Henry St. George Tucker.

Commentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 1) online

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possession one year, he is within the statute. As where A is disseised by
B; B is in possession five years, and dies seised, and the lands descend to
his heir, by which A's right of entry is tolled ; if A enters on the heir, and
conveys before a year he is within the statute.

Now, we have seen that a person in possession can convey, and his con-
veyance will pass the estate, though his title is pretensed ; and, on the other
hand, however good his title, nothing will pass, if he sells and conveys
when another person is in adverse possession.

Suppose, then, a person disseised sells his right, and afterwards gets pos-
session ; can the person to whom he sold, compel him to convey, now that
he can make a good conveyance ? I answer that he cannot. The contract
having been against law, ca.nnot be enforced in etjuity, and therefore, where


.1 bill was brouglit to compel a conveyance in such a case, a plea of the
statute was held good to bar the claim. Coop. Ch. Ca. 34, cited Siig. 348.
Taite, 103. Hence, we deduce :

1. That if the vendor has possession, the estate passes, though it be the
sale of a pretensed title, and ecpiity will not set it aside, but will leave it to
have such eff'ect as it may have at law.

•2. If he be not in possession, no title passes, and a contract of sale (if
the title be pretensed) will not be enforced in equity.

An equitable interest, however, is assignable, and the assignment is not
deemed the sale of a pretensed title, though it seems an attempt at such a
defence has recently been made in England. See 1 Swanst. 43. I Leigh,
218. It is, however, on the principles above mentioned, absurd; for after
the sale, out of which the equitable interest grew, the possession of the
vendor was as trtistee for the vendee ; and of course, on the authority of Bibb
vs. Duval, (3 Call, 3(r2,) it is not such adverse possession as makes the title
pretensed. In a late English case, this doctrine is settled, the court clear-
ly holding the sale of an equitable estate under a contract, bmding and ca-
pable of being enforced in equity. Wood vs. Griffith, cited Sugden, 348.
I Swans. R. 55. I Wilson, (Ch. R.) 34, S. C.

The act against pretensed titles, was made to prevent the buying of la-
tent titles to disturb the possession of others, but never was intended to
prevent a person in possession from strengthening and confirming that pos-
session, by purchasing the rights of others. 1 Wash. 38.

Persons convicted of treason or felony, the punishment whereof is death,
seem to be incapable of conveying their estates by deed or will, the law-
having declared that they shall pass in the same manner as if the convict
had died intestate ; 1 R. C. ch. 169, § 56; and since the establishment of
the penitentiary, with the new penal code, it is provided that where persons
are convict, and sentenced to the penitentiary for more than one year, their
estates shall be committed to a trustee, by the court of the county where the
convict resided; who is to give bond and security, and to stand in the si-
tuation of an administrator, and is charged with the duty of taking care of
and managing the estate, during the convict's confinement; allowing out
of it a sufficient maintenance for his family, if he have any ; and in every
case the wife shall be entitled to the same proportion of his estate as if he
had died intestate. See Sess. Acts, 1820, ch. 14 ; passed on account of a
verbal inaccuracy in the act 1 R. C. ch. 171, § 64.

" Idiots and persons of nonsane memory, infants and persons under du-
ress, are not totally disabled either to convey or purchase, but submodo only.*
For their conveyances and purchases are voidable, but not actually void.
The king, indeed, on behalf of an idiot, may avoid his grants or other acts.
But it hath been said, that a non compos himself, though he be afterwards
brought to a right mind, shall not be permitted to allege his own insanity in
order to avoid such grant : for that no man shall be allowed to stultify him-
self, or plead his own disability. The progress of this notion is somewhat
curious. In the time of Edward I., non compos was a sufficient plea to
avoid a man's own bond : and there is a writ in the register for the alienor
himself to recover lands aliened bj| him during his insanity ; dum fuit non
compos mentis suae, ut dicit, SfC. But under Edward III., a scruple began
to arise, whether a man should be permitted to blemish himself, by pleading
his own insanity : and, afterwards, a defendant in assise having pleaded a
release by the plaintiff since the last continuance, to which the plaintiff re-
jilied (ore tenus, as the manner then was) that he was out of his mind when

'Tlioiijli ihfi rontracts of a Iiinatir are voiHnWp, vpl may his pstate l)e ma^le rpspniisilile for artiolpji
giiilpii III liis estate and rlpgrne, laken up bv hiinsplf, tlit tradc:=rniin not liivving ie;i?:cn loftipposr liiin
a liiuitic. 5 Barn. Ac Ores. 170. il C. L.' Uf(). i'JO.

