CHAPTER I. Land was not devisable. the fee, he forfeited the tenement, because by such an act he repudiated the tenancy, and derogated from the rights of the persons claiming in remainder or reversion. Such conveyances were called tortious, or wrongful. Though when the feudal policy ceased to be the policy of the country, every reason seemed to vanish for ascribing to any assurance by the owner of a partial interest an operation more forcible than that of simply transferring such interest, yet still the law inflexibly declared, that if A., to whom land was given for life, with a gift over on his death to B., assumed to convey by feoffment to C. and his heirs, A. forfeited his life interest, and B. became entitled to take immediate possession of the land. In order to account for this result, we are obliged to retrace the history of society up to that remote and lawless period when the lord confided the possession to his vassal upon the express or implied condition that the tenant should preserve and restore it; a condition broken by his attempt to establish a stranger in the tenancy, or a foreign lord in the seigniory. The lord, indeed, was no longer permitted to re-enter, unless the land escheated for want of heirs; his remedy for the fruits of tenure, as chiefrents, heriots, services, being by distress (m); but a right similar to that which the lord had lost was still exercised by the remainder-man or reversioner. Enough has been said of the feudal policy to render it almost superfluous to add, that testamentary dispositions (except so far as local customs authorized such dispositions of socage lands in some ancient cities and boroughs) rent (m) 52 Hen 3, c. 22. If, how- savit per biennium and recovered the fee. (6 Ed. 1, c. 4; 13 Ed. 1, c. 21). But see 3 & 4 Will. 4, c. 27, s. 36. Such details are purposely avoided in the text. were wholly interdicted. To have permitted the transfer of the tenement by will would have been to sacrifice the principles already developed, together with the valuable fruits of tenure arising from descents. Since the modifications of property were so few and so simple, and since either livery, entry upon the land, attornment, or matter of record, was essential to every disposition, our ancestors were necessarily strangers to the intricacies of modern titles, and to that perfect secrecy and ease with which rights to real estate may now be created, transferred, varied, or defeated. But in speaking of the notoriety which formerly attended the transfer of land, we must be understood to point at a very early period, when feuds were still maintained in all their purity and strictness. Then every manor presented a little society of warriors and husbandmen, combined for mutual defence and support. As such a league naturally required that a new, and perhaps unfriendly, associate should not be introduced without the privity of the lord and his existing tenants, livery, on the transfer of the feud, was a solemn installation, witnessed and sanctioned by the federal body. As the same compact equally required that a strange lord should not be imposed upon the tenants against their will, attornment, on the transfer of the seigniory, was the open adhesion of the vassals to the new chief. In either case, the transaction was recorded, or at least promulgated, in the court of the seigniory (n). While substitutions, or, in other words, remainders expectant on particular estates, were either unknown or extremely rare, and while a conveyance, therefore, was merely a transfer from one individual to another of the present possession, which (n) Vide ante, p. 9, (n). CHAPTER I. Frequency of secret feoffments and grants. Inadequacy of the common law to the wants of socie ty. carried with it all the rights consistent with the then limited notions of ownership, perfect publicity was insured. But when the feudal rigour began to abate, when alienation grew more frequent, and artificial modifications of property were engrafted on the seisin, livery and attornment lost much of their solemnity. The possession was now delivered in the presence of only a few casual witnesses, and if the land was destined to be enjoyed by A., the feoffee, during his life, and after his death by B. and his heirs, the intention was either declared by parol (i. e. by word of mouth), or by an unrecorded instrument, called a charter of feoffment (o). Thus, neither the change of possession, nor the nature of the destination, was sufficiently promulgated. Again, if B. afterwards, in the lifetime of A., made a deed of grant (p) of his (B.'s) remainder in the land, the attornment (g) or consent of A., the life-tenant, was sufficient to complete the transaction. Thus, a right to the future possession, which had been privily created, was yet more privily, though, in point of proof, more certainly, aliened. Hence, long before the introduction of uses, of which we are presently to speak, complaints were not wanting of secret assurances of land. Large deductions must, therefore, be made from the praise lavished on the ancient common law, when its provisions are said to have promoted security of enjoyment, simplicity of title, and notoriety of transfer. As civilization advanced, it proved less and less sufficient to attain those favourite objects of its founders, while it was manifestly ill-adapted to meet the growing demands of freedom and commerce. The rules of ownership and (0) Post, Vol. 2, Part i. (q) As to which, see 6 Nev. & Man. 635, (a). modes of assurance which we have endeavoured to explain, composed an unbending and oppressive code, utterly inadequate to the extended views and complicated interests of an intelligent and wealthy community. The progress of society called for a more pliant and liberal policy. But as the genius of those institutions which have engaged our attention mingles with the history of every subsequent improvement, we must carry along with us a distinct impression of their peculiar character. Tenure, with an aspect greatly softened, indeed, yet strongly retentive of its primitive features, has continued to preside over the system. Its reasons, its forms, and its language have pervaded the law of property, to an extent far exceeding the limits of their original and appropriate field. We should at once perceive them practically influencing, in a greater or a less degree, not only the equitable interests, of which we are about to treat, but even subjects of property wholly uncongenial, were we not diverted, by our very familiarity with the results, from investigating the causes. We are accustomed to speak of estates in the equity and conveyances of the equity, as regards real estate; of tenancies, remainders, and reversions in mere personal chattels; and to insert clauses of habendum and tenendum in the transfer of even an equitable right to a money fund, without being struck by the misapplication of forms and terms derived from the ancient donation and investiture. In proportion as the feudal policy declined in real power, it seems to have enlarged its nominal dominion, spreading itself abroad in modes and phrases, and thus, in almost every transaction connected with property, suggesting the remembrance of its once vigorous and undivided rule. 32 CHAPTER II. OF THE NATURE AND EFFECTS OF USES. Introduction of equitable inter name of USES. HITHERTO the system was purely possessory, founded ests, under the on the direct dominion over the land. An important change was effected by the introduction of equitable interests, founded on confidence in the person. The estate of the old common law proprietor was actual and manifest; the right of the new beneficiary presented nothing Nature of a use. either tangible or visible. The legal owner of the land contracted a moral obligation to hold or to dispose of it for the benefit of another, who was said to have the USE. Thus, A. conveyed land to B., to his (A.'s) own use, or to the use of C. This declaration of the use charged the conscience of B., the legal feoffee or grantee, but did not attach itself to the land; for (says Lord Coke) "it would be absurd to say that confidence and trust can be reposed in land, which, in regard to sense, is inferior to brute beasts; and it would be less absurd to say that beasts may be trusted, who have sense and want reason, than that land, which wants sense and reason also, may be trusted" (a). (a) 1 Co. Rep. 127 a. |