All one's lands, and other property, were by these statutes (A. D. 1543), subjected to the Bankrupt's debts. (2 Bl. Com. 290, 474, &c.) 3. Relaxations in England, of the Common Law Doctrine in respect to Devising Lands; W. C. 1. Statute of Wills, 32 Hen. VIII, c. 1, explained by 34 Hen. VIII, c. 5. Lands in fee-simple were allowed to be devised by these statutes (A. D. 1541, 1543); that is, two-thirds of one's chivalry, and all of his socage lands, provided the will were in writing. (2 Bl. Com. 290, 375.) 21. Statute of Frauds and Perjuries, 29 Car. II, c. 3, § 5. By this famous statute (A. D. 1677) the ceremonies were prescribed with which wills of lands must be executed; experience having demonstrated that to require no more than that they should be in writing, would always yield a plentiful crop of frauds and perjuries. This statute did not enlarge the power of devising, but a previous statute, passed the same year of Charles's return from his exile (12 Car. II, c. 24, A. D. 1660), by converting the chivalry into socage tenures throughout England, did very much enlarge the subject-matter of devise. (2 Bl. Com. 376.) 31. Statute 7 Wm. IV, & 1 Vict. c. 26, &c. This statute (A. D. 1837), and some following ones, slightly changed the mode of making wills of lands, as prescribed by 29 Car. II, c. 3, § 5 (Wms. Real Prop. 187-28.) 4h. Relaxation in England of the Common Law Doctrine in respect to Attornment of Tenants. Attornment of tenants was made no longer necessary to complete the grant or conveyance by statute 4 & 5 Anne, c. 16, (A. D. 1706); and by 11 Geo. II, c. 19, (A. D. 1738), the attornment of any tenant affects the possession of any lands only when made with consent of the landlord, &c., or by direction of a court of justice. (2 Bl. Com. 290. See V. C. 1873, c. 134, § 4.) 5h. The Doctrine in Virginia, touching the Alienation of Lands W. C. 1. Doctrine in Virginia touching the Conveyance of Lands. No estate of inheritance, or freehold, or for a term of more than five years in lands, shall be conveyed unless by deed or will (V. C. 1873, c. 112, § 1); but any interest in or claim to real estate may be so disposed of; and any estate therein may be made to commence in futuro, as well as in presenti, by deed, in like manner as by will. (V. C. 1873, c. 112, § 5.) Yet, notwithstanding the provision requiring a deed or will to convey an estate in lands exceeding five years, we have seen that, without any writing, a court of equity will raise implied, resulting, and constructive trusts, in pursuance either of the intention of the parties, or of the justice of the case, in order to suppress fraud and violation of good faith. (Ante p. 188& seq; Bk. of U. States v. Carrington, 7 Leigh, 566.) It will be observed, that from the principle that no estate exceeding five years can be conveyed except by deed or will, it follows that land once vested in the grantee or devisee by deed or will, for such an estate, cannot be devested by cancelling the deed, or by a verbal disclaimer of title under the will, but only by deed or will. (Grayson v. Richards, 10 Leigh, 57.) 2. Doctrine in Virginia as to Charging Lands with Debts. Lands may be charged with debts in Virginia in various ways, and, amongst others, by means of mortgages and deeds of trust (Ante p. 278 & seq, 285; V. C. 1873, c. 113, § 5, 6); by means of judgments and decrees, originally through the execution of elegit, which, however, is now abolished, making it requisite in every case to resort to a court of equity, (Ante p. 263 & seq; V. C. 1873, c. 182, § 1, 6, 9; Id. c. 183, § 26); by means of builders' liens, reserved by contract in writing in favor of mechanics employed in the erection of houses, (V. C. 1873, c. 115, § 2); by means of a lis pendens, or notice of a pending suit duly registered, (V. C. 1873, c. 182, § 5); by means of an attachment, (V. C. 1873, c. 148, § 12); which, however, when against the estate of a non-resident, must be duly registered, (V. C. 1873, c. 182, § 5); and by means of the bankrupt act, (14 U. States Stats. 517; 1 Abb. U. S. Pr. 96 & seq, 357 & seq.) 31. Doctrine in Virginia as to Devising Lands. Every person of sound mind, over the age of twentyone years, and not a married woman, may, by will duly executed, dispose of any estate, right or interest to which he shall be entitled at his death, and which, if not so disposed of, would devolve upon his heirs, personal representatives, or next of kin; notwithstanding he may become so entitled subsequently to the execution of the will. And a married woman may also make a will of her separate estate, or in the exercise of a power of appointment. (V. C. 1873, c 118, § 2, 3.) And it is enacted (in close imitation of the English statutes 29 Car. II, c. 3, § 5, and 7 Wm. IV & 1 Vict. c. 25, § 3), that no will shall be valid unless it be in writing, and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the same is intended as a signature; and moreover, unless it be wholly written by the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator. (V. C. 1873, c. 118, § 4.) 4. Doctrine of Attornment of Tenants in Virginia. We have enacted substantially the English statutes. of 4 & 5 Anne, c. 16, and 11 Geo. II, c. 19, touching attornment of tenants. (Ante p. 567; V. C. 1873, c. 134, § 3, 4.) 