Page images


2. Pure and proper feuds were parcels of of court; subject to relief, to wardship,

land allotted by a chief to his followers; and to escheat, but not to marriage; subto be held on the condition of personally ject also formerly to aids, primer seisin, rendering due military service to their and fines for alienation ............... Page 86-86 lord .....

.......... Page 45 4. Pure villenage was a precarious and 3. These were granted by investiture; were slavish tenure, at the absolute will of the

held under the bond of fealty; were in lord, upon uncertain services of the basest heritable only by descendants, and could


93 not be transferred without the mutual 5. From hence, by tacit consent or en

consent of the lord and vassal ............53-57 croachment, have arisen the modern 4. Improper feuds were derived from the copyholds, or tenure by copy of court

other, but differed from them in their roll; in which lands may be still held at original, their services and renders, their the (nominal) will of the lord, (but regudescent, and other circumstances.

58 lated) according to the custom of the 5. The lands of England were converted


95 into feuds, of the improper kind, soon 6. These are subject, like socage lands, to after the Norman conquest: which gave services, relief, and escheat; and also to rise to the grand maxim of tenure; viz. heriots, wardship, and fines upon descent that all lands in the kingdom are holden, and alienation inediately or immediately, of the king...48–53 7. Privileged villenage, or villein socage, is

an exalted species of copyhold tenure, CHAPTER V.

upon base but certain services; subsist

ing only in the ancient demesnes of the OF THE ANCIENT ENGLISH TENURES ....... 61 to 77 crown; whence the tenure is denominated 1. The distinction of tenures consisted in the tenure in ancient demesne............... 99

the nature of their services: as, I. Chi 8. These copyholds of ancient demesne valry, or knight-service; where the ser have divers immunities annexed to their vice was free, but uncertain. II. Free tenure; but are still held by copy of socage; where the service was free, and

court-roll, according to the custom of certain. III. Pure villenage; where the the manor, though not at the will of the service was base, and uncertain. IV. lord.....

100 Privileged villenage, or villein socage; 9. Frankalmoign is a tenure by spiritual

where the service was base, but certain 61-78 services at large; whereby many eccle2. The most universal ancient tenure was siastical and eleemosynary corporations

that in chivalry, or by knight-service; in now hold their lands and tenements: which the tenant of every knight's fee being of a nature distinct from tenure by was bound, if called upon, to attend his divine service in certain ..... ..... 101 lord to the wars. This was granted by livery, and perfected by homage and

CHAPTER VII. fealty; which usually drew after them

suit of court........ .......................... 62 OF FREEHOLD Estates Of INHERITANCE ... 8. The other fruits and consequences of the

103 to 117 tenure by knight-service were, I. Aid. II. 1. Estates in lands, tenements, and herediRelief. III. Primer seisin. IV. Ward

taments are such interest as the tenant ship. V. Marriage. VI. Fines upon hath therein; to ascertain which, may be alienation. VII. Escheat...............

considered, I. The quantity of interest. 4. Grand serjeanty differed from chivalry II. The time of enjoyment. III. The

principally in its render, or service, and number and connections of the tenot in its fruits and consequences

73 nants

....103 to 119 6. The personal service in chivalry was at 2. Estates, with respect to their quantity

length gradually changed into pecuniary of interest, or duration, are either freeassessments, which were called scutage hold or less than freehold .... or escuage.................

74 3. A freehold estate, in lands, is such as is 6. These military tenures (except the ser created by livery of seisin at common

vices of grand serjeanty) were, at the law; or, in tenements of an incorporeal restoration of King Charles, totally abo nature, by what is equivalent thereto..... 104 lished, and reduced to free socage, by act 4. Freehold estates are either estates of of parliament..........

77 inheritance, or not of inheritance, viz.

for life only: and inheritances are, CHAPTER VI.

