Supreme Court of Canada
Blackburn v. McCallum (1903) 33 SCR 65
Date: 1903-12-12
Henry D. Blackburn and Alfred B. Cox (Plaintiffs)
Appellants
And
J. H. McCallum (Defendant)
Respondent
1902: Mar. 19; 1903: Dec 12.
Present:—Sir Elzéar Taschereau C.J. Sedgewick, Girouard, Davies and Mills JJ.
ON APPEAL FROM THE HIGH COURT OF JUSTICE FOR ONTARIO.
Will—Devise—Restraint on alienation.
A devisee of real estate under a will was restrained from selling or encumbering it for a period of twenty-five years after the testator's death.
Held, that as the restraint, if general, would have been void the limitation as to time did not make it valid.
Appeal per saltum from a decision of the High Court of Justice for Ontario on a special case in favour of the defendant.
The case submitted to the High Court of Justice by consent of parties was as follows:—
Special Case.
1. Donald Chisholm, late of the township of Mosa, in the county of Middlesex, yeoman, deceased, died on the 27th day of February, A.D. 1887.
2. The said Donald Chisholm at the time of his death was seized in fee simple of the south half of lot number 3 in the 8th concession of the township of Mosa.
3. Prior to his death the said Donald Chisholm made his will (which has been duly proved and registered) in the words and figures following:
"This is the last will and testament of Donald Chisholm, of the township of Mosa, in the county of
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Middlesex, and province of Ontario, in the Dominion of Canada, yeoman.
"I will and desire that all my just debts, funeral and testamentary expenses be paid by my executors as soon as may conveniently be after my decease, and as to my worldly estate wherewith it has pleased God to bless me, I give and dispose of the same as follows:
"I give and bequeath to William Chisholm, my son, the east half of the south half of lot number 3, in the 8th concession of the township of Mosa. To Hugh Chisholm, my son, I give and bequeath the west half of the aforesaid lot, equally dividing the hundred acres between them
"I will that the aforesaid parcels of land shall not be at their disposal at any time until the end of twenty-five years from the date of my decease, and farther, I will that the said parcels of land shall remain free from all incumbrance, and that no debts contracted by my sons, William Chisholm and Hugh Chisholm, shall by any means incumber the same during twenty-five years from the date of my decease. I will that my personal property be equally divided between William Chisholm and Hugh Chisholm, my sons.
"I give and bequeath to Duncan Chisholm, my son, the sum of two hundred dollars, the same to be paid to him by William Chisholm, my son, out of my personal property, twelve months after my decease.
"I give and bequeath to Colin Chisholm, my son, the sum of three hundred dollars, the same to be paid to him by Hugh Chisholm, my son, out of my personal property, four years after my decease.
"And I hereby appoint the Rev. Neil McKinnon and Donald Chisholm, my son, to be the executors of this my last will and testament, hereby revoking all former wills.
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"In witness hereof I hereunto set my hand and seal this twelfth day of February, in the year of our Lord one thousand eight hundred and eighty-three.
"(Sd.) DONALD CHISHOLM, (L.S.)
"Signed, sealed and delivered in the presence of us, who, at his request and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto.
"(Sd.) ARCHIBALD McKELLAR, of the Village of Grlencoe.
"(Sd.) JOHN CAMPBELL, of the Township of Ekfrid."
4. Hugh Chisholm, one of the devisees mentioned in the said will, on the 1st day of April, 1896, borrowed the sum of $500 from one John R. Turner. As security for the repayment of the said sum the said Hugh Chisholm executed a mortgage of the lands devised to him (the west half of the south half of lot 3, in the 8th concession of Mosa) in fee simple to the said John R. Turner, and by a covenant and proviso in the said mortgage contained, the said Hugh Chisholm covenanted with the said John R. Turner, his executors, administrators and assigns, to pay the said sum with interest thereon upon certain specified days mentioned therein, and that in default of payment of the interest the whole principal sum should become payable.
5. By deed of assignment dated the 12th day of December, 1898, the said John R. Turner assigned and set over unto the plaintiffs the said mortgage and all moneys due or which should thereafter become due by virtue of the said mortgage, and the full benefit of all the covenants and provisos in the said mortgage contained, and conveyed or purported to convey the said lands to the said plaintiffs.
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6. Hugh Chisholm failed to perform his covenant to repay the said moneys and interest, and on the 13th day of February, 1899, the plaintiffs recovered a judgment against him for $650.77, and issued a writ of execution directed to the sheriff of the county of Middlesex, by which he was required to levy the amount of the said judgment upon the goods and lands of the said Hugh Chisholm.
7. It was agreed between the defendant and the plaintiffs that if the plaintiffs should request the said sheriff to expose the said lands for sale in fee simple under the said writ, the defendant would buy the same at and for the price or sum of $2,350, which is the full value of the fee, and that the plaintiffs would also convey and assign the said mortgage. Doubt having been expressed prior to the sale as to whether the fee would pass to the purchaser under the sale by the sheriff and such assignment of mortgage, it was agreed on behalf of the plaintiffs that if the defendant would so purchase at the said sale he should be placed in the position as regards title of a purchaser buying under an open agreement, and that if the plaintiffs failed to prove a good title to the said lands the purchaser should not be bound to carry out his purchase.
