| 
1. Litt. sec. 12, Co. Litt. ibid.
2. Wright on Tenures, 154. note. Reeve's Hist. of the English Law, vol. i. p. 5. 10, 11. Spelman on Feuds, ch. 5. Ibid. on Deeds and Charters, b. 7. c. 1. 2 Blacks. Com. 375.
3. The alienation of bocland was prohibited by a law of Alfred, if it descended from one's ancestors, and the ancestor had imposed that condition. L. L. Alfred, ch. 37. Lambard's Arch. p. 31. Sir Henry Spelman says, that bocland was hereditary, and could not be conveyed from the heir without his consent, though that restriction was finally removed; nor could it be devised by will. It was the folcland that was alienable and devisable, and was in the nature of allodial property.
4. Feud. lib. 2. tit. 39.
5. Vol. iii. 405-407.
6. Lambard's Arch. p. 203.
7. Lib. 7. ch. 1. and see vol. iii. 406.
8. Vide supra, p. 11-13.
9. 2 Inst. 66.
10. These successive periods in the progress of the law of alienation, may be found distinctly and fully stated in detached parts of Reeves' history of the English Law; but a more entire and better view of the history of the English law of alienation, is to be seen in Sullivan's Historical Treatise on the" Feudal Law, sec. 15 and 16, and in Dalrymple's Essay on Feudal Property, ch. 3. The latter unites with it a history of the recovery of the right of alienation in Scotland. The subject is-also sketched by Sir William Blackstone, in his Commentaries, (vol. ii. 287-290.) with his usual felicity of execution; and it is lightly touched in Millar's Historical View of the English Government, a work of great sagacity and justness of reflection, but destitute of true precision and accuracy in detail. Thus, on the very point before us, he only says, in relation to the Anglo-Saxon times, that "no person was understood to have a right of squandering his fortune to the prejudice of his nearest relations." This is loose in the extreme; and yet for this passage lie refers to a law of Alfred, which gives us the exact, and a far different regulation, and which law was mentioned in a preceding note.
11. Vol. i. 719. sec. 8, 9, 10.
12. Montague, Ch. J. in Partridge v. Strange, 1 Plowd. Rep. 88. a.
13. N.Y. Revised Statutes, vol. i. 739. sec. 147, 148.
14. Co. Litt. 214. a
15. Vol. ii. 691. sec. 6.
16. Perkins, sec. 220.
17. Feudum sine Investitura nullo modo constitui potest; Investitura proprie dicitur Possessio. Feudorum, lib. 1. tit. 25. lib. 2. tit. 2. Voet. Com. ad Pand. lib. 41. tit. 1. sec. 38.
18. Com. vol. ii. 311.
19. Williams v. Jackson, 5 Johns. Rep. 489. Wolcott v. Knight. 6 Mass, Rep. 418. Brinley v. Whiting, 5 Pick. Rep. 348.
20. Bro. tit. Feoffments, pl. 19. Fitzherbert, J. in 27 Hen. VIII, fo. 23. b. 24. a. Co. Litt. 369. Beaumond, J. in Cro. E. 445. Hawk, b. 1. c. 86. sec. 3.
21. In Connecticut, by the colony act of 1727, the seller forfeits half the value of the land. In Massachusetts, the penalty in the statute of 32 Hen. VIII. has never been adopted, though the principle of the common law is assumed that such a conveyance is void. 5 Pick. Rep. 348.
22. Stoever v. Whitman, 6 Binney's Rep. 420. Aldridge v. Kincaid, Act of Tennessee, 1805, c. 11. 2 Littell, 398. Until 1798, a deed, conveying land in the adverse possession of another, was void by the law of Kentucky.
23. Jackson v. Ketchum, 8 Johns. Rep. 479. Mr. Dane says, there is no statute on the subject in Massachusetts, but that champerty is an offense in that state at common law. Dane's Jib, vol. vi. 741. sec. 4.
