CHAPTER III. Principle of the protection afforded by the possession or legal estate. ance-a notion agreeable enough to the old doctrine of the subservience of lessees for years to the freeholder (e)yet it is obvious that, so far as the inheritance was really deficient, and as they were, consequently, needed for the purposes of defence, they were rather substitutes than adjuncts: nor does the estimation in which they have so long been held appear to be deserved, when we consider how little the ends of justice are advanced by a technical expedient, which enables one of two equally meritorious claimants to over-reach his less fortunate competitor. Though long terms of years were chiefly employed in this service, yet it is obvious that every kind and decommand of the gree of legal interest was applicable to the same purposes, and upon the same principles-principles, which have been already explained in treating, first of uses in their fiduciary state, and afterwards of trusts. One of our greatest equity judges, in allusion to this doctrine, has observed, "that it might be going a good way at first (f);" but adds, "it has been followed ever since, and was rightly settled; though only on this foundation, the particular constitution of the law of this country;" and he then proceeds to make some remarks so pertinent to the subject of this chapter, that the passage may be usefully quoted: "it could not (he continues) happen in any other country than this, where law and equity are administered in different courts, and create different kinds of rights in land; and though courts of equity break in upon the common law, where necessity and conscience require it, still they allow superior strength generally dispenses with an assign- (e) Ante, 13. (f) See Lord Eldon's observations, in Ex parte Knott, 11 Ves. 613, and in Mackreth v. Symmons, 15 Ves. 335. to a legal title; and therefore, where there is a legal CHAPTER III. title and equity on one side, and a prior equity on the other, they have never thought fit, that he who had the legal title should be hurt by reason of the prior equity. But where law and equity are administered by the same jurisdiction, the rule, qui prior est tempore, potior est jure, must hold (g).” From these various causes, passive trusts, neither conferring any benefit, nor involving any duty, became so common, that the separation of the legal from the equitable ownership existed, to a greater or a less extent, in almost every title, and produced inconveniences which the legislature (h) has at different times attempted to remedy; but by machinery so operose, defective, and expensive (i), as to bring a severer reproach upon the law than it ever incurred by recognising, as legal owners, grantees and cetteux que use denuded, in effect, of all benefit and control, by investing persons really destitute of interest and office with the direct dominion over property. It must be confessed that the complication inseparable from an advanced state of society was aggravated by the double aspect of our jurisprudence. Even when laws are instituted under circumstances the most favourable to simplicity and unity of structure, civilization, with its thousand ingenious wants, quickly impairs that primitive excellence; but the rise and progress of the laws of real property in England were peculiarly marked by circumstances of an opposite tendency-by circumstances which at once augment the difficulty, and constitute the moral attraction of the study. (g) Per Lord Hardwicke, C., in Wortley v. Birkhead, 2 Ves. sen. 574. (h) 7 Anne, c. 19; 1 Will. 4, c. 36; 1 Will. 4, c. 60; 4 & 5 Will. 4, c. 23, s. 2; 2 & 3 Vict. (i) Vide post, Illustrations, The complex character of property, conse quent on its di vision into legal and equitable. 110 CHAPTER IV. A PRACTICAL VIEW OF THE SYSTEM IN ITS MATURE STATE. Practical result ing chapters. Importance of distinguishing between the common law, the statute law, and equity. LET us now apply our attention more particularly to the general condition of the law, as it stood at the point of time to which the preceding chapters have brought down its history; for to that point we must long recur, as exhibiting the system in a state sufficiently advanced to furnish the basis, at least, of future legislation. With this view it will be proper, though at the risk of repetition, to collect and exemplify the practical result of the principles, adjudications, and enactments, scattered through the preceding pages. Our first care must be to distinguish between the Common Law, the Statute Law, and Equity. From inattention to this distribution, the student is very apt to be confounded. He finds it laid down that a certain species of disposition was contrary to law, as, for example, a freehold interest to commence at a future period (a), or to take effect by displacing a previous interest (b); or, that certain consequences were inseparable from certain acts, as, for example, forfeiture from a feoffment by a tenant for life assuming to pass the fee (c). Yet he knows that such dispositions have often been made with effect, and that such acts have not always been followed (a) Ante, 16. (b) Ante, 17, 19. (c) Ante, 14, 27. by injurious consequences; indeed, the precedents assure him that the conveyancer was conversant in his daily practice with the use and safety of the very things said to be impossible or dangerous. On reflecting, however, that many things, which could not be done under the common law, might be done through the medium of uses under the statute, and that many things, which could not be done in either mode, might be done through the medium of trusts in equity, those seeming incongruities, which obscured his view of the system, are dissipated; he perceives the appropriate functions of its various parts, and admires the consistency of the whole. CHAPTER IV. HOLDS. As to FREEHOLD interests :-Supposing A. to be owner AS TO FREEof the legal fee, we proceed to consider, first, under what restrictions he lay at the COMMON LAW. What objects unattainable at the common -creation of a new estate in the grantor; 1. He could not alter his own seisin of the freehold, law; as, by making himself tenant for life, or tenant jointly with another person, nor alter the descendible quality of his own inheritance, as, by making himself tenant in tail, without conveying the fee to B., a third person, and taking a reconveyance of the partial or qualified interest: for a conveyance by A. to himself for life, or in tail, and then over to B., would be totally void; and a conveyance by A. to himself and B. jointly, or a conveyance by A. to B. for life or in tail, and afterwards to remain to himself (A.) in tail, would be void as to A.; who, in the last example, would not acquire a new ownership as a remainder-man, but retain the remnant of his old inheritance as reversioner. the grantor's 2. He could not vest an interest in his wife (husband-conveying to and wife being one person in law) without conveying to wife;" B., in order that B. might convey to the wife. 3. He could not convey to B., at the same time post-freehold in futuro; CHAPTER IV. -joint tenancy, without of time; poning B.'s possession, as, to B. from Christmas next, or, from the death of A., leaving the fee in A. till the period. should arrive, or the event should happen; though he might convey to B. till Christmas next, or during the life of A., and after Christmas next, or the death of A., to C. in fee, because in the latter case there was no suspense of the possession. 4. He could not so convey as that several persons, unity in point becoming entitled at different periods of time, might take as joint-tenants; if, therefore, he limited to B. for life, remainder (d) to the children, as a class, (i. e. born and to be born), of C., they could not take otherwise than as tenants in common. -contingent limitations without supporting freehold; -future limi tations not im secutive; 5. He could not convey to an object not in being or not ascertained, as, to an unborn child of B., or to the survivor of B. and C., without giving a prior and immediate freehold interest less than the fee to a person in being and ascertained: and, if he limited such an interest, its determination by any means, before the ulterior destination had an existing or ascertained object, rendered that destination incapable of effect. 6. He could not, on conveying to B. an immediate mediately con- freehold interest less than the fee, make a disposition over in favour of any person, whether in being and ascertained or not, to take effect in possession at any other period than instantly on the determination, by any means, of the previous interest of B. -shifting limitations. 7. He could not so convey the fee to B. as to render it liable, in any event, or at any period, certain or uncertain, proximate or remote, to shift, wholly or partially, from B. to another person; and it follows that under his conveyance to the existing and future children of B., in possession, the then existing children alone could take. (d) See Prop. 7, post. |