The Customary Estates of the Island were, previous to the Act of Settlement, in the position of many of the English Customary Estates, inalienable by deed without the licence or confirmation of the Lord. This is clearly established by an ordinance of 1582, [note 1] a Statute of 1645, [note 2] and a confirmatory Statute of 1673. [note 3] The Statute of 1645 made all "gifts, grants or assignments" of customary lands not confirmed by the Lord or his officers void as between the parties, and also subjected both grantor and grantee to a fine of 50s each. There are many instances on the Records of the Island of licences to alien and of conveyances being made void for want of confirmation under the Statute of 1645.
After the passing of the Act of Settlement it was considered doubtful whether the effect of the Act was not to give the tenant an uncontrolable power of alienation. The form of confirming deeds by the Lord's officers on his behalf was nevertheless continued until recently. Deemster Mylrea mentions in 1746 the necessity even then of such confirmation by the Lord (Calcott v. Stephenson). The precepts for holding the Courts Baron up to a [33] very recent period, contained notices respecting the necessity of confirmation of deeds under pain of fine for neglect, but the writer is not aware of any instance after the Act of a sale having been made void for want of confirmation.
Amongst the claims set up by the Duke of Atholl, during the disputes arising out of the sale to the Crown of his seigniorial rights in the Island, was the alleged right to restrain the alienation of the Customary Estates, and in proof of it, besides ancient decisions, he set up the unbroken practice of confirming all grants of lands before and after the Act of Settlement up to that time. The objection made to this claim on behalf of the custo mary tenants of the Island was that the right of restraint was compounded for by the alienation fines fixed by the Act.
However, whatever doubts may have been entertained as to the operation of the Act of Settlement the question is effectually set at rest by the decision of the Judicial Council upon this point, which was expressly raised in the late case of Boardman and Avison v. Quayle. [note 4] In their judgment in that case their lordships say:
The customary tenants of those portions of the Island not included in the Act of Settlement, viz the tenants of the Bishop's Barony, and of the several baronies of Bangor and Sabal and St. Trinion's now possess and enjoy the right of alienation without any manorial restraint. In the case of the Bishop's Barony a composition in lieu of the restraining power was fixed by the custom of [36] the Barony. [note 7] This composition consisted of an ox or forty shillings to be paid to every Bishop of the Island at his installation. [Karran, Sergeant of Bishop's Barony, v. Matt Curphey, Adv. N.B. p. 221, and Lord Bishop v. Cowle, Adv. N.B. p. 14.] Whether the Lords of the other Baronies possessed this restraining power, and how it has been compounded for the writer is unable to say, but at the present day the tenants claim and exercise an uncontrolled right of alienation.
As against his heir-at-law, however, the customary tenant of a Manx Estate always possessed an absolute power of alienation (subject to the licence or the Lord's confirmation) and this power is in the Island, as in England, an inseparable incident annexed to the ownership of an Estate in Land. Any attempt, therefore to create an Estate not possessing the quality of alienability (save the solitary case of the separate Estate of a married woman during coverture) is as much against the policy of the Manx law as it is against that of England and consequently the writer thinks it unnecessary under this head to say more than merely to refer the reader to the doctrines of the law of [37] England respecting alienation and repugnant conditions and covenants reminding him, however, to qualify these doctrines by the Manx decisions against the operation of the rule in Shelly's case in the Island.
Anciently the usual mode of conveying customary lands in the Island was by a verbal agreement and a symbolical surrender by delivery of a Straw by a grantor to the graptee or to the Lord's officers, who (by the Setting Quest — the Manorial Jury) regranted to the grantee. This was done at the Manorial Courts which were held half yearly and an entry of the transaction as it took place before the Court was at once made on the Manorial Record or Rolls. The entry was a mere memorandum in a few words that he the old tenant by the delivery of the straw surrendered, and that the Setting Quest granted to the new tenant without setting forth any of the terms or considerations of the grant. This record was considered a sufficient title without any deed signed by the grantor.
