New-York daily tribune., 1846-01-22

uartce of interest which the nranor had IN the sou
rassed 70 the grantee The grantee became the sole
nvner There WAS not only present interest IN the
soil reserved 20 grantor but there was no future o.
reversonary interest There was clear conveyance oil
the whole estate-of the whole property
Under such conveyance the Right Of Distress
does not exist We viii now quote for once from
stcphenss Nisi Prus, vol H. p. 1921. This is short
and TO the purpose but the principle is sustained by
a long array Of authorities in England and America
Stephens says:
All those seized in fee who have granted out lessee
estate with reservation Of rent may recover tue ie"
when iD arrear By distress or II man nave nor Int m
rererson he NAV reserve 10 himself power OF DIS
training ana such reservation will be good to bind the
lessee by way contract for the performance "neteo
the lessee may HAVE AN ACTION.
There are two features running through ali these
leases or conveyances which are contrary to law
which are the reservation of all the water upon the
land sold, and also prohibition of sale unless
quarter part or some other is paid 10 The grant
or The reservation of quarter sales and ali others
are voidas contrary 10 the statute of alterations and
the policy of the law. Littleton, in his tenures
section 36O says
f ieeofincnt be made upon this condition, that the
feeoer shall alien the land TO any that CONDITION Is
VOID; because when man Is lDeoied c Iahcs or tete
menis, he hath power TO alien them to any person "
For such condition should be good then the con
diton should Gust him of all the power which the law
gives him, which should be against reason ana
such condition is void.
Coke commenting on this section says that
man before the OF q'lia emPfores passed IN
1890 might have made a eoiiment in fee. and added
farther that if he or his heirs did alien without LII
cense that he then shon!d pay tine-ihs restric-
ton was good Pnge 223-3; Ca. L'tl
The same rule OF law holds in a devise in fee
upon condition that a devisee shall not alien, Is
also vod--so of grant, release, confirmation or
any other CONVEYANCE whereby fee simple doth
pass.
from the Feudal Law since the time Of the Con
nueat and partaking of their original character
could not at common law be alienated without the
leave ofihe lord hence sprung the doctrine OF hnes
for obtaining the consent OF the lord tor alienation
Under the feuial law the tenant could not sell his
lands without the consent of the lord II is on this
system that quarter sales are demanded by the
gran;or from the grantee whenever he conveys his
land.
This doctrine of restraint upon alterations is
founded the idea that the grenor sill has sub
ssting interest in the land. or that reverson re-
mains 10 him after the determination OF the lesser
estate as tenancy for life or for term of years
but no such tenure exists in the Anti REM regions
in this State.
The English statute called qua emptoras, passed
in 1890 took away tbe right 10 reserve rents upon
the sales of land in tee-he law in England was IN
a position that fines upon alterations more or
less demanded and received until the 2d great char
ter of liberties passed in England in the reign
of Charles l. in 1887 This statute abolished the
ieudal law in England-it took away all fines for
alterations of real estate and The act declared tnat
all fines for alterations. seizures and parcons 'or
alicnatious tenure by homage, all charges incident
or arising for of reason OF wardshlp livery prl-
mer seisin custer lie main. or tenure by ngnt ser
vice escuaec and also relief, aids. and all other char
Ces. should be forever abolished
This lef, the King the right TO demand tine upon
alienation for all lands which were held directly Of
the crown only, but upon the restoration OF Charles H.
in 1860 this right of fine for alterations was also
taken away by act of Parliament.
TIE English obtained possession OF New-lork
from the Dutch in l66}-and the final capituation was
made on the 27th of August l66iconsequenty the law
of England became the law OF thls Colony ana
continued such down TO the time OF the Revouuon'-
The common law OF England as well as Ihe statute ia"
of Great Britain continued our law uness altered or re-
pealed down TO the 10Th day oil April i'15 See Oid
Constitution OF Nel7- York, 35t section
The Constitution OF ls2l declares the same thing sub
stantialy.-I 4rtcis Z, Section -.
What the law oil the mother country IN looU WAS
transmitted 20 us the law OF The Colony ana state In
1864 "a, the time the Colony became an English Colon
While the Colony under the Dutch Government, all
eudal tenures were unknown in l'ci tue Legislature
o the State New York reenacted the law o Let CnareS
1887 and the ih section OF the Act is in these words -
ind be enacted That the tenure upon all gifts grants
made OF any manors lands tenemen's or hercdtafhehts
of any OF inheritance by any letters patent under
the seal ofhis State, or in any other manner o 'he
commissioners of orieitUres snail be and remain aLLo
DIAL and not FEUDAL and sha! forever hereafter he
taken and adjudged be and continue in free and pure
ALLODlUM only; and shall be forever discharged OF al
WARDSHIP VALUE AND FORFEITURE OF MAR.
RIAGE LIVERY primer, seisin, opsr llaa,n react Gia
pJIR FILE oIANrER AID PER FAIR FiIZ CHEHALlEk
RENTS RENDERS, FEALTY, and all other SEN lCfo
whatsoever: any law. statute reservation, custom or
rpr--, Enrp
ing
called Quarter Sales are as gross an usurpaton on e
part graniers were made since the days tna
Feudasm reisned in England with terror Nor does the
insertion OF such contract in the convey ancc
render ii any more legal.
Fvcry lawyer ia familiar with the doctrine that con-
be made which contravenes the terms or
policy of Legislative enactment or i opposed 10 the
policy of the laYor the national institutions aud
the reservation OF all quarter sales in leases in the anu
Rent region any where else in this state are void,
contrary aw.See Jstnson's Reports, p 1927. Hunt
VS. KHckcrbocker Sec JOhnsons Reports: p. 1874 Sec.
! - JohRsoas Rtports . H.
Another feature in the conveyances Of the AntRent
region is reservation TO the sranor of Al! runs streams
o; water and creeks Such reservations repugnRut 10
The gran, and void. conveyance might well provide
that the mir which lies farm be reserved 10 the use
OF crnntor that the OF snail belong
granor when he leases 1t or grants 10 tenant
! i'll lee.
grant in fee upon condition thai the shall
not take the profits OF the and against
and tue estate gwen is ABSOLUTE Co. Lttl Ju
a condition in an estate that the tenant in fee shall not
comi, waste or his wife shall have dover, or her
husband have curJesy is repugnsnt and void. BY the
terms OF the deeds which are given 10 tenants IN the
! Ant-Rent regions. who holds his lands under
| such lease Is liable law for covenant
broken il ne leads his horse water into stream run
ming On his land Whether judgment could be obtain
ed in such action is matter which may depend upon
the skill and the learning OF the counsel who defends the
| suit
We are aware that Coke says that although the condi
ton in II conveyance OF an estate may be repugnant
and void yet bond taken separate from the convey
ance containing such condition will be good.
But this doctrine has been oyerrued IN later times By
all the Courts u England and America on The ground
that The bond illustrates the law and is equally repug
nan the policy Of the law and rights OF parties If
such condition bad been inserted in the convey of
Isnd.-3 HHs Rrps 2}4 = Bl. Rps. 700; > ErHons
Reps psi FERRIS VS. Breioa.
If grantor can reserve 10 himself ALL WATER the
land which he seis, end quarter sales and presumption
rights he in tact renders his land perpetuay iusenn
bIe and we have complete system OF perpetues IN
the state of NeYork ever existed r the Gays OF eu-