24. Vol. ii. 691. sec. 5.
25. N.Y. Revised Statutes, vol. ii. 134. sec. 6.
26. Lower v. Winters, 7 Cowen's Rep. 263.
27. Evans v. Roberts, 5 Barnw. & Cress. 829.
28. London Waterworks v. Bailey, 4 Bingham, 283.
29. Civil Code of Louisiana, art. 2415. 2417.
30. Jackson v. Wood, 12 Johns. Rep. 73.
31. N.Y. Revised Statutes, vol. i. 738. sec. 137.
32. Co. Litt. 35. b.
33. 3 Inst. 169. This definition of Lord Coke is supported by all the ancient authorities. See Perkins, sec. 134. Bro. tit. Facts, 17. 30. Lightfoot and Butler's case, 2 Leon, 21. In public and notarial instruments, the seal or impression is usually made on the paper, and with such force as to give tenacity to the impression, and to leave the character of the seal upon it.
34. Genesis 38:18. Exodus 28:11. Esther 8:8-10. Jeremiah 32:10, 11. Cicero, Acad. Q. Lucul. 4. 26. Heinece. Elem. Jur. Civ.497.
35. Force v. Craig, 2 Halsted's Rep. 272. Alexander v. Jameson, 5 Binney's Rep. 258. Temple v. Logwood, 1 Wash. Rep. 42. But in Virginia, there must be evidence of an intention to substitute the scroll for a seal. 1 Munf. 487. And it is understood that the scroll is, by statute, in Delaware, Virginia, Illinois, Missouri, and Tennessee, made tantamount to an actual seal.
36. Warren v. Lynch, 5 Johns. Rep. 239. Mr. Griffith, the author of the "Annual Law Register of the United States," and to whom the public have been so much indebted for that very useful publication, has, in a note to vol. iv. p. 1201, urged the expediency of substituting the scroll for the seal, by sensible and forcible observations, and which might well influence courts of justice, if they were at liberty, to substitute their sense of expediency for a rule of the common law not changed by statute.
37. Jackson v. Catlin, 2 Johns. Rep. 248. Perkins, sec. 137, 138, 142.
38. Perkins, sec. 138. Butler and Baker's case, 3 Co. 35. b. 38. a. Frost v. Beekman, 1 Johns. Ch. Rep. 288. Littleton v. Boss, 3 Barnw. & Cress. 317.
39. Perkins, 143, 144. Holt, Ch. J. 6 Mod. Rep. 217. Parsons, Ch. J. 2 Mass. Rep. 452. The distinction on this point is quite subtle, and almost too evanescent to be relied on.
40. Taw v. Bury, 2 Dyer, 167. b. Alford and Lea's case, 2 Leon, 110. It appears difficult to sustain the law of these cases, unless on the ground. of the subsequent possession of the deed by the grantee, and its relation back. Lord Coke, in Butler and Baker's case, (3 Co. 26., b.) explains this point, by admitting that C. may refuse the deed, in pais, when offered, and then the obligation will lose its force. In both those cases, it is assumed that the third person, who first received the deed, was a stranger to C., and not his agent; and yet in Doe v. Knight, (5 Barnw. & Cress. 671.) Mr. J. Bayley, who delivered the opinion of the K. B., lays down the law according to the authority of those cases, which he cites with approbation. It seems to be the rule at law, that a deed, so executed and delivered, will bind, the grantor, if the grantee can, at any time, and in any way, get possession of it; yet a court of equity will disregard a deed, as an imperfect instruent, if it be voluntary, and never parted with, and executed for, a special purpose never acted on, and without the knowledge of the grantee, and it will not lend any assistance to the grantee. Cecil v. Butcher, 2 Jacob & Walk. 573. The deed may operate by a presumed assent, until a dissent appears, and then it becomes inoperative; for no person can be made a grantee against his will, and without his agreement. Thompson v. Leach, 2 Vent. 198. 3 Preston on Abstracts, 104.
41. Souverbye v. Arden, 1 Johns. Ch. Rep. 240. Jones V. Jones, 6 Conn. Rep. 111. Doe v. Knight, 5 Barnw. & Cress. 671. In these cases the authorities are collected and reviewed; and the last of these cases considered the doctrine in the text as requiring an extended discussion. It goes over the same ground, and through the same authorities, in 1826, which had been done at New York, in 1814.