As dealings in land became more frequent the inconvenience of delaying the completion of the transaction until the holding of the succeeding Manorial Court was more felt, and consequently the practice of conveying at once by a deed became more common, until at length the primitive mode of assurance by the simple entry on the Roll went entirely out of use. Even then although the transfer was effected by a deed an entry of it on the Roll was made in every case. This entry was necessary in [38] order to furnish to the Manorial officer a list of the tenants names to enable him to collect the Lord's rent. [note 8] This entry setting forth that the party drawn from the Roll had conveyed by deed to the new tenant, and that he entered by virtue thereof was held to be a sufficient title in case of the loss of the deed. A transfer by deed, followed in most cases by an entry on the Roll, is the mode of .conveyance practiced at the present day. It is uncertain whether an entry on the Roll was at any time absolutely requisite to complete the tenants title when the transfer was by deed, and it is not necessary for the object of these notes to enquire into it further than as to its necessity since the Act of Settlement or at the present day. The fifth clause of the Act of Settlement [note 9] enacts that if any tenant shall pass away his Estate by gift, grant, assignment, or any other conveyance whereby to divest himself of it, the same shall be accounted as an alienation. Although in the eleventh clause a fine is imposed for the neglect or refusal of a tenant so taking by deed or by any other title to have his name entered on the Court Roll, it appears clear and in fact is stated that the entry of the name on the Roll is for the purpose of facilitating the collection of the Lord's rents, [note 10] and it does not appear from [39] anything in the Act that it is required for any other purpose. The construction placed on the Act by the practice of the Courts has been to treat the deed as a complete alienation without reference to anything further to be done on the Roll. All doubts upon this point have, however, been disposed of by the Judicial Committee of the Privy Council in the appeal case of Boardman and Avison v. Quayle, in which they expressly decided that the mere entry of a grantee did not affect the operation of his deed, and was not necessary to complete his title, and that the Act operated no further than to subject the grantee to the fine for non-entry imposed by the 11th section, if indeed, it operated so far.
The conveyance by which lands are and always since the introduction of written deeds as before referred to have been transferred from Vendor to Vendee is general1y a deed poll in the form of a bargain and sale without any recitals and general1y with a short clause of general warranty, qualified covenants for title not being common unless specially agreed upon, or unless the Vendor is a mere trustee. In practice it is generally considered that a purchaser has a right to have at the expense of the Vendor a deed of bargain and sale containing the usual general covenant duly executed and attested or acknowledged before a Deemster or High-Bailiff in the form proper to enable the purchaser to record it.
If trusts are to be created, or reciprocal coven- [40] ants are required to be entered into by the parties the deed is generally in the form of an English Indenture without however actually indenting the deed.
Voluntary settlements or barganes are generally in the form of simple grants by deed poll.
The freehold of the lands being in the Lord, livery of seisin or actual delivery of possession was not necessary to transfer the customary Estate, the deed of conveyance operating of itself to give a complete title. [note 11] Consequently such deeds as " feoffments," "leases and releases," always have been unknown in the Island. By a simple deed poll or indenture any estate may be conveyed to take effect in presenti or in futuro, either after an estate of years or after a greater interest. The effect of a sale or settlement to take effect in futuro according to its habendum, is to convey to the grantee a vested estate in remainder, and to leave vested in the grantor the present interest received as an undeposited part of his original estate in the lands.
Sometimes in these customary voluntary deeds the grantor reserves a power to revoke the settlement, and it is considered that a revocation under such a power operates to defeat the estate conveyed and revest it in the grantor without any re-conveyance. [note 12]
[41] These customary voluntary settlements or grants operating in futuro whether with or without a power of revocation reserved, are held to take effect (as to their legal effect) as deeds inter vivos and not as wills although (as to their interpretation) they are sometimes construed as wills. In the case of Smith v. Quine [note 13] a deed of settlement conveying the legal estate in possession and creating trusts in favour of Volunteers to commence after the grantor's decease, who reserved the enjoyment for life but did not reserve a power to revoke, was held to be irrevocable and to operate as a deed, although a disposition of personal estate was made by it and it contained a declaration that it should also operate as his last will and testament.
Quine v. Quine, (Arderry case) was a similar case, [note 14] in which a settlement by deed poll operating after the grantor's death without reserving a power of revocation, was held irrevocable and good against a subsequent grant. However, this effect of these grants is so well settled that it is unnecessary to quote particular cases.
The nature and effect of a Manx mortgage deed requiring a lengthy explanation will be treated in another chapter.
