rally remove every ground of doubt. Mere suspicion, whatever show of probability it may have, has never been allowed in a court of equity as a just cause of objection to a title.'

Suppose a conveyance is made intentionally or by mistake to a trustee, his heirs and assigns, in trust for the purchaser, his heirs and assigns, and the purchaser subsequently mortgages or sells the premises' without the concurrence of his trustee, who we assume was never in possession:-when does a right to bring an action first accrue to the trustee? The case does not appear to be provided for by the act; for the cestui que trust who had the possession was entitled under the conveyance to the trustee. Probably, the first con

veyance without any notice of the estate of the trustee, and with an express assertion or covenant that the grantor was seised for an absolute estate in fee-simple, would be considered as giving the grantee a title adverse to that of the trustee; and therefore, if twenty years had elapsed since the date of that conveyance, the trustee's estate might be considered as annihilated. This and the doctrine of estoppel strongly suggest the propriety of never omitting a covenant by a vendor or mortgagor, that he and the other persons conveying are seised for an absolute estate in fee simple, at law and in equity; and hence, too, we may perhaps say that Sir Edward Sugden's assertion, that a vendor's covenants, 1st, that he is seised in fee, and 2d, that he had power to convey, are synonymous,5 is not correct; for merely conveying to a person in fee and asserting a power to do so, has not been decided to be sufficiently precise to raise an estoppel, and certainly could not be so forcible to constitute an adverse possession as a direct assertion of a seisin in fee.

Sir Edward, after stating the substance of the Dower Act, observes, "there appears to have been no sufficient ground for this alteration of the law. The wife's ancient right of dower has been in effect taken away; and surely it is incon

'See the case of M'Queen v. Farquhar, 11 Ves. 467, and other cases cited 1 Sugd. V. & P. 351, 352, 353.

• See sect. 3.

3 See 1 Sugd. V. & P. 394.

See Right v. Bucknell, 2 Barn. & Adol. 278.

S 2 Sugd. V. & P. 81.

sistent, whilst you enable the husband in every case to defeat it, to extend the right over equitable estates."

We confess we can only regard the Dower Act as a legislative juggle. After the usual definitions, with a great show of gallantry, it gives a widow dower out of equitable estates, and enacts that a seisin of the husband shall not be required. Then begins the work of destruction-a widow cannot claim dower out of land disposed of by her husband in his lifetime or by his will; again, any partial estate, charge, or incumbrance by the husband is valid against dower. The husband, too, may defeat his wife's dower by a general prospective declaration in a deed or will;-would it not have been better to have abolished dower altogether, except when a husband died intestate and without declaring that his widow should not be entitled to dower?

We will now give Sir Edward's remarks on the Fines and Recoveries Act. "The sweeping away of fines and recoveries is a solid improvement in the law, and the act of parliament is a masterly performance, and reflects great credit on the learned conveyancer by whom it was framed. But the policy of the provisions of the act may be doubted. All men's titles must for many years depend upon the law of fines and recoveries; and few will be found in a short time competent to judge of their validity. The substitute for the old law is one of vast complication, introducing a protector in every settlement, to check the alienation by tenant in tail in remainder. Whilst we brush away our old books, no one can doubt that the new system, from its complication, will lay the foundation for new ones, and that the construction of the act in every given case will not be settled but after a long run of litigation, although, no doubt, at first every thing will proceed smoothly. The author was one of those who thought that the law would have been more simple if it had merely abolished fines and recoveries, and made deeds to declare the uses of fines, and to make tenants to the præcipe in recoveries effectual without actually levying a fine or suffering a recovery.

"The act has effected an important alteration in the law, by

1 Sugd. 366.

making the tenant for life continue to be the protector of a settlement, even after he has sold the estate, or it has passed from him by bankruptcy or insolvency. This appears to be unwise. For the act takes away the controul of equity over the protector, declares that his discretion is absolute, that he cannot commit a breach of trust, and that the doctrines of equity applicable to a donee of a power dealing with an object of the power are not to be applied to him. He may, therefore, make what bargain he pleases with the tenant in tail after the natural check (for such the possession of the first estate may fairly be considered) has been conveyed away. In the case of a bankrupt, he may acquire a great property as against his creditors, and a case may occur in which he may by his concurrence enable the first tenant in tail to bar a subsequent remainder vested by his bankruptcy in his own assignees.""

