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LECTURE LXVI.

OF TITLE BY DEED.

A PURCHASE, in the ordinary and popular acceptation of the term, is the transmission of property from one person to another, by their voluntary act and agreement, founded on a valuable consideration. But, in judgment of law, it is the acquisition of land by any lawful act of the party, in contradistinction to acquisition by operation of law; and it includes title by deed, title by matter of record, and title by devise.

1. Of the history of the law of alienation.

The alienation of proporty is among the earliest suggestions flowing from its existence. The capacity to dispose of it becomes material to the purposes of social life, as soon as property is rendered secure and valuable, in the progress of nations from a state of turbulence and rudeness, to order and refinement. It is stated, by very respectable authorities, that, in the time of the Anglo-Saxons, lands were alienable either by deed or by will. When conveyed by charter or deed, they worodichinguished by the name of boc, or bookland, and the other kind of land called folcland, was held and conveyed without writing.” But this notion of the free disposition of the land among

a Lill, sec. 12, Co. Litt. ibid.

b Wright on Tenures, 154, note. Reeve's Hist. of the English Law, vol. i. p. 5. 10, 11. Spelman on Feuds, ch. 5. Ibid. on Deeds and Charters, b. 7. c. 1. 2 Blacks. Com. 375, Vol. IV.

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the Saxons, must be understood in a very qualified sense: and the jus disponendi, even at that day, was subject, as it is in every country, and in every stage of society, to the restraints and modifications suggested by convenience, and dictated by civil institutions. It was reserved, however, to the feudal policy, to impose restraints upon me enjoyment and circulation of landed property, to an extent then unprecedented in the annals of Europe. There were checks (though they were comparatively inconsiderable) in favour of the heir, upon the alienation of land among the Jews, Greeks, and Romans. The feudal restrictions were rastly heavier, and founded on different policy. They arose partly in favour of the heir of the tenant, for the law of feuds would not allow the vassal to alien the paternal feud, even with the consent of the lord, without the consent of the heirs of the paternal line. But the restraint arose principally from favour to the lord of the fee. He was considered as having a strong interest in the abilities and fidelity of his vassal, and it was deemed to be a great hardship, and repugnant to the entire genius of the feudal system, to allow the land which the chieftain has given to one family, to pass, without his consent, into the possession of another, and to be transferred, perhaps to an enemy, or at least to a person not well qualified to perform the feudal engagements. The restrictions were perfectly in accordance with the doctrine of feuds, and proper and expedient in reference to that system, and to that system only. The whole feudal establishment proved itself eventually to be inconsistent with a civilized and pacific state of society ; and wherever freedom, commerce, and the arts, penetrated and shed their benign influence, the feudal fabric was gradually undermined, and all its proud and stately columns were successively prostrated in the dust.

a The alienation of bocland was prohibited by a law of Alfred, if it descended from one's ancestors, and the ancestor had imposed that condition. L. L Alfred, ch. 37. Lambard's Arch. p. 31. Sir Henry Spelman says, that bociand was hereditary, and could not be conveyed from the heir without his consent, though that restriction was finally removed; nor could it be devised by will. It was the folcland that was alienable and devisable, and was in the nature of allodial prom perty.

b Feud. lib. 2. tit. 39.

The history of the gradual decline of the feudal restraints in England, upon alienation, from the reign of Henry I., when the earliest innovations were made upon them, down to the final recovery of the full and free exercise of the right of disposition, forms an interesting view of the progress of society. Some notice of this subject was taken in a former volume ;, and though the feudal restrictions upon alienations never followed the emigration of our ancestors across the Atlantic, we may well pause a moment upon this ancient learning. Our sympathies are naturally excited, in a review of the subtle contrivances, the resolute struggles, the undiverted perseverance, and final and complete success, which accompanied the efforts of the English nation, in the early periods of their history, to break down the stern policy of feudal despotism, and to regain the use and control of their own property, as being one of the inherent rights of mankind.

The first step taken in mitigation of the rigours of the law of feuds, and in favour of voluntary alienations, was the countenance given to the practice of subinfeudations. They were calculated to elude the restraint upon aliona tion, and consisted in carving out portions or the fief to be held of the vassal by the same tenure with which he held of the chief lord of the fee. The alienation prohibited by the feudal law, all over Europe, was the substitution of a new feudatory in the place of the old one; but subinfeu

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Vol. ii. 405-407.

dation was a feoffment by the tenant to hold of himself The purchaser became his vassal, and the vendor still continued liable to the chief lord for all the feudal obligations. Subinfeudations were encouraged by the subordinate feudatortes, because they contributed to their own power and independence ; but they were found to be injurious to the fruits of tenure, such as reliefs, marriage, and wardships, belonging to the paramount lords. Alienation first became prevalent in cities and boroughs, where the title to lands and houses was chiefly allodial, and where the genius of commerce dictated and impelled a more free and liberal circulation of property. The crusades had an indirect, but powerful influence upon alienation of land, as those who engaged in that wild and romantic enterprise, ceased to place any value upon the inheritances which they were obliged to leave behind them. A law of Henry I. relaxed the restraint as to purchased lands, while it retained it as to those which were ancestral. In the time! of Glanville, considerable relaxations as to the disposition of real property acquired by purchase, were tolerated. Conditional fees had been introduced by the policy of individuals to impose further restraints upon alienation ; but the tendency of public opinion in its favour, induced the courts of justice, which had partaken of the, same spirit, to give to conditional fees a construction inconsistent with their original intention. This led the feudal aristocracy to procure from Parliament the statute De Donis of 13 Edw. I., which was intended to check the juar cial construction, that had, in a great degree, discharged the conditional fee from the limitation imposed by the grant. Under that statute, fees conditional were changed into estates tail ; and the contrivance which was afterwards resorted to, and adopted by the courts, to elude the entail

a Lambard's Arch. p. 203. b Lib. 7. ch. 1. and see vol. iii. 406.

ment, and defeat the policy of the statute, by means of the fiction of a common recovery, has been already alluded to in a former part of the present volume. a

The statute of Quia Emptores, 18 Edw. I., finally and permanently established the free right of alienation by the sub-vassal, without the lord's consent, but it broke down subinfeudations, which had already been checked by magna carta ; and it declared, that the grantee should not hold the land of his immediate feoffor, but of the chief lord of the fee, of whom the grantor himself held it. The importance of that provision to the feudal lord, was the cause of its being enacted ad instantiam magnatum regni, as the statute itself admits. The power of involuntary alienation, by rendering the land answerable by attachment for debt, was created by the statute of West. 2. 13 Edw. I. ch. 18. which granted the elegit; and by the statutes merchant or staple, of 13 Edw. I., and 27 Edw. III., which gave the extent. These provisions were called for by the growing commercial spirit of the nation. To these we may add the statute of 1 Edw. III. taking away the forfeiture on alienation by the king's tenants in capite, and substituting a reasonable fine in its place ; (and which Lord Coke says, was only an exposition of magna carta ;) and this gives us a condensed view of the progress of the common law right of alienation from a state of servitude to freedom.

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a Vide supra, p. 11–13, 6 2 Inst, 66.

c These successive periods in the progress of the law of alienation, may be found distinctly and fully stated in detached parts of Reeves' History of the English Law; but a more entire and better view of the history of the English law of alienation, is to be seen in Sullivan's Historical Treatise on the Feudal Law, sec. 15 and 16, and in Dal. rymple's Essay on Feudal Property, ch. 3. The latter unites with it a history of the recovery of the right of alienation in Scotland. The subject is also sketched by Sir William Blackstone, in his Commenta

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