8. Pursuant to the said writ, the interest of the said Hugh Chisholm in the said lands devised to him was regularly offered for sale by the said sheriff as a fee simple absolute on the 2nd day of March, 1901, and at the said sale the said lands were purchased by the defendant, subject to such agreement, for the sum of $2,350.
9. The defendant now objects that the restriction in the said will not only constituted a valid restriction upon alienation, and rendered the said mortgage void, but also prevented the lands devised to Hugh Chisholm from being exigible for debt, but in other respects the title has been accepted.
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10. It has been agreed that the validity of the said objection shall be submitted for determination to this honourable court by way of a special case, and that the objection for the purpose of such submission shall be stated in the following form:
1. Did Hugh Chisholm take a fee simple absolute by the said will in the said lands, and was he able to convey the same in fee notwithstanding the restriction in the will?
2. In any event was the fee simple in the lands subject to sale under execution as against Hugh Chisholm for his debts?
3. If the court is of opinion that the plaintiffs can make title in either or both ways, judgment is to be for the plaintiffs, otherwise for the defendant.
The judgment of the High Court on this special case was that the restraint on alienation was valid though the provision that no debts of the son should encumber the land devised for twenty-five years was void; that the violation of the restriction forfeited the devise and the fee simple did not pass to Chisholm by the sheriff's sale; and that plaintiffs could not give title to the land. The plaintiffs obtained an order under sec. 26 of The Supreme Court Act for leave to appeal to the Supreme Court without a preliminary appeal to the Court of Appeal for Ontario.
Armour K.C. for the appellant. At one time the Ontario courts held that a partial restraint against alienation was void; Fulton v. Fulton; Crawford v. Lundy; Gallinger v. Farlinger; but in 1881 they adopted the contrary jurisprudence; Earls v. McAlpine, owing to the decision of Jessel M. R. in Re Macleay.
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The courts in England, on the contrary, have uniformly held partial restraints, as to time at all events, to be void. See Re Rosher; Renaud v. Tourangeau; Re Machu.
J. Travers Lewis appeared for the respondent but did not wish to be heard.
THE CHIEF JUSTICE.—The late Donald Chisholm by his will dated the 27th day of February, 1887, bequeathed a certain lot of land to his son Hugh Chisholm. Added to the bequest are the following words:
I will that the aforesaid parcel of land shall not be at his disposal at any time until at the end of twenty-five years from the date of my decease, and further, I will that the said parcel of land shall remain free from all incumbrance, and that no debts contracted by my son Hugh Chisholm shall by any means incumber the same during twenty-five years from the date of my decease.
He died soon afterwards.
In April, 1896, the said devisee, Hugh Chisholm, having borrowed $500 from one Turner executed as security therefor a mortgage on the said land devised to him as aforesaid with an express covenant to repay the said loan.
Upon an assignment by Turner to them of the said sum of $500, the appellants recovered judgment upon the covenant against the said Hugh Chisholm for the amount thereof and interest accrued. They then issued a writ of execution directed to the sheriff, by which he was required to levy the amount of the said judgment upon the goods and lands of the said Hugh Chisholm. It was then agreed between the appellants and the respondent, McCallum, that if the appellants would request the said sheriff to expose the said land for
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sale in fee simple under the said writ, he, the respondent, would buy the same at and for the price of $2,350, the full value of the fee, and that the appellants would also convey and assign to him the said mortgage, which had previously also been assigned to them by Turner. Doubts having been expressed as to whether the fee would pass to the purchaser under the sale by the sheriff and such assignment of mortgage, it was agreed on behalf of the appellants that if the respondent would so purchase at the said sale he should be placed in the position as regards title of a purchaser buying under an open agreement, and that if the appellants failed to prove a good title to the said land the purchaser should not be bound to carry out his purchase. Thereupon, pursuant to the said writ, the interest of the said Hugh Chisholm in the said land devised to him was regularly offered for sale by the said sheriff as a fee simple absolute, and at the sale the said land was purchased by the respondent, subject to the aforesaid agreement, for the sum of $2,350.
The respondent, however, objected that the restriction in the said will not only constituted a valid restriction upon alienation and rendered the said mortgage void, but also prevented the land devised to Hugh Chisholm from being liable to execution for debt. In all other respects he was willing to accept the title.
The appellants having brought an action for specific performance, it was agreed between the parties to submit the following questions for determination to the court, without pleadings.
1. Did Hugh Chisholm take a fee simple absolute by the said will in the said land, and was he able to convey the same in fee notwithstanding the restriction in the will?
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2. In any event was the fee simple in the land subject to sale under execution as against Hugh Chisholm for his debts?
