very.

And if a lunatic levied a Fine or suffered a Recovery in Chapter 1. person, the conveyance was held to be good :(r) but, of Fine or recocourse, no similar result would now be attained by his or disentailexecuting an assurance under the Fines and Recoveries rance by. Abolition Act.

ing assu

power of

And, in various special cases, Committees of Lunatics Statutory *are, as are infants,(s) enabled by Statute, to sell and con- Committees. [*5] vey land.[1]

Or, 3rdly, The proposed vendor may be a married wo- Married wo.

(r) See Shelf. on Lunacy, p. 316, et seq.; Murley v. Sherren, 8 Ad. & E. 751; but as to the deed making the tenant to the præcipe, and the declaration of uses (if any) being affected by the Lunacy, see 3 Atk. 313. (s) Supra, p. 2.

non compos, is voidable only and not void; and when an act is sought to be avoided on the ground of mental imbecility, the proof of the fact lies in the person who alleges it. On the other hand, if a general mental derangement be once established or conceded, the presumption is shifted to the other side, and sanity is then to be shown. The party himself, may set up as a defence, and in avoidance of the contract, that he was non compos mentis when it was alleged to have been made. (2 Kent's Com. 451.) "The principle," says Kent, "advanced by Littleton and Coke, that a man shall not be heard to stultify himself. has been properly exploded, as being manifestly absurd, and against natural justice.” (Ib.) See 5 Johns. Rep. 144; 2 Iredell's N. C. Rep. 23.

The contracts of lunatics are generally void from the period at which the inquisition finds the lunacy to have commenced. But the inquisition is not conclusive evidence of the fact; and the party affected by the allegation of lunacy, may gainsay it by proof, without first traversing the inquisition. (2 Kent. Com. 450.)

Not only may contracts and deeds, of a person non compos, be set aside for fraud; but other instruments, and acts of the most solemn nature, even of record such as fines levied, and recoveries suffered, by such a person, may, in effect, be overthrown in equity, although held binding at law. For although courts of equity will not venture to declare such fines and recoveries utterly void, and vacate them; yet they will decree a reconveyance of the estate to the party prejudiced, and hold the conusee of the fine, and the demandant in the recovery, to be a trustee-for the same party. (See Story's Eq. Juris. vol. 1, sec. 229.)

A deed made while a grantor was a lunatic, would require a re-execution, when he was of sound mind, to give it validity. If however the incompetency arose from disease producing feebleness of intellect only, long acquiescence, after restoration, would amount to a confirmation. (Jones et al. v. Evans, 7 Dana Rep. 96.) As to incapacities of lunatics, see Waterman's Amer. Ch. Digest, vol. 2, pp. 393, 394.

[1] See 2 New York Rev. Stat. part 2, ch. 5, tit. 2.

Chapter I. man; in which case she may, with her husband, convey man can in her freehold estates under the Fines and Recoveries Abo

general only

convey un.

Will. IV. c.

74.

der 3 and 4 lition Act; but any other conveyance executed by her is, at Common Law absolutely void :(t) her copyhold estates will pass by her surrender with her husband's concurrence; or, if her interest be merely equitable, either by such a surrender or by deed acknowledged under the Act; and her legal terms for years will pass by the sole assignment of her husband;(u) though whether they will be bound by his contract, in the event of his death in her lifetime and before conveyance, seems to be doubtful :(v) as respects her equitable terms for years, it would appear, that in order to perfect the title, she must join in and acknowledge the assignment.(w)[2]

May be restricted from

selling,

entire estate

her.

And although the legal and equitable fee simple may although the be vested in a married woman, she and her husband may, be given to nevertheless, be unable effectually to assure it to a purchaser; for where the property has been acquired under a will or settlement which forbids alienation during coverture, such restriction is binding, although no trustee be interposed.(x)

May convey

in exercise of a power.

But a married woman may, in exercise of a power, pass, either a legal estate, by limitation of an use, or an May dispose equitable estate : and she has always an implied power to not restrain. dispose of, as if she were single, her equitable interest in

of her sepa

rate estate, if

from anticipation.

(1) Burton's Comp. pl. 206; see judgment in Zouch v. Parsons, 3 Burr,

1805.

