or by claim, 15 E. 2. Judg. 237. 13 E. 2. Fines 120. 29. 2 H. 6. 9. 4 El. Dy. 9 H. 5. 14. 22 Ass. 31. 18 E. s. 28. 16 Ass. 16. (Mo. 77. 212. 1 Rep. 16.) 252 a. or by affirming the reversion to be in a stranger. Secondly, by claim; and that may be in two sorts, either express or implied. Express, as if tenant for life will in court of record claim fee (D), or if lessee for years be ousted, and he will bring an assise ut de libero tenemento. Implied, as if, in a writ of right brought against him, he will take upon him to join the mise upon the mere right, which none but tenant in fee-simple ought to do. So, if lessee for years do lose in a præcipe, and will bring a writ of error for error, in process, this is a forfeiture (E). Thirdly, by affirming the reversion or remainder to be in a stranger, and that, either actively or passively. Actively, by five manner of ways. As first, if tenant for life pray in aid Forf. of a stranger, whereby he affirms the reversion to be in him. Br. 87. lib. 2. fol. 55, Secondly, if he attorn to the grant of a stranger; and there note 21 E. 3. 14 a. 24 H. 8. 2. 56. 5 E. 4. Buckler's case. 27 E. 3. 77. 17 E. 3. also a diversity between an attornment of record to a stranger, 7 a. 39 E. 3. 16. 29 E. 3. 24. 5 Ass. 5. and an attornment in pais, for an attornment in pais worketh 5 E. 3. Entr. Cong. 135. 3 E. 3. 32. 24 E. 3. 68. 1 H. 7. 42. 14 E. 3. Receit, no forfeiture. Thirdly, if a stranger bring a writ of entry in casu proviso, and suppose the reversion to be in him, if the tenant for life confess the action, this is a forfeiture. Fourthly, if tenant for life plead covinously, to the disherison of him in the reversion, this is a forfeiture. Fifthly, if a stranger bring an action of waste against lessee for life, and he plead nul wast fait, this is a forfeiture; or the like. 3 Mar. Dy. 148. Passively, as if tenant for life accept a fine of a stranger, sur conusans de droit come ceo, &c. for hereby he affirms of record the reversion to be in a stranger (F). (D) Where a tenant, who holds of any lord, neglects to render him the due services, and, upon an action brought to recover them, disclaims to hold of his lord; this disclaimer in any court of record is a forfeiture of the lands to the lord upon reasons evidently feudal. Finch. 270, 271. And so, likewise, if in any court of record the particular tenant does any act which amounts to a virtual disclaimer, as in the instances here put by Lord Coke; such behaviour amounts to a forfeiture of his particular estate.-[Ed.] (E) For a writ of error to reverse a recovery of a freehold, lies for the tenant of the frechold only (Dyer, 90-5.), and therefore it is a forfeiture for a lessee for years to bring it; so that, where a lessee for years is summoned, and loses by default, he has no remedy; but, if he were summoned and did appear, he might have pleaded in abatement, that no tenant of freehold was named in the writ; if he were not summoned, it seems, that he might have an action grounded on the deceit. 1 Ro. 622. Hawk. Abr. 339, 340.-[Ed.] (F) If the tenant for life accepts the fine, it is a forfeiture so as to entitle the remainder-man to enter; and yet it does not displace or devest the remainder or reversion. Fearn. Cont. Rem. 474.—[Ed.] ler's case. Littleton speaketh of the forfeiture of an estate; and here Lib. 2. fol. 55. Buckit is to be known, that the right of a particular estate may be forfeited also, and that he, that hath but a right of a remainder or reversion, shall take benefit of the forfeiture. As if tenant for life be disseised, and he levy a fine to the disseisor, he in the reversion or remainder shall presently enter upon the disseisor for the forfeiture. And so it is, if the lessee, after the disseisin, had levied the fine to a stranger, though to some respects partes finis nihil habuerunt, yet it is a forfeiture of his right. Littleton speaketh of an alienation in fee absolutely, but so it is, if the lessee for life make a lease for any other man's life, or a gift in tail. If A. be tenant for life, and make a lease to B. for his life, and B. dieth, and the lessee reentereth, yet the forfeiture remaineth. If tenant for life make a lease for life, or a gift in tail, or a feoffient in fee, upon condition, and entereth for the condition broken, yet the forfeiture remaineth (G). Littleton speaketh of an estate for life; so it is of tenant in tail apres possibilitie, tenant by the courtesy, tenant in dower, or of him that hath an estate to him and his heirs, during the life of I. S., &c. and so of tenant for years, tenant by statute merchant, statute staple, or elegit. Forfeiture incurred by alienation for a tenant has, though not in fee; greater estate than the 13 E. 4. 4. or by alienation on tenant enter for a 2 H. 5. 7. 