3. If the court is of opinion that the plaintiffs can make title in either or both ways, judgment is to be for the plaintiffs, otherwise for the defendant.
Meredith C. J., the learned Chief Justice of the Common Pleas, before whom the case was heard, held that the provision in Donald Chisholm's will that no debts contracted by his son Hugh should incumber the land devised to him during twenty-five years after his decease was void, but held further that:
This court doth declare that the restriction against alienation of the land in question herein contained in the will of Donald Chisholm in the special case set out is a valid restriction upon alienation of the said land, and that the mortgage made by the said devisee, Hugh Chisholm, to the plaintiffs, being against the terms of the said restriction, occasioned a forfeiture of the said devise, whereby the heirs at law of the said testator became entitled to enter upon the said land and doth order and adjudge the same accordingly.
2. And this court doth further declare that the fee simple in the whole of the said land did not pass by the sale under the said execution against the said Hugh Chisholm, and doth order and adjudge the same accordingly.
3. And this court doth adjudge that the plaintiffs cannot make a good title in fee simple to the said land, and that the said action be and the same is hereby dismissed without costs.
The plaintiffs now appeal from the said judgment. The case was argued ex parte before us by appellants' counsel, counsel for respondent submitting to the judgment of the court without argument.
It is one that has given me much trouble. I am glad to see that the conclusions I have reached will not affect the result. I give my views of it with great diffidence. Though I have to admit that in certain
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respects they come in conflict with those that have hitherto prevailed in many quarters on some of the: questions that arise in the case, yet I do not think that I am disregarding any authority that is binding on this court. I certainly do not intend to do so.
First, I fail to understand why the sheriff's sale upon the execution of the judgment for a personal debt of Hugh Chisholm did not convey to the respondent purchaser the fee simple absolute of this property, it being conceded, as held by the court below and not controverted here, that the provision in Donald Chisholm's will that no debts contracted by his son should incumber the land during twenty-five years after his death is void and consequently that the land could be sold under execution for his son's debts. The respondent, of course, bought subject to the Turner mortgage, if valid. But when he gets a conveyance of that mortgage from the appellants, as they agree to do before he takes title, the mortgage and the equity of redemption will be merged in him. It seems to me that under these conditions he would have a perfect title.
However, it is assumed, I suppose, though not exactly put forward in so many words by the learned Chief Justice of the Common Pleas, that because the appellants had taken a mortgage to secure their loan to Hugh Chisholm, they had lost the right they otherwise would have had to execute against the land in question the judgment they had recovered against him; or, in other words, that the provision prohibiting the mortgage of the land by the devisee for his debts was valid though the provision that the land could not be sold under a fi-fa for the same debts was void. If such is the law, it would seem to be a very irrational one. If it had been to a third party that a mortgage had been previously given on the land by Hugh
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Chisholm, for another debt, would it have disabled the appellants from executing their judgment against the fee? Or would it be in the power of judgment debtor in the position of Hugh Chisholm to set at naught the judgment creditor's right of execution by giving a mortgage to a third party before the registration of the judgment and the issuance of the execution to the sheriff?
As to the principal question submitted to us at the argument, without dissenting from the conclusions reached by the majority of the court, I would think it immaterial, as between the parties in this case, whether the restraint upon alienation in question is valid or not.
If it is invalid as against public policy, as held by my learned brothers, the fee simple absolute of course passed to the devisee, and the sheriff's sale passed it to the respondent. If the restraint is valid, as held by the court below, the mortgage to Turner in breach thereof is void, but the fee remained in Hugh Chisholm and was conveyed to the respondent by the sheriff's sale. A void act cannot operate a forfeiture. Quod nullum est nullum producit effectum. The testator willed this land with prohibition to the devisee to alienate or incumber it. But what is the consequence if he attempts to alienate or incumber? Nothing else but the complete nullity of any act done in contravention of the prohibition, but not forfeiture or nullity of the devise.
"I give you this property," says the testator to the devisee, "but I prohibit you from selling it or in cumbering it during 25 years;" or in a more correct construction, "I withhold from you the power of so doing that you would by law have."
Now if the devisee does what he is prohibited from doing, he does what he has not the power to do, and the result is that what he has done is void, and if it is
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void, it is in law as if he had not done it; and if he has not done it, it cannot work forfeiture of the devise. It is the prohibited act that alone is void. The prohibition is the law decreed by the testator, and any act done in contravention of that law is void, as is any act done in contravention of any prohibitive law. But the devise holds good. To hold that the devisee had the power voluntarily to forfeit it would be setting at naught the clear intention of the testator. And I take it to be the law that in construing a will the testator's intention is the primary object to be ascertained. Had he intended that a breach of the prohibition should work forfeiture of the devise he would have said so, as was done for instance inter alia, in the cases of Barnett v. Blake; Hurst v. Hurst, and re Porter. But he cautiously refrained from doing so. He, on the contrary, virtually added to the restraint, "but I do not make it a condition of my devise."
