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legal_language:alienatio_rei_prsefertur_juri_accrescendi_203520122018 [2021/05/25 18:19]
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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.