I. Absolute, or fee-simple. II. Limited fees .....

104 OF THE MODERN ENGLISH TENURES ...... 78 to 101 5. Tenant in fee-simple is he that hath 1. Free socage is a tenure by any free, cer

lands, tenements, or hereditaments to tain, and determinate service....

78 hold to him and his heirs forever........ 104 2. This tenure, the relic of Saxon liberty, 6. Limited fees are, I. Qualified, or base,

includes petit serjeanty, tenure in bur fees. II. Fees conditional at the comgage, and gavelkind.. 81 mon law ...........

109 8. Free-socage lands partake strongly of 7. Qualified, or base, fees are those which,

the feodal nature, as well as those in having a qualification subjoined thereto, chivalry; being holden subject to some are liable to be defeated when that qualiservice,-at the least, to fealty and suit fication is at an end. ........

...... 10$

....... 63-72


6. Conditional fees, at the common law, possibility have been heir; and the hus.

were such as were granted to the donee, band dies: the woman is hereupon entiand the heirs of his body, in exclusion of tled to dower, or one-third part of the collateral heirs........

Page 110

lands and tenements, to hold for her 9. These were held to be fees, granted on

natural life

Page 128 condition that the donee had issue of his 9. Dower is either by the common law; by body; which condition being once per special custom; ad ostium ecclesiæ; or formed by the birth of issue, the donee ex assensu patris......

.....13-33 might immediately aliene the land; but, 10. Dower may be forfeited, or barred; the statute de donis being made to prevent particularly by an estate in jointure ...... 136 such alienation, thereupon, from the division of the fee (by construction of this

CHAPTER IX. statute) into a particular estate and reversion, the conditional fees began to be OF ESTATES LESS THAN FREEHOLD...140 to 150

called fees-tail. .......... .........111, 112 1. Estates less than freehold are, I. Estates 10. All tenements real, or savouring of the for years. II. Estates at will. III. Esrealty, are subject to entails.. ......... 113 tates at sufferance......

...... 140 - 150 11. Estates-tail may be, I. general, or spe 2. An estate for years is where a man,

cial; II. male, or female; III. given in seised of lands and tenements, letteth frank-marriage......

. 113-115 them to another for a certain period of 12. Incident to estates-tail are, I. Waste.

time, which transfers the interest of the II. Dower. III. Curtesy. IV. Bar,-by term; and the lessee enters thereon, fine, recovery, or lineal warranty with which gives him possession of the term, assets........


but not legal seisin of the land. ............ 140 13. Estates-tail are now, by many statutes 3. Incident to this estate are estovers; and

and resolutions of the courts, almost also emblements, if it determines before brought back to the state of conditional the full end of the term................ ..144-45 fees at the common law.....

117 | 4. An estate at will is where lands are let

by one man to another, to hold at the CHAPTER VIII.

will of both parties, and the lessee enters thereon ....

140 Op FREEHOLDS NOT OF INHERITANCE ... 120 to 136 5. Copyholds are estates held at the will of | Freeholds not of inheritance, or for life

the lord, (regulated) according to the only, are, I. Conventional, or created by custom of the manor

141 the act of the parties. II. Legal, or cre 6. An estate at sufferance is where one ated by operation of law......


comes into possession of land by lawful 2 Conventional estates for life are created

title, but keeps it afterwards without any by an express grant for term of one's own title at all...........................

150 life, or pur auter vie; or by a general grant, without expressing any term at


120 8. Incident to this, and all other estates for OF ESTATES UPON CONDITION............. 152 to 161

life, are estovers, and emblements; and 1. Estates (whether freehold or otherwise) to estates pur auter vie general occupancy may also be held upon condition; in was also incident; as special occupancy which case their existence depends on still is, if cestuy que vie survives the the happening, or not happening, of some tenant........ 122 uncertain event. ......