By the judgment a quo which holds that the restriction in the will under consideration is valid, but that it should be read as a condition of the devise the breach of which annulled it and wrenched the property out of the hands of the devisee, the very object that this testator had in view is defeated. It is not to expose the devisee to be deprived of this property that he attached to the devise the disability to alienate it, but, on the contrary, to force upon him, as it were, for twenty-five years the benefit of the devise; to ensure his holding of the property during twenty-five years; to render it impossible for him, as much as it was in his power to do it, to part with it directly or indirectly. It seems to me illogical that the very act he has forbidden with the view to keep and secure the land in his devisee's hands should be invoked as a
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reason to turn him out of it. His intention was to take away from him the right he would by law otherwise have had to defeat the object he had in view and to set at naught the provisions he had enacted to force him to execute his decrees. He cannot have intended to leave him the power of voluntarily forfeiting the devise. The law would be inconsistent if it authorised the restraint and at the same time authorised the devisee to brush it away and, if he himself is the sole heir at law, allowed him to so get rid of the restraint. The interpretation, by construction, of the penalty of forfeiture in the will in question would import an intestacy resulting in a gift over of which the testator has not said a word, and bring about the very result he cautiously guarded against for twenty-five years. And the fact that he did not provide for a gift over has great importance in the construction of his will. It shows that he did not anticipate the possibility of a voluntary forfeiture of the devise by his devisee. And he did not intend to leave an intestacy. I would think, consequently, that in any case, the provision in Donald Chisholm's will that no debts contracted by his son should incumber the land devised to him during twenty-five years being void, as held by the judgment appealed from, the execution against Hugh Chisholm of the judgment recovered against him by the appellants bound the land seized, and under the sheriff's sale to the respondent, the fee simple absolute of the said land vests in him. If the restraint is valid, the mortgage is void and his title from the sheriff is good. If the restraint is invalid, the mortgage is valid and as he is the mortgagee and owner of the equity of redemption, the whole estate is vested in him.
By what Fry L. J. said in Hurst v. Hurst, I cannot but admit that he would probably qualify this
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reasoning as absurd. But I cannot here be bound by that opinion. Even the adherents of the waning ] colonial servilism that has hitherto found such strong retrenchments in the courts of Canada must concede that we have no claim to the monopoly of absurdities.
In reference to the decision of the Privy Council in Renaud v. Tourangeau, which has been cited at bar, and commented upon in Earls v. McAlpine, I refer to the late Sir William Collis Meredith's judgment in Bourget v. Blanchard. More than usual weight attaches to the judgment of that eminent lawyer in that case upon the cognate question there before him from the fact that it was his opinion that had prevailed in the Privy Council in the Renaud v. Tourangeau (1) case. Now Renaud v. Tourangeau (1), as explained in Bourget v. Blanchard (3), is a clear authority that as the will did not say in that case that the breach of the prohibition would work forfeiture of the bequest, the breach did not work forfeiture. Of course, if it were the express provision imposing forfeiture in a will that made the prohibition illegal, such a provision could not by construction be read in any will if not in it in express terms.
In fine, I have not failed to notice that the heir-at-law is not a party to the case, and that the judgment as to him will not be res judicata.
I would have hesitated, under the circumstances, to force this title on the respondent. However, under the form in which the case has been submitted to the court, he must be taken to have consented that the question of its validity should be determined in the absence of the heir-at-law.
The appeal will be allowed, judgment to be entered for the appellants in the action. No costs are allowed to either party in either court.
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SEDGEWICK J. concurred in the judgment allowing the appeal for the reasons stated by His Lordship Mr. Justice Davies.
GIROUARD J.—I have doubts in this case but not strong enough to dissent from the result.
DAVIES J.—The question raised for our decision in this case is whether a general prohibition on alienation attached to a devise in fee of lands which prohibition would, if unlimited, be bad by the rules of Common Law, is made good by being limited as to time. I am of opinion that it is not. The will of Donald Chisholm after devising his farm of 100 acres to his two sons William and Hugh in fee and equally dividing it between them, contained the following provision:
I will that the aforesaid parcels of land shall not be at their disposal at any time until the end of twenty-five years from the date of my decease, and farther, I will that the said parcels of land shall remain free from all incumbrance, and that no debts contracted by my sons, William Chisholm and Hugh Chisholm, shall by any means incumber the same during twenty-five years from the date of my decease.
