CHAPTER V.

-by examples of a mere right

or mere ability to bar the remainders.

equitable entail be created by an actual conveyance or settlement, or by a mere contract or executory trust, the same formality must be observed. But if lands were limited to A. for life, remainder to B. in tail, with remainder over, then a deed of grant would be a sufficient assurance by B. under the act; though, as we shall presently see, no assurance by him, without the consent of A., would be effectual to defeat the remainder over. If the lands were limited to the use of A. in fee, upon trust for B. for life, and after B.'s death, upon trust for C. in tail, with a trust limitation over, the same observations would apply. In every case, the question to be asked is, not whether the estate or interest of the tenant in tail is of such a quality as to demand, or even to admit of, a legal conveyance, but what mode of assurance, if the estate or interest were really a fee-simple at law, would be necessary to convey it?

Cases may occur in which there exists only a right to to an estate tail, an estate tail, or in which nothing remains but the bare capacity of defeating the right of the posterior claimant. Thus, if A. tenant in tail, with remainder over, should have enfeoffed B. in fee, thereby discontinuing the estate tail, and putting the issue and remainder-man to their right of action (m), A., or his issue, intending to perfect the title of B., must adopt the same mode of assurance as if no previous alienation had taken place. So, even if A. had conveyed to B. by fine with proclamations, still it would be requisite that A., or his issue, should convey as if seised in possession of the legal fee. Yet, in the last example, A. or his issue, by the effect of the fine, (as, in the previous example, A., by the effect of the feoffment), was absolutely denuded of all estate, right, and interest,

(m) Vide post, 3 & 4 Will. 4, c. 27, s. 39.

at law and in equity, and retained only the power of excluding those in remainder or reversion after the estate tail, and of thus establishing the defective title conferred by the original assurance. Before the statute, titles so circumstanced were remediable only by a recovery to be suffered by A. or his issue, who could not have suffered an effectual recovery without the assistance of B., the alienee, as owner of the legal freehold, and, therefore, the requisite party to make the tenant to the præcipe. But the same result may now be obtained by the lease and release of A., or his issue, who, though not having a remnant of interest left, must convey as if fully estated in fee, while B., in whom the fee (defeasible, indeed, but still the legal fee) actually resides, need not convey at all, though his consent may possibly be necessary (s. 29). This is the extreme case in which the statute exacts a solemn conveyance, there not being even the semblance of a subject on which a conveyance can operate; but it will probably appear that facility and certainty in practice, if not consistency in principle, were best consulted by extending the requisition of a legal freehold assurance to every possible case. It should be observed that titles may be in a similar predicament in consequence of insufficient assurances by tenants in tail made subsequently to the statute. Thus, if lands were limited to A. for life, remainder to B. in tail, with remainder over, and B. were to convey to C., by an assurance inrolled under the statute, without the consent of A. as protector, C. would acquire a base or determinable fee, which, at a subsequent period, might be enlarged into a fee-simple by the assurance of B. or his issue, made with the consent of A., if living, otherwise, at the pleasure of B. or his issue. But in pursuing these remarks in this place, we should be anticipat

CHAPTER V.

CHAPTER V.

A conveyance by tenant in

tail to his own use, is a dispo

act.

ing matters properly belonging to other divisions of the subject.

Among many unfounded doubts to which this statute has given rise, it may be proper to notice the doubt sition within the whether a conveyance by a tenant in tail to a third person, to the use of the tenant in tail, can be considered as a disposition within the meaning of the act. The uniform practice of conveyancers, who have adopted this as the ordinary mode, would be a sufficient answer. But unquestionably such a conveyance by a legal tenant in tail is a disposition at law, for the tenant in tail departs with the seisin, though it instantly revests in him under the Statute of Uses. And, as such And, as such a conveyance by a legal tenant in tail is a disposition at law, it follows that a similar conveyance would be a disposition for the purposes of the act in every possible case in which a disentailing assurance can be requisite; for the touchstone of such an assurance is the sufficiency of the form adopted to pass a legal fee, considered as filling the place of the estate tail.