222 ALIEN ATIO.V. [ book 2.

lie gave it, the court adjourned the ; doubting whether, as the plain-
tiff was sane both then and at the commoncetnoiit of the suit, he should be
permitted to plead an intermediate deprivation of reason ; and the question
was asked, how ho came to remember the release, if out of his senses when
he gave it. Under Henry VI. this way of reasoning (that a man shall not
be allowed to disable himself, by pleading his own inca])acity, because he
cannot know what he did under such a situation) was seriously adopted by
the judges in argument; upon a (juestion, whether the lieir was barred of
his right of entry by the feoffment of his insane ancestor. And from these
loose authorities, which'Fitzherbert does not scruple to reject as being con-
trary to reason, the maxim that a man shiill not stultify himself, hath been
handed down as settled law: though later opinions, feeling the inconveni-
ence of the rule, have, in many points, endeavored to restrain it.* And,
clearly, the next heir, or other person interested, may, after the death of
the idiot or non compos, take advantage of his incapacity, and avoid the
grant. And so too, if he purcliases under this disability, and does not after-
wards upon recovering his senses agree to the purqliase, his heir may either
waive or accept the estate at his option."

F'rom the foregoing remarks of Mr. Blackstone, we perceive that opinions
upon this subject, are somewhat divided. Mr. Powell, in his Essay on
Contracts, seems to think the rule settled, that a man shall not be permit-
ted to stultify himself; and properly so settled, according to his reasoning,
because he may affect lunacy. This reason would go to deny him relief,
both at law*and equity, and to deny relief, also, to his heirs. Yet, they
clearly may avoid their ancestor's deed for lunacy. Pow. 14. Mr. Sug-
den, pa. 421, also states the doctrine to be, that though an idiot or lunatic
recover his senses, he cannot himself avoid his contract, and he founds him-
self upon this passage of the Commentaries. Mr. Madoc also says, on the
authority of the case cited by Powell, together with some others, that a man
cannot plead his lunacy either at law or in equity. 1 Mad. 592.

Mr. Fonblanque, (1 vol. pa. 42,) observing upon the reason given against
allowing an idiot or lunatic to stultify himself, tliat he cannot know what he
did when he was of nonsane memory, justly remarks, that this argument
would have some weight if he was to be the witness ; but, as the fact must
be proved aliunde, it is unaccountable how such a notion should have ac-
quired the force of a rule of law. Chitty, 479, gives it as the law, that lu-
nacy may be given in evidence on the plea of non est factum : and, in 2
Bac. Ap. 310, the rule is also laid down as that of the modern cases, that a
man may avoid his deed for cause of lunacy. These opinions found them-
selves chiefly upon the authority of Yates vs. Boen, (Str, 1104,) in which,
on non est factum pleaded, the defendant offered to give his lunacy in evi-
dence. The chief justice at first thought it ought not to be admitted, upon
the rule that a man shall not stultify himself; but on the authority of some
cited cases, he afterwards admitted it, and the plaintiff was defeated.

Our own reporters furnish no cases upon this subject, so far at least as
relates to the admissibility in a court of law of a plea of lunacy. But,
upon the reason of the matter — upon the authority of the case of Yales vs.
Boen, which has not been impeached — and upon the general disposition of
our courts to get rid of unreasonable rules of law, unless too firmly estab-
lished to be resisted, — I cannot doubt that such a plea would be now held

* f n Cro. Eli?.. 393, the opinion of Fitzherbert is denied to be law, and de non save memory lield to
be a bad plea to an action of" debt upon an obligation. The dofence might clearly be given in evi-
dence under the general issue, nnn assumpsit, or non est factum. 3 Cam. 123. 2 .\tk. 412. 3 Mod.
Capes, 3JI). 2Stra. J104. 4 Co. 12.3. Ld.Raym.315. See much learning rc.sipecting lunaticp, col-
lected in Mr. Fonblanqne's edition of tlie Treatise of Equity, p. 40, As seq. and Collinson on Luna-
tics. Jn the ecclesiastical courts such a rule prevails, where Lord Stowell annulled a marriage on the
ground of the insanity of the husband; saying, "It is, I conceive, perfectly clear in law, that a party
may come forward to maintain his own past incapacity " 1 Ilagg. Kep. 414. 2 Ev. I'othier, 25.


