1. Freeholds, not of inheritance, or for life only, are, 1. Conventional, or created by the act of the parties. II. Legal, or created by operation of law 2. Conventional estates for life are created by an express grant for term of one's own life, or pur auter vie; or by a general grant, without expressing any term at all 3. Incident to this, and all other estates for life, are estovers, and emblements; and to estates pur auter vie general occupancy was also incident; as special occupancy still is, if cestuy que vie survives the tenant 4. Legal estates for life are, I. Tenancy in tail, after possibility of issue extinct. II. Tenancy by the curtesy of England. III. Tenancy in dower 120 120 122 124-128 5. Tenancy in tail, after possibility of issue extinct, is where an estate is given in special tail, and, before issue had, a person dies from whose body the issue was to spring; whereupon the tenant (if surviving) becomes tenant in tail, after possibility of issue extinct 124 6. This estate partakes both of the incidents to an estate-tail, and those of an estate for life 7. Tenancy by the curtesy of England is where a man's wife is seised of an estate of inheritance; and he by her has issue, born alive, which was capable of inheriting her estate: in which case, he shall, upon her death, hold the tenements for his own life, as te nant by the curtesy 125 126 4. An estate at will is where lands are let by one man to another, to hold at the will of both parties; and the lessee enters thereon 5. Copyholds are estates held at the will of the lord, (regulated) according to the custom of the manor 6. An estate at sufferance is where one comes into possession of land by law ful title, but keeps it afterwards without any title at all CHAPTER X. 140 144-5 145 147 150 152 to 161 OF ESTATES UPON CONDITION 1. Estates (whether freehold or otherwise) may also be held upon condition; in which case their existence depends on the happening, or not happening, of some uncertain event 2. These estates are, 1. On condition implied. II. On condition expressed. III. Estates in gage. IV. Estates by statute, merchant or staple. V. Estates by elegit 3 Estates on condition implied, are where a grant of an estate has, from its essence and constitution, a condition inseparably annexed to it; though none be expressed in words 4. Estates on condition expressed, are where an express qualification or provision is annexed to the grant of an 152 152 152 154 estate 5. On the performance of these conditions either expressed or implied (if precedent), the estate may be vested or enlarged: or, on the breach of them (if subsequent), an estate already vested may be defeated 154-5 177 2. Herein Laay be considered, 1. A mere 6. Estates in gage, in vadio, or in pledge, are estates granted as a security for money lent; being, I. In vivo vadio, or living gage; where the profits of land are granted till a debt be paid, upon which payment the grantor's estate will revive. 11. In mortuo radio, in dead, or mort gage; where an estate is granted, on condition to be void at a day certain, if the grantor then repays the money borrowed; on failure of which, the estate becomes absolutely dead to the grantor 7. Estates by statute merchant, or statute staple, are also estates conveyed to creditors, in pursuance of certain statutes, till their profits shall discharge the debt 8. Estates by elegit are where, in consequence of a judicial writ so called, Jands are delivered by the sheriff to a plaintiff, till their profits shall satisfy a debt adjudged to be due by law CHAPTER XI. OF ESTATES IN POSSESSION, REMAIN- Page 157 100 161 1. Estates, with respect to the number 2. An estate in severalty, is where one 3. An estate in joint-tenancy, is where 4. Joint-tenants have an unity of inter- 163 to 177 5. Joint-tenancy may be dissolved, by 1. Estates, with respect to their time of enjoyment, are either in inmediate possession, or in expectancy: which estates in expectancy are created at the same time, and are parcel of the same estates, as those upon which they are expectant. These are, 1. Re mainders. H. Reversions 2. A remainder is an estate limited to tate 4. Remainders are, 165-168 I. Vested-where ners 8. Incident to this estate is the law of 9. Coparcenary may also be dissolved, tuent unities 10. An estate in cominon, is where two 11. Tenants in common have therefore 12. This estate may be created, I. By 179 179 180 182 185 187 188 190 191 191 191 195 6. A reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted; to which are incident-fealty, and rent 7. Where two estates, the one less, the other greater, the one in possession, the other in expectancy, meet together in one and the same person, and in one and the same right, the less is merged in the greater 195 200 201 208 214 by the mere act of law, or descent from any of his ancestors. This includes, 1. Escheat. 