when such imbecility ceases. By two recent acts some important provisions are made respecting the leasing and renewing the leases of lunatics, infants, and other persons under disability, which we need not here mention in detail. The case of a feme covert is somewhat different. She Feme covert. may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids it by some act declaring his dissent. And, [293] though he does nothing to avoid it, or even if he actually consents, the feme covert herself may, after the death of her husband, waive or disagree to the same; nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement. But before the recent statute 3 & 4 W. IV. c. 74, the conveyance or other contract of a feme covert (except by some matter of record) was absolutely void at law, and not merely voidable ;* and therefore could not be affirmed or made good by any subsequent agreement. d of alienation under 3 & 4 W. IV.c.74. But by this act a very considerable alteration has been Her powers made in the law in this respect. Before the passing of the act a married woman had the power of conveying any estate or interest in lands to which she was entitled by fine or recovery; but these assurances have been abolished by this statute, (which will be more fully considered in the twentythird chapter of the present volume,) and a married woman has been enabled since the 31st of December, 1833, in every case, (except that of being a tenant in tail, for which provision is made by the act,) by deed to dispose of lands of any tenure, and also to release or surrender or extinguish any estate or power that she alone, or she and her husband in her right, may have in any lands of any tenure as fully and effectually as if she were a feme sole; but no such disposition, release, or surrender shall be valid unless the husband concur (3 and 4 W.IV. c. 74, s. 77). But every such deed must be produced and acknowledged before a judge of one of the superior courts at Westminster, or a b1 W. 4, c. 60; 1 W. 4, c. 65. c Co. Litt. 3. Ibid. e Perkins, s. 154; 1 Sid. 120. Property settled to the of a married woman. Master in Chancery, or before two of the perpetual commissioners, or two special commissioners, to be appointed under the act, (s. 79 ;) and such Judge, Master in Chancery, or Commissioners, before they shall receive such acknowledgment, shall examine her apart from her husband touching her knowledge of such deed, and shall ascertain whether she voluntarily consents to such deed, and unless she so consents, shall not permit her to acknowledge the same; and in each case such deed, so far as it relates to the execution thereof by the married woman, shall be void (s. 80). When such acknowledgment shall be made, the Judge, Master in Chancery, or Commissioners, shall sign a memorandum to be endorsed on the deed, and a certificate of taking such acknowledgment (s. 84,) and the certificate, with an affidavit verifying the same, is to be lodged with the proper officer of the Court of Common Pleas, who shall cause the same to be filed of record in the court (s. 85), and on filing the certificate, the deed by relation is to take effect from the time of acknowledgment. (s. 86.) A married woman is to be separately examined on the surrender of an equitable estate in copyholds, as if such estate were legal (s. 90). And it is further provided, that where the husband is a lunatic, or of unsound mind, the Court of Common Pleas may dispense with his concurrence, except where the Lord Chancellor, or other persons entrusted with lunatics, or the Court of Chancery, shall be the protector of the settlement in lieu of the husband (s. 91). It will be seen, therefore, that since the time above mentioned a substitute has been provided for fines and recoveries, but as before that time these assurances were constantly employed in the alienation of the estates and interests of a married woman, it will still be necessary to understand their nature and effect; and for these we must refer the reader to a subsequent chapter of this volume. We have been hitherto speaking of the legal estates of separate use a married woman; but where property is settled to her separate use, without any restraint on alienation, it is now quite clear that to this extent she is in equity considered as a feme sole, and may convey or deal with it as such, and her conveyances and contracts will be supported in equity; and this rule existed before the recent statute, and is quite independent of it. The case of an alien born is also peculiar. For he may Alien. purchase anything: but after purchase he can hold nothing except a lease for years of a house for convenience of merchandise, in case he be an alien-friend all other purchases (when found by an inquest of office) being immediately forfeited to the King." He may, however, acquire money to arise from the sale of land. But an alien artificer cannot even take a lease for years.* man may II. We are next, but principally, to inquire, how a man II. How a may aliene or convey: which will lead us to consider the aliene. several modes of conveyance. In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired; which, we have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon [294] one man's dereliction of the thing he had seized, it would again become common, and all those mischiefs and contentions would ensue, which property was introduced to prevent. For this purpose, therefore, of continuing the possession the municipal law has established descents and alienations: the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons, to whom the proprietor, by his own voluntary act, shall choose to relinquish it in his life-time. A translation, or transfer of property, being thus admitted by law, it became necessary that this transfer should be properly evidenced; in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was trans Sug. Pow. 114, and authorities there cited. h Co. Litt. 2. But see Harg. n. 7. i De Hourmelin v. Sheldon, 1 Beav. 79, contra Fourdrin v. Gowdey, and 3 Myl. & K. 385. And see Rights of k 32 Hen. 3, c. 16, s. 13; Lapierre ferred; or with regard to the subject-matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed. These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is (according to the old common law) upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the King's public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect, till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in its order. CHAPTER THE TWENTY-SECOND. OF ALIENATION BY DEED. [295] the chapter. In treating of deeds I shall consider, first, their general Division of nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided. ral nature of is. way of estop 1. First, then, a deed is a writing sealed and delivered 1. The geneby the parties." It is sometimes called a charter, carta, deeds. from its materials; but most usually, when applied to the what a deed transactions of private subjects, it is called a deed, in Latin factum, Kar' etoxny, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a Operates by man shall always be estopped by his own deed, or not per- pel. mitted to aver or prove anything in contradiction to what he has once solemnly and deliberately avowed. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in Indenture, a waving line) on the top or side, to tally or correspond with the other: which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syn- [ 296 ] a Co. Litt. 171. b Plowd. 434; Bensley v. Burdon, 2 Sim. & Stu. 519, and ante, p. 340. what it is. |