provision whereby the ground-rent became a perpetual charge upon the land in the event of non-redemption within the time specified. This species of ground-rent is now practically extinct, as are also any perpetual ground-rents. Their creation is so restricted as to make almost impossible the creation of an irredeemable ground-rent to charge land forever. Ground-rents may be freely transferred, but the transfer must be by deed to be effective.' 135 ESTATES IN REAL PROPERTY 70. Definitions. -An estate is the legal position or status of an owner, considered with respect to his property; ownership, tenancy, or tenure; property in land or other things. The term estate in its limited sense, and as it pertains to our present consideration, properly and technically means the degree, quantity, nature, and extent of interest which a person has in real property.' 136 Real estate is an interest in a real thing; it includes every possible interest in lands, except a mere chattel interest.137 Tenure is the nature of the right or title by which property, especially real property, is held. A tenant is the one who holds real property by any kind of title; specifically, the term tenant is applied to one who holds real property under a superior owner, as a lessee or occupant for rent; it is used as correlative to landlord." 71. Estates in real property are herein treated with respect to (1) the quantity of interest, (2) the time of enjoyment thereof, and (3) the number and connection of the The quantity of interest in an estate is determined by the time during which the tenant is to enjoy it; such as an estate to a man and his heirs, or an estate for one year. 135 Act of Apr. 22, 1850; Purd. Dig. 858, Pt. 2; Mitchell, Real Est. and Conv., p. 71. 136 Cent. Dict. 1379 Cowen (N. Y.) 81 (1828). 138 Cent. Dict.; see The Law of Landlord and Tenant. 1392 Black. Comm. 103. Thus considered, estates are either estates of freehold or estates less than freehold. A freehold estate, or a freehold, as it is commonly called, is any estate of inheritance or for life in real property, held by free tenure. Freeholds are those of inheritance and those not of inheritance. Those of inheritance may be absolute or limited. An estate of inheritance is one in which a man has such an interest that he may dispose of it upon his death as he sees fit. 72. Freehold Estates of Inheritance. - A freehold estate of inheritance absolute is a fee simple. A tenant in fee simple is he who has lands, tenements, and hereditaments, to hold to him and his heirs forever." 140 The word fee, technically, means inheritance. An estate in fee is an estate of inheritance, an estate that may descend according to law without conditions or qualifications. When the word fee is used alone, it is understood to mean fee simple. At common law, the word heirs is necessary to create a fee simple by inheritance. This is now true only of deeds. A deed to convey an estate in fee simple must convey to one and his heirs. Consequently, a deed to a person and his generation to endure as long as the waters of a certain river should run was held to pass a life estate only. An example of an estate in fee simple is a grant such as this: "I give the estate of Whiteacre to J. S. and his heirs forever." 73. The amount of a man's interest is determined by its duration. According to their duration, estates or interests in lands are classified as estates in fee simple, in fee tail, and for life. Of these, the greatest is the estate in fee simple, the largest possible interest which a man may have in landed property. It is the ownership of land by a man and his heirs forever, in which is included the right of the owner or of his heirs to freely transfer or encumber it. 74. An estate in fee simple is that interest in lands which can be freely alienated by its owner during his life, and which will, on his death, if left undisposed of by him, descend 140 Co. Litt., Sec. 1. beneficially to the next heir or heirs, lineal or collateral, and however remote in degree, of the last purchaser.' 141 By last purchaser is meant the last person who took the estate by purchase. A tenant in fee simple is not responsible to any one for any lawful use he may make of the land. He may dig it up to search for minerals, may cut down trees, destroy buildings, erect them, ruin or improve the land, as he sees fit. Such an estate can be transferred only by solemn deed inter vivos (between living persons) accompanied by words of inheritance, or by last will duly executed. The classical form of the words of inheritance is "and his heirs," following the name of the transferee. Thus, a limitation to a person and his heirs in an appropriate instrument gives that person a fee simple. The rule with regard to wills is not so strict. Since it is customary in interpreting wills to follow, so far as may be, the actual intention of the testator, any words which disclose an intention to give or devise a fee simple will be sufficient.""" 