39 E. 3. to him in remainder. Littleton saith, that where the alienation in fee is made to secus as to an alienation another, which must be intended a stranger, for if it be made to him in reversiou or remainder, it amounts to a surrender of his estate, as at large hath been spoken in the Chapter of Tenant for Life (1). (G) So, if tenant for life suffers a recovery, and afterwards reverses it by a writ of error, yet the forfeiture remains. Skin. 74. 4 Com. Dig. 224. Forfeiture. (A. 2).~[Ed.] (H) It may also be observed, that the concurrence of the person who has the immediate estate of inheritance, will prevent a fine from operating as a forfeiture of a life estate. Bredon's case, 1 Co. 76. But if a person who has an estate for life, with a remote estate of inheritance after, and subject to intermediate estates of inheritance, levies a fine sur conusance, &c. he will forfeit his estate for life. Pelham's case, 1 Co. 101. Garrett v. Blizard, 1 Rol. Abr. 853. There is a difference, as to this point, between fines and recoveries; for, if tenant for life joins in suffering a recovery with a person who has a remote estate of inheritance, there will not be any forfeiture of the estate for life. Doc, d. Smith v. Clifford, 1 T. R. 738. 1 Prest. Conv. 202. A fine levied by an equitable tenant for life, does not work a forfeiture. Ibid.—[Ed.] LITTLETON. IF tenant for life alien in fee, he in the reversion or he [Sect. 415. 251a.] in the remainder may enter upon the alienee (1). S. Who may take advantage of a forfeiture. (1 Rep. 14 a.) 25% a. By Littleton (sect. 416.) it appeareth, that tenant for life in remainder may enter for the forfeiture of the first tenant for life, and that if the tenant for life in remainder make continual claim, and the alienee die seised, then may be in the remainder for life enter; and if he die before he do enter, then he in the remainder in fee shall enter, because he in the remainder in fee could not make any claim; and therefore the right of entry, which tenant for life in remainder gained by his claim, shall go to him in the remainder in fee, in respect of (1 Rol. Abr. 630.) the privity of estate and so it is of him in the reversion in fee in like case, for he is also privy in estate (K). (I) Entry for a forfeiture ought to be made by him, who is next in reversion, or remainder, after the forfeited estate; whether he has the fee, or only in tail, or for life. 1 Rol. Abr. 857, 858. But, if the next in remainder does not take advantage of the forfeiture, after his estate determined, he in a subsequent remainder may enter. 1 Rol. Abr. 857,858. Mo. 18. Or, if he in remainder for life will not enter, he in the subsequent remainder, or reversion, may enter in his name for the preservation of the inheritance. 1 Rol. 858. So, if he in remainder, or reversion, dies before entry, his issue, or heir, may enter. 1 Rol. Abr. 858. 3 Com. Dig. 228. Forfeiture, (A. 6).—[Ed.] (K) See further, as to forfeiture of estates by alienation contrary to law, Ant. Chap. 27. Of Conditions, p. 115.; with respect to forfeiture for Crimes, post, b. 3. c. 14.; as to Lapse, post, b. 2. c. 55.; Simony, ant. vol. 1. p. 420, 421, and the notes there; Waste, post, b. 2. c. 53.; Forfeiture of Offices, ant. vol. 1. p. 233–242; and as to forfeiture of Copyhold Estates, see ant. vol. 1. p. 663-665.-[ Ed.] CHAP. XXXIII. OF TITLE BY ALIENATION. ALIEN, cometh of the verb alienare, id est, alienum fa 118 b. Definition of aliena cere, vel ex nostro dominio in alienum transfere, sive rem ali- tion. quam in dominium alterius transferre (A). (A) In England, prior to the Norman conquest, the power of alienation seems to have been universal; but, upon the establishment of the fondal system in this country, all alienation of landed property was prohibited. And, during the reign of William the Conqueror, and that of his sons, the prohibition against alienation was strictly enforced. The first step towards a liberty of alienation, was that by which the tenant was permitted to alien with the consent of his lord. This rule was adopted from the maxims which then prevailed on the continent, and gave rise to fines for alienation. But in England the tenant could not dispose of his land, even with the consent of his lord, unless he had also obtained the consent of his next heir; and therefore it was very usual, in aucient feoffments, to express that the alienation was made with the consent of the feoffor's heir, and sometimes for the heir to join in the feoffment. Wright. Ten. 167. Glanvil, lib. 7. c. 1. Madox. Form. No. 316. Ant. 94 b. vol. 1. p. 351. The power of alienation was further extended by a law of Henry the first, which allowed a man to dispose of lands which he himself had purchased. Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase deed, he was not empowered to alien, Glanvil, lib. 7. c. 1: and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heir. Mirr. c. 1. s. 3. One method adopted to elude the feudal restraint on alienation, and which very much facilitated its progress, was the prac tice of sub-infeudation. But by the great charter of Hen. 3. c. 32. no sub-infeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one half or moiety of the land. Dalrym. F. P. c. 3. p. 84. Hitherto the right of alienation was confined to sub-infeudations, conformably to the principles of the feudal law. But by the statute of Quia emptores, 18 Edw. 1. reciting, that, through the practice of subinfeudation, the superior lords had been deprived of their escheats, wards, and marriages, it was enacted, in favour of the vassals, that they might alienate the whole, or part of their land, as they pleased; and, in favour of the superior lords, that the lands so alienated should be held of them, and not of the alienor. This statute, however, not extending to the king, or his tenants in capite, left them as they stood at common law, until the statute De prerogativa regis, 17 Edw. 2. c. 6 ; which is supposed to have indirectly removed the restraint on the king's immediate tenants. But, the king's consent being necessary to every alienation of his tenants in capite, it became a question, says Sir Martin Wright, whether if such tenant aliened withont licence, the land so aliened was not forfeited, or whether the king should only seise it by way of distress, until a fine should be paid for the contempt; but this question was settled by the statute 1 Edw. 3. c. 12. which enacted, that, in all cases of alienations by tenants in capite, the king should not hold the land as forfeited, but should have a reasonable fine in the chancery, to be levied by due process. Wright. Ten. 164, 165. It remained much longer a question, whether the king's tenants might have aliened any part of their lands to hold of themselves, as the tenants of common lords might before the statute Quia emptores. But such alienations made by tenants who held of Henry the third, or other kings before him, were at length made good by the stat. 34 Edw. 3. c. 15, saving to the king his prerogative of the time of his grandfather, father, and of his own time. Whatsoever the prerogative was in this particular, which seems extremely doubtful, it is clear that fines for alienation were at this time effectually established; and that they were constantly paid 2a. Persons capable (B) of purchase are of two sorts, persons 1. Persons capable of natural created of God, as I. S., I. N., &c. and persons in purchase. Natural persons and bodies politic. Who have ability to grant. Vid. Sect. 57. Aliens. 11 Eliz. Dier, 283. 11 H. 4. 20. & 26. 7 E. 4. 29. (1 Rol. Abr. 194.) *2b. corporate or politic created by the policy of man (and therefore they are called bodies politic); and those be of two sorts, viz. either sole, or aggregate of many: again, aggregate of many, either of all persons capable, or of one person capable, and the rest incapable or dead in law, as in the Chapter of Discontinuance, Sect. 655, shall be shewed. Some men have capacity to purchase, but not ability to hold: some, capacity to purchase, and ability to hold or not to hold, at the election of them or others: some, capacity to take and to hold: some, neither capacity to take nor to hold: and some, specially disabled to take some particular thing. If an alien christian or infidel purchase houses, lands, tenements, or hereditaments, to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee-simple (1) but not to hold (2). For, upon an office found, the king shall have it by his prerogative (3), of whomsoever the land is holden (4). And so it is, if the alien doth purchase land and die, the law doth cast the freehold and inheritance upon the king (5). If an alien purchase any estate of freehold in houses, lands, tenements, or hereditaments, the king, upon 32 H. 6. 23. Pl. Com. office found, shall have them. If an alien be made a denizen and purchase land, and die without issue, the lord of the fee shall have the escheat, and not the king. But, as to a lease for years, there is a diversity between a lease for years of a house for the habitation of a merchant stranger being an alien, whose king is in league with ours, and a lease for years of lands, meadows, pastures, woods, and the like. 483. (1) See ant. vol. 1. p. 91. n. (7). (4) See ant. vol. 1. p. 91. n. (10). (5) See ant. vol. 1. p. 91. n. (11). until the stat. 12 Cha. 2. c. 24. which abolished them in all cases of freehold tenure. Idem, 165, 166. The history of the power of disposing of land by will, will be found in a note to fol. 111 b. post, Chap. 46.; and some observations will be offered in the Chapter Of Execution (Post, Book III. Chap. 11.) as to involuntary alienation, or the power of charging lands with the debts of the owner. [Ed.] (B) The doctrine of alienation may be divided into two heads:-1st. With respect to the persons capable of aliening or purchasing; and, 2dly. As to the several modes of conveyance. With regard to the first point, it is observable, that all persons in possession are primâ facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities. 2 Bl. Com. 290. What these incapacities are will be presently considered. The several modes of conveyance will be ex plained in a note at the end of this chapter.-[Ed.] |