As before stated the incidents of the several descriptions of Customary Estates vary according to the classes to which they respectively belong, and further, these incidents are again affected by the nature of the title by which the lands have been acquired. In order to be able to describe these incidents with any degree of perspicuity it is therefore necessary, in this chapter and the succeeding chapters on Intacks, Mills, and Cottages to make reference to four different titles or modes of acquiring each of these several descriptions of land.
These four Titles are :
Fol1owing this order the writer will treat first on quarterland obtained by inheritance.
These lands are not devisable by will. [note 1] They [96] cannot be taken in execution for debt, and are not in any way liable in the hands of the heir at law and widow for the debts, either by specialty or simple contract of the owner by whom they were so acquired, [note 2] unless secured by mortgage, or unless the owner has been in his life time actually declared to be a bankrupt, under proceedings instituted for that purpose.
Previous to the Act of 1820 [note 3] the only remedy against debtors except bankers [by Act of 1817 lands of inheritance of bankers are made liable for payment of their notes [note 4]] was by sequestration. By the Statute of 1737 it was enacted that no order to sequestrate the profits of lands could be obtained without the sanction of the Governor, Deemsters and Keys. The nature of the remedy will be best shown by the form of an order of sequestration. On the petition of Philip Cottiman in Malew, setting forth that he had the Deemster's execution on a verdict at law against Ewan Christian of Ballahee, in Kirk Bride, and that the defendant had no personal effects to satisfy the execution, and praying that his estate of inheritance of Ballahee should be sequestered for the same. The Tynwald Court, on the 20th November, 1783, ordered that the lands of inheritance of the said Christian ought to be [97] sequestered, and two third parts of the net proceeds issues and profits thereof ought to be paid and applied in discharge of the said execution. The coroner of Ayre was, therefore, ordered to seize and possess himself of the said lands and set up to public auction, and demise and let the same from year to year at the highest rent that could be had until the amount should be discharged. On the receipt of the rent the coroner was ordered, after deducting all expenses, to pay to petitioner two-thirds, and defendant the remainder, each party having liberty to apply to the Court for further order.
As this order of sequestration would abate and determine in case of the debtor's death, and could not affect any reversionary property of a debtor, this remedy was an unsatisfactory one. In order, therefore, to give a better remedy and security to the creditor, an Act of Tynwald of the 1st November, 1820, enacted that in case sufficient property and effects liable to execution cannot be discovered to satisfy a judgment against a debtor, it shall be lawful for the Court granting such judgment, upon hearing of parties, to order the debtor to be imprisoned until legally discharged, and in case such debtor so imprisoned shall be possessed of or entitled to any lands of inheritance not liable to be sold for payment of such debt, such debtor shall not be entitled to his discharge from imprisonment until he or she shall execute a mortgage to a principal creditor or creditors chargeable upon such lands for the full amount of all the debts for which [98] judgments have been obtained, and lodged in the hands of tne gaoler previous to the debtor's discharge. This mortgage was not to prejudice the enforcement of the judgment against any other property which might become available. [note 5]
It will be seen by the observations on mortgages that even this remedy was anything but satisfactory as no means existed to compel payment of principal and interest for the space of 21 years. Except by obtaining possession and reserving the rents, which at best was a dilatory mode of obtaining payment of a debt, and probably would be rendered more difficult and precarious by the existence of prior mortgages. A further remedy has been given by the Act of Tynwald of 5th July, 1852, relating to insolyents and bankrupts. [note 6] It enacts that if any person shall be arrested for debt and shall not give bail within twenty-one days or shall fly or abscond for his personal safety from such arrest, or if such person shall be actually imprisoned for more than twenty-one days, either upon mesne process or under execution, or if such person whose person or estate is arrested on mesne process or under execution, shall not before twenty-one days dissolve the arrest by giving security or otherwise, or if any such person shall depart this Isle and be absent [99] therefrom for a period. exceeding two months with intent to defraud, defeat, or delay his creditor or creditors, or if such person shall make any fraudulent grant or conveyance of any of his lands, goods or chattels; or make any fraudulent gift, delivery, or transfer of any of his goods or chattels, or fraudulently suffer execution in favour of any other person, then and in either of such cases, any creditor to the amount of £25 or upwards for which a suit may then be or have been brought, may within thirty days thereafter apply by petition to the Court of Chancery, setting forth the facts, accompanied by affidavit to the truth thereof, and praying that such person may be declared a bankrupt, and that his property may be arrested and distributed amongst his creditors, and on proof of the matter the Chancellor shall issue his warrant to the Coroner to seize and take possession of the property of such person, which shall be sold for payment of his debts. The Act declares that the word "property" shall extend to mean all real and personal estate, and the future estate, right, title, interest, and trust in any real or personal estate, and the future estate, right, title, interest, and trust in any real or persona] estate which may be purchased, or which may revert, descend, &c. [note 7]
In the case of Gel1ing v. Corrin, which arose under this Act, the debtor had been away above two months and still remained away. It was held by the Chancery Court that at any time before the [100] return (the absence exceeding two months) the petition might be brought, and under the word "property" in the Act the Court ordered a reversion to which the debtor was entitled by inheritance in quarterland estate to be sold. This Bankruptcy Act, it will be perceived, furnishes the only means by which inheritance quarterlands, except those belonging to bankers, can be sold for payment of debts without an assignment from the debtor or not secured by mortgage. Although these several remedies have been provided, and still exist, it is clear that a further step is required to be taken for the security of creditors, and that is a law declaring lands of inheritance liable to be taken in execution and to be assets for payment of debts. [note 8]
Debts due to the Crown are not intended to be included in the foregoing observations.
