These were changed into estates in fee tail by the statute de donis. The tenants were thereby prevented from aliening their estates, as against their heirs or the lord, until Taltarum's Case, which, as we have seen, took away all restraints on the alienation of estates in fee tail.2 As to the general power of a man to alienate his estate as against his heirs or the lord of whom he held it, the authorities offer two theories.3 One is that we are to begin with an almost unlimited power of alienation, which is gradually restricted, and at a later time the restrictions are removed. The other is that there was at first little or no power to alienate real property, and that the history of the subject of alienation has been a history of restrictions removed. It is probable, however, that neither theory is correct, but that the law in early times was unsettled,4 and remained so from the fact that there were but few sales of land for cash, but that all transfers took the form of subinfeudations, in which, from the services and rent reserved, the heirs or the lord would receive as much benefit as from the land, so would not be inclined to question the validity of the conveyance. There are some statements in the books that a man had greater power to dispose of lands which he had acquired by purchase than those which came to him by descent.5 In other places it is intimated that a man could only dispose of a reasonable portion of his lands, unless the alienation was confirmed by his heir; though he always had power to give a portion of his lands to his daughter on her marriage, to be held by a tenure, which was called frank marriage.6 Questions as to tne power of an owner of lands to alienate them did not begin to arise until after the passage of the statute of quia emp-tores, which prevented subinfeudation in fee. As to the power of a lord to object to a conveyance by his tenants, there seems to be little evidence, though it was provided in Magna Charta7 that a tenant could not dispose of so much of his land that he would not have enough left to perform the services due his lord. The churches and other ecclesiastical bodies began to secure so much of the land in England that statutes were passed, called statutes of mortmain, which made conveyances to them void.8 These statutes have already been mentioned in another connection.9 By the early common law a man's land was not liable to be taken for bis debts, but this was changed by the statute of Westminster,10 the statute of Merchants,11 and the statute of 27 Edw. III c 9.12
2 See ante, p. 51
3 1 Pol. & M. Hist. Eng. Law, 310.
4 1 Pol. & M. Hist Eng. Law, 326.
5 Dig. Hist. Real Prop. (4th Ed.) 11 6 Dig. Hist. Real Prop. 101. 7 Chapter 39.
Personal Capacity and Form of Estate.
In the last chapter it was seen that certain disabilities of the person restrict the power of an owner of lands to convey it, Other restrictions on the power of alienation due to the nature of the owner's interest have been considered in connection with the various estates; for instance, the restrictions imposed by rights of dower and curtesy, or restraints imposed by covenant on the power of a tenant for years to assign or sublet.
248. An owner of land must not so dispose of it that his creditors will be delayed or defrauded.
Another form of restriction on alienation is that imposed by the law when it prevents a man from conveying his lands in such a manner as to delay or defraud his creditors in the collection of their debts.13 Conveyances for such a purpose are, however, valid between the parties,14 and in other cases it is a question of consideration and intent.15 Deeds fraudulent as to creditors are not void, but only voidable, and an innocent purchaser from the grantee takes a good title.16 Conveyances of a homestead do not come within the rules against fraudulent conveyances, because a homestead is not subject to levy and sale for debts, except privileged debts.17 As to what conveyances are regarded as fraudulent, the rule is that, if the grantee does not know of the fraudulent purpose of his grantor, he takes a good title,18 though if he does not pay a valuable consideration, he cannot hold the land against the creditors.19 In some cases a sale for an insufficient consideration may be enough to put the grantee on inquiry, and thus affect him with notice.20 On the other hand, though the grantee pays a valuable consideration, if he knows of the fraudulent purpose of the grantor, he cannot hold the land against the grantor's creditors.21 Though a person be actually insolvent, he still may sell his lands for a valuable consideration, inasmuch as this may be the best way of providing funds for the benefit of his creditors.22 But when a man is in embarrassed financial circumstances, any conveyance made by him upon a merely good consideration will not stand,-such as transfers to a wife or children.23 Marriage, however, is
8 Magna Charta, c. 43; 1 Pol & M. Hist. Eng. Law, 314.
9 Ante, p. 252.
10 13 Edw. Lc.18.
11 13 Edw. I.
12 Called "statute staple." See 2 Bl. Comm. 161.
13 Strauss v. Abrahams, 32 Fed. 310; Spencer v. Slater, 4 Q. B. Div. 13. See as to frauds on purchasers, Gooch's Case, 5 Coke, 60a; Colville v. Parker, Cro. Jac. 158; Doe v. Manning, 9 East, 59.
14 Campbell v. Whitson, 68 111. 240; Harmon v. Harmon, 63 111. 512; Welsh v. Welsh, 105 Mass. 229.
15 Chandler v. Von Boeder, 24 How. 224; Bunn v. Ahl, 29 Pa. St. 387.
16 Anderson v. Roberts, 18 Johns. (N. Y.) 515; Campbell v. Whitson, 68 111. 240. Bvi cf. Doe v. Rusham, 17 Q. B. 723; Real v. Warren, 2 Gray (Mass.) 447; Fleming t. Townsend, 6 Ga. 103; Prodgers v. Langham, 1 Sid. 133; Manhattan Co. v. Evertson, 6 Paige (N. Y.) 457.
17 Drevtzer v. Bell, 11 Wis. 114; Wood v. Chambers, 20 Tex. 247. And see Gassett v. Grout, 4 Mete. (Mass.) 490.