grant and release at the common law, and not by way of bargain and sale creating a use;" for, as the owner may give an election to the grantee to take either at the common law or under the Statute of Uses, (and, where he makes a conveyance capable of taking effect in either mode, does tacitly give such election (s)), so he may unquestionably, by the express terms of his deed, confine the conveyance to one given mode of operation. As it is requisite to inrol the assurance at length, it will often be found expedient that the tenant in tail should acquire the dominion over the fee by a simple conveyance to a third person, to his (the tenant in tail's) own use, or to uses in his favour, previously to an intended sale or settlement, and especially to an intended incumbrance of a temporary description. The nature of the provision (to which we shall hereafter advert) made by the act in regard to alienations for a limited purpose, renders it particularly inexpedient to disentail through the medium of a mortgage. The cautious practitioner will procure the person named as re-lessee or grantee to execute the deed, lest he or his heirs, by disagreeing (t) to the conveyance, should raise a question as to the validity of the title founded upon it. It is clear that a contract or a covenant, though under seal, will be of no avail as against the issue in tail, remainder-man, or reversioner. All equitable relief, in the case of a defective or informal assurance, is expressly and anxiously excluded (s. 47). The all-absorbing nature of equity, ever seeking to insinuate its jurisdiction, rendered that precaution necessary (u). There was ground to ap (8) Heyward's case, 2 Co. R. 35; Fox's case, 8 Co. R. 93 b. (t) Shep. Touch. 285, 4 Mann. & Ryl. 189, n. (u) Ante, 155, n. (¿). CHAPTER V. Caution as to covenants. Effect of inrolment. prehend that, after the legislature should have abolished the ancient solemnities, and conferred upon tenants in tail the power of conveying as if seised in fee-simple, without any other ceremonies than sealing, delivery, and inrolment, equity might be induced to enforce the mere contract of a tenant in tail, founded on valuable or meritorious consideration, just as, in the case of a settlement to such uses as A. shall, by deed inrolled in Chancery within six calendar months after the execution, appoint, and, in default of appointment, to uses in strict settlement, equity would certainly supply, in favour of a purchaser, wife, child, or creditor, the non-observance of the prescribed formalities (x). As an instrument in the form of a covenant will not bind the issue or remainder-man, care must be taken to adopt in all cases the form of a legal assurance; although, independently of the act, such an assurance may not be required, either by the state of the title or by the nature of the transaction. Thus a further charge is commonly effected by way of covenant; but if A., tenant in tail, having mortgaged for a term of years only, wishes to surcharge, then, as the existing disposition binds the issue and remainder-man to the extent only of letting in the incumbrance, a deed of covenant merely will not be effectual, but the tenant in tail must in terms re-demise and confirm. The caution here given, does not, of course, extend to a covenant to stand seised, which under the operation of the Statute of Uses is become a legal assurance, and which may therefore be employed for the purpose of unfettering an entailed estate in the few cases (y) to which it is applicable. The deed, if inrolled within the prescribed time, takes effect from the execution, as if inrolment had not been required (s. 74), but a purchaser for valuable consideration under a snbsequent deed previously inrolled takes precedence (ib.). This clause appears to be a broad and unqualified adoption of that principle of registration which gives priority to the instrument first registered. Even the General Registry Bill (≈) did not attempt to go that length, but provided a caveat and other guards against surprise and fraud. CHAPTER V. The act does not require an indenture; but if the as- Indentation, when requisite. surance adopted be a bargain and sale, it must be by deed indented (a); though, by the express provision (s. 41) of the act, inrolment within six calendar (b) months is sufficient. The practice which requires a bargain and sale to be acknowledged before inrolment is rejected, as regards a disposition for the purposes of this act (s. 73). The mention of an indenture suggests the observation that fines were sometimes resorted to for the purpose of binding, and even of passing, contingent interests by way of estoppel (c); but as an indenture (which, if intended to operate by estoppel, should not, by