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the right. But the common law had a peculiar view of joint tenancy, and generally of this subject, derived from its doctrine of seisin, etc. All the co-owners of a close were regarded as constituting, so to speak, a single owner of a peculiar kind, and as the circumstances of the co-ownership varied, there were several kinds of it, with important distinctions in their mutual rights. You will find these enumerated in chapter 12, as known to the common law. (See page 195, ante.)

The only ones of importance to us are (a) severalty, the usual and normal form; (b) joint tenancy, including that in entirety; (c) tenancy in common, with which coparcenary is now identified; (d) tenancy in partnership. This last is entirely unknown to the common law, where it was in common, but is rapidly becoming a well-recognized distinct estate, especially in equity.

Fourthly. Any estate may be made to commence or to terminate, or to be enlarged upon the happening of a contingent event, and we have a division of estates into (a) absolute (the normal form); (b) conditional.

Fifthly. The distinction of law and equity has led to a classification peculiar to our law, between the estates which are recognized alike by all courts and in all kinds of action, and those which lack the formalities of a legal estate, and are recognized only in equity. Thus the purchaser of property who has not yet got his deed, but has gone into possession, or acquired in any way specific rights, is regarded in equity as being already possessed of just such an estate as he will have at law when the transaction is complete. This distinction is of much less importance with us than in England, because nearly all our courts take notice of equitable as well as legal titles, and because under our codes an equitable title may usually be set up even in an action at law. Still it has many important applica

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tions, and estates are therefore divided into (a) legal; (b) equitable.

There is also a distinction in the books between executed and executory estates, but it belongs more to title than it does to estate, and so far as it has any importance here, it is equivalent to the distinction between legal and equitable estates. (See 1 Washburn, ch. 1, pl. 41.)

The five classes above given are independent of each other. No one of them is a subdivision of any other. Every estate must belong to each of the five classes, so that they are not mutually exclusive, but the divisions under each class are mutually exclusive; i. e., any estate found in one division under a given class will not be found in any other division of the same class.

As these classes are independent of each other, the position in one will not determine the position in another. This is so legally, though practically there are reasons why certain combinations do not exist.

(26) Livery of seisin, which is the same with the feudal investiture, page 104.

In one sense this is true: for the livery of seisin by feoffor to feoffee was the act which vested the freehold in the latter, or in modern phrase, made him owner of the land. But one important difference is here overlooked. The investiture was the act of the lord, of a superior; the livery is the act of an equal, the vendor. Even before the statutes of quia emptores the distinction was perceptible, for there was not the connection between livery and homage, even when the feoffor created a new tenure, that there was between the investiture and homage. (See note 28, page 204, post, and note 17, page 108.)

The frequent dicta in our books as to the custom of

investiture in the county courts, or those of the lords, are taken from continental authorities rather than our own. Whatever may have been the rule as to investiture in county court earlier, it is clear that at Bracton's time such action of the patria was not the highest evidence of title, and did not suffice in place of actual livery of seisin. He quotes from the roll of M. de P. in Lanc., 16 Hen. III., a case of mordancestor, in which the verdict of a jurata against the seisin of the ancestor, Roger de M., die quo obiit, because of a conveyance made to one John, was reversed by a jury of attaint, thirty-six in number, on the ground that Roger did indeed come to the county court of Lancaster and give the land to John by a certain charter, and delivered to him the said charter in full county court, but that he never delivered seisin till his death, and continued taking the esplees and retained the same bailiffs and servants till that time. Here we have the two tests of title in direct opposition. Roger kept actual possession although he had delivered a charter of the land in pleno comitatu to John, who appears to have regarded himself as owner so far as to pay the king's fifteenth on the land, even if he did not take the crops and esplees, as the first jury found. The retention of possession was conclusive against the witness of the county court. (Bracton, lib. 2, c. 20, 2, fol. 50 a.)

In the United States, the delivery of a deed of conveyance is regarded now as equivalent to livery of seisin, and vests the estate conveyed in the grantee without other solemnity. It also estops the grantor, and all claiming under him, or by subsequent grant from him, to deny the former grantee's title, which of itself would be sufficient to make actual delivery of possession needless. (Parsons, C. J., in Proprietor of Kennebec Purchase v. Springer, 4 Mass. 416; 3 Am. Dec. 227; Gilliam v. Bird, 8 Ired. 280; 49 Am. Dec. 379;

3 Washburn on Real Property, 160 or #494; Schwallback v. C. M. & St. P. Ry. Co. 69 Wis. 292; 2 Am. St. Rep. 740.)

In England, since 1845, by statute 8 & 9 Vict. c. 106, section 2, the common form of conveyance is a grant which conveys the seisin without the help of livery; depending for its effect on the provision of that statute, which enacted that after October 1, 1845, all corporeal tenements and hereditaments should, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as livery. The reference to the freehold is not a limitation of the effect, since reversions and remainders always passed by grant. But the word "grant" is not necessary for either corporeal or incorporeal; "convey" or other words of same meaning do as well. (Conveyancing Act of 1881, 249.)

If we say that by general custom in the United States the same is true here, semble, that it will state the law more accurately than any amount of learned speculation on the operation of our deeds, either by the common law of England or by the statute of


(27) Without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law, page 104.

Fee-simple is an estate of perpetuity, and confers unlimited power of alienation, and no person is capable of having a greater estate or interest in the land. Every restraint upon alienation is inconsistent with the nature of a fee-simple; and if a partial restraint be annexed to a fee, as a condition not to alien for a limited time, or not to a particular person, it ceases to be a fee-simple and becomes a fee subject to a condition. (4 Kent, 5; 1 Washburn, ch. 3, pl. 45-47.) A condition

absolutely prohibiting alienation of an estate in feesimple is held to be repugnant to the grant and therefore void. (Large's Case, 2 Leon. 82; Ide v. Ide, 5 Mass. 500; Blackstone Bank v. Davis, 21 Pick. 42; Hall v. Tufts, 18 Pick. 455; Attwater v. Attwater, 18 Brev. 330, overruling Doe v. Pearson, 6 East, 173; and fullest of all, J. C. Gray, Restraints on the Alienation of Property, Boston, 1883.)

Although the owner in fee-simple has an absolute power of controlling his property, and can do what he pleases with it, generally speaking, there is one very important limitation upon this power.

He cannot change the state's law of descent, e. g., he cannot make it descend to sons only. All he can do is to give it, or rather to give particular estates in it to specified individuals during a limited period. He can give it to whom he pleases for life, or for years, with a remainder over to the grantee's oldest son, or to any other individual, whether existing or not, if properly specified and limited.

In this case, of course, no person can change the disposition made of it, until the last remainderman entitled to take, comes into being and into possession of the estate.

Formerly many attempts were made by ingenious limitations to keep the property in this condition for many generations. (4 Kent. 271-281; Deane, 224, 225, and post as to remainders.) It is evident that this would change the law of the state so far as this particular property was concerned, by substituting for a feesimple an endless succession of life estates. To prevent the evils growing out of such settlements, statutes in regard to perpetuities have been passed. The main object of all of them is to secure the falling back of the property into the hands of an owner in fee-simple within a reasonable time, which varies, in the different states.

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