good in Virginia. As to the courts of equity, it may seem doubtful, from
the remark of Mr. Fonblanque, p. 43, whether, even in equity, the plea of
lunacy is allowable on the part of the lunatic himself. It is admitted, in-
deed, that if he continues lunatic, and a committee is appointed for him, his
committee may plead his lunacy, or even file a bill to set aside his contracts.
2 Vern. 412, G78. So if he dies lunatic, his heir may likewise do so. Co.
Litt. 2 b. Sugden, 421. (Blackstone, in this passage.) No good reason
seems assignable for denying the privilege to himself, if he recovers the use
of his understanding. Indeed, as courts permit even weakness of under-
standing and extreme drunkenness (1 H. & M. 70. 1 Wash, 1G4,) to be con-
sidered as of weight in questions of specific performance of contracts, it
would be strange, indeed, if absolute lunacy should not be relieved against.
Yet, no direct decision can be cited, it would seem, establishing the right
of the party Amse//, to avoid his own acts, even in a court of equity, for his
own lunacy ; as the diligence and learning of the authors of the most ap-
proved treatises have failed to present us with one. See Newland, 17.
Powell, 25, 26. 1 Fon. 43, 44. They seem, indeed, to confine the inter-
ference of courts of equity, in the lunatic's lifetime, to those cases in which
he continues lunatic, and sues by a committee. Yet, I should not hesitate
to say, that upon the general principles of a court of equity, if a person of
nonsane mind executes a deed at the time of his insanity, and afterwards
recovers his senses, he may file a bill in equity to set it aside, or plead the
lunacy in avoidance of it. Though we have no direct case in point, yet
that of Horner I's. Marshall, (5 Mun.) is perhaps as strong as a^y that can
be put. In that case, the court of appeals permitted Horner, in equity, to
aver his own insanity, as an excuse for the slander of Marshall. Now, here
he was obviously availing himself of a matter which it is said he could not,
in England, in person plead in bar of a contract, or assign as a reason for
rescinding it. VVe do not, however, learn from the report, whether the
particular question was considered by the court, or raised by the bar. Yet,
it strengthens my conviction, that in our courts, a bill to set aside a contract
for insanity, may be filed, after the lunatic has recovered his senses, and
would be entertained. Were it otherwise, the perpetration of a fraud up-
on one non compos, would go unscathed, if, before a commission of lunacy
issued, the lunatic became compos : for after he becomes compos, and resumes
the management of his own affairs, the committee cannot sue, and if the
lunatic cannot, no one can during his life. See 1 Ev. Poth. 25. 12 C. L.
Rep. 79.

In a former lecture we have seen, that though an infant may purchase
lands, yet he may " waive such purchase or conveyance, when he comes to
full age ; or, if he does not then actually agree to it, his heirs may waive it
after him.* Persons, also, who purchase or convey under duress, may af-
firm or avoid such transaction, whenever the duress is ceased. For all these
are under the protection of the law ; which will not suffer them to be im-
posed upon, through the imbecility of their present condition : so that their
acts are only binding, in case they be afterwards agreed to, when such im-
becility ceases."

To make a good and valid contract or deed, it is obvious there must,
among other things, be parties able to contract and willing io contract. If
unable to contract for want of understanding, their contracts are void, as in
the case of idiots and madmen. If they have not freedom of will, they
cannot contract, because the i«?7Z is necessary to constitute a binding agree-
ment. Hence a feme covert cannot contract, because she is deemed to be

* It is proper to add liorc that guardisiis of infants, and comniiitees of idiots and lunatics, are by I
K. C. cli. 108, and th. 109, empowered to renew any leape for lives or years, and apply the profits oj
such renewal for the benefit of such lunatic, or infant, their heirs or executors.

224 ALIENATION. L book 2.

under tlie power of her liiisband, and to Itc williout a//ee will of her own.
The case of duress is another instance of the same kind. As to duress, see
Book I .

It may not be amiss to consider more particularly the subject of duress,
in this place. 1. According to the doctrines of law. 2. Of courts of

1. As to courts of law. Duress, as we have seen, is either duress for
menaces, or duress of imprisonment. Of the former it is scarcely necessa-
ry to say more than the commentator lias done in the passa;,fes just cited.

Of duress of imprisonment, it may be observed ; that at law, if the de-
fendant is lawfully in custody, at the suit even of the party to whom the
deed is made or bond <,nvcn, such deed or bond is not, for that cause, void:
for it is not accounted duress of imprisonment, unless either the imprison-
ment itself be unlawful, or some tf)rtious or unlawful duress is offered to the
party while in prison. The quaint reason assigned is, that (xeculio juris
von habet injuriam.

