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character of charges, will extinguish the present technical distinction between legal and equitable assets. By rendering the real estate liable, in the second degree, and in aid of the personal, to the payment of debts of every description, we shall avoid the complicated and costly process of marshalling assets in equity. The co-operation of the two measures, with the assistance of some secondary ones, about to be proposed, will clear the way to a simple and just system for the distribution of assets.'
We have already noticed our author's important distinction between active, or operative, Trusts, and those which are merely passive or nominal. The latter, as we have seen, he means to abolish—the former to regulate; first by authorizing the delegation of trusts, so as to invest the delegate with the whole actual disposition and management of the lands, and with the receipt of the rents and profits during a prescribed period; and secondly, by directing, that the actual purpose of disposition, management or receipt, so far as regards the corpus of the property, shall be expressed in the instrument by which the trust is created; leaving the application only of the rents and profits at liberty to be declared by any separate instrument. The professed object of this provision is to prevent a relapse into nominal trusts, and to imprint on the face of assurances, their real character; an object which he further aims at in the articles on Registration.
The next article directs that, in all dealings of the trustee respecting the trust property, its produce and the application of it, his receipts and other acts, shall be as valid as of a beneficial owner.' Its object is to correct a vicious doctrine in equity which conBtantly contravenes the intention of the parties, by depriving a trustee, in most instances, of the power to exercise a most important part of his trust, namely, to receive and give a discharge for the produce of the fund. The ill consequences of this rule are forcibly depicted.
After adverting to the very defective state of the actual laws on the subject of registration, and the mischievous doctrine of equitable, or constructive, notice, the author shows, that the expediency of either enrolling, or registering the substance of all assurances for the protection of alienees and incumbrancers against latent dispositions, has been long recognized.—He then discusses the much agitated question whether enrolment at length, or registration of the substance be preferable. Against the former are objected, the disclosure of private transactions, and the expense attending it. In favour of the latter, it is urged, that while it avoids these objections, at the same time in stating the instrument, the parties, the land affected, and the general character of the interest disposed of, every circumstance necessary for
estate, I give and dispose (without saying “ of the same") as follows; again, where the charge of debts or legacies is not upon the devisee personally, or upon the land in his hunds : in these, and similar cases, the devisee has been held to take for life only.'
He then adds or alludes to various other cases, in which, for different reasons of strong intention, a fee has been held to pass, though words of inheritance were wanting. Constructive estates tail in wills also fall under his consideration. The entire class of these cases evinces, according to him, the systematic disposition of judges, in modern times, to evade techpical rules in favour of a testator's intention.
As they were not prepared, however,' says the author, 'to go the full length of holding, in cases of implied fees-simple, that the gift of the land was a gift of all the testator's property in it, they have effected their object by distinctions so numerous and so complicated, as to render their decisions of doubtful benefit. The refinements on testamentary estates tail by implication, which have converted a settled formula (namely that by which an estate tail is created by deed) into a series of individual cases, obscurely shading down from a fee-simple to a feetail, and often terminating in a mere estate for life, with remainder to the issue by purchase, amply demonstrate, that rules of law, where they work injustice, should be repealed, not evaded.'
The author next treats of Powers, and of appointments under powers, by means of which a greater interest may be conferred than the alienor himself possesses. After a brief, but lucid exposition of the law on these important subjects, he concludes with a description of the mode in which courts of Equity have thought themselves called on to interfere, in aid of informal or defective, and in avoidance of what are technically termed, illusory, appointments. These he has succeeded in rendering plain to the comprehension of the most unlearned reader; and his exposition is better calculated to expose the radical absurdity of a distinct equitable jurisdiction, than any other text which could be selected for a similar purpose.
We must leave it, however, and pass to the next head of discussion--hat which treats of involuntary alienation, or the rights of creditors, a subject which the author has subdivided into the liabilities of the living debtor, and those which affect his property or assets, as they are called, when dead. The origin and character of the distinction between legal and equitable assets is curious, as affording another specimen, at least equal in extent and importance, of the early interposition of equity to correct the imperfections and inequalities of the strict legal system, and the consequent glaring anomaly of two conflicting principles, applied to the government and distribution of one and the same description of property. The statement is too long to be transcribed; nor does Mr. Humphreys's clear and nervous style admit of compres*sion; but the entire subject is peculiarly worthy the attention of those whose minds are employed in the important consideration of the defects inherent in our present system of Equitable Jurisdiction.-We must however find space for the author's concluding remarks on this division of his labours.
does * But
* Such,' he says, “are the leading rules for the administration of assets in equity, within whose jurisdiction they are now principally drawn. Their two-fold objects, of rendering, by means of marshalling, real property, assets for payment of simple contract debts, and of an equal distribution between creditors of every description, were not only consistent with natural justice, but liberal to a degree, which, had their political effects undergone discussion on their first introduction, would have not only alarmed the prejudices of feudal landowners, but even startled the very framers of the rules. The circuitous means adopted, however, (to some extent unavoidably,) for effecting these purposes, have introduced a discordant and most complicated body of laws. First, we bave the harsh, though simple, rule of common law. Then comes equity; not subverting, but undermining it, in changing the character of creditors from simple contract to specialty, by marshalling the assets. Her next step is bolder :-framing a new description of assets, under the title of equitable, and administering these, not according to the rule, (always professed, though seldom respected,) that equity follows the law, but after a new system of perfect equality, both as to persons and property. These assets, however, necessarily require to be admivistered in conjunction with legal ones. Indeed the distinction being purely technical, the two characters may pervade the same property. Equity, too, is obliged to bend itself, sometimes to the law, sometimes to the legislature; as, in equities of redemption of mortgages in fee, and in /trust estates. It, however, generally rights itself and its rule, by giving a new direction to some other property, over which it may have a more absolute jurisdiction.