Manx deeds seldom contain any recitals, and as there are no entails, and strict settlements are [42] not very common, the limitations are usually expressed in a few words; consequently the deeds are usually very concise.
Sealing has never been usual in the Island, the signature of the parties having always been held a sufficient execution.
It is not essential to the validity of a deed by the law of England that there should be attesting witnesses, and in the absence of any authority to the contrary, it may be presumed that the Manx Law is in that respect similar.
A married woman by simply joining in and executing a conveyance with her husband could always, not only bar her dower in his lands, but also convey her own lands. It appears from entries on the roll that anciently in the latter case the wife was examined apart as to the freedom of her consent, but this practice is now completely obsolete. As to the construction of Manx deeds and settlements, apparently not technically drawn, the Courts of the Island have been in the habit of construing them liberally with reference to intention, not allowing the defects of the writer to defeat the objects of the parties, if their intention could be gleaned from the instrument however loosely expressed. In this direction the Courts of the Island have gone even further than the Courts of England have gone in the construction of Wills. It may safely be said therefore, that a Manx deed is construed (as to the carrying out of its intention) as an [43] English Will, if indeed it will not receive a more liberal construction. This mode of construction has been necessary in the Island by reason of the rude state of Manx conveyancing.
Up to a very few years ago, the greater number of Manx Deeds and Wills were drawn by unprofessional and illiterate persons, few of whom had the slightest knowledge of the first rudiments of conveyancing; hence it is no uncommon thing for the Insular Courts to have to construe the most confused and unintelligible productions, some of them having hardly any resemblance, even in form, to a legal conveyance, or instrument. Even yet it cannot be said that the Manx people are generally sensible of the dangers of employing non-professionals in drawing their family settlements and wills. For this reason it will be obivous that the Courts of the Island in adjudicating on the endless litigation consequent on this state of conveyancing were compelled, in order to prevent injustice, to adopt more liberal rules than the Courts of England. However the rule obtaining in England, — that where technical words are used they must be construed according to their technical sense — must be held to apply to the Island. It does not follow however that technical words will be held to bear, in all cases in the Island, the identical meaning applying to the same words in England. For instance, in construing not only wills, but technically expressed deeds, the Courts of the Island have never followed the English Courts, that the words [44] "die without issue" or "die without leaving issue" or "have no issue" mean an indefinite failure of issue. On the contrary they have always held them to import a failure or want of issue in the lifetime or at the death. This construction is regularly admitted by the Courts and the profession to be the Manx technical sense of these words, that it would be difficult to find a case in which it has been questioned. That this construction carries into effect the intention of grantors and testators better than the contrary construction would do, is sufficiently proved by the regret frequently expressed by English Judges when deciding, as they frequently were compelled to do, manifestly against the clear intention of a deed or will, that the indefinite construction had ever been adopted originally so as to compel them to follow it. To prevent this injustice the English legislature has in the case of wills by the Wills Act 1831, applied the construction which, as before stated, has always, both as to deeds and wills, prevailed in the Island.
It is not settled whether a limitation to a person in a deed, without adding the words "to his heirs &c.," or equivalent words, will convey merely a life estate or a fee simple. In Christory v. CalIister (Lib. Plitor. 1848) such a limitation in a marriage settlement was held by the Keys to give a fee. In Cunningham v Vlatterson (Lib. Can. 1817) it was held by the Chancery Court that a settlement by a father upon his son and heir [45] apparent, in which the son covenanted to pay an annuity for the father's life, and to which the lands were to be subject, passed the fee without any such words, the decree stating that it appeared to be the clear intention and meaning of the deceased, and the parties thereto, that the fee should pass.
On the other hand (in Quayle v. Kermeen 15th August, 1816), it was decided by the Keys that a deed of sale for value to Thomas Quayle, and his executors, administrators, and assigns, did not convey the fee for want of a limitation to the heirs, the House stating that they had recourse to former precedents in so deciding.
What precedents were referred to the writer regrets that he has not been able to ascertain. As this point may still be considered a questio vexata the writer submits the following remarks as worthy of consideration in elucidating it.