11. Occupancy. III. Prescription. IV. Forfeiture. V. Aliena tion Page 241-244 2. Escheat is where, upon deficiency of the tenant's inheritable blood, the estate falls to the lord of the fee 3. Inheritable blood is wanting to, L. Such as are not related to the person last seised. II. His maternal relations in paternal inheritances, and vice nersa. III. His kindred of the half blood. IV. Monsters. V. Bastards. VI. Aliens, and their issue. VII. Persons attainted of treason or felony. VIII. Papists, in respect of themselves only, by the statute law CHAPTER XVI. 244 246-257 258 to 201 OF TITLE BY OCCUFANCY 1. Occupancy is the taking possession of those things, which before had no owner 2. Thus, at the common law, where tenant per auter vie died during the life of erstuy que vie, he who could first enter might lawfully retain the possession; unless by the original grant the heir was made a special occupant 3. The law of derelictions and alluvions has narrowed the title by occupancy CHAPTER XVII. OF TITLE BY PRESCRIPTION 212 1. Prescription (as distinguished from custom) is a personal immemorial usage of enjoying a right in some incorporeal hereditament, by a man, and either his ancestors or those whose estate of inheritance he hath of which the first is called prescribing in his ancestors, the latter, in a que estate 216 220 CHAPTER XVIII. 258 259 261 263 263 267 to 286 OF TITLE BY FORFEITURE 224 2. Forfeitures are occasioned, 1. By. crimes. II. By ahenation, contrary to law. III. By lapse. IV. By simony. V. By non-performance of conditions. VI. By Waste. VII. By breach of copyhold customs. VIII. By bankruptcy 231 3. Forfeitures for crimes, or misdemesnors, are for, L. Treason. II. Felony. III. Masprision of treason. IV. Premunire. V. Assaults on a judge, and batteries, sitting the courts. VL. Popish reensancy, &c. or naked possession. II. The right of possession; which is, Ist, an apparent, 2ndly, an actual, right. III. The mere right of property. IV. The conjunctron of actual possession with both these rights; which constitutes a per fect title CHAPTER XIV. OF TITLE BY DESCENT Page 195-199 200 to 234 L The title to things real may be reciprocally acqured or lost, I. By descent. II. By purchase 2. Descent is the means whereby a man, on the death of his ancestor, acquires a title to lus estate, in right of representation, as his heir-at-litw 3. To understand the doctrine of descents, we must form a clear notion of consanguinity; which is the conneetion or relation of persons descended from the same stock or common ancestor; and it is, I. Lineal, where one of the kinsmen is lineally descended from the other. 11. Collateral, where they are lincally descended, not one from the other, but both from the same Coramon ancestor 4. The rules of descent, or canons of inheritance, observed by the laws of England, are these: Inheritances shall lineally descend, to the issue of the person last actually seised, in infinitum; but shall never lineally ascend The male issue shall be admitted before the female 203-4 Where there are two or more males in equal degree, the eldest only shall inherit; but the females all together The lueal descendants, in infinitum. of any person deceased, shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living On fatiure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to the blood of the first purchaser; subject to the three preceding rules. To evidence which blood, the two following rules are established The collateral heir of the person last seised must be his next collateral kinsman, of the whole blood In collateral inheritances, the male stock shall be preferred to the female; that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female: unless where the lands have, in fact descended from a female CHAPTER XV. OP TITLE BY PURCHASE; AND, FIRST, 241 to 257 1. Purchase, or perpuisition, is the possession of an estate which a man hath by its own act or agreement; and not 4. Alrenations or conveyances, which induce a forfeiture, are, 1. Those in mortmain, made to corporations con 267 267 267 parchment, duly stamped. IV. Legal and orderly parts (which are usually, Ist, the premises; zudly, the habendum; 3rdly, the tenendum; 4thly, the reddendum; 5thly, the conditions; 6thly, the warranty (which is either lineal or collateral); 7thly, the covenants; Sthly, the conclusion (which includes the date). V. Reading it, if desired. VI. Sealing, and, in many cases, signing it also. VII. Delivery. VIII. Attestation Fage 296-307 4. A deed may be avoided. I. By the want of any of the requisites before mentioned. II. By subsequent matter: as, Ist, rasure, or alteration; 2ndly, defacing its seal; 3rdly, cancelling it; 4thly, disagreement of those whose consent is necessary; 5thly, judgment of a court of justice 284 5. Of the several species of deeds, some serve to convey real property, some only to charge and discharge it 285 287 to 294 1. Alienation, conveyance, or purchase, in its more limited sense, is a means of transferring real estates, wherein they are voluntarily resigned by one man, and accepted by another 2. This formerly could not be done by a tenant, without licence from his lord; nor by a lord, without attornment of his tenant 3. All persons are capable of purchasing; and all, that are in possession of any estates, are capable of conveying them; unless under peculiar disabilities by law: as being attainted, non compotes, infants, under duress, semecoverts, aliens, or papists 6. Deeds which serve to convey real property, or conveyances, are either by common law, or by statute. And, of conveyances by common law, some are original or primary, others derivative or secondary 308 309 309 286 7. Original conveyances are, I. Feoffments. II. Gifts. III. Grants. IV. Leases. V. Exchanges. VI. Partitions. Derivative are, VII. Releases. VIII. Confirmations. IX. Surrenders. X. Assignments. XI. Defeazances 310 8. A fecfiment is the transfer of any corporeal