152 4. Legal estates for life are, I. Tenancy 2. These estates are, I. On condition im

in tail, after possibility of issue extinct. plied. II. On condition expressed. III. II. Tenancy by the curtesy of England. Estates in gage. IV. Estates by statute,

III. Tenancy in dower ............ .124-128 merchant or staple. V. Estates by elegit 152 6. Tenancy in tail after possibility of issue 3. Estates on condition implied are where

extinct is where an estate is given a grant of an estate has, from its essence in special tail, and, before issue had, a and constitution, a condition inseparably person dies from whose body the issue annexed to it; though none be expressed was to spring; whereupop the tenant (if

152 surviving) becomes tenanu in tail after 4. Estates on condition expressed are where possibility of issue extinct......


an express qualification or provision is 6. This estate partakes both of the incidents annexed to the grant of an estate.......... 154

to an estate-tail, and those of an estate 5. On the performance of these conditions, for life ......

125 either expressed or implied, (if precedent,) 7. Tenancy by the curtesy of England is the estate may be vested or enlarged, or,

where a man's wife is seised of an estate on the breach of them, (if subsequent,) of inheritance, and he by her has issue, an estate already vested may be deborn alive, which was capable of inherit feated .........

15456 ing her estate: in which case, he shall, 6. Estates in gage, in vadio, or in pledge, upon her death, hold the tenements for are estates granted as a security for

his own life, as tenant by the curtesy..... 126 money lent; being, I. In vivo vadio, or 3. Tenancy in dower is where a woman's living gage; where the profits of land

hasband is seised of an estate of inherit are granted till a debt be paid, upon ance, of which her issue might by any which payment the grantor's estate will


in words........

revive. II. In mortuo vadio, in dead or 12. An estate in severalty is where one tenant mort gage; where an estate is granted holds it in his own sole right, without any on condition to be void at a day cer other person being joined with him... Page 179 tain if the grantor then repays the 3. An estate in joint-tenancy is where an money borrowed; on failure of which, estate is granted to two or more persons ; the estate becomes absolutely dead to in which case the law construes them to the grantor

Page 157 be joint-tenants, unless the words of the 7. Estates by statute merchant or statute grant expressly exclude such construction 180

staple are also estates conveyed to cre 4. Joint-tenants have a unity of interest. ditors, in pursuance of certain statutes, of title, of time, and of possession: they till their profits shall discharge the debt 160 are seised per my et per tout : and thereEstates by elegit are where, in conse fore, upon the decease of one jointquence of a judicial writ so called, lands tenant, the whole interest remains to the are delivered by the sheriff to a plaintiff survivor.........

....... 182 till their profits shall satisfy a debt ad Joint-tenancy may be dissolved, by dejudged to be due by law..

161 stroying one of its four constituent unities 186

6. An estate in coparcenary is where an CHAPTER XI.

estate of inheritance descends from the OF ESTATES IN PoşSESSION, REMAINDER, ancestor to two or more persons; who AND REVERSION .......

163 to 177 are called parceners, and all together 1. Estates, with respect to their time of en

make but one heir.....

187 joyment, are either in immediate posses 7. Parceners have a unity of interest, title, sion, or in expectancy: which estates in and possession; but are only seised per expectancy are created at the same time, my, and not per tout: wherefore there is and are parcel of the same estates, as

no survivorship among parceners...

188 those upon which they are expectant. 8. Incident to this estate is the law of These are, I. Remainders. II. Rever hotchpot. ........

190 sions .........

163 9. Coparcenary may also be dissolved by 2. A remainder is an estate limited to take destroying any of its three constituent effect and be enjoyed after another par

unities ......

..... 191 ticular estate is determined

164 | 10. An estate in common is where two or 3. Therefore, I. There must be a precedent more persons hold lands, possibly by dis

particular estate, in order to support a tinct titles, and for distinct interests, remainder. The remainder must pass

but by unity of possession, because none out of the grantor, at the creation of the knoweth his own severalty......

