The statute of Quia emptores.
A lienation by will.
(i) Stat. 18 Edw. I. c. 1.
(k) Chap. 2.
(l) Wright's Tenures, 162,
(m) Wright's Tenures, 172; Co. Litt. 111b, n. I.
(n) Litt. Sect. 167; Perk. Sects. 528, 537.
Blackstone's explanation of an estate in fee simple is, that a tenant in fee simple holds to him and his heirs for ever, generally, absolutely and simply, without mentioning what heirs, but referring that to his own pleasure, or the disposition of the law (s). But the idea of nominating; an heir to succeed to the inheritance has no place in the English law, however it might have obtained in the Roman jurisprudence. The heir is always appointed by the law, the maxim being Solus Deus haeredem facere potest, non homo (t); and all other persons, whom a tenant in fee simple may please to appoint as his successors, are not his heirs but his assigns. Thus, a purchaser from him in his lifetime, and a devisee under his will, are alike assigns in law, claiming in opposition to, and in exclusion of the heir, who would otherwise have become entitled (u).
(o) Pcrk. ubi sup.
(p) Stat. 27 Hen. VIII. c. 10, intituled "An Act concerning Uses and Wills."
(q) Stat. 32 Hen. VIII. c. 1; 34 & 35 Hen. VIII. c. 5; Co.
Litt, 111 b, n. (1).
(r) By stat. 12 Car. II. c. 24.
(s) 2 Black. Corn. 104. See however 3 Black. Com. 224, where the correct account is given.
With respect to certain persons, exceptions occur to the right of alienation. Before the Naturalization Act, 1870 (v), if an alien or foreigner, under no allegiance to the crown (x), purchased an estate in lands, the crown might at any time have asserted a right to such estate; unless it were merely a lease taken by a subject of a friendly state for the residence or occupation of himself or his servants, or the purpose of any business, trade, or manufacture, for a term not exceeding twenty-one years (y). For the conveyance to an alien of any greater estate in lands in this country, was a cause of forfeiture to the Queen, who, after an inquest of office had been held for the purpose of finding the truth of the facts, might have seized the lands accordingly (z). Before office found, that is, before the verdict of any such inquest of office had been given, an alien might have made a conveyance to a natural-born subject; and such conveyance would have been valid for all purposes (a), except to defeat the prior right of the crown, which would have still continued. No person is considered an alien who is born within the dominions of the crown, even though such person may be the child of an alien, unless such alien should be the subject of a hostile prince (b). And in Calvin's case (c), a person born in Scotland after the accession of James I. to the crown of England, was held to be a natural-born subject, and consequently entitled to hold lands in England, although the two kingdoms had not then been united. Again, the children of the Queen's ambassadors are natural-born subjects by the Common Law (d); and, by several acts of parliament, the privileges of natural-born subjects have been accorded to the lawful children, though born abroad, of a natural-born father, and also to the grandchildren on the father's side of a natural-born subject (e); and more recently, the children of a natural-born mother, though born abroad, were rendered capable of taking any real or personal estate (f). It was also provided that any woman, who should be married to a natural-born subject or person naturalized, should be taken to be herself naturalized, and have all the rights and privileges of a natural-born subject (g). And by a statute of the reign of William the Third all the King's natural-born subjects were enabled to trace their title by descent through their alien ancestors (h). Any foreigner may be made a denizen by the Queen's letters patent, and capable as such of acquiring lands by purchase, though not by descent (i), or may be naturalized by act of parliament. But the Naturalization Act, 1870 (j), now provides (k) that real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject; and a title to real and personal property of every description may be derived through, from or in succession to an alien in the same manner in all respects as through, from or in succession to a natural-born British subject. This act repeals many of the former statutes with respect to aliens, and contains several important amendments of the general law on this subject.
The heir is appointed by law.
(t) 1 Reeves's Hist. Eng. Law, 105; Co. Litt. 191 a, n. (1), vi. 3.
(u) Hogan v. Jackson, Coup. 305; Co. Litt. 191 a, n. (1), vi. 10.
(v) Stut. 33 Vict. c. 14.
(x) Litt. s. 198.
(y) Stat. 7 & 8 Vict. c. 66, s. 5.
(z) Co. Litt. 2 b, 42 b; 1 Black. Com. 371, 372; 2 Black. Com. 249, 274, 293.
(a) Shep. Touch. 232; 4 Leo. 84.
The Naturalization Act, 1870.
(b) 1 Black. Com. 373; Bacon's Abr. tit. Aliens (A).
(c) 7 Rep. 1.
(d) 7 Rep. 18 a.
(e) Stat. 25 Edw. III. stat. 2; 7 Anne, c. 5; 4 Geo. II. c. 21; 13 Geo. III. c. 21. Doe dem. Duroure v. Jones, 4 T. Rep. 300; Shedden v. Patrick, 1 M'Queen's
H. of L. Cas. 535; Fitch \. Weber, 6 Hare, 51.
(f) Stat. 7 & 8 Vict. c. 66, s. 3.
(g) 7 & 8 Vict. c. 66, s. 16.
(h) Stat. 11 & 12 Will. III. c. 6, explained by stat. 25 Geo. II. c. 39.
(i) 1 Black. Com. 374.
Infants, or all persons under the age of twenty-one years, and also idiots and lunatics, though they may hold lands, are incapacitated from making a binding disposition of any estate in them. The conveyances of infants are generally voidable only (l), and those of lunatics and idiots appear to be absolutely void, unless they were made by feoffment with livery of seisin before the year 1845 (m). But by a recent act of parliament (n), every infant, not under twenty if a male, and not under seventeen if a female, is empowered to make a valid and binding settlement on his or her marriage, with the sanction of the Court of Chancery. If, however, any disentailing assurance shall have been executed by any infant tenant in tail under the provisions of the act, and such infant shall afterwards die under age, such disentailing assurance shall thereupon become absolutely void (o). Under certain circumstances, also for the sake of making a title to lands, infants have been empowered, by modern acts of parliament, to make conveyances of fee-simple and other estates, under the direction of the Court of Chancery (p). And more extensive powers3 with respect to the estates of idiots and lunatics, have been given to their committees, or the persons who have had committed to them the charge of such idiots and lunatics (q). Power is also given to the Court of Chancery in the case of infants (r), and to the Lord Chancellor or either of the Lords Justices (s), intrusted by virtue of the Queen's sign manual with the care of the persons and estates of idiots and lunatics (t), by a simple order, to vest in any other person the lands of which any infant, idiot or lunatic may be seised or possessed upon any trust or by way of mortgage.