(u) Burton's Comp. pl. 895.

(v) Infra, Ch. XVIII.

(w) See Hanson v. Keating, 4 Hare, 1.

(x) Baggett v. Meux, 1 Ph. 627; Steedman v. Poole, 6 Hare, 193.

[2] The wife, may, as an attorney to another, convey an estate in the same manner, as her principal could, and she may execute a power simply collateral, and in some cases, a power coupled with an interest, without the concurrence of her husband. She may also transfer a trust estate, by lease and release, as a feme sole. (2 Kent's Com. 151; Sugden on Powers, 148; Barnaby v. Griffin, 3 Vesey, 266.)

property settled to her separate use with no restriction Chapter 1. upon alienation.(y)[1]

Relief

. The observations already made (z) upon fraudulent sales by an infant, apply, it is conceived, to similar trans- against actions by a married woman.(a)

[*6]

fraudulent sale by.

felons, &c.

Or lastly; The proposed vendor may have been guilty Traitors, of treason, or murder, either as principal or accessory before the fact ;(b) and have thereby subjected his land to forfeiture and escheat, upon his attainder,(c) that is upon sentence of death being passed upon him; (d) or of any other felony punishable with death, attainder upon which involves forfeiture during life:(e) or he may have incurred a Præmunire;(ƒ) and in any of these cases, or at least in any of the first three, his conveyance, although bona fide, for valuable consideration, and to a purchaser without notice, is subject to the inchoate rights of the Crown, or the Lord of the fee.(g)[1] In these cases, however, that

"

(y) 1 Sug. Pow. 206, 7th edit.; Vendors, 230; and see also, infra, Ch. XVIII. as to contracts for sale by married women.

(z) Supra, p. 3.

(a) See Jones v. Kearney, 1 Dru. & War. 134; Savage v. Foster, 9 Mod. and 6 Ves. 181.

35;

(b) 54 Geo. III. c. 145; 9 Geo. IV. c. 31, s. 2.

(c) 3 Bac. Abr. 738.

(d) 4 Jarm. Conv. by S. 74.

(e) 4 Bl, Com. 385, and 54 Geo. III. c. 145.

(f) 16 Ric. II. c. 5.

(g) See Grosse v. Gayer, Cro. Car. 172; 6 Bac. Abr. 383; 4 Jarm. Conv. by S. 75.

[1] It is a fundamental policy of the common law, to allow no diversity of interests between husband and wife; and for this purpose, it is necessary to take from the wife, all power to act for herself without his consent; and to disable her, even with his consent, (for her own protection against his influence) from becoming personally bound, by any act or contract whatsoever done in pais. But courts of equity, have broken in upon this doctrine; and have, in many respects, treated the wife, as capable of disposing of her own separate property, and of doing other acts, as if she were a feme sole. In cases of this sort the same principles will apply to the acts and contracts of a feme covert, as would apply to her as a feme sole, unless the circumstances give rise to the presumption of fraud, imposition, unconscionable advantage, or undue influence. Story's Eq. Juris. vol. 1, sec. 243; Comyn's Dig. Baron and Feme; 1 Fonbl. Eq. B. 1, ch. 2, sec. 6; Clancy on Rights of Husband and Wife.

[1] The forfeiture, in treason, as to real estate, related at common law,

Chapter I which we have, for convenience, referred to as an incapacity to sell, is, in strictness, a mere want of title as against the Crown or Lord of the fee: Leaseholds of traitors and felons are forfeited to the Crown upon conviction; (h) but, of these, a bona fide sale between the crime Bankrupts and the conviction, will, it seems, be good.(i) So, the incapacities of bankrupts and insolvents to sell, depend merely upon their want of title as against their assignees.

and insol

vents.

Power given to incapaci

tate owners

by Lands Clauses

Consolida

tion Act, 1815.

[*7]

And with reference to incapacities to sell both of the 1st and of the 2nd descriptions, we may here refer to the general consolidating Act of the 8 Vict. c. 18; which enables incapacitated owners, or owners of partial estates, *to sell land to the promoters of undertakings authorized by Acts in which the general Act is incorporated.(j)

(h) 4 Bl. Com. 388.

(i) Ibid.