42. State of Connecticut v. Bradish, 14 Mass. Rep. 296. Griffith's Register. 4 Greenleaf, 20. By the N.Y. Revised Statutes, vol. i. 756. sec. 1. conveyances not recorded are void, only as against a subsequent purchaser, in good faith, and for a valuable consideration, of the same estate, or any portion thereof, whose conveyance shall be first duly recorded. This was adopting the doctrine in Jackson v. Burgott, 10 Johns. Rep. 457.
43. Vol. i. 756--763.
44. Jackson v. Burgott, 10 Johns. Rep. 457. and vide supra, p. 164,
45. Wickes v. Caulk, 5 Harr. & Johns. 36.
46. Erskine's Inst. 208. sec. 36. Bell's Com. vol. i. 674--680.
47. Spelman's Works, by Bishop Gibson, p. 234.
48. Litt. sec. 372.
49. Spelman. p. 237.
50. Co. Litt. 7. a.
51. Story, J. in Durant v. Ritchie. 4 Mason's Rep. 57.
52. Jackson v. Cory, 8 Johns. Rep. 385.
53. Hornbeck v. Westbrook, 9 ibid. 73.
54. Co. Litt. 3. a.
55. Aubert v. Maze, 2 Bos. & Pull. 371. Ribbans v. Crickett, ibid. 264. Watts v. Brooks, 3 Vesey's Rep. 612. Bank of the United States v. Owens, 2 Peters' U. S. Rep. 527.
56. Lloyd v. Spillet, 2 Atk. Rep. 148. Jackson v. Alexander, 3 Johns. Rep. 491. Preston on Abstracts, vol. iii. 13, 14.
57. Fisher v. Smith, JIIoor, 569. Jackson v. Schoonmaker, 2 Johns. Rep. 230. Jackson v Alexander, 3 ibid. 491. Cheney v. Watkins. 1 Harr, & Johns. 527.
58. Abstracts, vol. i. 72. 299. Ibid. vol. iii. 15.
59. Jackson v. Staats, 2 Johns. Cas. 350. Trammell v. Nelson, 2 Harr.& McHenry, 4. Pernam v. Weed, 6. Mass. Rep. 131. McIver v. Walker, 9 Cranch's Rep. 173. Preston v. Bowmar, 6 Wheat. Rep. 580.
60. Mann v. Pearson, 2 Johns. Rep. 27. Smith v. Evans, 6 Binney's Rep. 102. Powell v. Clark, 5 Mass. Rep. 355. and see 1 Aiken's Rep. 325. to the same point. Jackson v. Moore, 6 Cowen's Rep. 706
61. Stebbins v. Eddy, 4 Mason's Rep. 414.
62. Preston on Abstracts, vol. iii. 206-210. has collected the nice distinctions on this subject, of the requisite description of the premimises; but to notice them all would lead me too far into detail.
63. 2 Blacks. Com. 298. Goodtitle v. Gibbs, 5 Barnw. & Cress. 709.
64. Co. Litt. 365. a.
65. 2 Blacks. Com. 301, 302.
66. Vol. i. 739. sec. 141.
67. N.Y. Revised Statutes, vol. i. sec. 140.
68. Greenby v. Wilcocks, 2 Johns. Rep. 1. Booth v. Stark, 1 Conn. Rep. 244. Mitchell v. Warner, 5 ibid. 497. Withy v. Mumford, 5 Cowen's Rep. 137. Birney v. Hann, 3 Marshall's Rep. 324. Parsons, Ch. J. in Marston v. Hobbs, 2 Mass. Rep. 439. Bickford v. Page, ibid. 455. Chapman v. Holmes, 5 Halsted's Rep. 20.
69. Lewis v. Ridge, Cro. E. 863. Comyn's Dig. tit. Covenant, B. 3. Andrew v. Pearce, 4 Bos. & Pull. 158.
70. 1 Maule & Selw.53
71. Parsons, Ch. J. in Gore v. Brazier, 3 Mass. Rep. 544, 545. and in Marston v. Hobbs, 2 ibid. 438. Townsend v. Morris, 6 Cowen's Rep. 123. and Tilghman, Ch. J. in Bender v. Fromberger, 4 Dalk Rep. 442.