It is immaterial whether the illerral imprisonment be in a common gaol
or elsewhere, but it is material that the obligor, or maker of the deed, be in
prison at the suit or instance, or by procurement of the party to whom the
bond or deed is made. And the reason seems obviously, that deeds are
avoided for duress of imprisonment, because, under such circumstances, the
law will intend that they are made rather to procure the party's release than
from his free consent ; and. therefore, does not presume that where A is im-
prisoned vj<||pngfully by B, and executes his bond to C, that lie does it from
constraint ; for he is not in constraint of the obligee, C, but of another ;
and he cannot be relieved by C's assent, but by B's assent.

It would seem that if a man falsely charges another with a felony, and
has him taken on a warrant, with a view to compel him to execute a bond,
the bond will be voidable for the duress. Though it has been decided, that
although A has no cause of action against B, and sues him nevertheless, and
holds him to bail, and while he is in prison, threatens him, that if he does
not sign a release to him, he shall lie there and rot, yet as he is lawfully in
custody, to wit, by writ, duress cannot be pleaded. Levinz, 69. The law of
this case, however, may, I think, well be doubted ; and indeed, it is, in gen-
eral terms, laid down by Judge Buller, (N. Pr. 17'2,) that if a deed be given
on an arrest without cause of action, or if the arrest were without good au-
thority, though for a just debt, or if the arrest were by warrant from a justice,
on a charge of felony, wliere no felony was committed, or though a felony
was committed, yet, if the arrest be unlawfully made use of, in any of these
cases it will be construed a duress.

It seems to have been at one time held, that duress to the father should
avoid the deed of the son, and vice versa. But the better opinion seems to
be, that no man shall, at law, avoid a deed on the ground of duress to ano-
ther than himself or his wife, let him be related how he may. Shep. Touch.
GO. 1 Bac. Ap. 418. And hence, though duress of the principal may
avoid the bond as to him, it does not avoid it, it is said, as to the security.
Cro. Jac. 187. Esp. 174. Quaere.

2. As to courts of equity. They seem more liberal herein, as on most
other subjects, than courts of law ; for they not only avoid a deed for du-
ress where a wrong use is made of an arrest, although the arrest itself may
have been originally lawful, 1 Atk. 409, (which, it would seem, a court of
law will also do,) but they view with great distrust and jealousy, transac-
tions with persons in goal, though not by the procurement of the other con-
tracting party. 1 Vez. jr. 4-J. And though it is admitted in equity, that a
man may make an agreement in goal, it must be, it would seem, where he


can have proper assistance and advice, (2 Vez. sen. G35,) and not other-

But besides the cases of actual duress, above alluded to, there are other
cases in which the courts of equity have given relief, because the party con-
tractinnr was within the power, orgreatly under the influence, of the party
contracted with. Such are the cases of contracts between parent and child,
guardian and ward, and attorney and client, to all which we shall more
particularly advert in another place. It will suffice here to remark, that in
some of those cases the influence or power of one party over the other is
of itself deemed sufficient to avoid the contract, and in all it is an ingredi-
ent which, when accompanied by any other strong circumstances, is deci-
sive against it.

The case of a feme-covert is somewhat different from those already men-
tioned. She may purchase " an estate without the consent of her husband,
and the conveyance is good during the coverture, till he avoids it by some
act declaring his dissent. And, though he does nothing to avoid it, or
even if he actually consents, the feme-covert herself may, after the death of
her husband, waive or disagree to the same : nay, even her heirs may waive
it after her, if she dies before her husband, or if in her widowhood she does
nothing to express her consent or agreement. But the conveyance or other
contract of a feme-covert (except by some matter of record) is absolutely
void, and not merely voidable ; and therefore cannot be affirmed or made
good by any subsequent agreement." ^^

To this short abstract we may add with advantage some remUKs.

If a husband and wife join in a lease for years, of the wife's land, by in-
denture, the wife, after the husband's death, may confirm the lease, though
not executed with the solemnities required by law. Bac. Leases, C. Doug.
53. Bac. Void and Voidable C. Plow. 65. The I'eason would at first view
seem] to be, that if the lease is deemed by her to bo advantageous, when her
freedom of will is restored, the tenant can have no reason to complain,
since it is his own contract, mads of his own free will, that is enforced. But
this reason would seem to apply equally to other contracts, which are, how-
ever, confessedly void, and not merely voidable. And we must remember,
that the distinction between void and voidable acts is, that those which are
void never can be confirmed, for, quod ah initio non valet, tractu temporis
non convalescet ; but voidable acts admit of confirmation.

