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of 1884 all grants issued thereunder have contained a reservation of all minerals (p). By the Mining on Private Lands Act of 1894 (q) all land alienated from the Crown has been made available for the purpose of mining thereon for gold by any person who holds an authority from a mining warden; and if there be in the Grant a reservation of all minerals the land may be mined upon for silver, lead, tin, and antimony, as well as for gold (r).

III. Involuntary Alienation of Lands.

Fee simple estates are also subject to involuntary alienation. This liability arises most commonly in consequence of debts owing either to the Crown, or to a subject by some deceased tenant, but it may also arise through a lis pendens, or in some instances through resumption by the Crown.

1. Involuntary alienation for debts owing to a subject. Such debts may be classified as debts by simple contract, by specialty, and of record, which latter consist chiefly of debts under the judgment of a Court. Let us first consider the two former classes.

(1). Debts by simple contract and debts by specialty. The liability of land to an involuntary alienation for debt has, like the right of voluntary alienation, been established by very slow degrees (x). It appears that, in the early periods of English history, the heir of a deceased person was bound, to the extent of the inheritance which descended to him, to pay such of the debts of his ancestor as the goods and chattels of

(p) 48 Vic. No. 18, s. 7, and s. 4 sub voce "mineral"; see post Ch. V.

(4) 57 Vic. No. 32.

(r) ss. 3, 8.

(c) Co. Litt. 191 a, n (1), VI. 9.

the ancestor were not sufficient to satisfy (y). But the spirit of feudalism, which attained to such a height in the reign of Edw. I., appears to have infringed on this ancient doctrine; for we find it laid down by Britton, who wrote in that reign, that no one should be held to pay the debt of his ancestor, whose heir he was, to any other person than the king, unless he were by the deed of his ancestor specially bound to do so (z). On this footing the law of England long continued. It allowed any person, by any deed or writing under seal (called a special contract or specialty) to bind or charge his heirs, as well as himself, with the payment of any debt, or the fulfilment of any contract. In such a case the heir was liable, on the decease of his ancestor, to pay the debt or fulfil the contract, to the value of the lands which had descended to him from the ancestor, but not further (a). The lands so descended were called assets by descent, from the French word assez, enough, because the heir was bound only so far as he had lands descended to him enough or sufficient to answer the debt or contract of his ancestor (b). If, however, the heir was not expressly named in such bond or contract, he was under no liability (c). When the power of testamentary alienation was granted, a debtor who had thus bound his heirs became enabled to defeat his creditor, by devising his estate by his will to some other person than his heir; and, in this case, neither heir nor devisee was under any liability to the creditor (d).

(y) Glanville, lib. VII. c. 8; Bract. 61 a; 1 Reeves's Hist.

Eng. Law, 813. These authorities appear to be express; the contrary doctrine, however, with an account of the reasons for it, will be found in Bac. Abr. tit. Heir & Ancestor (F).

(2) Britt. 64 b.

(a) Bac. Abr. tit. Heir and Ancestor (F); Co. Litt. 376 b. (b) 2 Bl. Com. 244; Bac. Abr. tit. Heir and Ancestor (I). (c) Dyer 271 a, pl. 25; Plow.

457.

(d) Bac. Abr. ubi sup.

Some debtors, however, impelled by a sense of justice to their creditors, left their lands to trustees in trust to sell them for the payment of their debts, or, which amounts to the same thing, charged their lands, by their wills, with the payment of their debts. The creditors then obtained payment by the bounty of their debtor. And the Court of Chancery, in distributing this bounty, thought that "equality was equity," and consequently allowed creditors by simple contract to participate equally with those who had obtained bonds. binding the heirs of the deceased (e). In such a case the lands were called equitable assets. At length an act of William and Mary made void all devises by will, as against creditors by specialty in which the heirs were bound, but not further or otherwise (f); but devises or dispositions of any lands or hereditaments for the pay. ment of any real and just debt or debts were exempted from the operation of the statute (g). Creditors, however, who had no specialty binding the heirs of their debtor, still remained without remedy against either heir or devisee, unless the debtor chose of his own accord to charge his lands by his will with the payment of his debts; in which case, as we have seen, all creditors were equally entitled to the benefit. So that a landowner might incur as many debts as he pleased and yet leave behind him an unencumbered estate in fee simple, unless his creditors had taken proceedings in his lifetime, or he had entered into any bond or specialty binding his heirs. At length in 1807 the fee simple estates of deceased traders were rendered liable to the payment, not only of debts in

