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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 " | ||
+ | Book," and towards the close of his reign. Alienation, strictly | ||
+ | so called, under a tenure such as this was impossible ; but // | ||
+ | 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, | ||
+ | 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' | ||
+ | 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, | ||
+ | i My. & Cr. 377; Fowler r. Fowler, 10 L. T. fX.S.) 082. | ||