191 particular estate. III. The remainder 11. Tenants in common have therefore & must vest in the grantee, during the con unity of possession, (without survivortinuance, or at the determination, of the ship; being seised per my, and not per particular estate

tout,) but no necessary unity of title, 4. Remainders are, I. Vested—where the time, or interest....

191 estate is fixed to remain to a certain per 12. This estate may be created, I. By disson after the particular estate is spent. solving the constituent unities of the two II. Contingent--where the estate is li former; II. By express limitation in a mited to take effect, either to an un

grant; and may be destroyed, I. By certain person, or upon an uncertain uniting the several titles in one tenant; event

.......... 168–69 II. By partition of the land ........ 195 6. An executory devise is such a disposi

CHAPTER XIII. tion of lands, by will, that an estate shall not vest thereby at the death of the de OF THE TITLE TO Things REAL, ÎN GENEvisor, but only upon some future contin


..195 to 19 gency; and without any precedent parti A title to things real is the means wherecular estate to support it..

172 by a man cometh to the just possession 6. A reversion is the residue of an estate

of his property.....

195 left in the grantor, to commence in pos 2. Herein may be considered, I. A mere or session after the determination of some naked possession. II. The right of posparticular estate granted; to which are session ; which is, 1st, an apparent, incident fealty, and rent...

176 2dly, an actual, right. III. The mere Where two estates, the one less, the other right of property. IV. The conjunction greater, the one in possession, the other of actual possession with both these in expectancy, meet together in one and rights; which constitutes a perfect the same person and in one and the


...195-199 same right, the less is merged in the greater ........



OF TITLE BY DESCENT...... .....200 to 234 CHAPTER XII.

1. The title to things real may be reciproOp ESTATES IN SEVERALTY, JOINT-TENANCY, cally acquired or lost, I. By descent. COPARCENARY, AND Common...........179 to 195 II. By purchase

200 1 Estates, with respect to the number and 2. Descent is the means whereby a zan, on

connections of their tenants, may be held, the death of his ancestor, acquires a title I. In severalty. II. In joint-tenancy. to his estate, in right of representation, III In coparcenary. IV. In common.... 179 as his heir-at-law.....


...... 165–68



[ocr errors]

8. To understand the doctrine of descents, those things which before had we must form a clear notion of consan

..........., Page 258 guinity; which is the connection or rela 2. Thus, at the common law, where tenant tion of persons descended from the same pur auter vie died during the life of cestury stock or common ancestor; and it is, que vie, he who could first enter migiit I. Lineal, where one of the kinsmen is lawfully retain the possession; unless by lineally descended from the other. II. the original grant the heir was made a Collateral, where they are lineally de special occupant .........

259 scended, not one from the other, but both 3. The law of derelictions and alluvions has from the same common ancestor. Page 203–204 narrowed the title by occupancy .......

261 1. The rules of descent, or canons of inheritance, observed by the laws of England,

CHAPTER XVII. are these : Inheritances shall lineally descend, to the OF TITLE BY PRESCRIPTION.....

263 issue of the person last actually seised, 1. Prescription (as distinguished from cusin infinitum; but shall never lineally tom) is a personal immemorial usage of ascend.......


enjoying a right in some incorporeal beThe male issue shall be admitted before the reditament, by a man, and either his anfemale............................


cestors or those whose estate of inheritWhere there are two or more males of equal ance he hath ; of which the first is called degree, the eldest only shall inherit; but prescribing in his ancestors, the latter, the females all together........ 214 in a que estate........

263 The lineal descendants, in infinitum, of any person deceased, shall represent their

CHAPTER XVIII. ancestor; that is, shall stand in the same place as the person himself would have OF TITLE BY FORFEITURE.................267 to 286

done had he been living............... 216 1. Forfeiture is a punishment annexed by On failure of lineal descendants, or issue, law to some illegal act, or negligence, in

of the person last seised, the inheritance the owner of things real; whereby the shall descend to the blood of the first estate is transferred to another, who is purchasor; subject to the three preced usually the party injured.....