143 75. An estate in fee tail, or an estate tail, is an estate in fee with certain limitations. It owes its creation to an old English statute,' and is an interest given to one and certain of his issue; as where lands are given to one and his wife and the issue born of their bodies. Obviously such an estate is liable to be defeated in several ways. The person and his wife to whom the interest is given may never have children; or their children, if they had any, might not survive them. Under the English statute before mentioned, if the grantees have no children, or the estate were otherwise defeated, the land reverted back to the original owner, the grantor. 76. Estates tail are: (1) The estate in tail general, (2) the estate in tail male or female general, (3) the estate in tail special, and (4) the estate in tail male or female special. 141 Jenks's Modern Land Law, p. 27. 143 Stat. De Donis Conditionalibus (con cerning conditional gifts), 3 Edw. I (Eng.), c. 1 (1285). The estate in tail general is where land is given to a man and the heirs of his body. In England, by statute, such an estate may be created by deed by a transfer to one in tail. Under the laws of descent the lineal issue of the grantee can take, but collateral issue is excluded." The estate in tail male or female general differs from the estate in tail general in that the issue named in the limitation is required to be of a particular sex, such as an estate to a person and the heirs male of his or her body. In this case any of the heirs male are capable of inheriting. The estate in tail female general is of rare occurrence, but is governed by the same rules as the estate in tail male general. The estate in tail special is a limitation to the issue of two persons, who, of course, must be of different sexes, and they must not be within the prohibited degrees of consanguinity. ILLUSTRATION. - The grant of lands to X and the heirs of his body by Y, or to Y and the heirs of her body by X, creates an estate in tail special. It is not necessary that X and Y be married when the estate is created; they immediately become joint tenants of an estate tail inheritable only by their joint issue. If they do not fulfil the conditions requisite under the instrument creating the estate, they take a joint estate for the life of the survivor, upon whose death, the lineal heirs of both take as tenants in common. After the first descent, an estate in tail special becomes an estate in tail general. The estate in tail male or female special is an estate given to a man and the heirs of his body by his wife, or some similar expression. It is governed by the same rules as the estate in tail male general."** 77. The purpose of the statute was to prevent the alienation of estates tail by the first tenant. Before its passage, when an estate was given to a man and the issue of his body, it was customary to treat it as a fee simple upon the birth of issue, and to convey it as if it were such, thereby preventing the estate from ever reverting back to the donor, though the issue might die in the life of the first tenant. 14444 and 45 Vict. (Eng.), c. 41 (1881). 145 Jenks's Modern Land Law, p. 32. To prevent this the statute was passed." It answered its purpose until the ingenuity of the conveyancers found a way of evading its provisions. An estate tail was said to be entailed upon a man, and when he took steps to convert his estate tail into a greater estate, a fee simple, this was called barring the entail. The process generally used for accomplishing this was called a common recovery, a kind of conveyance, or fictitious proceeding, which operated as an absolute bar to estates tail, and the remainders and reversions expectant on the determination of such estates.' In England it became obsolete in 1833 by the abolishment of fines and recoveries, and barring the entail was permitted by a simple enrolled deed. In the United States, the creation of new estates tail has been made impossible by statute in most of the states, but there are sufficient old estates tail existing to make a knowledge of their incidents necessary to conveyancers and other persons interested in transfers of real estate. 147 78. As a tenant in tail has the power, even in England, to change his estate into a fee simple at pleasure, and as his powers of dealing with the land are almost unrestricted, the differences between the estate tail and the estate in fee simple is reduced to almost nothing. This does not apply to two special cases of tenancy in tail. The first is tenancy in tail after possibility of issue extinct; as where land is given to A and the heirs of his body by B, and B dies leaving no issue by A, or leaving issue who die. The estate tail in this case obviously must end with the life of A. His powers here are not the unlimited powers of an ordinary tenant in tail. The second case is tenancy in tail where the reversion is in the crown. For example, where the estate has been given by the crown to A in tail general, with the provision that, upon the failure of A's issue, the land is to revert back to the crown, the crown occupies the position of reversioner.'** |