72. 1 Powell on Mortgages, 187. 12 East's Rep. 469.
73. Binney's Rep. 95.
74. 2 Caines' Rep. 188.
75. The case of Grannis v. Clark, 8 Cowen's Rep. 36. is to the same effect, relative to the words grant and demise; and in an action on those covenants, it is not necessary to aver an eviction.
76. Prickets v. Dickens, 1 Murph. 343. Powell v. Lyles, ibid. 348.
77. Bracton, De Warrantia, lib. 5. ch. 13. sec. 3. Bro. tit. Voucher, pl. 69. Ibid. tit. Recouver in Value, pl. 59. Year Book, 30 Edw. III. 14. b. Aid. 19 Hen. VI. 46. a. 61. a. Ballet v. Ballet, Godb. 151.
78. Staats v. Ten Eyck, 3 Caines' Rep. 111. Pitcher v. Livingston 4 Johns. Rep. 1. Bennett v. Jenkins, 13 ibid. 50. Marston v. Hobbs, 2 Mass Rep. 433. Caswell v. Wendell, 4 ibid. 108. Bender v. Fromberger, 4 Dal. Rep. 441.
79. Gore v. Brazier, 3 Mass. Rep. 523. Parker, J. in Caswell v. Wendell, 4 ibid. 108. Bigelow v. Jones, ibid. 512. This was formerly the rule also in South Carolina. Liber v. Parsons, 1 Bay, 19. Guerard v. Rivers, ibid. 265. Witherspoon v. Anderson, 3 Dess. Eq. Rep. 245. But the rule is now settled in South Carolina, according to the English common law doctrine. Henning v. Withers, 2 Tred. Const. Rep. 584. Ware v. Weathnall, 2 McCord's Rep. 413.
80. Talbot v. Bedford, Cooke's Tenn. Rep. 447. Lowther v. The Commonwealth, 1 Harr. & Munf. 202. Crenshaw v. Smith, 5 Munf. 415. Stout v. Jackson, 2 Rand. 132. Stewart v. Drake, 4 Halsted's Rep. 139. Bennet v. Jenkins, 13 Johns. Rep. 50. Phillips v. Smith, North Carolina Law Repository, 475. Cox v. Strode, 2 Bibb. 272 Booker v. Bell, 3 ibid. 175. The rule in Virginia has been fluctuating. In Mills v. Bell, 3 Call, 326. it was the value at the time of eviction. In Nelson v. Matthews, 2 Harr. & Munf. 164. it was the value at the time of the contract. But I apprehend the later doctrine to be that stated in the text.
81. Prescott v. Trueman, 4 Mass. Rep. 627. Delavergne v. Norris, 7 Johns. Rep. 358.
82. Funk v. Voneida, 11 Serg. & Rawle, 109. where the authorities are collected and enforced in the learned opinion of Mr. Justice Duncan, and where he shows the ancient rule, under the writ of warrantia chartae qui timet implicari.
83. Morris v. Phelps, 5 Johns. Rep. 49. Guthrie v. Pugsleys, 12 ibid. 126. See, also, Beauchamp v. Damory, Year Book, 29 Edw. III. 4. and 13 Edw. IV 3. Gray v. Briscoe, Noy, 142. Dig. 21. 2. 1 13. Ibid. 1. 64. sec. 3. Pothier, Traité du Cont. de Vente, No. 99. 139. 142. all which cases are cited in Morris v. Phelps.
84. Code Napoleon, art. 1636, 1637. Civil Code of Louisiana, No. 2490.
85. 2 Harr. 4 Munf. 178. 4 Munf. 332.
86. Pothier's Traité du Cont. de Vente, No. 132-141. Inst. Droit Francois par Argou, tom. ii. liv. 3. ch. 23.
87. Code Napoleon, art. 1630-1641.
88. Art. 2482-2490.
89. Principles of Equity, vol. i. 289.
90. Ibid. vol. i. 288-303.
91. Prescott v. Trueman, 4 Mass. Rep. 627.
92. Com. vol, ii. 309.
93. Co. Litt. 48. a. 2 Blacks. Com. 315, 316.
94. Litt. sec. 419. 421. Co. Litt. 48. b.
95. Co. Litt. 9. a. 49. a. 367. a. Litt. 599. 611. 698. West. Symb. sec. 251. Sheppard's Touchstone, 203, 204. Butler's note 285. and note 317. to lib. 3. Co. Litt.
