[terpreted to be one-half or moiety of the land (p). But these restrictions were in general removed by the statute of Quia Emptores (q), whereby all persons, except the king's tenants in cupite, were left at liberty to aliene all or any part of their lands at their own discretion (r);] subject only to the provision that all conveyances of the fee should be to hold of the chief lord, and not of the grantor (s). [And even these tenants in capite, were by the statute 1 Edw. III. c. 12, permitted to aliene, on paying a fine to the king(s). By the temporary statutes 7 Hen. VII. c. 3, and 3 Hen. VIII. c. 4, all persons attending the king in his wars were allowed to aliene their lands without licence, and were relieved from other feudal burdens. And, lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24.] The restraint of devising lands by will, except in some places by particular custom, after being partially taken off by the Statute of Wills, 32 Hen. VIII. c. 1, was at length totally removed, on the abolition of military tenures, by the statute of Charles just mentioned. The doctrine of attornments continued later than any of the rest, and became extremely troublesome, though many methods were invented to evade them(t); till at last they were made no longer necessary to complete the grant or conveyance, by statute 4 & 5 Anne, c. 16; nor shall, by statute 11 Geo. II. c. 19, the attornment of any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice.] The result of these several relaxations has at length been the complete disengagement of the realty from all the feudal restraints on alienation; so that it may be laid down as a general maxim, subject to very few exceptions, that all estates in land are now freely transferable, unless granted under express stipulation to the contrary. And even such stipulations are in some instances inefficacious to the end designed. For if there be a conveyance in fee simple, with condition prohibiting the tenant and his heirs from all alienation, the condition is merely void (u); and a similar proviso annexed to an estate tail, will not prevent the tenant from making a valid conveyance in fee simple, in such method as the law has prescribed for that purpose (x). Estates at will, or at sufferance, however, are for reasons obviously resulting from their nature and constitution, not assignable. And besides these, there are some other interests which in a partial sense, are incapable of transfer. For a man who has been ousted of the possession of his land by the wrongful act of a stranger, so as to retain a right of entry only, cannot in general convey that right to another [lest pretended titles might be granted to great men, whereby justice might be trodden down and the weak oppressed (y);] though by last will and testament, even a right of entry is now capable of being effectually devised (z). And the same distinction obtains with respect to a contingent interest (a); as to which it is farther (u) Co. Litt. 222 b, 223 a. (1) Ibid. 223 b. Such a condition, however, if annexed to an estate for years, is binding; Co. Litt. 223 b. And so is a condition or prohibition restraining a tenant in fee simple from alienation for a certain time; Shep. T. 126, n. (1); or from aliening to particular persons; Co. Litt. 223 a; Litt. s. 361; Perrin v. Lyon, 9 East, 170; or to any except a particular class of persons; Doe v. Pearson, 6 East, 173. The reason assigned in Co. Litt. for the invalidity of a condition restraining a tenant in fee simple or fee tail from any alienation whatever, is the repugnancy of such a restriction to the nature of the estate itself. As applied, however, to such estates, it is also opposed to that po- (y) 2 Bla. Com. 290. (z) 7 Will. 4 & 1 Vict. c. 26, s. 3. The law on this point was formerly otherwise.--Forrester v. Goodright, 8 East. 552. (a) Doe v. Tomkinson, 2 M. & Sel. 170; 7 Will. 4 & 1 Vict. c. 26, s. 3. to be remarked, that though not generally transferable at law, yet the assignment of it for a valuable consideration will be considered as effectual in a court of equity; and when it becomes vested, the vendor will be compelled by that jurisdiction, to make conveyance of it pursuant to his agreement (b). Having made these remarks on the subject of alienanation in general, we shall now proceed to inquire, first, [who may aliene, and to whom; and then, more largely, how a man may aliene, or the several modes of convey ance. I. Who may aliene, and to whom: or, in other words, who is capable of conveying and who of purchasing,] the latter term being of course here used not in its popular but in its technical sense (c). [And herein we must consider rather the incapacity, than capacity, of the several parties for all persons are primâ facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities.] Until the late mitigation of the law of attainder, all persons attainted of treason or felony were [incapable of conveying from the time of the offence committed, provided attainder followed (d): for such conveyance by them might tend to defeat the king of his forfeiture, or the lord of his escheat.] They might, however, [purchase