We do not think it correct to describe the new system of protectors as one " of vast complication;" certainly the cases in which a consent to a disposition by a tenant in tail shall be required are minutely described, and this may be tedious, and will require attention; but it is not complication. That questions will arise upon the construction of this act there can be no doubt, for no care or skill can provide words and sentences which may not be abused by ignorance or perverse ingenuity, or, what is almost equally pernicious, by superabundant caution. A question will perhaps be raised whether a disposition by a married woman of land vested in her and her husband in her right be, valid unless conveyed by lease and release, and both deeds be acknowledged by her. The clause enabling married women to convey, enacts, that "it shall be lawful for every married woman by deed to dispose of lands of any tenure as fully and effectually as she could do it if she were a feme sole; save and except that no such disposition shall be valid unless the husband concur in the deed [not deeds] by which the same shall be effected, nor unless the deed [not deeds] be acknowledged by her as therein directed." Certainly the clause seems to contemplate a disposition by a single deed, and not a complex assurance, as a lease and release, which, though one assurance, are two

1 Vol. i. 387.

deeds. If the difficulty be in the words "as fully and effectually as she could do if she were a feme sole," and that a feme sole cannot convey a fee simple in possession by a mere release, it may be said, she is enabled to convey " by deed," that is, a deed or any deed, and that these words "as fully," &c. not very precise or definite, have no restrictive force, and can only mean, that though covert she may make a deed. But suppose the words referred to were held to constitute a married woman a feme sole as to the land intended to be conveyed, they could not annihilate the estate of the husband, and, therefore, the estate or interest to be conveyed by the wife would be in remainder or expectancy, and would pass by a simple grant. But this question could only arise where the estate vested in the wife, or in her and her husband in her right, was in possession. Now it is clear that a lease by a husband of land vested in him and his wife in her right for one year, if they both shall so long live, is valid, and, consequently, after such a lease the estate which remains to be operated upon under the clause just cited is an estate in remainder, and is properly disposed of by a deed of release or grant, and therefore the language of the clause is correct. It could not be seriously contended, that because a lease and release are deemed one assurance, therefore the lease could not be ascribed to the husband alone; just as wisely might it be said that connected links cannot be relied upon as a binding chain unless all are made by the same hand. But as the acknowledgment of both lease and release has been generally required ex abundanti cautelâ, it is admitted it is prudent to adopt the practice, especially as only one fee is payable.1

To the clause, that no arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, shall be recovered but within six years next after the same respectively shall have become due, Sir Edward appends the note, "this clause should be modified without loss of time, or the grossest injustice will be committed upon the just rights of legatees and others, particularly infant legatees."

It has been asked, whether in proving a title to tithes in 1 See Regulæ Generales of C. P. Trin. T. 1834; post.

2 Vol. i. 411.

lay hands it is still necessary to produce the grant of the rectory from the crown; and we think it is; for the Limitation of Actions Act does not affect tithes belonging to a spiritual corporation sole, therefore the grant is necessary as primâ facie evidence that the tithes in question do not belong to the rector. A title to lay tithes is not affected by 2 & 3 Will. 4. c. 100. which act only applies to moduses and exemptions from tithes.

The following case is given by Sir Edward from a MS. note, and is so important that we are anxious to make it as generally known as may be.

"In Johnson v. Kennett, the estate was devised to the son in fee, subject to the debts, an annuity to the widow, and legacies to the daughters. The son also was entitled to the personal estate. Two or three years after the testator's death, the son and his wife levied a fine, and conveyed the estate, without reference to the debts and legacies, to uses to bar dower. The son then sold the estate in lots to several purchasers. The conveyances recited the will, the conveyance and fine, the contract to sell, and an agreement to give to the purchaser a bond of indemnity against the legacies. The deeds did not recite that the debts were paid. In some of the deeds the widow joined and released her annuity pro tanto. Each purchaser had a bond of indemnity against the legacies, in which no notice was taken of the debts. The daughters filed a bill against the purchasers and the assignee of the son. The bill stated that the son had paid the debts, and that the legacies were unpaid. The answers did not deny that the debts had been paid, and stated the belief of the purchasers that the legacies were unpaid. It was held that the estates were still charged with the legacies in the hands of the purchasers, for they dealt with the son, not as a trustee for the widow and daughters, but as the owner of the estate, and they were aware that the legacies were unpaid, and did not represent that they were told or supposed that the debts were unpaid."

The conduct of the purchasers in this case was certainly most injudicious; but the case suggests the caution that under similar circumstances the purchaser should inquire whether all the debts are paid, and if the answer be in the affirmative, and even perhaps if it be in the negative, but the

! Vol. ii. 39.