Bankrupt te nants in tail. C. 74. had been actually committed before the issuing of the commission,) if the adjudication has been notified in the London Gazette, and the persons affected by such notice may reasonably be presumed to have seen it. But, the 86th section enacts, that no purchase from any bankrupt bond fide, and for valuable consideration, though the purchaser had notice at the time of such purchase of any act of bankruptcy by such bankrupt committed, shall be impeached by reason thereof, unless the commission shall have been sued out within twelve calendar months after such an act of bankruptcy. And by the 87th section it is enacted, that no title to any real estate sold under a commission or order in bankruptcy, shall be impeached by the bankrupt, or any person claiming under him, in respect of any defect in the suing out the commission, or in any of the proceedings under the same, unless the bankrupt shall have commenced proceedings to supersede the said commission, and duly prosecuted the same, within twelve calendar months from the issuing thereof. By the 65th section of the 6 G. 4, c. 16, it was enProvisions of acted that the Commissioners of Bankrupts should make 3 & 4 W. 4, sale of any land of which the bankrupt was seised in tail, and every such deed should bar all persons whom the bankrupt might have barred by fine or recovery; but by the recent act for abolishing fines and recoveries, (3 & 4 W. 4, c. 74, s. 55,) this section is repealed, and it is enacted (s. 56,) that the commissioners in the case of an actual tenant in tail becoming bankrupt after the 31st of December, 1833, may by deed dispose of the lands of such bankrupt to a purchaser for the benefit of the creditors, and if the person who is the protector of the settlement shall not concur therein, the commissioner may dispose of as large an estate as the tenant in tail could have done if he had not become bankrupt. And where a tenant in tail entitled to a base-fee becomes bankrupt and there is no protector, the commissioners may dispose of the lands to a purchaser (s. 57). The deed of disposi-tion, if of freeholds, must be enrolled in Chancery, and if As to the protector of the settlement, see post, Chap. IX. of copyholds, must be entered on the court rolls, and also the deed of consent of the protector, (s. 59.); and all acts of a bankrupt tenant in tail shall be void against any dis- [286] position under the act by the commissioner (s. 63). By virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred to his assignees, without his participation or consent. [287] nation, what under it. CHAPTER THE SEVENTH. OF TITLE BY ALIENATION. Title by alie- THE most usual and universal method of acquiring a title is comprised to real estates is that of alienation, conveyance, or purchase in its limited sense: under which may be comprised any method wherein estates are voluntarily resigned by one man, and accepted by another: whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties. [290] Who may aliene. In examining the nature of alienation, let us first inquire, briefly, who may aliene and to whom; and then, more largely, how a man may aliene, or the several modes of conveyance. 1. Who may aliene, and to whom: or, in other words, who is capable of conveying, and who of purchasing And herein we must consider rather the incapacity, than capacity, of the several parties: for all persons in possession are prima facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities. But, if a man has only in him the right of either possession or property, he cannot convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down, aud the weak oppressed. Yet reversions and vested remainders may be granted; because the possession of the particular tenant is the possession of him in reversion or remainder : but contingencies, and mere possibilities, though they may be released, or devised by will, or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger at law, unless coupled with some present interest," a Co. Litt. 214. b Sheppard's Touchstone, 238, 239; 11 Mod. 152; 1 P. Wms. 54; Stra. 132. е although they may be assigned in equity, and bound at law by way of estoppel.d sons. Persons attainted of treason, felony, and praemunire, Attainted perare incapable of conveying, from the time of the offence committed, provided attainder follows:e for such conveyance by them may tend to defeat the king of his forfeiture, or the lord of his escheat. But they may purchase for the benefit of the crown, or the lord of the fee, though they are disabled to hold: the lands so purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime. So also corporations, religious or others, may purchase lands; yet, unless they have a licence to hold in mortmain, they cannot retain such purchase; but it shall be forfeited to the lord of the fee. All lay civil corporations might aliene their lands as freely as individuals, except for election purposes; but by the stat. 4 & 5 W. 4, c. 76, s. 94, they are restrained from selling or mortgaging any real estate, except in pursuance of some agreement entered into on or before the 5th of June, 1835, by the body corporate; but when the council shall deem it expedient to sell, they may represent the case to the treasury, and with the approbation of three of the Lords, may sell on such terms as they approve; but notice of the application must be given. Ecclesiastical and eleemosynary corporations are restrained by several statutes from every mode of alienation except that of leasing, and exercise that power under considerable restrictions, as will hereafter be seen. fants, and persons under duress. Idiots and persons of nonsane memory, infants, and Idiots, inpersons under duress, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases are voidable, but not actually void. The King indeed, on behalf of an idiot, may avoid his grants or other acts. But it hath been said, that a non compos himself, though he be afterwards brought to a c See Wright v. Wright, 1 Ves. 411; and ante, p. 102. d Weale v. Lower, Pollex. 30; Bensley v. Burdon. 2 Sim. & Stu. 519. e Co. Litt. 42. f Co. Litt. 2. g 3 & 4 W. 4, c. 69, s. 3. right mind, shall not be permitted to allege his own insanity in order to avoid such grant: for that no man shall be allowed to stultify himself, or plead his own disability, although he may plead non est factum, and show the insa[292] nity in evidence. Feme covert. m And this maxim that a man shall not stultify himself seems to be now settled law; although the doctrine does not appear to obtain in the ecclesiastical courts. But clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity, and avoid the grant. And so too, if he purchases under this disability, and does not afterwards upon recovering his senses agree to the purchase, his heir may either waive or accept the estate at his option." In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him." Persons also, who purchase or convey under duress, may affirm or avoid such transaction, whenever the duress is ceased. For all these are under the protection of the law; which will not suffer them to be imposed upon, through the imbecillity of their present condition; so that their acts are only binding, in case they be afterwards agreed to, when such imbecillity ceases. By two recent acts some important provisions are made respecting the leasing and renewing the leases of lunatics, infants, and other persons under disability, which we need not here mention in detail. The case of a feme covert is somewhat different. She may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, [293] till he avoids it by some act declaring his dissent. And, though he does nothing to avoid it, or even if he actually consents, the feme-covert herself may, after the death of her husband, waive or disagree to the same: nay, even i Yates v. Bowen, Str. 1104; Sug. Pow. 405. k Litt. s. 405; Cro. Eliz. 398; 4 Rep. 123; Jenk. 40; 1 Fonbl. Eq. 48. 1 Turner v. Meyers, 1 Hagg. 414. m Perkins, s. 21. n Co. Litt. 2. • Ibid. p 2 Inst. 483; 5 Rep. 119. q 1 W. 4, c. 60; 1 W. 4, c. 65. Co. Litt. 3. |