25. The Subject-Matter of Alienation; W. C. 1. The Doctrine at Common Law, touching the SubjectMatter of Alienation, as respects Real Estate. At common law a grantor can convey no title to lands, unless it be fortified and sanctioned by the pos- Cul C.E session. The naked right, whether it be the right of 1046-7. possession or the right of property, is not capable of be- ale44-45 ing conveyed lest it should enable the great men of large social and political influence to obtain pretended titles whereby justice might be trodden down, and the weak oppressed. But this principle does not hinder reversions and vested remainders from being granted, nor contingent remainders, where the owner is ascertained, because the possession of the particular tenant is the possession of him in remainder or reversion. (2 Bl. Com. 290, & n (6).) 2h. The Doctrine by the Statute of Pretensed titles, (32 Hen. VIII, c. 9), touching the Subject-Matter of Alien ation. By that statute no person was allowed to convey or take, or to bargain to convey or take any pretensed title, to lands or tenements, unless the grantor, or those under whom he claimed, shall have been in possession of the same, or of the reversion or remainder thereof, one whole year next before, under penalty of forfeiting the whole value of the lands, &c. And this was the law of Virginia until 2d July, 1850, when the revised Code of 1849 took effect, (4 Bl. Com. 135-6; 1 R. C. 1819, c. 103). Under this state of the law, it was the well established doctrine that a conveyance of land in the adversary possession of another person, was void at common law, independently of the statute of pretensed titles; but that although the grantor were not in actual, yet if he were in statutory possession, as he always would be, supposing him to have the best legal title, and the land to be vacant, or not in the adversary possession of some one else, the conveyance was good and operative; and (contrary to the usual analogies in transactions to which penalties are affixed), that a conveyance was never void merely under the statute of pretensed titles, because the statute did not in terms so declare. (Duval & als v. Bibb. 3 Call. 366-'7; Tabb v. Baird, Id. 480 & seq; Hall v. Hall, Id. 490; Clay v. White, 1 Munf. 162; Bream v. Cooper, 5 Munf. 10; Hopkins & al v. Ward & als, 6 Munf. 41; Williams v. Snidow, 4 Leigh, 16, 17 & seq; Kincheloe v. Tracewell, 11 Grat. 604; Early v. Garland's lessec, 13 Grat. 8; Middleton v. Arnolds, Id. 490 & seq; Carrington v. Goddin, Id. 599; Cline v. Catron, 21 Grat. 393.) For an able vindication of the principle laid down in Duval & al v. Bibb, 3 Call. 366–77; Tabb v. Baird, Id. 480 & seq, and approved by Brooke, P., in 1 Leigh, 254, and by Tucker, P., in 4 Leigh, 17, see Judge Moncure's opinion in delivering the judgment of the court in Middleton v. Arnolds, 13 Grat. 491 & seq. 3h. The Present Doctrine in Virginia, touching the Subject-Matter of Alienation, as it respects Real Estate. It is declared by statute, as we have seen, that any interest in, or claim to real estate may be disposed of by deed or will; and that any estate may be made to commence in futuro by deed in like manner as by will (V. C. 1873, c. 112, § 5); and the power of disposition by will extends to any estate, right, or interest, to which the testator may be entitled at his death, notwithstanding he may become so entitled subsequent to the execution of the will. (V. C. 1873, c. 118, § 2.) The terms of the clause first cited, allowing any interest in, or claim to real estate to be disposed of, is held to apply to transactions anterior as well as subsequent to the statute, and to authorize in such cases an action in the name of the grantee in a deed, just as under corresponding terms in the former statute of wills, it was held in Taylor's Dev'ees v. Rightmire, 8 Leigh, 468, that a writ of right might be maintained by a devisee, the right of action being esteemed incident to the right of property, and passing with it. (Carrington v. Goddin, 13 Grat. 600.) 38. The Persons who may aliene Lands, and to Whom; W. C. allen and Ito 1. What Persons may aliene Lands; W. C. 1'. The general Doctrine as to who may aliene Lands. The general doctrine is that all persons may aliene lands, unless they labor under some peculiar disability. And these disabilities grow either out of (1), A want of understanding sufficient to comprehend the transaction; or (2), A want of freedom of will; or (3), A want of sufficient interest in, or ownership of the subject matter. 21. Exceptions to the General Doctrine as to who may aliene Lands. These exceptions have just been summarily indicated; W. C. 1. Persons wanting in Understanding sufficient to comprehend the Transaction. This want of understanding may proceed from insanity, infancy, or drunkenness; all of which, for the most part, make the conveyance not void but voidable, by or on behalf of the party laboring under the disability. (2 Bl. Com. 291 & seq.) But insanity or excessive drunkenness will render it void. (1 Chit. Pl. 519; 2 Stark. Ev. 379; Yates v. Boen, 2 Str. 1104; Faulder v. Silk, 3 Campb. 126.) W. C. 11. Persons who are Non compos mentis. e c § § 38. 141. 469 According to Lord Coke, this phrase, non com-3 pos mentis, expresses any and every kind of mental alienation, and is, he says, the "most sure and legal" /2 Barb 235. for that purpose; including (1), Idiots, who from their nativity, are wanting in understanding; (2), Lunatics, who sometimes have understanding and sometimes not; (3), Persons non-sane, who, by sickness, grief, or other accident, have wholly lost their memory and understanding; and (4), Persons drunken, who, by their own vicious act, have, for a time, deprived themselves of their understanding and memory. (3 Th. Co. Lit. 45-'6.) In modern times non-sane persons include idiots A very remarkable doctrine is recognized by Lit- |