(j) See sects. 6, 7, et seq.

back to the time of the treason committed; and therefore all alienations and incumbrances, by the traitor, between the time of the offence and the conviction, were avoided. 2 Hawk. P. C. b. 2, ch. 49, sec. 30; 4 Bla. Com. 380. In New York, any person convicted of any manner of treason, forfeits his goods and chattels, and also, his lands and tenements, during his life-time; but the rights of all third persons, existing at the time of the commission of the treason are saved. N. Y. Rev. Stat. vol. 1, p. 234, secs. 1 and 2; vol. 2, p. 656, sec. 3. Forfeiture of property for crimes, in any other case, is expressly abolished. N. Y. Rev. Stat. vol. 2, p. 701, sec. 22.

"Forfeiture of estate, and corruption of blood, under the laws of the United States, and including cases of treason, are abolished. Forfeiture of property, in cases of treason and felony was a part of the common law, and must exist at this day, in the jurisprudence of these states where it has not been abolished by their constitutions, or by statute. Several of the state constitutions have provided that no attainder of treason or felony, shall work corruption of blood, or forfeiture of estate, except during the life of the offender; and some of them have taken away the power of forfeiture absolutely, without any such exception. There are other state constitutions which impliedly admit the existence or propriety of the power of forfeiture, by taking away the right of forfeiture, expressly in cases of suicide, and in the case of deodand, and preserving silence as to other cases; and in one instance (Maryland) forfeiture of property is limited to the cases of treason and murder." 2 Kent Com. p. 386.

"The English law," continues Kent, "has felt the beneficial influence of the progress of public opinion on this subject. The Statute of 7 Anne, ch.

(2.) As to incapacities of the 2nd description affecting

vendors.

Chapter I.

As to who are relatively incompe tent to sell.

Persons hav

ferable title.

a special re

to

These may be considered to consist of, 1st, the want of ing no transa transferable (k) title to the property proposed to be dealt Persons with; and, 2ndly, the existence of some relation on the standing in part of the proposed vendor to the purchaser which pre-wards the vents a sale except under special precautions; for in- proper stance, an agent for purchase cannot sell his own estate to his principal, without acquainting him with the uence. facts()[1]; and, as a general rule, whenever such a re

(k) See Attorney General v. Corporation of Plymouth, 9 Beav. 67; where a corporation was held incapable in equity of contracting to sell property, by reason of a duty which it owed in respect thereof to the public. As to the alienation of charity lands by trustees, see Attorney General v. Corporation of Newark, 1 Hare, 395; Attorney General v. Brettingham, 3 Beav. 91; Attorney General v. South Sea Company, 4 Beav. 453; and cases cited: such alienations are not necessarily void, but it lies on the parties claiming under them to show that they were beneficial for the charity: vide infra, Ch. XIX. See 4 & 5 Vict. c. 35, s. 92, removing a customary restriction which, in some manors, prevented the alienation of ancient copyhold tenements in portions.

(1) Gillett v. Peppercorne, 3 Beav. 78.

22, abolished, after the death of the Pretender, forfeiture for treason beyond the life of the offender; and though the statute of 17 Geo. 2, ch. 29, postponed the operation of that provision, it was only until the death of the Pretender and his sons. And by a bill introduced into parliament by Sir Samuel Romilly in 1814, and afterwards, under modifications, passed into law, corruption of blood, in cases of felony, except murder, was abolished. The ingenious and spirited defence of the law of forfeiture, which was made by Sir Charles Yorke, in the middle of the last century, and in which he insisted, that it stood on just, social and comprehensive principles, and was a necessary safeguard to the state, whether built on maxims of monarchy or freedom, has failed to convince the judgment, or satisfy the humanity of the present age." Ib.

[1] On this subject, Story says: "Considering the abuses which may attend dealings of this sort, between principals and agents, a doubt has been expressed, whether it would not have been wiser for the law, in all cases, to have prohibited them. Be this as it may, it is very certain that agents are not permitted to become secret vendors or purchasers of property which they are authorized to buy or sell for their principals; or, by abusing their confidence, to acquire unreasonable gifts or advantages; or indeed, to deal validly with their principals in any cases, except where there is the most entire good faith, and a full disclosure of all facts and

purchaser, which secures undue personal in