down houses, opening and working mines, &c.; but this power must be exercised during the life of the tenant in tail; for, at the instant of his death it ceases. If therefore a tenant in tail sells trees growing Perk. § 58. on the land, the vendee must cut them down during 11 Rep. 50a. the life of the vendor; otherwise they will descend to the heir as parcel of the inheritance. Plowd. 259. 33. It is said by Clark Just. in 27. Eliz. that if 3 Leon. 121. tenant in tail grants all his estate, the grantee is dis-, punishable for waste. So if the grantee grants it over, his grantee is also dispunishable. 34. The Court of Chancery will not, in any case whatever, restrain a tenant in tail from committing waste. Talbot, 16. 35. Thus Lord Talbot is reported to have said that Cases Temp. in Mr. Saville's case, who being an infant, and tenant in tail in possession, in a very bad state of health, and not likely to live to full age, his guardian cut down a quantity of timber just before his death, the remainder man applied for an injunction to restrain him, but could not prevail. Bruton, 2 Vern. 251. 36. A person settled lands on his daughter and the Jervis v. heirs of her body, and took a bond from her not to commit waste. The bond was put in suit, but the court held it to be an idle bond, and decreed it to be delivered up to be cancelled. 37. Estates tail are subject to curtesy and dower, which are incidents inseparably annexed to them; as will be noticed under these titles. Subject to 38. It has been stated that whenever a particular But not to estate in land vests in the person who has the fee Tit. I. § 49. simple of the same land, such particular estate is immediately drowned or merged in it. In consequence of this principle, if an estate had been given before the statute De Donis to A. and the heirs of his body, it would have merged, if the fee simple Plowd. 296. was limited to A. by the same conveyance, or came 2 Rep. 61 a. to him afterwards. But it was determined by the judges in the reign of Edward III. that an estate tail could not be merged, surrendered, or extinguished, by the accession of the greater estate: so that a man may have at the same time, and in his own right, both an estate tail, and the immediate reversion in fee simple, in the same land. Tit. 35. c. 9. Tenant inTail has a Right to the Title Deeds. Papillon v. Voice, 2 P. Wms. 471. Is not bound cumbrances. 39. The reason of this determination was, that the object of the statute De Donis being to render estates tail unalienable, if they were allowed to merge in the fee simple, an obvious mode of destroying them might have been adopted, by the tenant in tail's purchasing the reversion. There is however one case in which an estate tail merges in the reversion, which will be stated hereafter. 40. Tenant in tail, having an estate of inheritance, has a right to all deeds and muniments belonging to the lands; which the Court of Chancery will order to be given up to him. 41. Tenant in tail having only a particular estate, to pay off In- and not the entire property, he is not bound to pay off any charges or incumbrances affecting the estate: but where a tenant in tail does pay off an incumbrance charged on the fee simple, the presumption is, that such payment was made in exoneration of the estate; because he may, if he pleases, acquire the absolute ownership. Jones v. Morgan, 1 Bro. R. 206. 11.Ves. 277. Kirkham v. Tit. 15. c. 4. Shrewsbury v. Shrews bury, 1 Ves. Junr. 227. 42. The tenant in tail may however in a case of this kind, by taking an assignment of the incumbrance to a trustee for himself, or by several other acts, charge the estate with the payment of such incumbrance. 43. The Earl of Shrewsbury being tenant in tail under an act of parliament, which restrained him from alienation, unless he conformed to the established religion, and being a Roman catholic, paid off a sum of £15,000 charged on the estate for his sisters' portions, without taking any assignment of the term by which that sum was secured; or any declaration of trust of it for himself. In 1751 Lord S. by deed, reciting that he was seised of the freehold, subject to this charge, that he had paid off the portion of one of his sisters, and part of the portion of another, and that as none of the portions had been raised under the term, he had a right to have them raised for himself: He in consideration of £1000 conveyed an advowson, being part of the premises comprised in the term, to one Robinson; the trustees consented, and were parties, upon condition that the consideration should go in discharge of the portions. Lord S. died in 1787, leaving a will, but without taking any notice of his right to be reimbursed this sum, or doing any other act by which his intention could be known. A bill was brought by his personal representative against the next tenant in tail, and the trustees of the term, praying that they might be compelled to raise such sums as were paid by the late earl to his sisters. Lord Thurlow said that, in the transaction of 1751 respecting the advowson, there was a perfect and distinct recognition that the circumstance of paying off the charge did make Lord S. a creditor; and 15 Ves. 173. decreed for the plaintiff. 44. It was formerly held, that a tenant in tail was not even bound to keep down the interest of any incumbrances charged on the estate. It has been sinee Tit. 15. c. 4. resolved, that in some cases he is bound to keep down the interest.. TITLE II. ESTATE TAIL. CHAPTER II. Of the Power of Tenant in Tail over his Estate, and the Modes of barring it. 1. Can only alien for his own 26. Unless he confirms them. 4. His Alienation not absolutely 6. Sometimes a Discontinuance. 28. Nor subject to his Debts. 29. Except Crown Debts. 9. Sometimes voidable by Entry. 35. Are subject to the Bankrupt Can only alien for his own Life. 650. Walsingham's Čase, Plowd. 561. contra, THE SECTION 1. HE statute De Donis, affecting a perpetuity, restrains the tenant in tail from alienating his estate, by any mode whatever, for a greater term than that of his own life. Thus Littleton says—“ If tenant in tail grants all his estate to another, the grantee has no estate but for term of life of the tenant in tail, and the reversion of the tail is not in the tenant in tail, because he has granted all his estate and rights: But the reversion and inheritance of the tail, during the life of the tenant in tail, is in abeyance. 2. It is however observable that the words of the statute De Donis, by which the alienation of an estate T. Jones, tail is prohibited, only extend to the original donee, and not to his issue. Nec habeant illi, quibus tenementum sic fuerit datum, potestatem alienandi. But Plowd. 13. still the prohibition was extended by the judges to 239. the issue, in infinitum. And Broke says, the omis- Ab. Tit. Parsion of the heirs of the donee in the statute was a misprision of the clerk. liam. 91. 3. Lord Coke, in his comment on this statute, 2 Inst. 336. says "It was adjudged by Beresford that the issues in tail should not alien, no more than they to whom the land was given; and that was the intent of the makers of the act; and it was but their negligence that it was omitted, as there it is said. In this case, by way of purchase, the land is given to the donees, and by way of limitation to the issues in tail; and therefore, by a benign interpretation, the purview of this extends to the issues in tail." tion not 4. Although the statute De Donis restrains tenants His Alienain tail from alienating their estates for any longer absolutely term than that of their own lives; yet this must void. not be understood literally, that the grantee has only an estate for the life of the tenant in tail, which 2 Ld. Raym. determines ipso facto by the death of the tenant in Vide Machill tail. All that is meant by it is, that the grantee's v. Clarke, estate is certain and indefeasible, during the life of the tenant in tail only; upon whose death it becomes defeasible by his issue. 779. infra. 5. It is however otherwise where a thing is Walter v. Bould, granted out of an estate that is entailed, as a rent; Bulst. 32. for such grant becomes absolutely void by the death of the grantor, and can never be made good. a Discon 6. The law considers the tenant in tail as having Sometimes not only the possession, but also the right of pos- tinuance. session and inheritance in him; he is therefore allowed to alienate them by certain modes of con |