267 ing rules. To evidence which blood, the 2. Forfeitures are occasioned, I. By crimes. two following rules are established.... 220 II. By alienation contrary to law. III. The collateral heir of the person last seised By lapse. IV. By simony. V. By nonmust be his next collateral kinsman of performance of conditions.

VI. By the whole blood ....

224 waste. VII. By breach of copyhold cusIn collateral inheritances, the male stock toms. VIII. By bankruptcy ...

267 shall be preferred to the female; that is, 3. Forfeitures for crimes, or misdemeanours, kindred derived from the blood of the are for, I. Treason. II. Felony. III. male ancestors shall be admitted before Misprision of treason. IV. Præmunire. those from the blood of the female ; un

V. Assaults on a judge, and batteries, less where the lands have in fact de sitting the courts. VI. Popish recuscended from a female. .........

sancy, &o....

267 4. Alienations or conveyances which induce CHAPTER XV.

a forfeiture are, I. Those in mort main, OF TITLE BY PURCHASE; AND, FIRST, BY

made to corporations contrary to the EscHEAT .....

statute law. IL. Those made to aliens.

...241 to 257 1. Purchase, or perquisition, is the posses

III. Those made by particular tenants, sion of an estate which a man hath by

when larger than their estates will warrant ....

.........268-274 his own act or agreement, and not by the

5. Lapse is a forfeiture of the right of premere act of law, or descent from any of his ancestors. This includes, I. Escheat.

sentation to a vacant church, by neglect 11. Occupancy. III. Prescription. IV.

of the patron to present within six calendar months

........ 276 Forfeiture. V. Alienation ............... 241-244 2. Escheat is where, upon deficiency of the

6. Simony is the corrupt presentation of tenant's inheritable blood, the estate falls

anyone to an ecclesiastical benefice, to the lord of the fee.....


whereby that turn becomes forfeited to the crown..

278 8. Inheritable blood is wanting to, I. Such as are not related to the person last

7. For forfeiture by non-performance of

conditions, see Ch. X. seised. II. His maternal relations in paternal inheritances, and vice versa. III.

8. Waste is a spoil, or destruction, in any His kindred of the half-blood. IV. Mon

corporeal hereditaments, to the prejudice

281 sters. V. Bastards. VI. Aliens, and their

of him that hath the inheritance....... issue. VII. Persons attainted of treason

9. Copyhold estates may have also other

peculiar causes of forfeiture, according or felony. VIII. Papists, in respect of themselves only, by the statute law...246–257 10. Bankruptcy is the act of becoming a

to the custom of the manor

.... 284 CHAPTER XVI.

bankrupt; that is, a trader who secretes

himself, or does certain other acts tend07 TILA. BY OCCUPANCY..................... 258–261 ing to defraud his creditors. (See Ch. 1. Occupancy is th taking possession of XXII.) ...


11. By bankruptcy, all the estates of the Exchanges. VI. Partitions.-Derivativo

bankrupt are transferred to the assignees are, VII. Releases. VIII. Confirmations. of his commissioners, to be sold for the IX. Surrenders. X. Assignments. XI. benefit of his creditors ..........

...Page 286

......... Page 310

8. A feoffment is the transfer of any corpoCHAPTER XIX.

real hereditament to another, perfected OF TITLE BY ALIENATION

287 to 294

by livery of seisin, or delivery of bodily

possession from the feoffor to the feoffee; 1. Alienation, conveyance, or purchase, in

without which no freehold estate therein its more limited sense, is a means of

can be created at common law .............. 310 transferring real estates, wherein they

9. A gift is properly the conveyance of are voluntarily resigned by one man and


lands in tail....... accepted by another


10. A grant is the regular method, by com2. This formerly could not be done by a tenant, without license from his lord ; nor

mon law, of conveying incorporeal hereby a lord, without attornment of his tenant 287 11. A lease is the demise, granting, or let


317 8. All persons are capable of purchasing; and all that are in possession of any

iing to farm of any tenement, usually for

a less term than the lessor hath therein; estates are capable of conveying them; -unless under peculiar disabilities by

yet sometimes possibly for a greater; aclaw: as being attainted, non compotes, in

cording to the regulations of the restrain

817 fants, under duress, feme-coverts, aliens,

ing and enabling statutes ...... or papists....


