CHAP. V. V. The establishment of a better system of barring Entails of copy- estates tail in copyhold land. If the intail be of the legal holds, how to be estate, a surrender is made necessary; but if the intail be barred. of the equitable interest, then either a surrender, or a deed of disposition, (a) such deed to be entered on the Court Rolls, (b) may be adopted. Where there is a protector, and a surrender is necessary, the interest being legal, his consent may be given, either to the person taking the surrender, (c) of which, if taken out of court, the memorandum should state the consent, and be subscribed by the protector; or by deed to be produced, at or before the making of the surrender, to the steward, who is to endorse and sign a memorandum of the production, and enter the deed, with the indorsement, on the rolls, and then indorse and sign a memorandum of the entry. Where there is a protector, and a deed is adopted, the intail being equitable, the consent may be given either by the same deed, or by a distinct deed to be executed before or on the day of execution of the disintailing deed and to be entered on the rolls, which entry the lord is bound to make. (d) Before the act, equitable intails and remainders of copyholds were barrable by equitable customary recoveries, or (as the custom of the particular manor permitted) by equitable surrenders, but as the lord is concerned about the legal estate exclusively, as that alone can be the subject of tenure, he might have refused, and often did refuse, to allow an equitable owner, who, as such, was a mere stranger, to go through the necessary forms. The difficulty was yet greater in regard to the interests of married women in copyholds, but has been removed by the same statute. (a) S. 50. (b) S. 53. (c) S. 52. (d) S. 53. Voidable estates created by tenant in tail, either before sition by tenant estates. CHAP. V. or after the act, in favour of purchasers for value, are to Effect of dispobe confirmed by the effect of a subsequent disposition in tail in conby deed inrolled under the act, (so far as the disposi- firming voidable tion may be binding on the issue and remainder-men,) although such disposition may be made with a different or even a contrary intention, except as against a purchaser for value without express notice of the voidable estate. (a) This enactment is founded on the wellknown doctrine of the old law, which was itself founded on a broad principle of justice. of the act in regard to alienations by tenant in tail. In order to obtain a clear and correct understanding General scheme of that portion of the act which relates to entailed estates, we should note, first, that after the statute de donis, tenants in tail were incompetent to alien, as against the issue or remainder-man, except by the common law stratagem of a recovery, or the statutory force (b) of a fine with proclamations; secondly, that the act in question abolishes those devices; thirdly, that it enables tenants in tail to alien in fee; fourthly, that in the case of a tenancy in tail in remainder, expectant on a particular estate or estates of a given description, it establishes a protectorship; fifthly, that it restrains the tenant in tail, there being a protector of the settlement, from aliening, as against ulterior takers, without the consent of the protector; and, sixthly, that it prescribes the observance of certain formalities, in regard as well to the alienation of the tenant in tail, as to the consent of the protector. It is hardly necessary to state, that the contracts of a tenant in tail, and the conveyances (fines, recoveries, warranty, and discontinuance being struck out by the (a) S. 38. (b) 4 Hen. 7, c. 24; 32 Ilen. 8, c. 36. Effect of con tracts and as surances by tenant in tail, not within the act. CHAP. V. The new law not a mere substitute for the old. --extends to contingent estates tail. new statute law) of a tenant in tail, not being assurances within this act, retain whatever efficacy was attributed to them by the old law; or, that the operation of a fine or recovery, as a tortious or wrongful alienation, or of a fine with proclamations, as a bar by non-claim under the statutes, (a) will not belong to an assurance under this act. Though the basis of the new law is analogous to the old, yet the act must be considered, not as a dry substitute, but as the result of a well-digested plan, which, after expunging certain objectionable parts of the former system, at once reconstructs the remainder in an improved form, and extends the range of its utility by applying disentailing assurances, as well as the assurances of married women, to cases not contemplated or not effectually met by the machinery of fines and recoveries. Among these cases, it is conceived that we may place the case of a contingent estate tail. The owner of such an estate, or rather right, was deemed incompetent to suffer a common recovery with effect. The act, however, seems to embrace every species of estate tail, by enabling "every actual tenant in tail, whether in possession, reversion, contingency, or otherwise," to dispose, as against all claimants under the estate tail or any ulterior estate, (b) and by defining an actual tenant in tail to mean exclusively the tenant of an estate tail which shall not have been barred, and such tenant to be deemed an actual tenant in tail, although the estate tail may have been divested or turned to a right." (c) But this position is advanced with the diffidence created by the dissentient opinion of a very high authority upon points of this nature, (a) 1 Rich. 3, c. 7; 4 Hen. 7, c. 24. (b) S. 15. who, in the case of a contingent remainder in tail limited CHAP. V. to a married woman, advised thus:-" the owner of a contingent remainder cannot bar the remainders over, even though the contingency should arise; and I do not think the new act has given more power of alienation than existed before the act. The act has not distinctly contemplated this case. My advice to the husband and wife is to make a demise for years, rather than attempt to convey a base fee derivable out of the contingent remainder (if any) in tail to the wife. To make the deed valid against the wife, whether the deed shall be for years or in fee, it must be duly acknowledged by the wife, and registered in the Common Pleas, and to make it binding on the issue it must also be inrolled in the Court of Chancery." fund former acts relating to en Mode of as surance sub VI.-The extension of the provisions respecting en- IV Repeal of tailed land to entailed money, that is, to a money liable to be laid out in the purchase of land to be en- tailed money. tailed, including land impressed with a trust for conversion into money to be so applied. The former acts are swept away, (a) and the person who would be the first or stituted. only tenant in tail of the land to be bought and settled, is enabled, by a deed of assignment inrolled in the Court of Chancery within six calendar months after the execution, (and, if there be a protector, made with his consent,) to unsettle the fund, and entitle himself (subject, of course, to any prior interests or charges,) to receive it from the trustee. (b) The history of the law relating to entailed money is curious. Formerly the person entitled to be tenant in tail of the land, with remainder or reversion to another, (for where the immediate re Progress of the law in regard to entailed money. CHAP. V. mainder or reversion in fee was in himself, equity would decree payment of the fund to him, (a)) was in this dilemma, he could not act upon the land, because it could not be the subject of a recovery until ascertained— he could not act upon the money, because it could not be the subject of a recovery at all. In this predicament he had recourse either to an act of parliament, or to the expedient of a colourable investment in the purchase of an estate from a friend, who in fact merely lent it till a recovery could be suffered. In order to remedy this inconvenience, an act (b) was passed, authorising the Court of Chancery, on the petition of the person who would be tenant in tail of the land, to order the fund to be paid to him; the takers of antecedent estates, if any, concurring. When this act came to be carried into execution, it was thought proper that there should be a reference to the master to inquire whether the petitioner was entitled to be tenant in tail, and whether he had incumbered the fund or not. (c) The result of this practice, in a case which fell under the writer's observation, was that a petitioner, with a clear title to a fund of £400 consols, obtained, after deducting the costs of the proceedings, rather more than half that sum. Common sense dictated that the order of the court should have the effect of unsettling the beneficial interest in the fund, leaving the tenant in tail, who had thus acquired the disposable property in the fund, to obtain it in the (a) Short v. Wood, 1 P. Wms. 471; 2 Atk. 454. (b) 39 & 40 Geo. 3, c. 56, re-enacted, with alterations, by 7 Geo. 4, c. 45. (c) 6 Ves. 116, 576. An order made in vacation was not effectual unless the tenant in tail lived till the second day of the ensuing term, 5 Ves. 12, n. Vide suprà, 109. |