of an

CHAP. V. III. Mode of

assurance substituted for

III. The substitution, for the barring of an estate tail, and all estates and interests to take effect after the determination or in defeazance of the estate tail, assurance by deed, (a) (i. e. a writing under seal,) to be barring entails inrolled (b) in the Court of Chancery within six calendar months after the execution.

of land.

does not supersede inrolment, prescribed by any other law.

The inrolment requisite for the purpose of giving Inrolment under effect to a disentailing assurance under the act does this provision not excuse a non-compliance with the requisition of any other law in regard to inrolment or registration; so that, if, for instance, the lands lie within a registry district, the deed must also be registered, and if the transaction be within the annuity acts, a memorial must be inrolled. But the inrolment may be operative for several purposes, where inrolment in the same court and within the same period will satisfy the law in each case. (c) Where the deed is intended to have the double operation of barring an entail and passing the estate of a married woman, it must be perfected with the distinct ceremonies appropriated to those several objects.

legal convey.

The assurance must be, or must purport to be, an Necessity of a actual conveyance inter vivos, adapted to pass the legal inheritance, (d) as a feoffment, (e) a lease and release, a

(c) 27 Hen. 8, c. 13; 9 Geo. 2, c. 36.

(d) "And be it further enacted, that every disposition of lands "under this act by a tenant in tail thereof, shall be effected by some "one of the assurances (not being a will,) by which such tenant in "tail could have made the disposition if his estate were an estate at "law in fee simple absolute; provided, nevertheless, that no disposi"tion to be made by a tenant in tail shall be of any force, either at "law or in equity, under this act, unless made or evidenced by deed; "and that no disposition by a tenant in tail resting only in contract, "either express or implied, or otherwise, and whether supported by (e) Vide infrà, Prec. No. 1, 2.

H

ance by deed.

CHAP. V. bargain and sale, (a) or, if the estate tail be not in pos

The necessity of such a convey

ance extends to

mere equities and rights.

session, a grant. (b) It is not enough, on the one hand, that the instrument is a deed, unless it be adequate to pass the estate of the tenant in tail, considered as a legal fee simple, nor, on the other hand, that it is an assurance adequate to pass such estate, unless it be also a deed.

Whether the estate tail be legal or equitable, vested or contingent; or, having been once legally vested, it has been divested and turned to a right; (c) nay, even if the operation of a previous fine with proclamations, or a previous assurance under the act itself, has absolutely barred the issue in tail, and reduced the entail to the shadowy privilege of barring claimants in remainder or reversion; still the tenant in tail, or the would-be tenant in tail, must be treated, for the purposes of this act, as having a legal estate in fee simple in the land, and must convey by one of those ordinary modes of assurance which the law has appropriated to the transfer of freehold interests. The act, in requiring a legal conveyance, as well of estates in the land, as of unsubstantial rights and equities in respect of the land, may be thought to have strained the application of technical forms beyond technical reasoning; but it was the policy of the legislature, while it abolished the old solemnities, "" a valuable or meritorious consideration or not, shall be of any force "at law or in equity under this act, notwithstanding such disposition "shall be made or evidenced by deed."-S. 40. For this clause the writer is responsible; two or three other suggestions, particularly one in regard to the express exclusion of the jurisdiction of equity, were adopted. The eminent lawyer whose name is prefixed to this work took considerable interest in the bill; but, allowing for such casual assistance, on minor points, the merit of the plan and execution of the statute belongs wholly and exclusively to Mr. Brodie. (a) Vide S. 41. (c) S. 1. Definitions.

(b) Vide infrd, Prec. No. 10.

and substituted more simple modes of assurance, still to CHAp. V. exact the observance of ceremony, and to prevent settlements, framed for the most part with caution and deliberation for the purpose of preserving estates in families, from being annulled by instruments unadvisedly prepared, or inadvertently executed.

are,

But it should be observed, that the words of the act Mode of assurance, how to be if his estate were an estate at law in fee simple ascertained. as absolute," which must be interpreted "as if an estate in fee simple absolute occupied the very place of the estate tail;" so that if, for example, an estate tail be expectant on a particular estate, an assurance adapted to pass a remainder in fee will satisfy the enactment. The test, therefore, to be applied in order to ascertain the appropriate mode of assurance is-first, to consider the person intending to convey as owner of a legal estate in fee simple; and secondly, to consider the position which that estate would occupy, having regard, too, to the nature of the subject.

In order to assist in the practical application of the -shewn by examples, of both new enactments, it may be useful to intersperse from legal and equittime to time a few examples. In illustration, therefore, able entails. of the preceding position, let us suppose the lands limited to A. in tail, with remainders over; here it is ob-' vious that A. must convey by feoffment, lease and release, or bargain and sale, because if A. were seised in fee simple in possession, he must adopt one or other of these modes of assurance; but if the subject of the intail were an advowson, or other incorporeal hereditament lying in grant, then a deed of grant would be the appropriate kind of assurance. Again, if lands are limited to the use of A. in fee, upon trust for B. in tail, with limitations over, B., though having merely an equitable right to an estate

CHAP. V. tail, must pursue the very same form of assurance as if he were seised of a legal estate tail, just as an equitable tenant in tail, with limitations over, must, before the statute, have gone through the form of a common recovery. In this respect the act has established uniformity, and preserved the analogy, though the case of an equitable estate or interest requiring, in order to pass or bind it, the extraordinary mode of assurance prescribed by law in regard to alienation by tenants in tail or married women, forms now, as it formed before the statute, the single exception to the principle that a mere equity may be disposed of by any instrument, however informal, which expresses the intention.(a) It should be observed, that in the case last put, the concurrence of A., the trustee, would be wholly unnecessary, except for the purpose of completing the legal title in B., or his alienee, which the trustee could not be called upon to do till the equitable fee had been acquired by means of an assurance under the act. It is hardly necessary to state that whether the equitable entail be created by an actual conveyance or settlement, or by a mere executory trust or contract, the same formality must be observed. But if lands are limited to A. for life, remainder to B. in tail, with remainders 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 remainders. If the lands are 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 limitations over, the same observations will apply. In every case, the question to be asked is, not whether the estate or interest of the tenant in tail be of such a quality as to demand or admit of a legal conveyance, but what mode of (a) Vide suprà, 85.

assurance would, if the estate or interest were a fee simple at law, be necessary to convey it?

CHAP. V.

--by examples

of a mere right to an estate tail,

the remainders.

Cases may occur in which there exists only a right to an estate tail, or in which nothing remains but the bare capacity of defeating the right of the ulterior claimants. or ability to bar Thus, if A., tenant in tail, with remainders over, had enfeoffed B. in fee, thereby discontinuing the estate tail, and putting the issue and remaindermen to their right of action, 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, had by the effect of the fine, (as, in the previous example, A. had by the effect of the feoffment,) been absolutely denuded of all estate, right, and interest, at law and in equity, retaining only the power of excluding those in remainder or reversion after the estate tail, and 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, who had the legal freehold, and must, therefore, have made the tenant to the præcipe. Now, the same result may be obtained by the lease and release of A., or his issue, who, having not a remnant of interest left, must convey like one estated in fee, while B., in whom the fee (defeasible, indeed, but still the legal fee), substantially resides, need not convey at all. This is the extreme case in which the statute exacts a solemn conveyance where it has not even the semblance of a subject on which to operate;