96. Litt. sec. 701.
97. Litt. sec. 279. Holt, Ch. J.Anon. 1 Salk. 246. Taylor v. Horde, 1 Burr. Rep. 60. Cowp. 689. S. C. William v. Thomas, 12 East's Rep. 141. Jerrit v. Weare, 3 Price, 575. Smith v. Burtis, 6 Johns. Rep. 147. Proprietors of Kennebec Purchase v. Springer, 4 Mass. Rep. 416. Proprietors v. Laboree, 2 Greenleaf, 283. Varick v. Jackson, 2 Wendell, 166. Prescott v. Nevers, 4 Mason's Rep. 326.
98. If one tenant in common enters under a recorded deed upon land, claiming the entirety in fee, and exercises notorious and avowed acts of exclusive ownership, such acts of ownership amount to a disseizin of his co-tenants. Prescott v. Nevers, 4 Mason's Rep. 326.
99. 1 Burr. Rep, 60.
100. Bracton, lib. 2. c. 5. sec. 3, 4.
101. Co. Litt. 48. b. 49. a. 2 Inst. 412, 413. Bullock v. Dibler, Popham, 38. Perkins, sec. 222.
102. 1 Burr. Rep. 60. Mr. Preston says, that the argument of Mr. Knowler, and not the doctrine of Lord Mansfield, states the law most correctly.
103. Preston on Abstracts, vol. ii. 390. 392.
104. 3 Price's Ex. Rep. 575.
105. Cro. C. 302.
106. 1 Taunt. Rep. 578
107. 3 Barnw. & Cress. 388.
108. Preston on Abstracts, vol. ii. 279-296.
109. I presume Mr. Preston to be the same counsel who argued the Cause of Goodright v. Forester, in the Exchequer Chamber, in 1809. (1 Taunt. Rep. 578.) In that case, Sir James Mansfield, in delivering the judgment of the court, observed, that if the doctrine of estates, arising by disseizin, was such as had been stated by Mr. Preston, he should lament that the law was such. "Our ancestors," he observed, "got into very odd notions on these subjects, and were induced, by particular cases, to make estates grow out of wrongful acts." It is presumed that Mr. Preston is also the same counsel who argued the cause of Jerrit v. Weare, before the Court of Exchequer, in 1317. (3 Price, 575.) In that case, Baron Graham, in delivering the opinion of the court, observed, that the principle of the decision in Taylor v. Horde rested on a foundation not to be shaken; and he spoke with even reprehensible harshness of the effort to revive the old doctrine of disseizin in its unmitigated force. Mr. Preston was not dismayed or diverted from his opinions by that decision; and he says, in the preface to his third volume on Abstracts of Title, that he has stated his propositions on disseizin, though that decision was before him, with the fullest conviction of their accuracy. It is presumed further, that Mr. Preston is the same person who, as counsel once more, brought up and enforced his tenacious opinions on the efficacy of feoffment working a disseizin, and creating a wrongful fee; and the K. B., in Doe v. Lynes, (3 Barnw. & Cress. 388.) very peremptorily rejected them. His views on this subject, as laid down in his treatises on property, may therefore be considered as essentially expelled from Westminster Hall.
110. It is to be regretted that the learned judge, who delivered the opinion in Prescott v. Nevers, (4 Mason's Rep. 326.) did not then find a proper occasion to investigate the subject of disseizin at large, upon which, he says, he had bestowed his researches at an early period of his professional life. There is no person living who would have done more complete justice to the subject; for that eminent judge never handles a question on any part of the science of law, without examining it in all its relations, with equal candor and freedom, and fervour and force, and leaving it completely exhausted.
