on the land, were good and available in law. The whole subject, however, of forfeiture by alienation has now lost much of its former importance, in consequence of changes in the state of the law relative to the chief conveyances by which this doctrine of the common law was brought into operation; viz. the abolition of fines and recoveries by 3 & 4 Will. IV. c. 74, and the provision of 8 & 9 Vict. c. 106, s. 4, formerly noticed, "that a feoffment made after "1st of October, 1845, shall not have any tortious ope"ration (s)."

3. Analogous [both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer: as where a tenant, who holds of any lord, neglects to render him the due services, and, upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure, in any court of record, is a forfeiture of the lands to the lord (t), upon reasons most apparently feudal. And so likewise, if, in any court of record, the particular tenant does any act which amounts to a virtual disclaimer,]—as if, being tenant for life, he claims a fee (u),-such behaviour amounts to a forfeiture of his particular estate.

And in reference, as it would seem, to the general principle on which both this head of forfeiture and the last are founded, (viz. the obligation of fealty due from the tenant to the reversioner,) it has been held that where a tenant for term of years deserted the premises, and afterwards delivered up the possession of them, with the lease, to a third party, who claimed by title paramount to the landlord, with intent to assist that party in setting up the adverse title; the termor forfeited, under those circumstances, his own estate for years (x).

(s) Vide sup. p. 322.

(t) Finch, 270, 271.

(u) Co. Litt. 251 b.

(x) Doe d. Ellerbrook v. Flynn, 4 Tyrw. 619. See Doe d. Graves v. Wells, 10 Ad. & El. 427.

CHAPTER XV.

OF TITLE BY ALIENATION IN GENERAL.

THE most usual title to real estates is that of alienation or conveyance (a): [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.

This means of taking estates by alienation is not of equal antiquity in the law of England, with that of taking them by descent. For we may remember that, by the feudal law, a pure and genuine feud could not be transferred from one feudatory to another, without the consent of the lord (b): lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feudal services, instead of one on whose abilities and fidelity he could depend.] And as the feudatory [could not aliene it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir(c). And therefore it was usual in very antient feoffments, to express that the

(a) As to title by alienation, see Co. Litt. 118 b; and for the early state of the law as to the power of alienation, Wild's case, 6 Rep. 17.

(b) Vide sup. p. 183.

(c) Co. Litt. 94; Wright, Ten. 169.

[alienation was made by consent of the heirs of the feoffor: or sometimes for the heir apparent himself to join with the feoffor in the grant (d). And, on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his seigniory without the consent of his vassal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprised of it, that he might know with certainty to whom his renders and services were due; and be able to distinguish a lawful distress for rent, from a hostile seizing of his cattle by the lord of a neighbouring clan (e). This consent of the vassal was expressed by what was called attorning (ƒ), or professing to become the tenant of the new lord (g); which doctrine of attornment was afterwards extended to all lessees for life or years,] between whom and the lessor there still exists (as we have seen) the feudal relation of lord and tenant (h). [For if one bought an estate with

(d) Madox, Formul. Angl. Nos. 316, 319, 427.

(e) Gilb. Ten. 83.

(f) The same doctrine and the same denomination prevailed in Bretagne-" possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attournances et avirances, ut loqui solent; cum vasallus, ejurato prioris domini obsequio et fide, novo se sacramento, novo item domino acquirenti obstringebat ; idque jussu auctoris."-D'Argentre, Antiq. Consuet. Brit. apud Dufresne, i. 819, 820.

(g) As to attornment, see Co. Litt. 309 a-325 a; Harris v. Booker, 4 Bing. 99; Birch v. Wright, 1 T. R. 378; Doe v. Boulter, 6 Ad. & El. 675; and the learned note to Brown v. Storey, 1 Man. & G. 128.

(h) Vide sup. pp. 262, 302. It is to be observed, however, that the

attornment of the particular tenant was as necessary upon the grant of a remainder, as a reversion; and yet there is no feudal tenure between the particular tenant and the remainder-man. The reasons assigned for this are, 1st, that the remainderman came in by the feudal feoffment, and therefore the remainder would not pass without the utmost notoriety; and this was by attornment coram paribus, to which such notoriety was attributed, that the feudal feoffment could not be altered without it; 2nd, because the action of waste, and the right of forfeiture of tenant for life, accrued to him in remainder; and therefore, the tenant for life being to some purposes attendant on the remainder-man, it was fit that he should attorn to his grant.--Gilb. Ten. 90, 91.

[any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incomplete (i); which was also an additional clog upon alienations.

But by degrees this feudal severity is worn off; and experience hath shown that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained. The road was cleared, in the first place, by a law of King Henry the first, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power, than over what had been transmitted to him in a course of descent from his ancestors (k); a doctrine which is countenanced by the feudal constitutions themselves (1): but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate (m). Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but if his assigns were not specified in the purchase deed, he was not empowered to aliene (n); and also he might part with one-fourth of the inheritance of his ancestors, without the consent of his heir (o). By the great charter of Henry the third (p),] no alienation was permitted of any part of the land, [unless sufficient was left to answer the services due to the superior lord; which sufficiency was probably interpreted to be one-half or

(i) Litt. § 551.

(k) "Emptiones vel acquisitiones suas det cui magis velit. Terram autem quam ei parentes dederunt, non mittat extra cognationem suam."-Wilkins, Leg. Anglo-Sax. LL. Hen. 1, c. 70.

(1) Feud. 1. 2, t. 39.

(m) "Si questum tantum habuerit is, qui partem terræ suæ donare volue

rit, tunc quidem hoc ei licet; sed non totum questum, quia non potest filium suum hæredem exhæredare."-Glanv. 1. 7, c. 1.

(n) Mirr. c. 1, s. 3. This is also borrowed from the feudal law. (Feud. 1. 2, t. 48.)

(0) Mirr. ibid.

(p) 9 Hen. 3, c. 32.

12, permitted

By the tem

[moiety of the land (g). But these restrictions were, in general, removed by the statute of Quia emptores (r); whereby all persons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion (s):] subject only to the provision that all conveyances of the fee should be to hold of the chief lord, and not of the grantor (t). [And even these tenants in capite were by the statute 1 Edw. III. c. to aliene on paying a fine to the king (t). porary statutes 7 Hen. VII. c. 3, and 3 Hen. VIII. c. 4, all persons attending the king in his wars were allowed to aliene their lands without licence, and were relieved from other feudal burdens. And, lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24.] The restraint of devising lands by will, (except in some cases by particular custom,) after being partially taken off by the statute of wills, 32 Hen. VIII. c. 1, was at length totally removed, on the abolition of military tenures by the statute of Charles just mentioned. [The doctrine of attornments continued later than any of the rest, and became extremely troublesome, though many methods were invented to evade them (u); till at last they were by statute 4 & 5 Anne, c. 16, made no longer necessary to complete the grant or conveyance; nor shall, by statute 11 Geo. II. c. 19, the attornment of any tenant affect the possession of any lands; unless made with consent of the landlord; or to a mortgagee after the mortgage is forfeited; or by direction of a court of justice.]

The result of these several relaxations has at length been the complete disengagement of the realty from all the feudal

(9) Dalrymple of Feuds, 95; 2

Bl. Com. p. 161.

(r) 18 Edw. 1, c. 1.

(s) Vide sup. p. 204.

(t) 2 Inst. 67.

(u) "The Statute of Uses and the

"Statute of Wills," (of which hereafter,) "in all cases in which they "applied, made attornments unne"cessary."—Coleridge's Blackstone, vol. ii. p. 290, n. (3).