A proposed vendor, although having a good title to, and being the absolute owner of property, and standing in no situation of trust towards the proposed purchaser, may yet be under some personal incapacity, which may prevent a sale: that is to say, he may be, 1st, An infant: if so, he can, as a general rule, execute no conveyance which will bind, either himself when he comes of age, or his heirs in the event of his dying, either under age, or of full age, but without having (in those cases which admit thereof) confirmed the transaction (a).

Incapacities to sell or buy are general or relative.

As to who are generally incompetent to bell.

Nor has a Court of Equity any authority to sell the real estate of an infant, under the mere notion that a sale will be beneficial (b)

But, by Statute, in particular cases, infants holding land in trust, or subject to the debts of their ancestor or testator, are enabled to convey, under the authority of the Court of Chancery (c); and, in various special cases, infants, or their guardians, are enabled, by Statute, to sell and convey land for purposes connected with religion (d), instruction (e), or works of a public nature.

So, an infant can convey under a power simply collateral (f), but he cannot be empowered, at least as against himself, to contract for the sale of land, or to do any other act which requires an exercise of discretion.

But, by the custom of gavelkind, an heir at the age of 15, may, for valuable consideration, sell, and convey for an estate in possession, lands which he took by descent; the conveyance being by feoffment, and livery of seisin being delivered by him in person (g).

Infants.

Estates of, cannot be sold by the Court, except under special circumstances.

But they may convey under Statute.

And are empowered by Statute to sell for certain special purposes.

May exercise collate-ral power.

And may sell under custom of gavelkind.

(a) 4 Bac. Abr. 360, et seq.; any deed which takes effect by delivery, is, if executed by an infant, voidable only; but Letters of Attorney, and deeds which delegate a mere power, and convey no interest, are absolutely void; Zouch v. Parsons, 3 Burr. 1794; Anon. v. Handcock, 17 Ves. 383; Allen v. Allen, 2 Dru. & War. 307.

(b) Calvert v. Godfrey, 6 Beav. 97; and see Wood v. Patteson, 10

Beav. 541; as to a sale under special circumstances, see Garmstone v. Gaunt, 1 Coll. 577.

(c) Vide infra, Ch. XIII. and XIX.

(d) See, for a list of the Church Building Acts, the preamble to 3 & 4 Vict. c. 60.

(e) See 4 & 5 Vict. c. 38; and 6 & 7 Will. IV. c. 90.

(f) 1 Sug. Pow. 211, 7th edit.

An infant, however, has no privilege to commit a fraud (h): if, therefore, he were to sell and convey, asserting that he had attained his majority, it is conceived that the purchaser would, in Equity, be entitled to the protection of the legal estate, (supposing him to have acquired it;) and that, if the infant, (supposing him to have the legal estate,) were to proceed at Law to recover the property, Equity would restrain the action, except upon the terms of his refunding the purchase-money; for instance, where an infant received a premium for a lease of his lands, upon his false assertion that the lessor was his guardian, Lord King decreed a return of the premium with interest (i). It has, however, been held that, in order that Equity may interfere, there must be something equivalent to misrepresentation on the infant's part; and that the mere fact of his entering into a transaction which could be valid only if entered into by an adult, is not such a fraud as entitles the other party to relief (j).

By the 53 Geo. III. c. 141, s. 8, all contracts for the sale of any annuity or rent-charge by an infant are declared utterly void, notwithstanding any attempted confirmation after majority: and the intended purchaser is made guilty of a misdemeanor.

Or, 2ndly, The proposed vendor may be a lunatic or idiot: in which case, according to the early authorities, his conveyance may be set aside by his Committee, or his heirs after his death: yet he himself, though he recovered his senses, was said to be unable to avoid it (k); at least if made by feoffment, with livery of seisin delivered by him in person (l): it has, however, been held, that a Bargain and Sale, Lease and Release, or other innocent conveyance by a lunatic, is absolutely void (m); and the 8 & 9 Vict. c. 106, s. 4, which deprives a Feoffment of its tortious operation, would appear to render such a conveyance by a lunatic equally inoperative; the rule, however, against a party being allowed to stultify himself, would not prevail in Equity (n), nor, according to the modern authorities, at Law (o), in favour of a purchaser who had knowingly dealt with an incompetent vendor. While, on the other hand, it has been held, at Law, in a very recent case, that where a person, apparently of sound mind and not known to be otherwise, enters into a contract which is fair and bond fide, and which is executed and completed, and the property, the subject-matter of the contract, cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the alleged lunatic or his representatives (p): and such seems to be the present doctrine of the Courts of Equity (q).

Fraudulent sale by, what relief against, in equity.

There must be misrepresentation.

Sale of annuity or rent-charge by, is void by Statute.

Lunatics.

Sales by, how far void or voidable.

(g) 4 Bac. Abr. pp. 49, 50. This customary feoffment is excepted from the 8 & 9 Vict. c. 106, s. 3.

(h) Chambers on Infancy, 412; and see Overtoil v. Banister, 3 Hare, 503.

(i) Esron v. Nicholas, 1 DeG. &S. 118.

(j) Stikeman v. Dawson, 1 De G. & S. 90.

(k) Beverley's case, 4 Rep. 123 6.

And if a lunatic levied a Fine or suffered a Recovery in person, the conveyance was held to be good (r): but, of course, no similar result would now be attained by his executing an assurance under the Fines and Recoveries Abolition Act.

And, in various special cases, Committees of Lunatics are, as are infants (s), enabled by Statute, to sell and convey land.

Fine or recovery.

Or disentailing assurance by.

Statutory

(/) Thompson v. Leach, Comb. 468; Beverley's case, ubi supra.

(m) 2 Sug. Pow. 179, 7th edit.

(n) Shelf. on Lunacy, 350.

(o) Mollon v. Camroux, 2 Exch. Rep. 487, 501; S. C, in error, 18 L. J., N. S. Exch. Cham. 356, and cases cited.

(p) S. C.

(q) Niell v. Morley, 9 Ves. 478;

Williams v. Wentworth, 5 Beav. 325; Selby v. Jackson, 6 Beav. 192; Aff. on Appeal, p. 204.

(r) See Shelf. on Lunacy, p. 316, et seq.; Murley v. Sherren, 8 Ad. & E. 754; but as to the deed making the tenant to the praecipe, and the declaration of uses (if any) being affected by the Lunacy, see 3 Atk. 313.

Or, 3rdly, The proposed vendor may be a married woman; in which case she may, with her husband, convey her freehold estates under the Fines and Recoveries Abolition Act; but any other conveyance executed by her is, at Common Law, absolutely void (t): her copyhold estates will pass by her surrender with her husband's concurrence; or, if her interest be merely equitable, either by such a surrender or by deed acknowledged under the Act; and her legal terms for years will pass by the sole assignment of her husband (u); though whether they will be bound by his contract, in the event of his death in her lifetime and before conveyance, seems to be doubtful (v): as respects her equitable terms for years, it would appear, that in order to perfect the title, she must join in and acknowledge the assignment (w).

And although the legal and equitable fee simple may be vested in a married woman, she and her husband may, nevertheless, be unable effectually to assure it to a purchaser; for where the property has been acquired under a will or settlement which forbids alienation during coverture, such restriction is binding, although no trustee be interposed (x).

But a married woman may, in exercise of a power, pass, either a legal estate, by limitation of an use, or an equitable estate: and she has always an implied power to dispose of, as if she were single, her equitable interest in property settled to her separate use with no restriction upon alienation (y).