111. Vol, i. 738. sec. 136.
112. Co. Litt. 9. b. 172. a.
113. Litt. sec. 608, 609.
114. Wright on Tenures, 171. Mr. Butler, in his note 272. to lib. 3. Co. Litt., while he admits that this doctrine formerly prevailed in England, says, that it did not prevail to an equal extent on the continent, and the lord might transfer his whole fee, without the consent of the vassal, and the vassal became, by such transfer, the tenant of the new lord. Mr. Hallam, in treating of the feudal system on the continent, during the middle ages, passes over so very important a point, with only a general remark, that the connection between the two parties under the feudal tenure were so intimate, that it could not be dissolved by either, without requiring the other's consent; and he refers to no authority for his assertion.-Hallam on the Middle Ages, vol. i. 102. Sir Martin Wright refers to the book of feuds, (Feud. lib. 2. tit. 34. sec. 1.) where we have these words: ex eadem lege descendit quod Dominus sine voluntate vassalli feudum alienare non potest. But the book of feuds admits that this check upon the lord did not prevail at Milan-.Mediolani non obtinet.
115. Vol. i. 739. sec. 146.
116. N.Y. Revised Statutes, vol. i. 744. sec. 3.
117. Ibid. 738. sec. 137, 138. 142, 143.
118. Lord Coke says, that the word grant (concessi) may amount to a grant, a feoffment, a gift, a lease, a release, a confirmation, a surrender, etc.; and it is in the election of the party to use it to which of these purposes he will. (Co. Litt. 301. b.) The word convey, or the word assign, or the word transfer, would probably be sufficient. It is made the duty of the courts, in the construction of every instrument conveying an estate, "to carry into effect the intent of the parties;" and that intent may as certainly appear by these words as by any other.
119. Mr. Humphreys, in his Outlines of a Code, proposed that the name of all deeds should be conveyance, and the operative word convey. What restlessness does this exhibit
120. Lord Paget's case, 1 Leon, 195. 1 Co. 154. a. Wiseman's case, 2 Co. 15. Smith v. Ridley, Cro. C. 529. Hore v. Dix, 1 Sid. 25. Jackson v. Sebring, 16 Johns. Rep. 515.
121. Vide supra, p. 237. note.
122. Doe v. Salkeld, Willes' Rep. 673.
123. Doe v. Salkeld, Willes' Rep. 673. Preston on Abstracts, vol. i. 71. 312. Ibid. vol. iii. 23, 24. Cheney v. Watkins, 1 Harr. & Johns. 527.
124. Lutwich v. Mitton, Cro. J. 604. Barker v. Keat, 6 Mod. Rep. 249. The second volume of Mr. Preston's Treatise on Conveyancing, is essentially devoted to the theory of the law as it applies to the conveyance by lease and release; and the subject is exhausted and treated in attenuated detail.
125. Chudleigh's case, 1 Co. 121. b.
126. 2 Inst. 672. Jackson v. Fish, 10 Johns. Rep. 456, 457. and see ibid. 505. to S. P.
127. 2 Blacks. Com. 338.
128. Thatcher v. Omans, 3 Pick. Rep. 532. See also, supra, p. 296.
129. See supra, p. 237. note.
130. Vol. ii. 343. sec. 24.
131. Tucker's Blacks. vol. ii. 355. note.
132. Besides the extended view of the law of fines and recoveries in all the abridgments of the law, there are the distinct treatises in Sheppard's Touchstone, and of Pigott, Wilson, Cruise, and Preston, on fines and recoveries, and probably other works with which I am not acquainted. Mr. Brougham, in his celebrated speech on the present state of the English law, recommended the abolition of fines and recoveries; and he observed, that he should not drop a tear over the curious learning, and musty records, which would, in that care, be swept away. But while he exposed to just ridicule the fictitious action of a common recovery, as an instrument of conveyance, he entered into no discussion concerning the merit or demerit of fines. The English put more to hazard in meddling with their jurisprudence than any other European nation; and they ought to be more jealous than any other, of the spirit of innovation and codification which are abroad in the land. When a free people have their constitution and system of laws pretty well established, construed, and understood; when their usages and habits of business have accommodated themselves to their institutions, and especially when they are secure in their persons and property, under an able and impartial administration of justice, they ought, above all things, to beware of theory, for "in that way madness lies."