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therefore, now are either free tenures in com

base tenures by copy

common copyholds (52): *yet with this distinction (x), that in the surrender of these lands in ancient demesne, it is not used to say to hold at the will of the lordin their copies,

but only, to hold according to the custom of the manor. All lay tenures, Thus have we taken a compendious view of the principal

and fundamental points of the doctrine of tenures, both anmon socage, or cient and modern, in which we cannot but remark the muCORY of court. tual connexion and dependence that all of them have upon

each other. And upon the whole it appears, that whatever changes and alterations these tenures have in process of time undergone, from the Saxon æra to the 12 Car. II. all lay tenures are now in effect reduced to two species: free tenure in common socage, and base tenure by copy of courtroll.

I mentioned lay tenures only; because there is still behind one other species of tenure, reserved by the statute of Charles II., which is of a spiritual nature, and called the tenure in frankalmoign.

V. Tenure in frankalmoign, in libera eleemosyna, or free Which is where alms, is that whereby a religious corporation, aggregate or

sole, holdeth lands of the donor to them and their successors for ever (y). The service which they were bound to render for these lands was not certainly defined; but only in general to pray for the souls of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other services but this) (2), because this divine service was of a higher and more exalted nature (a). This is the tenure, by which almost all the ancient monasteries and religious houses held their lands; and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this day (6); the nature

of the service being upon the reformation altered, and [ * 102 ] made conformable to the purer doctrines *of the church of

V. Of tenure in

lands are held
by a religious
corporation, to
them and their
successors for
ever; and the
service for which
was, to pray
for the souls of
the donor and
his heirs.

*

() Kitchen on Courts, 194.
(y) Litt. s. 133.
(z) Ibid. 131. [Ante, p. 45, n.

p. 53, n.]

(a) Ibid. 135.
(6) Bracton, 1. 4, tr. 1, c. 28, s. 1.'

though they are entitled to have it amounts to forty shillings? See ante, entered upon the court rolls. Quære, the note to

p.

90. Are not such customary freeholders (52) See post, pp. 365 et seq., and entitled to vote at county elections, the notes thereto. if the yearly value of their lands

Tenants

,

highcastles, re

England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shown to religion and religious men in ancient times. Which is also the reason that tenants in frankal- Frankalminign moign were discharged of all other services, except the were discharged trinoda necessitas, of repairing the highways, building repaires encept castles, and repelling invasions (c): just as the Druids, ware building among the ancient Britons, had omnium rerum immünita- pelling invatem (d). And, even at present, this is a tenure of a nature very distinct from all others; being not in the least feodal, but merely spiritual. For, if the service be neglected, the law gives no reniedy by distress or otherwise to the lord of whom the lands are bolden : but merely a complaint to the ordinary or visitor to correct it(e). Wherein it materially

( differs from what was called tenure by divine service: in which the tenants were obliged to do some special divine services in certain; as, to sing so many másses, to distribute such a sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrein, without any complaint to the visitor (f). All such donations are indeed now out of use: for, since the Since the statute statute of quia emptores, 18 Edw. I., none but the king can but the king can give lands to be holden by this tenure (g). So that I only holden by this mention them, because frankalmoign is excepted by name in the statute of Charles II., and therefore subsists in many instances at this day. Which is all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures.

18 Edw. I., none

give lands to be

tenure.

(c) Seld. Jan. 1, 42.
(d) Cæsar de bell. Gall. l. 6, c. 13.
(e) Litt. s. 136.

(f) Ibid. 137.
(9) Ibid. 140.

103

CHAPTER VII.

OF FREEHOLD ESTATES OF INHERITANCE.

Of the nature and properties of estates.

The next objects of our disquisitions are the nature and 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 status ; 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 threefold 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 connexions of the tenants.

First, with regard to the quantity (1) of interest which terest the tenant the tenant has in the tenement, this is measured by its

duration and extent. Thus, either his right of possession is to subsist 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 circum

First, as to the quantity of in

(a) Co. Litt. 345.

(1) The quantity of an estate must tenure, and the collateral qualifications not be confounded with its quality, as of the interest (whether the quantity if the two terms were convertible. The of such interest be of longer or shorter quantity of an estate, in technical lan- extent) are understood to be spoken guage, is understood to mean its right of; as, whether the estate be held of duration ; as, for years, for life, in conditionally, in common, in joint tail, or in fee. When the quality of an tenancy, in co-parcenary, or under estate is mentioned, the conditions of any other such modifications.

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scribed 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 *estates into such as are freehold, and [ * 104 ] such as are less than freehold.

