Rule against perpetuities. Power of disposition a necessary attribute of property. The law governs mode of devolution. Property susceptible of legal and equitable estate. Classifica tion of property in English law. 2. With the single exception of property settled to the separate use of a married woman without power of anticipation (a), it is impossible to confer property on any age given person beyond the of twenty-one years, without at the same time conferring the power to dispose thereof to the extent of the interest conferred (b). 3. Subject to the foregoing rules, an owner of property may, in general, dispose thereof to whom he pleases; but hecannot prescribe a mode of devolution different from that established by the general law (c). 4. In every description of property, the legal estate or interest may be vested in one person, whilst the equitable or beneficial estate and interest may be vested in another (d). English law recognizes no logical classification of property. Its divisions of property do not correspond with the physical nature of things, but are accommodated to the historical development of its several institutions (e). According to that development, the fundamental division is into I. Real Property, comprehending-1, freeholds; and 2, copyholds. II. Personal Property, including-1, chattels real; and 2, chattels personal. (a) As to modification of this rule by former statutes and the Law of Conveyancing and Property Act, 1881, Cf. 8. 39, 44, & 45 Vic. c. 41 and note thereto, infra. (b) Bradley v. Peixoto, 3 Ves. 324; Tudor's Lead. Cas. 3rd ed. 968-985; Dawkins v. Lord Penrhyn, L. R. 4 (c) Co. Litt. 223; Sir Anthony Mildmay's Case, 6 Co. 41 a. (d) Cf. Notes to Tyrrell's Case, Tudor's Lead. Cas. 3rd ed. 336-367. (e) Cf. I. Aust. Jurisp. 3rd ed. 59, 60. A cross division is into I. Corporeal Property, or that of which tangible possession may be had. II. Incorporeal Property, or that which is incapable of tangible possession. We shall briefly explain, as we proceed, such points in the law of real and personal property as will make the theory of conveyancing to some extent intelligible, and, at the same time show the import of the changes introduced by recent legislation. Whatever be its subject, conveyancing may be considered Conveyanc under the two heads I. Conveyancing inter vivos. II. Conveyancing ex testamento. We propose to deal, successively, with the conveyance of real and personal property, under each of the above heads. ing inter vivos or ex testamento. SECTION I.-CONVEYANCING INTER VIVOS. Subsection I-Freeholds. conveyanc holds. CONVEYANCING of freehold property inter vivos may be divided Periods in into six periods-viz., 1. the Common Law Period, which ing of freesubsisted from the time that alienation was first permitted up to the passing of the Statute of Uses; 2, the period which elapsed between the passing of the Statute of Uses and the year 1834; 3, the period from 1834 to 1841; 4, the period from 1841 to 1845; 5, the period from 1845 to 31st Freeholds lay in grant. Common law assurances. December 1881; 6, the period which begins on 1st January,. 1882. 1. The Common Law Period.-During the whole of this livery or in period feudal rules alone regulated the transfer of freehold property. The fundamental maxim of the Common Law was that corporeal hereditaments lay in livery; incorporeal hereditaments, in grant (a). The meaning of this maxim was that the immediate freehold in possession could not be conveyed to a stranger without the formality of a feoffment and livery of seizin, whilst incorporeal hereditaments, such as remainders, reversions, and easements, were properly transferable by deed. Common Law conveyances were not confined to feoffment and grant; they also included fine, recovery, lease, release, exchange, partition, surrender, and assignment, each appropriate to some particular transaction (¿). Fines and Thus, fines and recoveries were the ordinary means of barring an estate tail. They were also employed for the purpose of extinguishing dormant titles and passing the estates of married women (c). So, a lease was the mode whereby a term for life or years might be created (d); a release the mode whereby one person having a greater estate or interest in land might pass that estate or interest to a party having a less estate or interest in the same land (e); and a surrender was in one sense the converse of a release, being the means whereby a person having a less estate or interest might yield up that estate or interest to a person having a greater estate recoveries. Lease, Release. Surrender. (a) Co. Litt. 9 a, 9 b, 48 a. (d) Litt. ss, 57, 58; Co. Litt. 43b, 45b (e) Litt., ss. 444, 445, 465, 305-307; Co. Litt. 193 b, 278 b. or interest (a); exchange, the mode whereby owners of estates Exchange. of the same quality, though not necessarily of the same value, might mutually barter the one for the other (b); partition, Partition. the mode by which coparceners acquired several estates in place of the joint estate originally vested in them (c); assign- Assignment, the mode whereby lessees of estates for years alienated those estates (d). ment. The several conveyances above enumerated may be thus Classificaclassified. Extraordinary Assurances tion of assurances at common law. Ordinary Assurances and inno veyances. Extraordinary assurances involved the interposition of the Tortious Court where real actions were instituted-viz., the Court of cent conCommon Pleas. Ordinary assurances only involved the acts of the parties; tortious assurances, or assurances having a wrongful operation, might confer an estate or interest far (a) Co. Litt. 337 b, 162, 338 a. (b) Litt. ss. 62-65; Co. Litt. 51 a, 51 b. (c) Litt. ss. 243-250; Co. Litt. 165 b, 166 a, 187 b. (d) I. Steph. Comms., 8th ed. 524, 525. Effect of estoppel. Creation and trans fer of estates. Classifica tion of freehold estates. beyond what was vested in the conveying party; whereas innocent conveyances could confer no greater estate or interest than the conveying party himself possessed (a). The effect of an innocent conveyance, however, which purported to pass a greater interest than that vested in the conveying party, might afterwards be augmented under the principles of estoppel; for a subsequent acquisition of a greater interest by the conveying party would, as a rule, feed the estoppel-that is, enure to the benefit of the party who claimed under the conveyance (b). By means of the foregoing assurances, all the estates and interests then legally recognized in land might be transferred, provided the prescribed formalities were observed. By some one or other of such assurances, also, might all estates or interests then legally recognized in land be created, with the single exception, after the eighteenth year of the reign of Edward I., of estates in fee simple, which from thenceforth were only capable of being transferred, the statute of' Quia Emptores (c) having in that year prohibited subinfeudation for the future. It was impossible, however, by any assurance, to create an estate not sanctioned by the common law. It was equally impossible to create or transfer any estate except in the manner prescribed by the genius of that law. The freehold estates which were ultimately recognized were estates of inheritance, comprising estates in fee simple, in fee simple qualified (d), and in fee tail (e); and estates not of (a) I. Hayes' Conv. 5th ed. 27, 28; Co. Litt. 271 b. n. 1. I. 3. b) Doe d. Christmas v. Oliver, 5 M. & R. 202; II. Sm. Lead. Cas. 8th ed. 775, 877, 878. (c) 18 Ed. I. c. 1. (e) 13 Ed. I. c. 1. |