Release of right

whether effec

tual.

Some practitioners appear to have perplexed themto an estate tail, selves very unnecessarily by not adhering strictly to the simple test just proposed, but disgressing into questions which the legislature has anticipated and excluded (s. 38). The case of an estate tail turned to a right has been already noticed. In a case of that nature which occurred in practice, resort was had to the learning of releases for the purpose of shewing that the person to whom the right belonged should release to the tenant in possession. Now, such a release might or might not be effectual, according to its adequacy or inadequacy to pass a vested legal estate in fee standing in the position. of the divested estate tail; but it is certain that a con

veyance by lease and release of the entailed land to a stranger to uses would be effectual.

CHAPTER V.

tions by tenants

in tail after dis

seisin.

As the act expressly embraces an estate tail which As to disposishall have been divested and turned to a right (s. 1), there can be no doubt that a tenant in tail, though disseised or dispossessed, may dispose for the purpose of barring the estate tail and remainders, without the concurrence of the person in possession, (unless in certain cases discussed in the sequel (n)), and that the effect of his disposition, under the act, will be to convert his right of entry, in respect of an estate tail, into a right of entry in respect of an estate in fee. This may seem to be at variance with the general rule of law that a right of entry is not transferable; but it is in accordance with the spirit of the act, which treats even the bare privilege of barring the remainders as the subject of a legal conveyance. The conveyance, however, is, in such cases, mere form; nor would the rule of law be really infringed without an actual alienation of the right, which this act (0), at least, does not sanction. But though a tenant in tail, having only a right of entry, may not be competent to make, by deed, in favour of a stranger, any other than a merely formal disposition, much less to raise a valid use, it is clear that he may release his right to the person in possession, and may, by devise, since the new statute of wills (e), even transfer it to a stranger.

as to the mode

of assurance;

The best advice, perhaps, which can be given to the General caution general practitioner, is to adopt in every case the common assurance by lease and release, taking care to inrol both instruments. It can rarely happen that he would think

(n) See ss. 30 and 31, (con- ries, Ireland). sidered post).

(0) Vide post, 4 & 5 Will. 4, c. 92, s. 22, (Fines and Recove

(p) 7 Will. 4 & 1 Vict. c. 26,

s. 3.

VOL. I.

M

CHAPTER V.

-and particularly as regards

bargains and sales.

of resorting to a feoffment; a covenant to stand seised is still further removed from ordinary practice; a grant supposes the case of an estate tail in remainder, or of an incorporeal subject, and its use requires some degree of knowledge and discrimination. It may be thought, however, that a bargain and sale inrolled is the natural and proper assurance. But the unfitness of a bargain and sale, where uses are required to be raised upon the conveyance (q), and its liability, where it does not also operate as a mortgage or as a conveyance upon sale, to a five pound stamp, will exclude it from general use. With respect to an assurance by lease and release, or by grant, some practitioners have felt an apprehension lest, if no precaution were taken, a conveyance by tenant in tail to uses, framed as a lease and release, or as a grant, and intended to operate as such, should, by reason of the inrolment, operate as a bargain and sale, and consequently vest the legal fee in the intended re-lessee or grantee to uses; besides, requiring, unless made to effectuate a sale or a mortgage, a five pound stamp; and the corrective proposed, is the omission of the words

66

bargain and sell." It is clear, however, that, unless the conveyance were incapable of operating in its primary character of a lease and release, or of a grant, the courts would not give it effect, against the obvious intention, in its secondary character of a bargain and sale; and it is equally clear that there is no magic in the words "bargain and sell (r)." A more effectual expedient, where the nature of the transaction does not preclude it, (as it necessarily does in the instance of a purchase or a mortgage), would be to avoid inserting a pecuniary consideration. But abundant caution may, perhaps, dictate in every case the propriety of introducing the operative words by a qualifying clause to this effect, "by way of (*) 7 Co. R. 40 b.

(q) Vide post, Vol. 2, n. (64).