12. An exchange is the mutual conveyance 4. Alienations are made by common assu

of equal interests, the one in consideration of the other.....

...... 323 rances; which are, I. By deed, or matter in pais. II. By matter of record. III. By

13. A partition is the division of an estate special custom. IV. By devise......... 293–294

held in joint-tenancy, in coparcenary, or

in common, between the respective teCHAPTER XX.

nants; so that each may hold his distinct part in severalty ...............................

323 OF ALIENATION BY DEED .................. 295 to 342 14. A release is the discharge or convey1. In assurances by deed may be consi ance of a man's right in lands and tenedered, I. Its general nature.

II. Its se

ments to another that hath some former veral species .... 295 estate in possession therein...........

324 2. A deed, in general, is the solemn act of 15. A confirmation is the conveyance of an

the parties : being, usually, a writing estate or right in esse, whereby a voidable sealed and delivered; and it may be, I. estate is made sure, or a particular estate A deed indented, or indenture. II. A

is increased .........

.... 325 deed-poll......

..295-296 16. A surrender is the yielding up of an 3. The requisites of a deed are, I. Sufficient estate for life, or years, to him that hath

parties, and proper subject-matter. II. the immediate remainder or reversion; A good and sufficient consideration. III. wherein the particular estate may merge 326 Writing on paper, or parchment, duly 17. An assignment is the transfer, or making stamped. IV. Legal and orderly parts; over to another, of the whole right one which are usually, 1st, the premises ; has in any estate; but usually in a lease, 2dly, the habendum; 3dly, the tenendum; for life or years.......

326 4thly, the reddendum ; 5thly, the condi 18. A defeazance is a collateral deed, made tions; 6thly, the warranty, (which is at the same time with the original coneither lineal or collateral); 7thly, the veyance; containing some condition upon covenants ; 8thly, the conclusion, (which which the estate may be defeated ....... 327 includes the date.) V. Reading it, if de 19. Conveyances by statute depend much sired. VI. Sealing, and, in many cases, on the doctrine of uses and trusts; which signing it also. VII. Delivery. VIII. are a confidence reposed in the terte-tenant, Attestation..............

...296-307 or tenant of the land, that he shall permit 4. A deed may be avoided, I. By the want the profits to be enjoyed, according to the

of any of the requisites before mentioned. directions of cestuy que use, or cestuy que II. By subsequent matter: as, 1st, ra


327 sure, or alteration; 2dly, defacing its 20. The statute of uses, having transferred seal ; 3dly, cancelling it; 4thly, disagree all uses into actual possession, (or, rather, ment of those whose consent is neces having drawn the possession to the use,) sary; 5thly, judgment of a court of jus has given birth to divers other species of tice......


conveyance: I. A covenant to stand seised 5 Of the several species of deeds, some

to uses. II. A bargain and sale, enserve to convey real property, some only rolled. III. A lease and release. IV. A to charge and discharge it

309 deed to lead or declare the use of other 6. Deeds which serve to convey real pro more direct conveyances. V. A revocaperty, or conveyances, are either by com

tion of uses; being the execution of a mon law, or by statute. And, of convey power, reserved at the creation of the use, ances by common law, some are original of recalling at a future time the use or

or primary, others derivative or secondary 309 estate so creating. All which owe their : Original conveyances are, I. Feoffments. present operation principally to the staII. Gifts. ILL. Grants. IV. Leases. V. tute of uses...............


« PreviousContinue »