for the benefit of the crown, or the lord of the fee,] though they were [disabled to hold: the lands so purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime (e)]. But as regards the As to the binding of a contingent interest by estoppel, vide Goodtitle v. Morse, 3 T. R. 371; Doe v. Martyn, 5 Barn. & Cres. 527; Christmas v. Oliver, 10 Barn. & Cres. 181; Right v. Bucknell, 2 Barn. & Adol. 278; and the authorities mentioned post, 446, n. (c). (b) 1 Prest. Est. 89; 1 Fonb. Tr. Eq. 213, 214. (c) Vide supra, p. 355. present state of the law, these positions will now require qualification; being materially affected by the recent statutes, to which we had occasion to refer in our chapter on Title by Escheat (f). In like manner [corporations, religious or others, may purchase lands, yet unless they have a license to hold in mortmain, they cannot retain such purchase, but it shall be forfeited to the lord of the fee (g)]. As to their power of alienation, it was formerly more extensive than at present. For corporations sole, such as archbishops, bishops, parsons, and vicars, might once with the concurrence and confirmation of such persons as the law requires, have made estates at their pleasure, of any lands that they held in their corporate right. And corporations aggregate might exercise the same power, without the concurrence of any person whatsoever (h). But it has been since thought right to make provision for the protection of successors. And therefore by 1 Eliz. c. 19, and 13 Eliz. c. 10, archbishops and bishops, colleges, cathedrals, and other ecclesiastical or eleemosynary corporations, and all parsons and vicars, are restrained from alienation (even with such concurrence as before mentioned) beyond the life of the person who constitutes the corporation sole, or is the head of the corporation aggregate, except by way of lease for a term not exceeding twenty-one years or three lives, and subject to such formalities and restrictions as those acts impose (i). And as to such lay corporations as are (f) Vide sup. p. 413. (g) See however the exceptions noticed, sup. p. 427, 428. (h) 2 Bl. Com. 318. (i) Ibid. 319--321. Farther restrictions are also imposed on ecclesiastical leases, by 14 Eliz. c. 11, 18 Eliz. c. 6, and 18 Eliz. c. 11, and on renewals of them by 6 & 7 Will. 4, c. 20; see also 13 Eliz. c. 20, and 57 Geo. 3, c. 99, restraining charges upon benefices. But by 17 Geo. 3, c. 53, 21 Geo. 3, c. 66, 5 Geo. 4, c. 89, 1 & 2 Vict. c. 23, and 3 & 4 Vict. c. 113, s. 59, the beneficed clergy are enabled, by consent of proper parties, to mortgage their benefices to raise money for building or repairing their residences, and in certain cases to sell their residences; and by 55 Geo. 3, c. 147, 1 Geo. 4, c. 6, 6 Geo. 4, c. 8, and 7 Geo. 4, c. 66, to exchange their parsonage houses and glebes for others. called municipal (viz. incorporated towns), they are disabled by 5 & 6 Will. IV. c. 76, s. 94, from selling or mortgaging any lands, tenements, or hereditaments(k) (and in general also from demising them for any term exceeding thirty-one years), except in pursuance of some agreement entered into by the body corporate before 5th June, 1835. But by the same act, and by 6 & 7 Will. IV. c. 104, s. 2, it is provided that any disposition of them may nevertheless be made by the approbation of the lords of the treasury or any three of them; and on such terms as they may think fit to approve (/). The conveyances of idiots and madmen (except during a lucid interval), are also, generally speaking, void (m), though both as regards this disability of insanity and some others, to which we shall presently refer, provision has been made by different statutes, to empower committees, guardians, and others, to act for the persons disabled, in certain cases where loss or inconvenience would be sustained by their incapacity to execute instruments for themselves(n). The feoffments however of insane persons are held not to be absolutely void but voidable only (o); owing to the solemnity of livery with which they are accompanied;—the practical difference between a void and a voidable transaction being chiefly this, that the former is a mere nullity, and therefore incapable of confirmation, but the latter may be either avoided or confirmed ex post facto (p). And it is (k) As to their sale of church patronage, vide same act, sect. 139, 6 & 7 Will. 4, c. 77, s. 26, c. 104, s. 3, 1 & 2 Vict. c. 31. (1) See also 2 & 3 Will. 4, c. 69, s. 3, restraining municipal corporations from selling lands, &c. to defray the expenses of parliamentary elec tions. (m) Thompson v. Leach, Comb. 468. (n) Vide 43 Geo. 3, c. 75; 59 Geo. 3, c. 80, s. 2; 6 Geo. 4, c. 74; 9 Geo. 4, c. 78; 11 Geo. 4 and 1 Will. 4, c. 60, c. 65; 3 & 4 Will. 4, c. 74, ss. 33, 91. (0) Thompson v. Leach, ubi sup. (p) 2 Bla. Com. 293. There was also formerly this difference between a void deed and one merely voidable, that when the former was alleged against a party in a court of justice, he might impeach it by simply denying that it was his deed, and giving proof under that plea of the circumstances which rendered it void; but he |