recital or otherwise, disclose the actual state of the title (d), and which, (2) Post, Illustrations, III., s. 4. (a) 27 Hen. 8, c. 16. mainder; 7 Cruis. Dig. 4th ed. (b) Ante, 76; and see Vol. 2, tents.] n. (64). (c) Doe v. Martyn, 8 Barn. & C. 497; 2 Mann. & R. 485: Doe v. Oliver, 10 Barn. & C. 181; 5 Mann. & R. 202. See Bensley v. Burdon, 2 Sim. & Stu. 517. [But see 3 Sugd. Vend. 422, n. ().] Davies v. Bush, M'Clel. & Y. 58: Ex parte Mary Gill, 1 Bing. N. C. 168. [Note, her estate was not a contingent, but a vested re (d) Right v. Bucknell, 2 Barn. & Adol. 278; Hermitage v. Tomkins, 1 Lord Raym. 729; Co. Litt. 352. b. [This point, which seems to have escaped observation in some of the modern cases, is tacitly affirmed by Doe v. Earl of Scarborough, 4 Nev. & Mann. 730.] See further as to estoppel, 4 Nev. & Mann. 29, n.; Whitton v. Peacock, 2 Bing. N. C. 411; 3 Mylne Contingent interests may still be bound by in denture. CHAPTER V. Tenants in tail ex provisione viri. IV. Institution of a "protector" of the settlement. Capricious ope ration of the check imposed by the old law. in the case of a married woman, must be attended with the solemnities prescribed by this act (e)) is equally conclusive (f), it was unnecessary to make any special provision with reference to such interests. The stat. 11 Hen. 7, c. 20, relative to tenants in tail ex provisione viri, is repealed, except as to lands comprised in any settlement made before the passing of the act now under consideration (s. 17); so that if, before that period, lands were limited by A. to the use of himself for life, remainder to the use of B. his intended wife for life, remainder to the use of the heirs of the body of B. by A., (once a common form of settlement in the country), B., who would be tenant in tail ex provisione viri, could not, in the event of her surviving her husband and of her having an expectant heir in tail, bar the entail without the consent of such heir (g). IV. As to the machinery substituted for the old tenancy to the præcipe. This consists in the interposition of a new conservative power under the denomination of a "protector of the settlement" (s. 22). By the old law, a tenant in tail in remainder, expectant on an estate of freehold, was precluded from suffering an effective recovery without the concurrence of the freeholder; for it was necessary that the person against whom the process issued should be invested with the immediate freehold, or, in other words, that there should be what was technically called a tenant to the præcipe. Sometimes the immediate freeholder was beneficially en & K. 325: Lainson v. Tremere, 1 ton, 3 Adol. & Ell. 265; (by co- (f) See Bensley v. Burdon, and Ex parte Mary Gill, ubi suprà. (g) 1 Prest. Convey. 19, 146. titled; sometimes he was a mere trustee-in either case he might refuse to join. Accident often conferred upon a person, who, in point of interest and duty, was a mere stranger, the important power of constituting a tenant to the præcipe, while it deprived the beneficial possessor, to whom that power would have seemed more properly to belong, of all control and voice on the occasion. Besides this, much investigation and attention were requisite, in order to ensure a good tenant to the præcipe, and numerous recoveries failed for want of a sufficient tenant. CHAPTER V. substituted check. If, on the one hand, the legislature had omitted to sub- Principle of the stitute some ceremony for the check afforded by the necessity of constituting a tenant to the præcipe, the adult son, tenant in tail, would have been enabled at pleasure to defeat the family settlement against the wish of the parent, tenant for life: if, on the other hand, the legislature had provided a strictly analogous check, it would have given its deliberate sanction to an imperfect and arbitrary species of protection, resulting indirectly from the forms of the old law, and appearing altogether absurd and unintelligible when detached from the judicial proceeding of which those forms were the legitimate basis. Instead, therefore, of either exposing settlements to premature destruction or confiding the rights of the remainder-man to the technical subtleties of a fictitious process, the framer of the act has originated, on principles of reason and policy, a controlling functionary, whose style is new to our legal nomenclature, though not to the political history of the country. The protectorship is committed (s. 22) (subject to certain exceptions and provisions applicable to particular cases) to the person who shall be the owner, or who, but for an alienation, though absolute, and whether voluntary or involuntary, would have been the owner of the To whom the office of pro tector is in ge neral confided. |