dum (a), drawn up in utter ignorance or contempt of CHAP. IV. technical form and phraseology. We have thus attempted to deduce the history of the Conclusion. law of real property down to the present time, and to make a practical application of the principles developed in its progress. In tracing the ownership of land from its originally simple uncompounded state, our attention has been fixed on the two great epochs formed by the early separation of the use from the possession, and by the abortive attempt of the legislature again and for ever to consolidate them-an attempt which terminated in the communication to the legal estate of some of the popular qualities of the use, and the reproduction of the ancient use under the guise of a modern trust. From this sketch it will appear how small a portion of our real property code is the result of design. Institutions, stern and oppressive in their origin, have been gradually humanized by the progress of opinion, accident favouring, and the judicature abetting, the diffusion of a more well during the existence of coverture as during its non-existence, or, indeed, during the non-existence of the object, but subject of course to be swept away by alienation during discoverture: But from this point the doctrine began to recede, for it was now held (Newton v. Reid, suprà,) that the prohibition was void ab initio, unless the state of coverture was co-existent with the commencement of the gift, so that the woman must be married at the death of the testator or the execution of the settlement: and, lastly, it was held (Massey v. Parker, suprà,) that the gift itself, so far as it assumes to create separate property, is also void ab initio, if the same ingredient of contemporaneous coverture be wanting. (a)" In case an equitable interest is sold, it is clear that the mere payment of the purchase-money would operate as a transfer of it."Sanders on Uses, 224. CHAP. IV. grateful policy. While fraud and fear, the cupidity of monks, and the turbulence of barons, seeking shelter from the penalties of mortmain or of treason, laid the foundation-the growing spirit of freedom, availing itself of legislative imbecility and technical astuteness, reared the superstructure-of that mixed system of legal and equitable interests, which, however elaborate in its machinery, and subtle in its abstruser doctrines, has proved adequate, as well to satisfy the wants, as to indulge the wishes, of a highly cultivated people. Yet the philosophic observer, who takes a theoretical view of our system of conveyancing, is struck by some peculiar features, which he cannot readily reconcile with its acknowledged practical efficiency. He remarks that the transfer of the freehold requires a complex assur-. ance; that many desirable modifications of property cannot be effected at law by a simple and direct disposition, but must be reached through the circuitous medium of uses, deriving legal efficacy from the statute; that legal ownerships created by means of uses are exposed, along with estates created at the common law, to accidents occasioned by the rules of tenure-rules which, though no longer formidable to the freedom of the proprietor, yet sometimes exert (as in the instance of the destruction of contingent remainders) a mischievous energy; and that, in order to elude their force, resort is had to passive trusts, founded upon an artificial distinction between the legal property in the subject and the equitable right to the enjoyment. But, although our real property code may still exhibit some vestiges of the iron age, yet this outline of its history will suffice to show how various causes have happily concurred to produce a total change in the severe aspect of the feudal polity. At this day the remnants of ancient strictness CHAP. IV. appear but as specks upon the general excellence of the system, and even these are gradually yielding to judicial (a) and legislative (b) correction. (a) The difficulties which existed in regard to the transfer at law of contingent and executory interests, have been lessened by the cases of Doe v. Martyn, 2 Man. & R. 485; 8 Barn. & C. 497; Christmas v. Oliver, 10 Barn. & C. 181. Bensley v. Burdon, 2 Sim. & Stu. 519; [sed vide 2 Sugd. Vend. 9th ed. 264, n. b.; see Ex parte Mary Gill, 1 Bingh. new series, p. 168, and note; her estate was not contingent, but vested, 7 Cruise's Dig. 2d ed. by White, back of Table of Contents.] The tortious operation of feoffments, and the doctrine of disseisin, have received some modification from the cases of Doe v. Lynes, 3 Barn. & C. 388; and Doe v. Hall, 2 Dowl. & R. 38. (a) Vide infrà, chap. V. CHAPTER V. OF THE STATUTES OF 3 & 4 WILLIAM IV. RELATING TO REAL PROPERTY. CHAP. V. THE Acts of Parliament lately passed for amending the Law of Real Property, though occasionally adverted to in the preceding chapters, have been reserved for separate consideration. For, as these enactments have regard to the pre-existing law, and suppose an intimate knowledge of its principles and practice, and as all future enactments must partake, more or less, of the same retrospective character, it was thought desirable that the preceding chapters, with the forms and annotations by which they are accompanied, (a) should exhibit a distinct and independent view of the fundamental rules of real property and the modes of conveyancing, as they stood anterior to the recent interposition of the legislature. Besides, the full benefit of the new statutes is reserved for after-times, nor, if it were to be instantly felt, could those statutes be said to have wrought any considerable change in the essential features of the system, so far at least as the writer has attempted to delineate them; and were it not for the practical importance of those statutes, and the deficiency of information respecting them, they might be dismissed, with a brief notice, confined to an indication of such alterations as affect the general outline presented to the student in the previous pages. (a) Vide infrà, Precedents, Part I and notes. CHAP. V. FINES and RECOVERIES. 3 & 4 Will. 4, c. 74, (Royal Of these acts, the most important, as it regards the practice of conveyancing, and at the same time the most distinguished as well by experimental boldness, as by systematic design and elaborate execution, is the ACT FOR Assent, 28th ABOLISHING FINES AND RECoveries, and sUBSTITUTING Aug. 1833.) MORE SIMPLE MODES OF ASSURANCE. But even this act consults the old law, and it is not possible to appreciate or expound its provisions without an acquaintance with the assurances which it has superseded,-with their various uses and modes of operation, their learning, and their language. The principal provisions of the act may be considered under the following heads :— * I. The abolition of fines and recoveries ; (a) with the exception of cases in which a writ of dedimus or other 1. Abolition of veries; also of fines and reco warranty, as a bar to issue and writ, in the regular course of a fine or recovery, was sued out on or before the 31st December, 1833; and remainder- men. subject also to a provision (b) by which engagements contracted before the act came into operation, to levy fines or suffer recoveries, are referred to an assurance by deed inrolled pursuant to the general provision of the act in regard to tenants in tail, if that assurance would be equivalent to the fine or recovery, or, if not, to a special deed expressly purporting to produce the full effect of the fine or recovery, and which effect the act attributes to such deed. The operation of future warranties as à bar to issue in tail and remainder-men (c) is also taken away. (d) If the act had stopped here, the statute of Westminster 2, de donis conditionalibus, (e) would have recovered its original force, and entailed estates would consequently have ceased to be alienable. In re(a) S. 2. (b) S. 3. (c) Butl. Co. Litt. 373 b, n.2. (d) S. 14. |