With the exception of the limitation as to time the restraint upon alienation by the devisees is general. The question is one of real property law, and it is a pure question of authority. The general rule avoiding conditions which prohibited a grantee in fee from alienating his land is to be found clearly laid down in all the earlier books of authority, and is founded upon principles about which there can be no doubt and which are easily intelligible. But there can be equally little doubt that upon this general rule there have been grafted several exceptions. The cases of Gill v. Pearson, in which the judgment of the full
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Court of King's Bench was delivered by Lord Ellen-borough, and the later case of In re Macleay, decided by Jessell M. R., establish the existence of exceptions to the general rule which it is not necessary for us to call in question. These two cases determine that a restriction upon alienation prohibiting it to a particular class of individuals is good. All the leading text writers upon real property law cite these cases with approval and in my opinion it is too late in the day now for us to call them in question. The whole subject is reviewed exhaustively by Pearson J. in the case of In re Rosher. The same question that is now before us was there before him and he held that the proviso in the will he was construing amounted to an absolute restraint upon alienation during the life of the testator's widow and that it was void in law. The learned judge, while admitting that authority could be found in the notes to Shepherd's Touchstone, 7th. ed., p. 130, for the proposition that a "grantee might also be restrained from alienation for a particular time being a reasonable one," went on to declare, p. 821:
Brit there has been no judicial decision to that effect; and it is a curious thing that although Littleton's book is more than 400 years old and although Lord Coke died 250 years ago there is not a single judicial decision to be found in the books shewing that a limitation as to time added to such a condition makes it a valid condition.
He further stated that even without judicial decision, if he found that this had been an "accepted dictum of law," and that by not following it he should be disturbing anything done in former times over and over again on the faith of the dictum, he should feel himself bound by it, and that it would be exceedingly mischievous to attempt to alter any rule which had been adopted and acquiesced in for more than a century. But he does not find that any such rule existed
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with respect to the validity of a general restraint upon alienation being validated by a limitation of the time within which it is to be exercised, and he concludes as follows:
I find that the original rule which says that you cannot annex to a gift in fee simple a condition which is repugnant to that gift is a plain and intelligible rule. So far as I can find that an exception to the rule has been laid down and judiciously decided, I am bound by that exception. But I will not add other exceptions for which I can find no authority and the addition of which to my mind will only introduce uncertainty and confusion into the law which we have to administer.
If an exception to a general rule of law is well established by the cases I am not bound to inquire into the logical sufficiency of the reasons given. And so I do not feel it necessary to discuss the cases of Gill v. Pearson, or In re Macleay, or to justify the reasons which underlaid these decisions. In allowing this appeal we are, it is true, following the decision of Re Rosher, but we are not over-ruling either of the other cases above referred to in which limited restraints upon alienation were allowed. The decision we have reached while not being contrary to any judicial decision in England follows that of Pearson J. in Re Rosher, (3) and is in line with the late cases of Re Parry v. Daggs; Corbett v. Corbett; and also with Renaud v. Tourangeau; and the Irish case of Martin v. Martin.
We have of course been pressed by the case of Earls v. McAlpine decided by the Court of Appeal for Ontario in 1881. The restriction upon alienation in that case was no doubt one limited as to time and on the point we have now before us. But the case of Re Rosher (3)
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had not then been decided, and the authorities cited by Mr. Justice Patterson, namely, Daniel v. Abby; Doe v. Pearson; and In Re Macleay; while they support the contention that a restriction upon alienation limited to a specified class only may be good, do not support the proposition we are asked to indorse that a general restriction upon alienation which, if unrestricted as to time would be admittedly bad, is made good by a time limitation. It seems to me that a time limitation is necessary in any case where restrictions upon alienations are attempted to be imposed upon a fee simple devise, even with respect to a class of persons; otherwise the devise might be bad as contravening the rule against perpetuities. But I cannot concur in the proposal that we should enlarge the exceptions to the general rule against restrictions upon alienations by the addition of one not at any rate judicially adopted in England and which would give validity to a restriction otherwise bad simply by limiting the time during which it should last. I cannot find any rule for determining how long this time might be beyond that suggested by Mr. Preston in his note to Shepherd's Touchstone, p. 130, that "it must not trench on the law against perpetuities." But while that suggestion with respect to a time limitation may be good and necessary when applied to restrictions limited to a class of persons, and which might otherwise be bad for remoteness, I cannot, either on reason or authority, find that its application to a general restriction bad in itself operates to make that restriction good.
The appeal should be allowed with costs and it should be declared that Hugh Chisholm took a fee simple absolute by his father's will in the lands
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devised to him and was able to convey the same in fee notwithstanding the restriction in the will. And also that the fee simple in the lands was subject to sale under execution as against Hugh Chisholm for his debts.
MILLS J.—This case arose in reference to the construction of a clause in the will of the late Donald Chisholm, of the township of Mosa, in the county of Middlesex and province of Ontario. The testator died on the 27th February, 1887, and at the time of his death was seized, in fee simple, of the south half of lot No. 3, in the eighth concession of Mosa. He made a will which was duly proved, and by which he devised to two of his sons William and Hugh, his real estate. To William, he devised the east half of the south half of the lot before mentioned; and to Hugh, he devised the west half of the south half of the said lot. The will of the testator contained a clause which restrained the devisees from encumbering, for a number of years, the land devised to them. The clause in question is as follows:
I will that the aforesaid parcels of land shall not be at their disposal at any time until the end of twenty-five years from the date of my decease, and farther, I will that the said parcels of land shall remain free from all incumbrance, and that no debts contracted by my sons, William Chisholm and Hugh Chisholm, shall, by any means, incumber the same, during twenty-five years from the date of my decease.