It will be proper, therefore, before we proceed further, to attain, as far as
possible, accurate notions on this subject, that we may be enabled to un-
derstand and reconcile the conflicting, or seemingly conflicting, cases in the

Now, the general rule laid down by our author, is unquestionably true,
" that in England, the conveyance of a feme-covert, except by matter of re-
cord, is absolutely void, and not merely voidable, and, as such, incapable of
confirmation by any subsequent agreement." Yet, it requires various mo-
difications, and is liable to some exceptions.

1. Where it is said " the conveyance is void unless it be made by some
matter of record," we must understand, nevertheless, that in England, and
with us, the equitable interests of the wife may be transferred by a proceed-
ing in a court of equity, analogous to the privy examination which takes
place on the levy of a fine in England, or on the executi(jp of a deed here.
This matter will be more fully explained hereafter. See Bac. Baron and
Feme, I.

2. Where our author tells us, that every conveyance of a feme-covert is
absolutely void, he must be taken with some limitation. The case of a lease
by the husband and wife, by indenture of the wife's larwl /or years, (not for
life,) is an admitted exception, as appears from the books above cited. The


226 ALIENATION. [book 2-

true reason of this CTcception is said, by Lord Mansfield, to be for the bene-'
fit of agriculture and tillage. Cowper, 203. For, in the language of the
old books, if the husband, during the coverture, had no ])0\ver of dealing
and contracting in respect to the wife's possessions, while that power is al-
so taken from her, they would be obliged to keep their lands in their own
manurance and occupation, which might be to the prejudice of both. The
husband, therefore, is empowered, even alone, to make leases for years, by
deed ; and, a fortiori, when joined by her ; and if she assent thereto, by ac-
ceptance of rent which becomes due after his death, the lease thereby be-
comes absolute and unavoidable. Bac. Baron and Feme. The husband,
then, being empowered to make the lease, ii cannot be ipso facto void, for
the law would not empower him to do a vain thing; and as, after his death,
to permit the wife to receive the rents and enjoy the benefit of the lease, and
afterwards to disaffirm it, would be unjust, and tend to the prevention of
tenants taking such leases, and so, to the injury of agriculture, the law is
more liberal to them, and allows them to be only voidable, and therefore ca-
pable of confirmation. But after the husband's death, the deed is voidable
at the pleasure of the wife.*

It may also be observed, that as a lease for years is considered rather as a
contract for the possession, than as a conveyance, the payment of rent by
the tenant, and the acceptance by the wife, may well be considered as
amounting, in effect, to a new contract, when she has perfect freedom of
will. ^

3. WhU^ our author says that the deed is absolutely void and incapable
of confirmation, he is right in the general ; for what is void cannot be con-
firmed. Per Lord Mansfield, Doug. 53. But yet, it seems that the rede
livery by a widow, of a deed delivered by her whilst covert, is a suflicient
confirmation so as to bind her, without its being re-executed and reattested.
Cow. 20*2. This seems to be in perfect consonance with legal principles ;
for, although where there has once been an effectual delivery, the secowrf de-
livery passes nothing ; (Perk. 154, cited Cow. 202;) yet here, the first de-
livery being void, the second is good and effectual. In the case from Cow-
per, however, it was further decided, that a surrender by writing, not sealed,
of the possession of the property, and a direction by writing, not sealed, to
the tenants, to attorn to the mortgagee, (tor it was a mortgage of her lands,)
was equivalent to a reacknowledgment and delivery of the deed. I confess
this case seems to me to have strained the doctrine of redelivery very far,
in order to get at the justice of the case. See 2 P. Wma. 126.

It may not be amiss to add here, that, in general, the bond of a feme-co-
vert is absolutely void. 2 Wils. 3. 2 Saun. 213. But if a feme-covert
haye a sepaj'ate property, and borrows money, and executes a bond, or en-
ters into a bond conjointly with her husband, for security of his debts, this
will give a foundation to demand the money out of her separate estate. 2
Vez. 190. Bac. Baron and Feme. 2 P. Wm^. 144. 1 Br. Ch. Rep. 16.

Online LibraryHenry St. George TuckerCommentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 1) → online text (page 70 of 117)