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Alienatio rei prsefertur juri accrescendi

Alienation is favoured by the law rather than accumulation.

Restriction on alienation is a badge of feudalism, and was introduced into this country under William I. It was the ruling principle of his government that the King should be supreme lord of all land, and that all land should be holden of him in return for services to be rendered to him. This was at that time the nature of the tenure of land in Normand}'. with which William I., as Duke of Normandy, and his followers, were well acquainted, and which they introduced here in order to give them that absolute territorial power and those military advantages which they had in their own country, and which, in fact, they did thereby obtain in this. The possession of the whole kingdom was that of the monarch as military chief, and the division of the land amongst his soldiers was the pay which they received for their personal services, they still holding the land under their monarch as chief. This order of government William so strictly carried out that he required all the land- owners in the kingdom, as well those holding in capite (or immediately from him) as the under-tenants (or those holding under his nobles), to take an oath of fealty to him in respect of such lands, and which was done at Salisbury in 1086, upon the occasion of the compilation of what is called the “Doomsday Book,” and towards the close of his reign. Alienation, strictly so called, under a tenure such as this was impossible ; but subinfeudations or subtenureti were permitted — the sub-tenant holding from the tenant in capite, who in his turn held from the Sovereign. From the time of the Conquest many statutes have been passed, beginning with Magna Charta, having a tendency to encourage alienation, until at length the law became what it now is, and as represented by this maxim. So that, instead of there now being statutes restricting alienation, there are statutes preventing the restriction of alienation of real estate, and preventing the accumulation of personal estate ; real estate being inalienable for a longer period than for a life or lives in being and twenty- one years afterwards, and the accumulation of personal estate being restricted to a life or lives in being, or twenty-one years.

The restrictions upon alienation under the feudal system applied as well to alienation by will as by deed or other act inter vivos, and continued so until so late a period as the reign of Henry VIII., by several Acts in whose reign the right of alienation of lands and other hereditaments, with some exceptions, was first granted ; since which time, by various statutes, ending with the 1 Vict. c. 2G, the alienation of all real and personal estate, including customary freeholds and copyholds, has become, and is now, excepting in cases of disability, without restriction.

The law merchant may be adduced as showing the desire in the present day to remove all restrictions upon alienation of personal estate by the facilities which are given thereby to the transfer of commercial property and the negotiation of mercantile securities. And so great is the desire to encourage the sale and transfer of land, that it is sought, by legislative enactment, to make such transfer as simple as is the transfer of Government stock — that is, by mere certificate. It is also proposed to make choses in action assignable at law, and to remove equitable restrictions to the assignment of reversionary interests.

Co. Litt. 1, 18.“), 37(>; 10 Co. 35 ; Thellusson v. Woodford, 11 Ves. jtm. 112, 149; Cadell ,:. Palmer, 10 Bhig. 140; 2 Bla. Com.; Williams' Real and Personal Property; 18 Edw. 1, stafc. 1, c. 1 ; 32 Hen. 8, c. 3G ; 29 Car. 2, u . 3 ; 39 & 40 Geo. 3, c. 98 ; 3 & 4 Will. 4, c. 74 ; 7 Will. 4 & 1 Vict. *. 2C ; 8 & 9 Vict. c. 100 ; 20 & 21 Vict. c. 57 ; Spencer and others v. The Duke of Marlborough, 3 Bro. P. C. 232 ; Tullett v. Armstrong, i My. & Cr. 377; Fowler r. Fowler, 10 L. T. fX.S.) 082.

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Created on 2020/10/19 23:14 by • Last modified on 2020/11/07 18:33 (external edit)