The question whether or not his absolute restraint of alienation, and the withholding of power to charge the land with the debts of the devisees, is a restraint allowed by law, is the question to be decided.
It is not necessary to enter into a very full discussion of the origin and history of estates in land which the English law permits, and how those estates arose,
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with the incidents which the law now attaches to them.
I may say that, at one time, the tenant held whatever estate he possessed from the lord of the fee, for his own life, upon condition of certain service, and he could make no transfer of his tenure to another without his lord's consent. He had sworn fealty to his lord, and was bound to render the necessary service for the estate which he held. Subsequently, the tenant of the fee was permitted to part with a portion of his holding, so long as he retained enough in his possession to give security for the service which, by his oath, he was bound to perform. All this was changed by the statute quia emptores, enacted in the eighteenth year of Edward I., and which, while it authorised the tenant to sell his estate in the land, forbade sub-infatuation. Thereafter, the holder of the fee had the right to alienate his interest, and to grant an estate in fee simple, and the purchaser stood to the superior lord in the same position as the vendor had done before him. The holder of the fee has, by law, since then, the right to convey away his tenure, and any attempt to restrain him and to limit his exercise of powers which are incident to the estate, are repugnant to it, and therefore void. Littleton, in his works on Tenures, says:
Sec. 360. Also if a feoffment be made upon this condition, that the feoffee shall not alien the land to any, the condition is void, because when a man is enfeoffed of lands or tenements, he has power to alien them to any person by the law. For if such condition should be good, then the condition should oust him of all the power which the law gives him, which should be against reason, and therefore, such a condition is void
But the following section qualifies this and says:
But if the condition be such that the feoffee shall not alien to such a one, naming his name, or to any of his heirs, or of the issues of such a one, &c., or the like, which condition does not take away all power of alienation from the feoffee, then such condition is good.
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This is not a general restraint on alienation, but only a restraint which prevented the property from passing into the hands of one who might be an enemy As put by Mr. Stephen in his commentaries:
It was owing to the power of the nobles to make war upon each other, and the frequent use of this right, which made it necessary that a lord might not have a tenant imposed upon him, or the tenant a lord.
Mr. Stephen says:
For we may remember that, by the feudal law, a pure and genuine feud could not be transferred by one feudatory to another without the consent of the lord, lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feudal services, instead of one on whose abilities and fidelity he could depend. As the feudatory could not alien it in his lifetime, so neither could he by will defeat the succession by devising his feud to another family, nor even alter the course of it by imposing particular limitation, or by prescribing an unusual path of descent. Nor could he alien the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir. And therefore it was usual, in very ancient feoffments, to express that the alienation was made by consent of the heirs of the feoffor; or sometimes for the heir apparent himself to join with the feoffor in the grant. And on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not alien or transfer his seigniory without the consent of his vassal; for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty without his being thoroughly apprised of it, that he might know with certainty to whom his renders and services were due; and be able to distinguish a lawful distress for rent, from a hostile seizing of his cattle by the lord of a neighbouring clan.
The restraints upon alienation, which were the logical outcome of the feudal system, were gradually relaxed. There was the law of Henry I which enabled a man to dispose of the land which he himself had purchased, for over them the law recognised in him a more extensive power than over those which had come
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to him by descent from his ancestors He was not, however, to dispose of the whole of what he had acquired, if by doing so he disinherited his children. He might sell one-fourth of what he had inherited, with the consent of the heir. These restrictions were removed by the statute of Quia Emptores, which conferred upon all tenants, whether tenants in chivalry or in sergeanty, the liberty to alien their lands except in the case of the King's tenants in capite, subject to the condition that the purchaser of the fee should hold of the chief lord, and not of the grantor. Pearson J., in referring to the restraint upon alienation mentioned by Littleton, says:
T confess that I am absolutely at a loss to understand how that exception arose, because it is plainly just as much repugnant to the gift as any other condition would be, for the implied power given to alien to any person or persons he pleases includes a liberty to alien to J. S. if he chooses to do so.
I think when we trace the history of real property law, that it is not difficult to understand how the limited restraint mentioned by Littleton came into existence. It must not be forgotten that under the feudal system the right of alienation was restrained. That system established certain relations between the lord and his tenant. It was based upon an implied contract upon which the structure of society, as it then existed, rested, and it could not be departed from without the common consent of those concerned. The relaxations in the system are indicative of the changes which society itself was undergoing, and these relaxations did not proceed equally in the direction of all parties concerned. The law, as we would be inclined to make it so as to give to it logical consistency, did not at any time exist.
It is the scientific and systematised view that we get from looking back historically over the field after
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a good deal of progress has been made. It is reasonable to say that where an estate is bestowed, of which the power of alienation is an incident, that one conveying such an estate to another shall not have the power to alter its character, and to make it something wholly different from what it has been made by the law. To do so is to assume the power to make an estate unknown to the law. It is an attempt not simply to convey away an estate, but to exercise a legislative power, and to create a new form of property in land. It was decided in the Wiltes claim of peerage
that the Crown could not give to the grant of a dignity or honour, a quality of descent unknown to the law,
and much less can a private party create an estate in fee simple divested of an alienable character. When we examine the history of real property, we find that after a long series of years there was gradually attached to it those incidents which it now possesses.
