(e) Stat. 33 & 34 Vict c. 84. (f) Stat. 19 & 20 Vict. c. 47, amended by stat. 20 & 21 Vict. c. 14, and 21 & 22 Vict. c. 60, and now consolidated by stat. 25 & 26 Vict. c. 89, and amended by stat. 30 & 31 Vict. c. 131. (g) Stat. 25 & 26 Vict. c. 89, 8. 18.
By a statute of the reign of Elizabeth, conyeyances of landed estates, and also of goods, made for the purpose of delaying, hindering or defrauding creditors, are void as against them; unless made upon good, which here means valuable, consideration, and bond fide, to any person not haying, at the time of the conveyance, any notice of such fraud (i). And, by a subsequent statute of the same reign, voluntary conyeyances of any estate in lands, tenements, or other hereditaments whatsoever, and conyeyances of such estates made with any clause of revocation at the will of the grantor, are also void as against subsequent purchasers for money or other valuable consideration (j). The effect of this enactment is, that any person who has made a voluntary settlement of landed property, even on his own children, may afterwards sell the same property to any purchaser; and the purchaser,, even though he have full notice of the settlement, will hold the lands without danger of interruption from the persons on whom they had been previously settled (k). But if the settlement be founded on any valuable consideration, such as that of an intended marriage, it cannot be defeated (l).
The methods by which a tenant in fee simple can alienate his estate in his lifetime will be reserved for future consideration, as will also the subject of alienation by testament. As a tenant in fee simple may alienate his estate at his pleasure, so he is under no control in his management of the lands, but may open mines, cut timber, and commit waste of all kinds (m), grant leases of any length, and charge the lands with the payment of money to any amount. Fee simple estates are moreover subject, in the hands of the heir or devisee, to debts of all kinds contracted by the deceased tenant. This liability to what may be called an involuntary alienation, has, like the right of voluntary alienation, been established by very slow degrees (n). It appears that, in the early periods of our history, the heir of a deceased person was bound, to the extent of the inheritance which descended to him, to pay such of the debts of his ancestor as the goods and chattels of the ancestor were not sufficient to satisfy (o). But the spirit of feudalism, which attained to such a height in the reign of Edward I., appears to have infringed on this ancient doctrine; for we find it laid down by Britton, who wrote in that reign, that no one should be held to pay the debt of his ancestor, whose heir he was, to any other person than the king, unless he were by the deed of his ancestor especially bound to do so (p). On this footing the law of England long continued. It allowed any person, by any deed or writing under seal (called a special contract or specialty) to bind or charge his heirs, as well as himself, with the payment of any debt, or the fulfilment of any contract: in such a case the heir was liable, on the decease of his ancestor, to pay the debt or fulfil the contract, to the value of the lands which had descended to him from the ancestor, but not further (q). The lands so descended were called assets by descent, from the French word assez, enough, because the heir was bound only so far as he had lands descended to him enough or sufficient to answer the debt or contract of his ancestor (r). If, however, the heir was not expressly named in such bond or contract, he was under no liability (s). When the power of testamentary alienation was granted, a debtor, who had thus bound his heirs, became enabled to defeat his creditor, by devising his estate by his will to some other person than his heir; and, in this case, neither heir nor devisee was under any liability to the creditor (t). Some debtors, however, impelled by a sense of justice to their creditors, left their lands to trustees in trust to sell them for the payment of their debts, or, which amounts to the same thing, charged their lands, by their wills, with the payment of their debts. The creditors then obtained payment by the bounty of their debtor; and the Court of Chancery, in distributing this bounty, thought that "equality was equity," and consequently allowed creditors by simple contract to participate equally with those who had obtained bonds binding the heirs of the deceased (u). In such a case the lands were called equitable assets. At length an act of "William and Mary made void all devises by will, as against creditors by specialty in which the heirs were bound, but not further or otherwise (x); but devises or dispositions of any lands or hereditaments for the payment of any real and just debt or debts were exempted from the operation of the statute (y). Creditors, however, who had no specialty binding the heirs of their debtor, still remained without remedy against either heir or devisee; unless the debtor chose of his own accord to charge his lands by his will with the payment of his debts; in which case, as we have seen, all creditors were equally entitled to the benefit. So that, till within the last few years, a land-owner might incur as many debts as he pleased, and yet leave behind him an unencumbered estate in fee simple, unless his creditors had taken proceedings in his lifetime, or he had entered into any bond or specialty binding his heirs. At length, in 1807, the fee simple estates of deceased traders were rendered liable to the payment, not only of debts in which their heirs were bound, but also of their simple contract debts (z), or debts arising in ordinary business. By a subsequent statute (a), the above enactments were consolidated and amended, and facilities were afforded for the sale of such estates of deceased persons as were liable by law, or by their own wills, to the payment of their debts. But, notwithstanding the efforts of a Romilly were exerted to extend so just a liability, the lands of all deceased persons, not traders at the time of their death, continued exempt from their debts by simple contract, till the year 1833; when a provision, which, but a few years before, had been strenuously opposed, was passed without the least difficulty (b). All estates in fee simple, which the Owner should not by his will have charged with, or devised subject to, the payment of his debts, were then rendered liable to be administered in the Court of Chancery, for the payment of all the just debts of the deceased owner, as well debts due on simple contract as on specialty. But, out of respect to the ancient law, the act provided that all creditors by special contract, in which the heirs were bound, should be paid the full amount of the debts due to them before any of the creditors by simple contract, or by specialty, in which the heirs were not bound, should be paid any part of their demands. If, however, the debtor should by his last will have charged his lands with, or devised them subject to, the payment of his debts, such charge was still valid, and every creditor, of whatever kind, had an equal right to participate in the produce. Hence arose this curious result, that a person who had incurred debts, both by simple contract, and by specialty in which he had bound his heirs, might, by merely charging his lands with the payment of his debts, place all his creditors on a level, so far as they might have occasion to resort to such lands; thus depriving the creditors by specialty of that priority to which they would otherwise have been entitled (c). This anomaly has now been remedied by an act which provides that, in the administration of the estate of any person who shall die on or after the 1st of January, 1870, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond, deed or other instrument under seal, or is otherwise made,or constituted a specialty debt; but all the creditors of such person, as well specialty as simple contract, shall be treated as standing in equal degree and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable: provided that the act shall not prejudice or affect any lien, charge or other security which any creditor may hold or be entitled to for the payment of his debt (d).