(e) Parker v. Dee, 2 Ch. Ca. 201; Bailey v. Ekins, 7 Ves. 319; 2 Jar. Wills, 554.

(f) 3 Wm. & M. c. 14, s. 2 made perpetual by stat. 6 & 7 Wm. III. c. 14.

(g) 3 Wm. & M. c. 14, s. 4.

which their heirs were bound, but also of their simple contract debts, or debts arising in ordinary business (h). The law so continued until 1814 (i), when there came into force an enactment of the Imperial Legislature "that from and after the 25th day of June, 1814, the houses, lands, and other hereditaments and real estates, situate or being within the colony of New South Wales or its dependencies, belonging to any person indebted, shall be liable to and chargeable with all just debts, duties, and demands of what nature or kind soever, owing by any such person to His Majesty, or any of his subjects, and shall and may be assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other specialty, and shall be subject to the like remedies, proceedings, and process in any court of law or equity in the said colony of New South Wales or its dependencies, for seizing, extending, selling, or disposing of any such houses, lands, or other hereditaments and real estates, towards the satisfaction of such debts, duties, and demands, in like manner as personal estates (in the said colony) are seized, extended, sold, or disposed of for the satisfaction of debts "().

The object of this enactment was to render real estate in New South Wales liable for debts of every kind, as it was liable in England for specialty debts; but it did not alter the then course of devolution of real estate, so as to make it legal assets in the hands of the personal representatives of the deceased owner (k). Lands accordingly still devolved on the heir at law or devisee

(h) 47 Geo. III. c. 74.

Bullen v. a' Beckett, 8 Moo. P.C. 223, 231.

() 54 Geo. III. c 15, s. 4.

(k) Bullen v.a' Beckett, 8 Moo. P.C. 223, 241; Bank of Australasia v. Murray, 1 Legge 612.

according as the debtor might or might not have died. intestate in respect to them, but in either case with a liability to satisfy his debts of every degree, and with a right to creditors to proceed in respect thereof against the person in whom the property was (1). In 1834 there was adopted (n) here a statute of the Imperial Legislature whereby the above-mentioned statutes, other than that of 54 George III., had been consolidated and amended, and facilities afforded for the sale of such estates of deceased persons as were liable by law, or by their own wills, to the payment of their debts. One of the provisions re-enacted by this act (0) was that in the administration of the assets of deceased bankrupt traders by Courts of Equity under and by virtue of the act all creditors by specialty in which the heirs were bound should be paid the full amount of the debts due to them, before any of the creditors, by simple contract, or by specialty in which the heirs were not bound, should be paid any part of their demands. If, however, the debtor had by his last will charged his lands with, or devised them subject to, the payment of his debts, such charge was valid, and every creditor, of whatever kind, had an equal right to participate in the produce. Hence arose this curious result, that a person who had incurred debts, both by simple contract, and by specialty in which he had bound his heirs, might, by merely charging his lands with the payment of his debts, place all his creditors on a level, so far as they might have occasion to resort to such lands; thus depriving the creditors by specialty of that priority to which they would otherwise have been entitled. This

(1) Maclean v. Dight, 5 S.C.R. 95; Bullen v. a' Beckett, ut sup. p. 229; Rose v. Woodland, 6 S.C.R., Eq. 50.

(n) 11 Geo. IV. & 1 Wm. IV c. 47, by 5 Wm. IV. No. 8.

(0) s. 9.

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