Eight of alienation as against the heir.
(g ) 1 Reeves's Hist . Eng Law, 223.
(h) Ibid. 105.
(i) Glanville, lib. 7, c. 1; 1
Reeve's Hist. 104.
Other modes of alienation Subinfeudation.
(k) Litt. sects. 17, 19, 20.
(l) Litt. sect. 135.
(m) All the forms of feoffments given in Madox'a Formnlare An-glicannm, with the exception of Nos. 318 and 325, are in this form. No. 318 is a gift in frankalmoign, and was afterwards con-tinned by the son of the grantor (see title, Confirmation, No. 119); and No. 326 appears to have been a family transaction between a father and his son. The curious questions mentioned in Glanville (lib. 7. c. 1) as to the descent of lands which had been granted by a father to one of his younger sons, or by a brother to his younger brother, clearly show that grants of land were then made by subinfeudation. Mr. Reeves's observation (1 Hist. Eng. Law, 10G, n. (m)), that the reservation of services was most commonly made to the feoffor, appears to be scarcely strong enough.
The power of the ancestor over the expectations of his heirs becomes absolute.
(n) Perkins's Profitable Book, Secte. 529, 653.
(0) Bracton, lib. 2, cap. 6, fol.
17 a. Nihil acquirit ex donatione facta antccessori, quia cum dona-fcorio non est feoffatus.
The interest of the lord was evidently of two kinds; his interest in the rent and services during the continuance of the tenancy, and his chance or possibility of again obtaining the land on failure of the heirs of his tenant. On the former of these interests, the inroad of alienation appears to have been first made. The tenants, by taking upon themselves to make grants of part of their lands to strangers to hold of themselves, prejudiced the security possessed by the lord for the due performance of the services of the original tenure. And Accordingly we find it enacted in Magna Charta (p), that no freeman should give or sell any more of his land than so as what remained might be sufficient to answer the ser-vices he owed to his lord. The original services reserved on any conveyance were, however, always a charge on the land while in the hands of the under-tenants, and could be distrained for by the lord (q ); although the enforcement of such services was doubtless rendered less easy by the division of the lands into various ownerships. The infringement on the lord's interest, expectant on the failure of the heirs of his tenant, appears to have been the last step in the progress of alienation. As the advantages of a free power of disposition became apparent, a new form of grant came into general use. The lands were given not only to the tenant and his heirs, but to him and his heirs, or to whomsoever he might wish to give or assign the land (r), or with other words expressly conferring on the tenant the power of alienation (s). In this case, if the tenant granted, or underlet p. 5. The tendency towards the alienation of lands was perhaps as it were, part of his land, then, on his decease and failure of his heirs, the tenant's grantee had still a right to continue to hold as tenant of the superior lord; and such superior lord then took the place of landlord, which the original tenant or his heirs would have occu-pied had he or they been living (t). And if the tenant, instead of thus underletting part of his land, chose to dispose of the whole, he was at liberty so to do, by substituting, if he thought fit, a new tenant in his own place (u). Grants of lands with liberty of alienation, as they became more frequent, appear in process of time to have furnished the rule by which all grants were construed. During the long and feeble reign of Henry III. this change to the disadvantage of the lord appears to have taken place; for at the beginning of the next reign it seems to have been established that, in whatever form the grant were made, the fact of the existence of an expectant heir enabled the tenant to alienate, not only as against his heirs, but also as against the lord. If therefore lands were given to a man and his heirs, he could at once dispose of them (x); and if lands were granted to a man and the heirs of his body, he was able, the moment he had issue born - that is, the moment he had an expectant heir of the kind mentioned in the gift - to alienate the lands. And the alienee and his heirs had a right to hold, not only during the existence of the issue, but also after their failure (y). The original intention of such gifts was therefore in a great measure defeated; originally, on failure of the issue the lands reverted to the donor; bu1 now nothing was requisite but the mere birth of issue to give the donee a complete power of disposition.
Alienation as affecting the interests of the lord.
Interest of the lord in the rent and scr-\ ices first affected.
Infringement on the lord's interest expectant on failure of heirs.
(p) Chap. 32.
(q ) Perkins's Profitable Book, Sect. 674.
(r) Bract, lib. 2,c.6, fol. 17 b.
(s) Madox's Formulare Angli-canum, Preliminary Dissertation, fostered by the spirit of crusading; see 1 Watkins on Copyholds, pp. 149, L50.
The fact of the existence of an expectant heir enables the tenant to alienate.
(t) Bract, ubi sup.
(u) See stat. 4 Edw. T. c. 6.
(x) Perk. Sec. 667-670; Co. Litt, 43 a. If a tenant of a conditional fee had a right of alienation on having issne born, surely a tenant in fee simple must have had at least an equal right. See however Co. Litt. 43 a, n. (2); "Wright's Tenures, 155, note.
(y) Fitzherbert's Abr. title Formedon, 62,65; Britton, 93 b,94 a; Plowd. Comm. 246; 2 Inst. 333; Co. Litt. 19 a; Year Book, 43 Edw. III. 3 a , pl. 13. Earl • Stafford v. Buckley, 2 Ves. sen. 171.
The mere existence of an expectant heir having thus grown up into a reason for alienation, the barons of the time of Edw. I. began to feel how small was the possibility, that the lands, which they had granted by conditional gifts (z) to their tenants and the heirs of their bodies, should ever revert to themselves again; whilst at the same time they perceived the power of their own families weakened by successive alienations. To remedy these evils, and to keep up that feudal system, which landlords ever held in high esteem, but on which the necessities of society ever made silent yet sure encroaches, it was enacted in the reign of Edw. I. by the famous statute De Donis Conditionalibus (a), - and no doubt as was then thought finally enacted, - that the will of the donor, according to the form in the deed of gift manifestly expressed, should be from thenceforth observed; so that they, to whom the tenement was given, should have no power to alien it, whereby it should fail to remain unto their own issue after their death, or to revert unto the donor or his heirs, if issue should fail.