an elementary treatise on the american law of real property

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Purchase of this book includes free trial access to where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: purely arbitrary, the reasons for the same having long since passed away with the advancement of civilization. § 38. The Power of Disposition. — Originally the highest estate granted to a tenant was an estate for life, and when afterwards lands were granted to one and his heirs forever, the heirs were deemed to be co-equal grantees or donees with the first taker. In consequence, the power of alienation was not given to the owner of such an estate. Subsequently he was allowed to alien it with the consent of the lord and the presumptive heir.1 Then in the time of Henry I. and II., the right was given to defeat the inheritance of all the heirs except the oldest son.2 Successive changes' of this character took place from time to time, until the free right of alienation was given by the statute of Qma Emptores, as an inseparable incident to an estate in fee . And to such an extent is this right guarded by the statute, that a condition in absolute restraint of alienation is made void.4 To what extent the power of alienation may be restricted, will be shown in the subsequent chapter on estates upon condition.6 The statute Quia Emptores refers only to alienation inter vivos. For a long period in the history of the common law, it was impossible to make a disposition of a freehold by will. But in the thirty-second year of the reign of Henry VIII., a statute was passed, which permitted a devise of real estate. The power of devising lands by will was enjoyed in the time of the Saxons, but was abolished by the introduction of the Norman feudal system, except in certain favored localities, 1 1 Spence Eq. .Fur. 157; Maine Aur. Law, 280: 1 Waehb. on Real Prop. 78, 79. 2 1 Spence Eq. Jur. 138; 1 Washb. on Real Prop. 79. Williams on Real Prop. 61, 62; 1 Washb. on Real Prop. 79; Co. Lit...
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