CHAPTER IV.

-and on its condition at the

its history has been brought

down.

separation of the use from the possession, and by the abortive attempt of the legislature again and for ever to consolidate them—an attempt which terminated in the communication to the legal estate of some of the popular qualities of the use, and the reproduction of the ancient use under the guise of the modern trust. From this sketch it will appear how small a portion of our law of real property was the result of design. Institutions, stern and oppressive in their origin, gradually yielded to the progress of opinion, accident favouring, and the judicature abetting, the diffusion of a more grateful policy. While fraud and fear, the cupidity of monks, and the turbulence of barons, seeking shelter from the restrictions of mortmain or the penalties of treason, laid the foundation, the growing spirit of freedom, availing itself of legislative imbecility and technical astuteness, reared the superstructure, of that mixed system of legal and equitable interests, which, however elaborate in its machinery, and subtle in its abstruser doctrines, proved adequate, in the great mass of transactions, as well to satisfy the wants, as to indulge the wishes, of a highly cultivated people.

Yet the philosophic observer, taking a theoretical view period to which of our system of conveyancing, even in this advanced stage of its progress, will probably be struck by some peculiar features, which he cannot readily reconcile with its acknowledged practical efficiency. He may remark that the transfer of the freehold required a complex assurance; that alienation by tenants in tail and married women was clogged with expensive technical forms; that many desirable modifications of property could not be effected at law by a simple and direct disposition, but were to be reached only through the circuitous medium of uses, deriving legal efficacy from the statute; that legal ownerships created by means of uses were exposed,

along with estates created at the common law, to accidents occasioned by the rules of tenure-rules which, though no longer formidable to the freedom of the proprietor, yet sometimes exerted (as in the instance of the destruction of contingent remainders (n)) a mischievous energy; and that, in order to elude their force, resort was had to passive trusts, founded upon an artificial distinction between the legal property in the subject and the equitable right to the enjoyment. But, although the law of real property might still exhibit vestiges of the iron age, yet this outline of its history will suffice to shew how various causes had happily concurred to produce a total change in the severer features of the feudal policy. At the commencement of the late reign, the point to which this view converges, the remnants of ancient strictness were little more than specks upon the general excellence of the system, and it will appear from the following chapter that some of these have submitted to legislative correction.

(n) See Heardson v. Williamson, 1 Keen, 33.

CHAPTER IV.

130

CHAPTER V.

OF THE NEW STATUTES RELATING TO REAL PROPERTY.

Importance of the old law as introductory to

the new.

THE Statutes of the last and present reigns for amending the Law of Real Property, though occasionally cited in the course of the previous narrative, have been reserved for separate consideration. For, as these enactments have regard to the pre-existing law, and suppose an intimate knowledge of its principles and practice, and as all future enactments must partake, more or less, of the same retrospective character, it was thought desirable that the preceding chapters (a) should exhibit a distinct and independent view of the fundamental rules of real property and the modes of conveyancing, as they stood anterior to the recent interposition of the legislaThese must still engage the attentive consideration of the practitioner. The full benefit of the new statutes is reserved for after-times; nor, if it were to be instantly felt, could those statutes be said to have wrought any great change in the substance of our civil jurisprudence. Viewed as concessions to a spirit demanding large and uncompromising measures of improvement, they are inconsiderable. Still their practical importance is such hat an elementary work on conveyancing would be incomplete, which should omit to (a) And see Vol. 2, Precedents, Part IV., and notes.

ture.

place before the student their leading provisions, prefaced by short notices of the former law.

CHAPTER V.

COVERIES, 3 &

will. 4, c. 74, 28th Aug.

(Royal Assent,

The most important of the recent measures, as re- FINES NDRE gards the practice of conveyancing, and at the same 4 time the most distinguished by experimental boldness, nor less so by systematic design and elaborate execution, is the ACT FOR THE ABOLITION OF FINES AND RECOVERIES,

AND FOR THE SUBSTITUTION OF MORE SIMPLE MODES OF

ASSURANCE. Yet even this statute consults the old law, and it is not possible to appreciate or expound its provisions without some knowledge of the law of settlement, and an acquaintance, more intimate, with those assurances which the statute has superseded,-with their various uses and modes of operation, their learning, and their language.

1833).

law before the

1. Strict settlements were unknown to the simplicity Rise and proof the common law. Substitutions by way of remainder of settlement. were indeed permitted, but as the particular estate 1. State of the could not have been greater than for life, this indulgence statute de donis. was productive of no injurious consequences. Though land might have been given to a man and his lineal heirs exclusively, or for an interest similar to an estate in fee-tail, yet, after issue born, his ownership was equivalent to a fee-simple absolute for the purposes of alienation. On such a gift no remainder could be limited; the donor himself had a mere right or possibility of reverter (b), descendible, but inalienable. Executory limitations, by way of use or of devise, are of comparatively modern introduction. Thus, the modifications of property were few and free, tending to neither complexity nor perpetuity.

2. At length, however, the legislature interfered. The statute of Westminster 2 (c), de donis conditiona

(b) See Doe v. Simpson, 4 Bing. N. C. 333. (c) 13 Ed. 1 c. 1.

2. Effect of that ducing strict

statute in pro

settlements.

CHAPTER V.

3. Strict settlements defeated

device of a com

mon recovery;

libus, secured the succession to the issue of the donee in tail, and the reversion to the donor, according to the tenor of the gift; the donee's right of aliening after issue born was, by this authoritative injunction to respect the intention of the donor, wholly taken away. Thenceforth, a limitation to a man and his lineal heirs, or, in other words, to a man and the heirs of his body, created a particular estate, on which remainders over, for life, in tail, or in fee, might depend; if the fee was undisposed of, it continued in the donor, not as a precarious right or possibility of reverter, but as an indefeasible estate in reversion, which he might again impress with similar limitations (d). This statute, therefore, though it did not actually create the species of disposition called a gift in tail, yet confined its operation within the very terms of the gift, and so laid the foundation of a strict settlement, without providing any means of breaking the fetter and restoring the land to

commerce.

3. But the mischief of an indestructible entail, though by the judicial enacted, could not be established. The judicature interThe fiction of a COMMON RECOVERY, posed in its turn. devised at an early period for a different purpose, began to be employed in the time of Edward the Fourth (e), for enlarging an estate tail into a fee-simple, and soon came to be considered as a common assurance. But, from the nature of that assurance, a tenant in tail in remainder could not avail himself of its powerful operation, unless assisted by the owner of the immediate freehold, while its extremely technical and costly character greatly diminished its utility. It was an effectual, but an incon-partially de- venient remedy. The common law, in its anxiety to unfetter the inheritance, attributed also to other assurances (e) Taltarum's Case, 12 Ed. 4.

feated by other common law

(d) See 2 Prest. Est. 456.