In 1325 complaint was made in Parliament that the rule applicable to tenants in chief of the Crown were being extended to tenants who held of honours, which had fallen into the King's hands. The King acknowledged the distinction, and admitted that, as the lord of an honour, he had only such rights as were given to other lords by the charter.
In 1327, a statute was passed to provide that where alienation was made without a license the King was only entitled to a reasonable fine, and not to a forfeiture of the land.
In 1341, it was suggested in the courts of law that before the thirteenth year of Henry III a tenant in chief might alien without a license from the King.
In 1346, it was asserted and denied that prior to the thirteenth year of Henry III a tenant in chief of the Crown was as free to alien as any other tenant.
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In 1352, the question was discussed whether in Henry III's reign the tenant in chief could subinfeudate without license, and it seems to have been held that he could.
In 1355, the lawyers again discuss the subject whether anything happened after the twentieth year of Henry III to prevent subinfeudation by tenants in chief.
In 1360, a statute was passed which confirmed all subinfeudations made under Edward III and earlier Kings.
The changes that took place in the law of real property were usually more favourable to the lords than to the tenants. If we look to the charters of the time, it would seem as though from the conquest onward the tenant could alien without the lord's consent; but this was not the case, for we find that in Chester, after the conquest, the confirmation both of the earl and the King was sought, and it is shown by Pollock and Maitland, in their history of the law, that no gift was considered safe that was not confirmed by the King, and that confirmations were paid for, which show that the lord might call in question a feoffment to which he had not given his consent. They also point out that the fee simple is the starting point of English real property law. That the tenant could lawfully do anything which did not damage the interest of the lord. The function of declaring the law fell, in time, to professional lawyers, who favoured men of religion. They were, for the most part, ecclesiastics, and their inclination was to loosen the feudal burden whenever that could be done without prejudice to the King's interest, and they were disposed to concede to the tenant the power of dealing with his own interest in the land. For a time the tenant who
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wished to alienate had to obtain the consent of his presumptive heir. But early in the thirteenth century this restraint had disappeared, and the word "heir" which at one time meant the party who was to succeed the holder, came to show that the tenant held an estate that would continue as long as any heir of his was living, and so the word indicated the endurance of an estate held by one who might have no heir to succeed.
The King's prerogative grew gradually out of the right allowed to the lord, though it exceeded it. It was first asserted in an Ordinance of 1256, though it was not strictly enforced. It was said that no one could alien unless his assigns had been mentioned. This assumed that the power of conveying away his estate was bestowed upon him by the previous holder, and without it he could not transfer it. There can be no doubt that the use of the term assigns played an important part in the destruction of those old rules by which the alienation of real property was fettered.
The liberty of disposition which the King's courts, in their interpretation of the law, conceded to landholders was so large that it sometimes gave rise to new forms of restraint. As the common law about alienation became clear and well defined feoffors sought to place themselves outside of it by express bargains. Sometimes the stipulation is that the lord shall have the right of pre-emption, sometimes that the lands shall not be conveyed to men of religion. We have seen that the King's tenants in capite could never safely alien their lands without the King's license, and if they did the land might be seized by the King as a forfeit, according to the rigour of the old law regulating the relation between lord and vassal. But by the time of Edward III this was thought too severe a penalty; and it was enacted by 1 Edward III, St. 2 c. 12 that the King should not, in such a case,
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hold the land in forfeit, but that in all cases of such alienation he should have such a reasonable fine as Chancery might determine. This forfeiture for alienation was wholly taken away, and a fine to be paid by the King's tenants, as a matter of course, was substituted therefor. Some years later, to quiet the title in property, a statute was passed to confirm all alienations made by tenants in chief during the reign of Henry III and before.
The law, as it was ultimately shaped in respect to restraints upon alienation, is very fairly stated by Mr. Cruise in his Digest of the Law of Real Property. He says:
Where a sum of money is charged upon a real estate, which estate comes to a person entitled to the money, if in fee the charge is merged; and where the money is secured by a term of years, or other legal estate, in the third person, there the charge is also merged, except where the creditors are concerned, or where the person becoming entitled to the charge is an infant and dies during his minority, having by will disposed of the charge.
A condition repugnant to the nature of the estate to which it is annexed is void in its creation. Thus a feoffment in chief upon condition that the feoffees shall not take profits is void, as repugnant and against law, and the estate given is absolute.
Sec. 22. A condition annexed to the creation of an estate in fee simple that the tenant shall not alien is void, being repugnant to the nature of the estate, a power of alienation being an incident inseparably annexed to an estate in fee simple. * * * *
Sec 26. If lands be given in tail, upon condition that neither the tenant in tail, nor his heirs, shall alien in fee, or in tail, or for the term of another's life, but only for their own lives, such a condition is good, because these alienations are contrary to the Statute De Donis.
