56

OF PROPERTY SUSCEPTIBLE OF ALIENATION.

Sect. 2. Of Property susceptible of Alienation.

Every description of absolute property, whether in possession or expectancy, may be disposed of either by deed or will; and in specific parts, or by a general disposition. An estate tail can only be disposed of by one of the two modes of fine and recovery; as applicable to the different circumstances already noticed, in speaking of this qualified interest. The owner of a contingent or eventual interest cannot dispose of it at law by deed; the maxim being, that nothing is disposable but what, in a technical sense, is vested. He may, however, bind himself and his heirs (which is called an estoppel); but not third persons.

He may

also devise it by will, as this derives its effect from statute, the words of which in this respect are ample. In equity too he may dispose of it by deed, if for a valuable consideration. It may also be the subject of a contract; which is solely cognizable in equity. Indeed these two resolve themselves, to a general intent, into the same species of assurance there.

Sect. 3. Of Alienation by Deed, or Act inter vivos.

Assurances for this purpose are of no less than five distinct characters. First, those which derive their effect from common law; as a feoffment with livery

of seisin, to pass an estate in possession; an exchange, which bespeaks its own object; a grant, to pass an interest in remainder; a release, to relinquish an interest or a claim to one already in possession; a surrender, to tranfer a partial interest, as, for life or years, to one who has the next estate in remainder, and by this means extinguish it. Secondly, those which rest upon ancient fictions of law; as a fine, and a common recovery, which are feigned actions, whose different characters have been already noticed in speaking of the means of defeating entails. These, as they have no feature of a conveyance in themselves, require it to be conferred by a declaration of the use; which is usually contained in the same instrument as the agreement to pass them. Thirdly, those which derive their whole effect from the statute of uses, as a covenant to stand seised to uses, which operates only in consideration of blood or marriage; and a bargain and sale inrolled, whereby the bargainor, for some pecuniary consideration, real or fictitious, bargains and sells the land, and becomes thereby a trustee for, or seised to the use of, the bargainee. This use the statute legalizes, and thereby transfers the seisin to the bargainee. As this was a private transacaction, however, another statute of the same year required bargains and sales of freehold to be inrolled within six months, with a view to publicity. It did not, however, extend to bargains and sales

for years; the bargainee, in that case, being technically said to be possessed for the time. A fourth description of assurance is one which derives its effect from a mixed operation of the doctrines of uses and common law, namely, lease and release. This, as it is now the most common mode of conveyance, and yet one of the most complicated in its operation, and best illustrates the excess of technicality which pervades our daily transactions in land, requires to be briefly explained.

It is thus conceived-A lease at common law requires entry by the lessee to complete its validity. But a term of years may be also created without entry, by a bargain and sale, for a pecuniary consideration, which raises an use this the statute legalizes, as already explained. The amount or truth of the consideration is not material. Five shillings is the ordinary sum. The statute of inrolments, it has been noticed, does not extend to terms for years. The alienor, therefore, for a nominal consideration of five shillings, bargains and sells the land for one year to the alienee; who, being thus, by means of the statute of uses, fully invested with the possession, is capable, like any other possessor, of accepting a release, operating at common law, of the reversion and inheritance; which is accord

ingly granted to him, by a deed executed immediately afterwards; but dated the next day, in order to have the semblance of a future act.

The conveyance by lease and release possesses,

over a feoffment, the advantage of not requiring the formality of livery of seisin on the spot. It is doubly preferable to a bargain and sale, as not needing inrolment, (a process, in its present incomplete state, utterly useless as a registry,) and as admitting of legal uses being raised upon the seisin, which the release transfers at common law. But, whatever it may gain by comparison with other parts of a confused system, it certainly is not imbued, either in its conception, or in its operation, with the spirit of simplicity.

Assurances which pass existing equitable interests, (the legal estate being vested in the trustee,) form the fifth class. These have been already noticed generally. It may here suffice to add that, compared with the formalities, the fictions, and the circuities of legal assurances, they surprise us with a simplicity and directness of purpose which would satisfy the most zealous advocate for these desirable qualities; it being sufficient, that the transaction be in writing, without any set forms, or technical expressions. This and other similar instances evince that, to a considerable extent, our laws of property may be reformed merely by selecting, without innovating.

In legal dispositions inter vinos, however, of landed property, we should greatly err in conceiving that, when the mode of assurance is once determined, the substance may be executed with pre

cision and simplicity; or that every disposition finally resolves itself into one or other of the foregoing modes. The reality will be best illustrated by taking two assurances of the most opposite character; a mere conveyance on a sale, and a settlement on marriage, containing the usual provisions for the affiancing parties and their issue.

In order to preserve the absolute dominion over his property, every purchaser seeks to protect it from his wife's title to dower; which attaches only where he is himself seised in fee, in consequence of the whole legal estate, whether by way of seisin or of use, vesting in himself. This object may be effected, where the conveyance is to uses, by limiting the use in the first instance, not to himself, but to his appointment; or by vesting a portion of the estate in a trustee; or, as is most frequently the case, by both these means. Thus, the fee at common law being conveyed to the purchaser, the use is limited to his appointment by deed or will; under which he may dispose of the use, without its ever residing in himself. Until and in default of his appointment, the uses are limited, with a technical refinement, (which it would be useless to explain here; but which will appear in the precedent given of a purchase-deed at the end of this essay,) so as to place an eventual and shadowy portion of them in a trustee, for a period which will expire with the life of the purchaser; and thus