hereditament to another, perfected by livery of seisin, or delivery of bodily possession from the feoffor to the feoffee; without which no freehold estate therein can be created at common law 287 287 9. A gift is properly the conveyance of 288-293 4. Alienations are made by common assurances; which are, I. By deed, or matter in pais. II. By matter of record. III. By special custom. IV. By devise 293-4 II. A deed poll 295 3. The requisites of a deed are, I. Sufficient parties, and proper subject-matter. II. A good and sufficient consideration. III. Writing on paper, or 295-6 lands in tail 10. A grant is the regular method, by common law, of conveying incorporeal hereditaments 11. A lease is the demise, granting, or letting to farm of any tenement, usually for a less term than the lessor hath herein; yet sometimes possibly for a greater; according to the regulations of the restraining and enabling statutes 12. An exchange is the mutual conveyance of equal interests, the one in consideration of the other 13. A partition is the division of an estate held in joint-tenancy, in co-parcenary, or in common, between the respective tenants; so that each may hold his distinct part in severalty 14. A release is the discharge or conveyance of a man's right, in lands and tenements, to another that hath some former estate in possession therein 15. A confirmation is the conveyance of an estate or right in esse, whereby a voidable estate is made sure, or a particular estate is increased 16. A surrender is the yielding up of an 310 316 317 317 323 323 324 325 326 326 327 327 estate for life, or years, to him that hath the immediate remainder or reversion; wherein the particular estate may merge 17. An assignment is the transfer, or making over to another, of the whole right one has in any estate; but usually in a lease, for life or years Page 18. A defeazance is a collateral deed, made at the same time with the original conveyance; containing some condition upon which the estate may be defeated 19. Conveyances by statute depend much on the doctrine of uses and trusts: which are a confidence reposed in the Lerre-tenant, or tenant of the land, that he shall permit the profits to be enjoyed, according to the directions of cestuy que use, or cestuy que trust 20. The statute of uses, having trans ferred all uses into actual possession (or, rather, having drawn the possession to the use), has given birth to divers other species of conveyance: I. A covenant to stand seised to uses. II. A bargain and sale, enrolled. III. A lease and release. IV. A deed to lead or declare the use of other more direct conveyances. V. A revocation of uses; being the execution of a power, reserved at the creation of the use, of recalling at a future time the use or estate so creating. All which owe their present operation principally to the statute of uses 337-339 21. Deeds which do not convey, but only charge real property, and discharge it, are, I. Obligations. II. RecogniIII. Defeazances upon both zances. CHAPTER XXI. 340-342 OF ALIENATION BY MATTER OF RE CORD 344 to 363 1. Assurances by matter of record are, where the sanction of some court of record is called in, to substantiate and witness the transfer of real property. These are, I. Private acts of Parlia-, ment. II. The king's grants. III. Fines. IV. Common recoveries 2 Private acts of Parliament are a species of assurances, calculated to give (by the transcendent authority of parliament) such reasonable powers or relief, as are beyond the reach of the ordinary course of law 3. The king's grants, contained in charters or letters patent, are all entered on record, for the dignity of the royal person, and security of the royal re venue 4. A fine (sometimes said to be a feoffment of record) is an amicable composition and agreement of an actual or fictitious, suit; whereby the estate in question is acknowledged to be the right of one of the parties 5. The parts of a fine are, I. The writ VOL. I. 344 344 6. Fines are of four kinds: I. Sur cognizance de droit, come ceo que il ad de son done. II. Sur cognizance de droit tantum. III. Sur concessit. IV. Sur done, grant, et render; which is a double fine 7. The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizec, by barring the respective rights of parties, privies. and strangers 8. A common recovery is by an actual, or fictitious, suit or action for land, brought against the tenant of the freehold; who thereupon vouches another, who undertakes to warrant the tenant's title: but upon such vouchee's making default, the land is recovered by judgment at law against the tenant; who, in return, obtains judgment against the vouchee to recover lands of equal value in recompense 353 354 357-359 9. The force and effect of a recovery are to assure lands to the recoveror, by barring estates tail, and all remainders and reversions expectant thereon; provided the tenant in tail either suffers, or is vouched in, such recovery 10. The uses of a fine or recovery may be directed by, I. Deeds to lead such uses; which are made previous to the levying or suffering them. II. Deeds to declare the uses; which are made subsequent CHAPTER XXII. 361 363 346 OF ALIENATION BY DEVISE 373 to 381 1. Devise is a disposition of lands and tenements, contained in the last will and testament of the owner 348 5 2. This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law, under Hen. VIII.; since 373 |