These citations from Cruise are in harmony with nearly all the decisions of recent years. The power of alienation is an inseparable incident to an estate in fee simple and there is no power in the proprietor of such
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an estate to devise it upon condition that the devisee shall have no power to a lienate. In the case of Re Macleay the devise was "to my brother John of the whole of the property given to me by my aunt, Clara Perkins, on the condition that he never sells it out of the family" and this restraint Sir George Jessel, the Master of the Rolls, held was a valid condition. There were two previous cases upon which he chiefly relied Daniel v. Ubley and Doe d. Gill v. Pearson.
In the case of Daniel v. Ubley (2), a man had devised his lands to his wife to dispose at her will and pleasure, and to give to such of their sons as she thinks best. It was held by Crew C. J. Whitlock, and Dodridge JJ. against Jones J. that the wife had a fee simple in point of interest in the estate, while Jones J. held that she had a life estate with a power to dispose of the fee simple. If Mr. Justice Jones' view were correct there would be nothing in that case at variance with the principle contended for by Pearson J. in Rosher v. Rosher, and this seems to have been the view taken by Parker C. J. in the case of Tomlinson v. Dighton, in which he says "with respect to the first question, viz, what estate passes by the will to Margaret, the testator's wife," we are all of opinion she has but an estate for life, with the power of disposing of the inheritance. And to this the difference is, where a power is given with a particular description and limitation of the estate (as here), and where general, as to the executor to give or sell; for in the former case, the estate limited being expressed and certain the power is a distinct gift, and comes by way of addition; but in the latter, the whole is general and indefinite; and
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as the persons entrusted are to convey a fee, they must consequently, and by necessary construction, be supposed to have a fee themselves. This is an important rule, for distinguishing between a power and an estate Doe d. Gill v. Pearson. Here one having real and personal estate gave by his will several legacies and annuities, which he directed to be paid by his executrices out of his real and personal estate, which he charged therewith; and then devised certain lands, in the County of York, to his daughters Anne Collut and Hannah Collut, subject to certain legacies and annuities, and in case that either of them should have no issue, they or she having no issue should have no power to dispose of her share, except to her sisters, or their children; and he devised all the rest and residue of his real and personal estates to Anne Collut and Hannah Collut in fee, whom he made his executrices. There were three other sisters. On his death, the executrices entered into possession; afterwards Anne Collut levied a fine of her moiety to the use of her husband in fee, and died. The court held that the condition against alienation, except to sisters or their children, annexed to the devise to Anne and Hannah Collut, and their heirs, was good; and that for the breach of it by Anne, in levying such fine, the heirs of the devisor might enter on her moiety, it being a remainder undisposed of by the residuary clause, which was intended to operate upon such things of which no disposition had been made by the will, and not contemplating the devise over of the respective moieties of the daughters on non-performance of the condition; and held, that one of the several heirs of the devisor might enter for non-performance or breach of the conditions, and recover her own share in ejectment. For that where the entry
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upon a claim by one of several co-larceners, who make but one heir, is unlawful, such entry made generally will vest the seisin in all as the entry of all. The English cases, apart from these, all recognise the principle that the right of alienation is a necessary incident of the fee.
Chitty J. says In re Machu:
The principle that existed in the minds of the old lawyers is clear; they held that an estate could be limited to a person until the happening of an event, and then over, so that when the event happened the estate in that person ceased, and went over; but that if a deed or will contained a devise or gift of an estate in fee simple, and then went on to state that provided something happened the estate should be defeated, that was a condition, and void because it would not operate as a remainder in common law. Therefore, in the law of real property a distinction was made between a condition pure and simple, and a conditional limitation; and that distinction subsists at the present day.
Ct. Attwater v. Attwater; Ware v. Cann; Gulliver v. Vaux; Porter v. Baddeley; Doe d. Stevenson v. Glover; Watkins v. Williams; Shaw v. Ford; In re Rosher; Rosher v. Rosher; In re Parry & Daggs; Renaud v. Tourangeau; Corbett v. Corbett; In re Machu; Holmes v. Godson; Fuller v. Chamier.
Where property is given absolutely a condition cannot be annexed to the gift inconsistent with its absolute character, and where a devise in fee is made upon condition that the estate shall be shorn of some of its necessary incidents, as that the wife shall not be endowed, or that the husband shall not have curtesy, or that the proprietor shall not have the power to
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alien, either generally, or for a time limited, such conditions are void, because they are repugnant to the character of the estate.
In my opinion this appeal should be allowed, and it should be declared that Hugh Chisholm took an estate in fee simple, relieved from the restrictions imposed by his father's will upon the sale of the estate, and against incumbering it with any debts which he may contract.
Appeal allowed without costs.
Solicitor for the appellants: H. C. Becher.
Solicitors for the respondent: Stuart, Stuart & Bucke.
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