act of bankruptcy, provided the person so dealing had no nants in tail. 3 & 4 W. IV. By the 65th section of the 6 G. IV. c. 16, it was enacted Bankrupt tethat the Commissioners of Bankrupts should make sale of Provisions of any land of which the bankrupt was seised in tail, and c. 74. every such deed should bar all persons whom the bankrupt might have barred by fine or recovery; but by the recent act for abolishing fines and recoveries, (3 & 4 W. IV., c. 74, s. 55,) this section is repealed, and it is enacted m As to construction of this stat. see Edwards v. Lawley, 8 Dowl. 234; Moore v. Phillips, 9 Dowl. 294; and Hall v. Wallace, 7 M. & W. 352. IX. By insolvency. (s. 56), that the commissioners in the case of an actual tenant in tail becoming bankrupt after the 31st of December, 1833, may by deed dispose of the lands of such bankrupt to a purchaser for the benefit of the creditors, and if the person who is the protectors of the settlement shall not concur therein, the commissioner may dispose of as large an estate as the tenant in tail could have done if he had not become bankrupt. And where a tenant in tail, entitled to a base-fee, becomes bankrupt, and there is no protector, the commissioners may dispose of the lands to a purchaser (s. 57). The deed of disposition, if of freeholds, must be enrolled in Chancery, and if of copyholds, must be entered on the court rolls, and also the deed of consent of the protector (s. 59): and all acts of a bankrupt tenant in tail shall be void against any disposition under the act by the commissioner (s. 63). By virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred to his ansignees, without his participation or consent. IX. The ninth and last species of forfeiture is that of insolvency, which is of very recent origin. Insolvency, or the inability to satisfy all just demands, indeed, does not necessarily work a forfeiture of the debtor's lands and tenements, but it is here to be understood as that species of insolvency which is provided for by certain statutes made for that purpose. They have recently been consolidated by stat. 7 G. IV. c. 57, which has been in part re-enacted and greatly amended by stat. 1 & 2 Vict. c. 110. Under the 7 G. IV. c. 57, s. 10, which is re-enacted by stat. 1 & 2 Vict. c. 110, s. 35, any person in actual custody for debt for fourteen days, may apply by petition to the Court of Insolvent Debtors" for his discharge; and by 1 & 2 Vict. c. 110, s. 37, at the time of filing the petition the court may vest in its provisional assignee all the real estate of the prisoner, and such order shall vest all his real estate, as well present as future, in such provisional assignee. Assignees may be then appointed by the court (s. 45); and under the former act it was necessary that the provisional assignee should convey the real estate of the As to the protector of a settlement, see post, ch. 23. h As to the Court of Insolvent Debtors, see Private Wrongs, ch. 4. prisoner to such assignees, but under s. 45 of 1 & 2 Vict. c. 110, the estate vested in the provisional assignee by such order as aforesaid, shall without any conveyance vest in the assignees in trust for the benefit of the creditors of the prisoner. The sale of his estate may then take place immediately, and the assignees may surrender or convey copyhold or customary estates (s. 47). Should the prisoner not petition, his creditors may obtain an order from the court for vesting his estate in the provisional assignee of the court (s. 36); and by s. 38 of this important statute, the main object of which is to abolish, so far as possible, imprisonment for debt, power is given to the court to direct the prisoner to be discharged on his finding sureties to attend at the time and place of hearing. Further, by stat. 5 & 6 Vict. c. 116, any person not being a trader, or being a trader owing less than £300, on giving and publishing the notice required by the act, may present a petition to the Court of Bankruptcy, stating the debts owing by and to him, and on the presentation of this petition, all the estate and effects of the petitioner shall vest in the official assignee.' Under these statutes, therefore, the whole real estate of the insolvent is vested in his assignees either by his own act, or by that of his creditors, for the benefit of the latter. i See further, as to this statute, Private Wrongs [290], and post, chap. 33. [287] Title by alienation, what under it. CHAPTER THE TWENTY-FIRST. OF TITLE BY ALIENATION. THE most usual and universal method of acquiring a title is comprised to real estates is that of alienation, conveyance, or purchase in its limited sense: under which may be comprised any method wherein estates are voluntarily resigned by one man, and accepted by another: whether that be effected by sale, gift, marriage, settlement, devise, or other transmission of property by the mutual consent of the parties. Its history and progress. The means of taking estates by alienation, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feudal law, a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feudal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feudal restraint of alienation would have been easily frustrated and evaded. And, as he could not aliene in his life-time, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir. And therefore it was very usual in an[ 288] cient feoffments to express, that the alienation was made by consent of the heirs of the feoffor; or sometimes for the a See pp. 59, 60. c Co. Litt. 94; Wright, 168. heir apparent himself to join with the feoffor in the grant.d And, on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vassal: for it was esteemed unreasonable to subject a feudatory to a new superior with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seising of his cattle by the lord of a neighbouring clan. This consent of the vassal was expressed by what was called attorning, or professing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incomplete : which was also an additional clog upon alienations. But by degrees this feudal severity hath worn off; and experience hath shewn, that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained. The road was cleared in the first place by a law of king Henry the First, which allowed a man to sell and dispose of lands which he himself had purchased, for over these he was thought to have a more extensive power than over what had been transmitted to him in a course of descent from his ancestors: a doctrine which is countenanced by the feudal constitutions themselves: but he [ 289 ] |