2. Of the purchase of pretended titles.

Every citizen of the United States is capable of taking, and holding lands, by descent, devise, or purchase; and every person capable of holding lands, except idiots, persons of unsound mind, and infants, and seised of, or entitled to any estate or interest in land, may alien the same at his pleasure, under the regulations prescribed by law. This is a principle declared in the New-York Revised Statutes, and I presume it is the general doctrine throughout the United States. In no other part of the civilized world is land made such an article of commerce, and of such incessant circulation; though it is said, that, in England, houses and lands have now become common means of investment, and circulate from owner to owner with unusual and startling rapidity. There is one check to the power of alienation of a right or interest in land, taken from the statute of 32 Hen. VIII. c. 9. against selling pretended titles; and a pretended title, within the purview of the common law, is where one person lays claim to land, of which another is in possession, holding adversely to the claim. Every grant of land, except as a release, is void, if, at the time, the lands are in the actual possession of another person, claiming under a title adverse to that of the grantor. This principle has always been received as

ries, (vol. ii. 287-290.) with his usual felicity of execution; and it is lightly touched in Millar's Historical View of the English Government, a work of great sagacity and justness of reflection, but destitute of true precision and accuracy in detail. Thus, on the very point before us, he only says, in relation to the Anglo-Saxon times, that "no person was understood to have a right of squandering his fortune to the prejudice of his nearest relations." This is loose in the extreme; and yet for this passage he refers to a law of Alfred, which gives us the exact, and a far different regulation, and which law was mentioned in a preceding note.

a Vol. i. 719. sec. 8, 9, 10.

b Montague, Ch. J. in Partridge v. Strange, 1 Plowd. Rep. 88. a.

settled law in New-York, and it has been recently incorporated into the revised statutes." But, even in such a case, the claimant is allowed, by the statute, to execute a valid mortgage of the lands, which has preference from the time of recording it, over subsequent judgments and mortgages, and binds the lands from the time of recovering possession.

b

The ancient policy which prohibited the sale of pretended titles, and held a conveyance to a third person of lands held adversely at the time, to be an act of maintenance, was founded upon a state of society which does not exist in this country. A right of entry was not assignable at common law, because, said Lord Coke, “under colour thereof pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed." The repeated statutes which were passed in the reigns of Edw. I. and Edw. III. against champerty and maintenance, arose from the embarrassments which attended the administration of justice in those turbulent times, from the dangerous influence and oppression of men in power. The statute of 32 Hen. VIII. imposed a forfeiture upon the seller of the whole value of the lands sold, and the same penalty upon the buyer also, if he purchased knowingly. This severe statute was re-enacted literally in New-York, in 1788; but the penal provisions are altered by the New-York Revised Statutes, which have abolished the forfeiture, but made it a misdemeanour for any person to buy or sell, or make or take a promise or covenant to convey, unless the grantor, or those by whom he claims, shall have been in possession of the land, or of the reversion or remainder thereof, or of the rents and profits, for the space of a year preceding. The provision does not

a N. Y. Revised Statutes, vol. i. 739. sec. 147, 148.

b Co. Litt. 214. a.

Vol. ii. 691, sec. 6.

apply to a mortgage of the lands, nor to a release of the same to the person in lawful possession. It seems to be unnecessarily harsh; but it is to be observed, that it was a principle conformable to the whole genius and policy of the common law, that the grantor, in a conveyance of land, (unless in the case of a mere release to the party in possession,) should have in him, at the time, a right of possession. A feoffment was void without livery of seisin; and without possession a man could not make livery of seisin. This principle is not peculiar to the English law. It was a fundamental doctrine of the law of feuds on the continent of Europe. No feud could be created or transferred without investiture, or putting the tenant into possession; and delivery of possession is still requisite, in Holland and Germany, to the transfer of real property. It seems to be the general sense and usage of mankind, that the transfer of real property should not be valid, unless the grantor hath capacity, as well as the intention, to deliver possession. Sir William Blackstone says, that it prevails in the code of "all well governed nations," for possession is an essential part of title and dominion over property. As the conveyance in such a case is a mere nullity, and has no operation, the title continues in the grantor, so as to enable him to maintain an ejectment upon it; and the void deed cannot be set up by a third person to the prejudice of his title. But as between the parties to the deed, it might operate by way of estoppel, and bar the grantor. This is the language of the old authori

a Perkins, sec. 220.