As in England, by the custom of some Manors, a fee simple may be created by the words "to him and his," or "to him and his assigns," or "to him and his sequels in right." Without the word "heirs" it occurs to the writer that the Court Rolls of the Island would be worth reference to in order to show the ancient custom of the Island in this respect. Of course the writer means such entries on the RoIls as in ancient times, before the general introduction of deeds were considered sufficient to give a title. On examining many of those entries on the Rolls, the writer finds that the fee was generally [46] conveyed by them without any words of limitation. In some cases there are limitations to " heirs, executors, and assigns" but in the majority of cases there are no words of limitation. In all these cases the fee passed was transmitted to the heirs, &c., of the grantees, as appears from the subsequent entries of the devolutions of the same properties.
On the other hand there are entries conferring a life estate only, but in these cases it is expressly so limited. How far the ancient custom would be referred to in these days in assisting to decide the point the writer cannot venture to say, but, in the absence of some more direct authority, he thinks that they are not without a certain weight in the question. The absurd construction given to the word "issue" in the Statute of 1777, referred to at the end of the chapter on Dower has fortunately been confined to cases arising- under that Statute, and has not been attempted to be applied in interpreting the same expression, when used in a deed or wi11.
For Sherwood's notes on this chapter see Appendix 1.
Note 1: Revised Statutes, Vol. I. p. 56. This was an Ordinance made by the Deputy Governor and Council. At most it had no effect except as a declaration of an ancient custom set up by the Lord, but not accepted by the people.
Note 2: Revised Statutes, Vol. I. p. 100.
Note 3: Revised Statutes, Vol. I. p. 135.
Note 4: II Moore's Rep. P.C. 223.
Note 5: Revised Statutes, Vol. I p. 100.
Note 6: The Act of Settlement— Revised Statutes, Vol. I p. 161. This Act is more correctly cited as one of 1704, it having been promulgated on the 6th June, 1704. It was passed by the Legislative Council and Keys on the 4th February, 1703, and afterwards it received the Royal assent. It did not become law until its promulgation. (In 1703. the year commenced on the 25th March. Had the Calendar Act of 1753 been in force in 1703, the date of the passing of the Act of Settlement, as well of its promulgation would have been 1704. See the Calendar Act, Revised Statutes, Vol. I p. 258.)
Note 7: It is not free from doubt that the so called composition is one in lieu of a power in the Bishop as Lord to restrain alienation unless with his consent, and a composition seems unmeaning. By the custom of the Barony each quarterland is subject to render to the Bishop on the day of his installation an ox or 40 shillings late Manx Currency. The records show that there were on several occasions disputes between the Bishop and the tenants as to which had the option of choosing the ox or the 40 shillings. In an early case the Bishop demanded the 40 shillings, the tenant tendered the ox, on the grounds that he had the choice. The decision was in favour of the tenant. In later years the Bishop demanded the ox, the tenant tendered the 40 shillings. The decision was adverse to the Bishop.
Note 8: See note on latter part of this paragraph.
Note 9: Revised Statutes, Vol. I p. 163.
Note 10: Revised Statutes, Vol. I p. 165. "The purpose of facilitating the collection of the Lord's rents" is not the purpose stated in the section of the Act referred to, the words of which are "whereby the Lord's finesmight be had and received at such time and in such manner as are hereinbefore for that purpose limited and appointed, without favour or concealment." The same section provides "that the ancient rents should for the future be preserved by the Setting Quest, and that the tenants names should be entered in the Court Rolls as formerly." Both objects — the collection of the rents and fines, were undoubtedly contemplated by the Act, but the entries on the Court Rolls were more important as regards the collection of the fines than of the rents. The rents were payable yearly, — the fines were payable only on alienation or descent, and the entries furnished evidence of the change of tenancy, — evidence afforded by the new tenant.
Note 11: Livery of seisin or actual delivery of possession is not considered necessary with respect-to any lands whether freehold or customary. If possession be without legal cause, effect is given to the deed by a simple and summary proceeding in the Courts for an order of possession.
Note 12: This had hardly been a judicial consideration. In practice re-conveyances are required. There may have been cases where re-conveyance not being forthcoming has been presumed — but the necessity for one is not known to have been judicially recognized as non-existent.
Note 13: Rolls Office. 1850. Whether a deed is revocable or not depends on the circumstances of each case. No 122.