'But, in effecting these objects, what accounts--what classificationwhat apportionments--what assemblages of party and property into one general mass of litigation-wbat direction and superintendence become necessary! To such an extent indeed, that a large proportion of the assets of the country are now administered under the direction of the Court of Chancery. The only adequate cure consists in one simple set of rules for the administration of assets of every description. The principle which should pervade it is, that of equal distribution. It is sanctioned both by natural justice, and the long established practice of courts of equity.'
On the subject of Alienation by Adverse Possession—in other words the limitation by lapse of time to the recovery of real property, Mr. Humphreys sums up his statement of the existing law by observing, that the reader, on perusing it, cannot fail to be struck with the obliquity of operation by which the ordinary bar of twenty years is produced.
But passing the mode, and supposing the period a suitable one, he continues, it is very far from being general. It is exceeded in the instance of an heir, who may enforce bis claim, where grounded on the , mere right of his ancestor, at any time within sixty years, while a devisee is confined to twenty;: so also where the remedy of the claimant is not grounded upon his right of entry, but rests, though with forlorn chance of success, upon either the mere right of
elf, or the posses-sory title of his ancestor, in which cases the periods of limitation seem to be, in some cases thirty, and in others fifty years; and again, in the instance of incorporeal hereditaments which, not requiring an entry, may: be recovered at any time within fifty years; with the exception of advowsons and tithes, which are not subject to any limitation. On the other hand, the period of six years, at the end of which all present rights may be concluded, by means of a fine with proclamations, is brief beyond all analogy and reason; and is confined, capriciously in principle, to freeholds, leaving the inferior tenure of copyhold unaffected by it.'
He further remarks, that the present law of entails forms a great impediment to any uniform limitation of time;. since, although one line of heirs in tail may be barred by adverse possession, yet, on its failure, a second has a new and similar period within which to make its claim; and so in succession, as long as the different limitations endure, which may possibly be for a century or more.'
. Of our author's exposition of the law of copyholds, and their arbitrary and often oppressive incidents of fines and heriots, we. can afford space only for the conclusion, in which he points out the modes which present themselves for the extinguishment of this servile and anomalous tenure.
This,' he says, ' may be effected either by the tenant releasing to the lord; or, which is by much the more frequent occurrence, by the lord releasing his seignory and services to the copyholder ; who thereby acquires the freehold, and ceases any longer to hold of the manor. Each of these two modes is voluntary, and assumes, that both the lord and the tenant are respectively entitled in fee; or that the former, if only tenant for life under some settlement or will, or his trustee, has a special power to enfranchise. Another most salutary mode, and well worthy of general imitation, is, where power is given by inclosure acts to commissioners, to enfranchise the copyholds within their district, at the instance of the lord and tenant in possession. Here no regard need be paid, either to the quantum of their estates, or to their titles.
* In the preceding system of copyholds, retaining, in the nineteenth century, constant traces of its primitive villeinage, three classes are concerned: the copyholder, (who owns the soil, the lord, and the public. Of these, the first has a property, governed by a peculiar and complicated body of laws, embarrassed with expensive forms, which keep multiplying with each successive division of the tenure; affected by a different title, and often by a different mode of descent, from any freehold property with which it is held; frequently exposing the copyholder's personal
estate to an offensive seignorage, in the shape of heriots; and, above all, incapable of improvement, unless on the unthrifty and galling terms of effecting it for the lord's benefit as well as his own. The lord's gain is far from commensurate to his tenant's loss. His only material benefits are bis fine, and (where it exists) bis heriot; both yielded with reluctance, and evaded by every possible stratagem; but capable of ready compensation, either in land or money, on well-known terms. The public, without any advantage whatever, sustains a double loss; first in the impediments which are opposed by fines arbitrary to the improvement of the land, and particularly to its circulation, by the fine on alienation ; and next, in the injustice sustained by creditors, from copyholds not being either extendible by elegit, nor assets for payment of debts.'
The seventh title, which relates to the Registration of Legal Assurances, and exhibits, for the first time, the numerous crudities and inconsistencies which now pervade that important subject, embraces also the strangely involved and complicated head of equitable notice, which, in all its subtle ramifications of actual' and • constructive,' furnishes another signal example of the ill consequences of the intermeddling spirit already adverted to, and a most forcible illustration of the so often repeated and so much disregarded maxim-Summum jus summa injuria.'
In his eighth and last title, the author enumerates the sources of the laws of real property. Our readers will probably be appalled by the catalogue. We will give it in his own words.
* The result is, that our laws of real property are to be sought for in the copious library of six hundred and seventy-four volumes, exclusive of Indexes to the Statutes. If, from this collection, we make a liberal deduction for obsolete and redundant treatises, and works of slight esteem, or only occasional relevancy, there will still remain a total of six HUNDRED VOLUMES.'
The importance of the subject, and the novelty with which it is discussed, have induced us to depart from the modern usage of reviewers, and, for the present, limit ourselves to a fair exhibition of our author's work in the form by which he has himself chosen to convey his impressions. This, indeed, we take leave to think, is but justice to the public in cases so very grave as the present; and, if we have been induced to extract from the first and more exegetical part of the work, more copiously than is our usual habit, or than may prove agreeable to some classes of our readers, we can only say, that we have given no more of the author than appeared to us a necessary introduction to the second and more original division of his treatise. We cannot however dismiss the preceding statement without observing, that it is composed in a style of equal conciseness and perspicuity; and that we know of no chart of any thing like the same dimensions in which the legal