b Feudum sine Investitura nullo modo constitui potest; Investitura proprie dicitur Possessio.-Feudorum, lib. 1. tit. 25. lib. 2. tit. 2. Voet. Com, ad Pand. lib. 41. tit. 1. sec. 38.

c Com. vol. ii. 311.

d Williams v. Jackson, 5 Johns. Rep. 489. Wolcott v. Knight 6 Mass. Rep. 418. Brinley v. Whiting, 5 Pick. Rep. 348.

ties, even as to a deed founded on champerty or mainte

nance.a

The doctrine, that a conveyance by a party out of pos session, and with an adverse possession against him, is void, prevails equally in Connecticut, Massachusetts, Vermont, Maryland, Virginia, North Carolina, and probably in most of the other states. There are other states, such as Pennsylvania, Kentucky, and Tennessee, in which the doctrine does not exist, and a conveyance by a disseisee would seem to be good, and pass to the third person all his right of possession, and of property, whatever it might be. I am not particularly informed as to the rule on this point in other parts of the Union.

It is the settled doctrine in England, and in New-York, and probably in most of the other states, that the purchase of land pending a suit concerning it, is champerty, and the purchase is void, if made with a knowledge of the suit, and not in consummation of a previous bargain. The statutes of West. 1. c. 25. West. 2. c. 49. and particularly the statute of 28 Edw. I. c. 11. established that doctrine, which became incorporated into the common law. The

a Bro. tit. Feoffments, pl. 19. Fitzherbert, J. in 27 Hen. VIll., fo. 23. b. 24. a. Co. Litt. 369. Beaumond, J. in Cro. E. 445. Hawk. b. 1. c. 86. sec. 3.

b In Connecticut, by the colony act of 1727, the seller forfeits half the value of the land. In Massachusetts, the penalty in the statute of 32 Hen. VIII. has never been adopted, though the principle of the common law is assumed that such a conveyance is void. 5 Pick. Rep. 348.

Aldridge v. Kincaid,
Until 1798, a deed,

c Stoever v. Whitman, 6 Binney's Rep. 420. Act of Tennessee, 1805, c. 11. 2 Littell, 393. conveying land in the adverse possession of another, was void by the law of Kentucky.

d Jackson v. Ketchum, 8 Johns. Rep. 479. Mr. Dane says, there is no statute on the subject in Massachusetts, but that champerty is an offence in that state at common law.-Dane's Abr. vol. vi. 741. sec. 4.

substance of those statutes was made part of the statute law of New-York in 1788; and by the New-York Revised Statutes," to take a conveyance of land, or of any interest therein, from a person not in possession, while the land is the subject of controversy by suit, and with knowledge of the suit, and that the grantor was not in possession, is declared to be a misdemeanour. The same principle that would render the purchase of a pretended title void, would apply, with much greater force, to a purchase while the title to the land was in actual litigation.

3. Of the due execution of a deed.

A deed, duly executed, must be written on paper or parchment, and signed, sealed, delivered, and recorded.

(1.) The deed must be in writing, and signed, and sealed, The law requires more form and solemnity in the conyance of land, than in that of chattels. This arises from the greater dignity of the freehold in the eye of the ancient law, and from the light and transitory nature of personal property, which enters much more deeply into commerce, and requires the utmost facility in its incessant circulation. In the early periods of English history, the conveyance of land was usually without writing, but it was accompanied with overt acts, equivalent, in point of formality and certainty, to deeds. As knowledge increased, conveyance by writing became more prevalent; and, finally. by the statute of frauds and perjuries of 29 Charles II., all estates and interests in lands, (except leases not exceeding three years,) created, granted, or assigned, by livery and seisin only, or by parol, and not in writing, and signed by the party, were declared to have no greater force or effect than estates at will only. This statute provision has been either expressly adopted, or assumed as law,

a Vol. ii. 691, sec. 5.