An estate of freehold (2), liberum tenementum, or frank- Definition of litenement, is defined by Britton (6) to be “ the possession of tum, or an es “ the soil by a freeman.” And St. Germyn (c) tells us,

that “ the possession of the land is called in the law of England “ the franktenement or freehold.” Such estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold (3): which actual possession can, by the course of the common law, be 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 seisin; or, in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton (d), 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 are conveyed with the same solemnity, therefore no others are properly freehold estates (4). (6) C. 32. (c) Dr. & Stud. b. 2, d. 22.

(d) S. 59.

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(2) “ Tenant in fee, tenant in tail, And see post, p. 387, of this volume. and tenant for life, are said to have a The writ of assise was abolished by the franktenement, so called, because it statute of 3 & 4 Gul. IV. c. 27. doth distinguish it from terms of years, (3) Mr. Preston's short criterion for chattels upon uncertain interests, lands determining whether an estate be freein villenage, or customary or copyhold hold or not, is as follows : “ Such inlands. And note, tenant by statute- terests only as may continue for the merchant, statute-staple, or elegit, are period of a life, are estates of freehold; said to hold land ut liberum tenemen- all interests for a shorter period, or, tum, until their debt be paid ; and yet more properly speaking, for a definite in truth they have no freehold, but a space of time, are chattel interests." chattel, which shall go to the execu- (Treat. on Est. 203.) tors. But ut is similitudinary, because By livery of seisin without writing, they shall by the statutes have an as- a freehold passed at common law; but, sise, as tenants of the freehold shall since the statute of frauds, a freehold have, and in that respect their estate cannot be created without writing. hath a similitude of a freehoid: but nul- (4) Mr. Christian, in his note upon lum simile est idem.(Co. Litt. 43 b.) this passage, observes, that "

a free.

Of the different

Estates of freehold (thus understood) are either estates of species of freehold estates. inheritance, or estates not of inheritance. The former are

again divided into inheritances absolute or fee-simple (5); and inheritances limited, one species of which we usually

call fee-tail. F. Fee-simple I. Tenant in fee-simple (or, as he is frequently styled, the by one to him and tenant in fee) is he that hath lands, tenements, or hereditahis heirs for

ments, to hold to him and his heirs for ever(e): generally absolutely, and simply (6); without mentioning what heirs,

(e) Litt. s. 1.

ever.

6

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hold estate seems to be any estate of (6) It would save embarrassment to inheritance, or for life, in either a cor- the student, if he never found in books poreal or incorporeal hereditament, of authority any estate called a feeexisting in, or arising from real pro. simple, of which the qualities did not perty or free tenure ; that is, now, of coincide with our author's definition in all which is not copyhold. And the the text. But, Lord Coke tells us, learned judge has elsewhere informed (1 Instit. 1 b,) “ of fee-simple, it is us, tható tithes and spiritual dues are commonly holden, that there be three • freehold estates, whether the lands kinds, viz. fee-simple absolute, fee

out of which they issue are bond or simple conditional, and fee-simple qua: free, being a separate and distinct lified, or base fee.” It is true, that • inheritance from the lands them- Lord Coke immediately adds, “ but • selves. And in this view they must the more apt and genuine division were * be distinguished and excepted from to divide fee (that is, inheritance) into • other incorporeal hereditaments is. three parts, viz. simple or absolute ; • suing out of land, as rents,&c., which conditional ; and qualified, or base. * in general will follow the nature of For, this word simple, properly ex• their principal, and cannot be free- cludeth both conditions and limitations

hold, unless the stock from which that defeat or abridge the fee." But, • they spring be freehold also.!-1 the same authority very soon informs Bl. Tracts, 116."

us, (in 1 Instit. 19 a,) that “ here" [Lord Coke tells us (in 1 Inst. lb) (that is, in the 13th sect. of Litt.)“feethat a man may have a fee simple in simple is taken in its large sense, inthree kinds of hereditaments, viz. real, cluding as well estates conditional or personal, or mixed ; of each of which qualified, as absolute; to distinguish

1 he adduces instances. And ourauthor, them from estates in tail." And he two pages hence, says, a fee, in its again, more than once, alludes to a secondary sense, ás an estate of inhe. qualified fee-simple, (in 1 Instit. 27, ritance, is applicable to, and may be and in 2 Instit. 333,) as he does to a had in, any kind of hereditaments, ei. determinable fee-simple in Edward ther corporeal or incorporeal.”—Ed.] Seymour's case. (10 Rep. 97 b.) That

(5) Before the statute de donis con- an estate, though determinable upon a ditionalibus, there was no other estate contingency, may be a fee-simple, was of inheritance except a fee-simple; but also held in the case of Pells v. Brown, 'estates of fee-simple were of two sorts, (Cro. Jac. 590,) which case was cited viz. fee-simple absolute, and fee-simple with approbation in Gardner v. Shel. conditional. (Walsingham's case, I don, (Vaugh. 273,) where it is disPlowd. 562; and see the next note, as tinctly laid down that “ a fee-simple also post, p. 109).

determinable upon a contingent, is a

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