These lands are not devisable by will and are not liable to be taken in execution and are not assets for payment of debts except in the manner set forth respecting lands acquired by inheritance. The whole of the observations concerning those lands are applicable to these lands and, therefore, need not be here repeated.
These lands are not devisable by will. The [101] leading decisions deciding their non-devisability are LaMothe v. LaMothe (1 Knapp 271, and Adv. N.B. 500), decided by the Privy Council, and Woods v. Academic Fund Trustees (Lib. Plitor 1848) and Galliard v. Galliard (Lib. Plitor 1857) both decided on appeal by the Keys.
These lands are not only liable to the operation of the Bankrupt Law of 1852, before mentioned, lmt are liable to be taken in execution for debts, and sold in the same manner as personal estate. After the death of the owner they are assets in the hands of his devisees or heir-at-law or widow for payment of his debts in default of personal estate, and are made available for that purpose by a summary application to the Chancery Court by the personal representative or a creditor. [note 9]
Previous to the Act of 1662, although the tenant had customary estate in fee as against the Lord, yet his interest in his "bought lands" was as to its devolution from him considered a chattel interest, and on his decease, without disposing of it by will, it formed part of his personal estate, and was inventoried, accounted for, and distributed as such, his widow on such distribution being entitled to one-half. By Act of Tynwald of the 24th June, 1662, [note 10] it is enacted that "if any tenant buy any quarterland and happen to die intestate before he dispose of such lands it is ordered, ordained, and [102] enacted that in such case those lands shall descend fall and come to the eldest son, and in default thereof to the eldest daughter, and in default of both to the next of kindred, they nevertheless repaying the consideration formerly paid for the said land, or the value thereof, unto the rest of the children unmarried or unprovided for, or to the administrators where there is no children, provided that if the deceadent make a will thereof it to be observed, or if his real intention touching the disposing or bequeathing of such bought ground be apparent and lawfully proved by sufficient witnesses and he or she die intestate, that intention nevertheless to be observed according to the judicious consideration of the Court."
The effect of this Act was to give to "bought" quarterlands the quality of descendibility to the heir-at-law, subject to a lien for the original purchase money. As the widow's rights were not affected by it she was entitled to her half of the land, and was not compelled to take half of the consideration instead (see reply of Keys to query of Governor in 1671, Lib Scar. 27). One consequence of the Act was to take bought quarterlands out of the control of the Ecclesiastical Court. In 1676 Lib Scar. 12, it was declared by the Exchequer Court "that quarterlands cannot be made chattels, they falling by descent to the next heir, neither can the Ecclesiastical Court give power for possession of such." It appears from numerous entries on the Manorial Rolls that the charge or lien for the purchase money continued to be a legal [103] burden up to the Act of 1777, [note 11] which enacts that all lands of every description shall descend to the heir-at-law in exclusion of the executor or administrator, subject nevertheless to debts, and to be devised by will as before accustomed. This Act has always been construed to have had the effect of extinguishing the lien or charge for the original price. Purchased quarterlands are, therefore, devisable by will, and attachable for debt under execution and under the Bankrupt Act of 1852, and are otherwise assets for payment of debts in the manner described concerning lands acquired under title number 3. [note 12]Note 1: Since the text was 'written there has been passed the Wills Act, 1869, by sec. 24 of which "All real property, of whatever description, may be devised by Will." (Revised Statutes, vol. 3, p. 469).
Note 2: The Real Property Act, 1869 (passed since the text was written) by sec. 1 provides that "All lands shall be liable to be taken in execution for payment of debt."
Note 3: An Act for the better enforcing of common judgments and executions (Revised Statutes, vol. I, p. 414).
Note 4: An Act to prevent the negotiation of Promissory Notes and Inland Bills of Exchange within the said Isle under a limited sum (Revised Statutes, vol. I, Sec. I, p. 393.)
Note 5: An Act for the better enforcing of common judgments and executions, &c., secs. 1 and 3 (Revised Statutes, vol. I, p. 414 and 415).
Note 6: An Act to alter and amend the law relative to insolvent debtors, and for other purposes. (Revised Statutes, vol. 2, p. 216, sec. 7.) This Act was repealed by the Bankruptcy Act, 1872, sec. 3. (Revised Statutes, vol. 4, p. 12.) The Act of 1872, and the insolvency provisions in the Act of 1820, were repealed by the Bankruptcy Code, 1892, sec. 3. (Revised Statutes, vol. 6, p. 312.) By the Real Property Act, 1869, sec. 1 (Revised Statutes, vol. 3 p. 471), all lands and real property of whatever description, are made liable to be taken in execution for payment of debt.
Note 7: Sec. 9 of Act of 1820. See note 6.
Note 8: The Act of 1852 was repealed by the Bankruptcy Act, 1872, sec. 3. (Revised Statutes, vol. 4, p. 12.) See note 6.
Note 10: Revised Statutes, vol. I, p. 114.