Page images
PDF
EPUB

CHAPTER THE SEVENTH.

of FREEHOLD ESTATES, Òr

INHERITANCE.

THE next objects of our disquisitions are the nature and

I properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant hath therein : so that if a man grants all his estate in Dale to A and his heirs, every thing that he can possibly grant shall pass thereby a. It is called in Latin ftatus ; it signifying the condition, or circumstance, in which the owner stands, with regard to his property. And, to ascertain this with proper

precision and accuracy, estates may be considered in a three, fold view : first, with regard to the quantity of interest which the tenant has in the tenement : secondly, with regard to the time at which that quantity of interest is to be enjoyed : and, thirdly, with regard to the number and connections of the tenants.

First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by it's duration and extent. Thus, either his right of possession is to subfift for an uncertain period, during his own life, or the life of another man : to determine at his own decease, or to remain to his descendants after him: or it is circumscribed within a certain number of years, months, or days: or, lastly, it is infinite and unlimited, being vested in him and his representatives for ever, And this occasions the primary division of a Co. Litt. 345.

çstates, estates, into such as are freehold, and such as are less than

freehold.

An estate of freehold, liberum tenementum, or franktenement, is defined by Britton to be “ the pollefion of the foil « by a freeman." And St. Germyn tells us, that “ the “ poffeffion of the land is called in the law of England the « franktenement or freehold.” Such estate therefore, and no other, as requires actual poffeffion of the land, is legally speaking freebold : which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture, And from these principles we may extract this description of a freehold ; that it is such an estate in lands as is conveyed by livery of feisin, or in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton", that where a freehold shall pass, it behoveth to have livery of seisin. As therefore estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold ; and, as no other estates were conveyed with the same solemnity, therefore no others are properly freehold estates (1). - b c. 32. Dr. & Stud. b. 2. d. 22.

d $59.

(1) A freehold estate feems to be any estate of inherit. ance, or for life, in either a corporeal or incorporeal hereditament, existing in, or arising from, real property of free tenure ; that is, now, of all which is not copyhold. And the learned Judge has elsewhere informed us, that “ tithes and fpi“ ritual dųes are freehold eftates, whether the land out of which “ they issue are bond or free, being a separate and distinct inherit“ ance from the lands themselves. And in this view they must be “ disțioguished and excepted from other incorporeal hereditaments “ issuing out of land, as rents, &c. which, in general, will fol. “ low the nature of their principal, and cannot be freehold, unless " the stock, from which they spring, be freehold also.” i Bl. Tracts, 116.

14

ESTATES

cadistic guime of land, air principooring, be

ESTATES of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail.

I. TENANT in fęe-simple (or, as he is frequently stiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever; generally, absolutely, and fimply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the

fame with that of feud or fief, and in it's original sense it is [105] taken in contradistinction to allodium'; which latter the

writers on this subject define to be every man's own land, which he poslesseth merely in his own right, without owing any rent or service to any superior. This is property in it's highest degree ; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land refides. And therefore fir Henry Spelman : defines a feud or fee to be the right which the vasal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services; the mere allodial propriety of the soil always remaining in the lord. This allodial property no subject in England hash; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominiumi : but all subjects' lands are in the nature of feodum or fee ; whether derived to them by descent from their ancestors, or purchased for a valuable con fideration : for they cannot come to any man by either of those ways, unless accompanied with those feodal clogs, which e Litt. 81. . .

. . .

i Pracdium
i pes

domini regis of dire&tum f See pag. 45. 47.

dominium, cujus nullus efi author nifi Deus, % of feuds, c. 1. ,

Ibido Co, Litt. I,

were

[merged small][ocr errors][merged small][ocr errors][merged small][ocr errors]

were laid upon the first feudatory when it was originally grant-
ed. A subject therefore hath only the usufruct, and not the
absolute property of the soil; or, as fir Edward Coke ex-
presses itk, he hath dominium utile, but not dominium directum,
And hence it is that, in the most solemn acts of law, we
express the strongest and highest estate that any subject can
have, by these words ; ” he is feised thereof in his demesne,
as of fee.It is a man's demesne, dominicum, or property,
since it belongs to him and his heirs for ever : yet this domi-
nicum, property, or demesne, is strictly not absolute or allo.
dial, but qualified or feodal : it is his demesne, as of fee ;
that is, it is not purely and simply his own, since it is held
of a superior lord, in whom the ultimate property resides.

This is the primary sense and acceptation of the word fee, [ 196 )
But (as fir Martin Wright very justly observes ') the doctrine,
" that all lands are holden,” having been for so many ages a
fixed and undeniable axiom, our English lawyers do very
rarely for late years especially) ufe the word fee in this it's
primary original sense, in contradistinction to allodium or aby
solute property, with which they have no concern; but ge-
nerally use it to express the continuance or quantity of estate.
A fee therefore, in general, signifies an estate of inheritance ;
being the highest and most extensive interest that a man can
have in a feud: and, when the term is used simply, without
any other adjunct, or has the adjunct of simple annexed to it,
(as a fee, or a fee-simple) it is used in contradistinction to
a fee conditional at the common law, or a fee-tail by the
statute; importing an absolute inheritance, clear of any con-
dition, limitation, or restrictions to particular heirs, but
descendible to the heirs general, whether male or female, liq
neal or collateral. And in no other sense than this is the king
said to be seised in fee, he being the feudatory of no man m.

TAKING therefore fee for the future, unless where otherwise explained, in this it's secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of heredita'k Co. Litt. I.

un Co. Litt. s. 1 of ten, 148,

ments either corporeal or incorporeal". But there is this diftin&tion between the two species of hereditaments; that, of a corporeal inheritance a man shall be said to be seised in his demesne, as of fee; of an incorporeal one, he thall only be said to be feised as of fee, and not in his demesne , For, as incorporeal hereditaments are in their nature collateral to, and iffue out of, lands and houses P, their owner hath no property, dominicum, or demesne, in the thing itself, but hath only fome. thing derived out of it; resembling the fervitutes, or services,

of the civil law The dominicum or property is frequently ( 107 ) in one man, while the appendage or fervice is in anothes,

Thus Gaius may be feised as of fee of a way leading over the fand, of which Titius is feised in kis demesne as of fee.

The fee-fimple or inheritance of lands and tenements is generally vested and resides in fome person or other; though divers inferior estates may be carved out of it. As if one grants a lease for twenty-one years, or for one or two lives, the fee-simple remains vested in him and his heirs; and after the determination of thofe years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-fimple. Yet sometimes the fee may be in abeyance, that is (as the word fignifies) in expectation, remembrance, and contemplation in law; there being no person in ele, in whom it can vest and abide : though the law considers it as always potentially existing, and ready to vest whenever a proper owner appears. Thus, in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly peither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo eft haeres viventis : it remains therefore in waiting or abeyance, during the life of Richard (2). This is likewise always the case of a parson of

n Feodum eft quod quis tenet fibi et bae. P. Sce page 20. redibus fuis, five for tenementum, five re- 4 Serv.lus eff jus, quo res mea alterius dius, &c. Flet. l. soc. 5. § 7

rei vel perfonae fervit. Ff. 8, 1. d. o Litt. $10.

Co. Litt. 342.

.

(2) The inheritance or remainder in fuch a case has been said to be in abeyance, or in nubibus, or in gremio legis; but Mr. Fearne, with great ability and learning, has exposed thc futility of these

expressions,

10

« PreviousContinue »