliens, and the lands must go to the king (h).

Lastly, Corporations sole, or aggregate, either ecclesiastical or temporal, cannot hold lands without due license for that purpose (i): and the lord of the fee, or in default thereot within the time limited by the statutes, the king may enter (k).

III. With respect to persons capable of purchasing sub modo: They are,

1st, Infants under the age of 21 years, who may purchase, and at their full age may bind themselves by agreeing to the purchase; or may wave the purchase without alleging any cause for so doing: and if they do not agree to the purchase after their full age, their heirs may wave the purchase in the same manner as the infants themselves could have done (l).

2dly, Femes covert, who are capable of purchasing, but their husbands may disagree thereunto, and divest the whole estate, and maintain trover for the purchasc-money (m). If a husband neither agree nor disagree, the purchase by his wife will be effectual; but after his death she may wave the purchase, without giving any reason for so doing, although her husband may have agreed to it. And if, after her husband's death, she do not agree to it, her heirs may wave it (n).

(h) Co. Litt. 2 b.; see Rex v. Inhab. of Haddenham, 15 East, 463.

(i) Co. Litt. 99 a. (k) Co. Litt. 2 b.

(1) Ketsey's case, Cro. Jac. 320; 1 Ro. Abr. 731 (K); Co.

Litt. 2 b.

(m) Garbrand v. Allen, 1 Lord Raym. 224; see Francis v. Wig. zell, 1 Madd, 258.

(n) Co. Litt. 3 a.; Barnfather v. Jordan, Dougl. 452, 2d edit.

A feme

A feme covert may, however, purchase lands pursuant to an authority given by her husband, and he cannot avoid it afterwards (o).

3dly, Lunatics, or ideots, who are capable of purchasing ; but although they recover their senses, cannot themselves, it should seem, wave the purchase (p): and if they recover and agree thereunto, their heirs cannot set it aside.

If they die during their lunacy or ideotcy, then their heirs may avoid the purchase (q). And as the king has the custody of ideots, upon an office found he may annul the purchase (r) and after the lunatic is found so by inquisition, his committee may vacate the purchase (s).

Lastly, under this head we may, perhaps, rank papists and persons professing the popish religion (t), who have neglected to take the oath prescribed by the 31 Geo. III. c. 32 (u). For a papist takes for the benefit of his protestant next of kin till his conformity; for the benefit of himself after his conformity; and for the benefit of his heir after his death-Nay, for the benefit of himself, during his life and non-conformity, by reason of the action which is given him; and may therefore be said to be capable of purchasing sub modo (x).

(0) Garbrand v. Allen, ubi sup. (p) On this point see 2 Blackst. Comm 291, 7th edit.

(q) Co. Litt. 2 b.
(r) Co. Litt. 247, a.

($) Clerk by Committee . Clerk, 2 Vern. 412; Addison by Committee v. Dawson, 2 Vern,

678; Ridler v. Ridler, 1 Eq. Ca. Abr. 279.

(t) See 11 and 12 W. III. c. 4; Michaux v. Grove, 2 Atk. 210.

(u) See 43 Geo. III. c. 30. (r) See Mallom v. Bringloe, Willes, 75; Com, 570, S. C.

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SECT.