Sivut kuvina
PDF
ePub

tional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs,* but descendible to the heirs general, whether male or female, lineal 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.TM†

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 hereditaments either corporeal or incorporeal. But there is this distinction 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 shall only be said to be seised as of fee, and not in his demesne." [See note, 28, page 204.] For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and houses, their owner hath no property, dominicum, or demesne, in the thing itself, but hath only something derived out of it; resembling the servitutes, or services, of the civil law. The dominicum or property is frequently [107] in one man, while the appendage or service is in another. Thus Gaius may be seised as of fee, of a way going over the land, of which Titius is seised in his demesne as of fee.¶

9

The fee-simple or inheritance of lands and tenements m Co. Litt. 1.

n Feodum est quod quis tenet sibi et hæredibus suis, sive sit tenementum, sive reditus, etc. Flet. l. 5. c. 5. 7.

o Litt. 10.

p See page 20.

q Servitus est jus, quo res mea alterius rei vel personæ servit. Ff. 8. 1. 1.

9 Ninth edition reads "leading."

*Cited, 47 Ind. 110; 29 Mich. 97. See post, p. 156.

+ Cited, 6 Hill, 604; 2 Dutch. 589; 42 Vt. 690, 691; 30 Ala. 326.

2-1 Quoted, 3 Serg. & R. 530.

- Quoted, 94 Ill. 93.

is generally vested and resides in some 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 those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet sometimes the fee may be in abeyance, that is (as the word signifies) in expectation, remembrance, and contemplation in law; there being no person in esse, 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 neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est hæres viventis: it remains therefore in waiting, or abeyance, during the life of Richard. This is likewise always the case of a parson of a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance. And not only the fee, but the freehold also, may be in abeyance; as, when a parson dies, the freehold of his glebe is in abeyance, until a successor be named, and then it vests in the successor.**

†The word "heirs" is necessary in the grant or donation in order to make a fee, or inheritance. For if land be given to a man forever, or to him and his assigns forever, this vests in him but an estate for life." This very great nicety about the insertion of the word "heirs" in all feoffments and grants, in order to vest a r Co. Litt. 342.

[blocks in formation]

+- Quoted, 2 Wend. 492. Cited, 107 Mass. 593; 16 N. J. Eq. 193; 21 Tex. 811; 28 N. J L. 171, 1 Blackf. 137.

fee, is plainly a relic of the feodal strictness: by which we may remember it was required [108] that the form of the donation should be punctually pursued; or that as Crag expresses it in the words of Baldus "donationes sint stricti juris, ne quis plus donasse præsumatur quam in donatione expresserit." And therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own person, and subsisted no longer than his life; unless the donor by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs.

But this

rule is now softened by many exceptions. † For, 1. It does not extend to devises by will; in which as they were introduced at the time when the feodal rigor was apace wearing out, a more liberal construction is allowed: and therefore by a devise to a man forever, or to one and his assigns forever, or to one in fee-simple, the devisee hath ? an estate of inheritance; for the intention of the devisor is sufficiently plain from the words of perpetuity annexed, though he hath omitted the legal words of inheritance. But if the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee shall take only an estate for life; for it does not appear that the devisor intended any more. 2. Neither does this rule extend to fines or recoveries, considered as a species of conveyance; for thereby an estate in fee passes by act and operation of law without the word "heirs:" as it does also for particular reasons, by certain other methods of conveyance, which have relation to a former grant or w See page 56.

x l. 1. t. 9. 17.

y Co. Litt. 9. 10.

*-* Quoted, 54 N. H. 280. Cited, 50 N. H. 319, 320.

† Cited, 1 Dall. 139; and criticised, 54 N. H. 278, 288.

Cited as to devises, 2 Nott & McC. 604; 10 Mo. 311; 46 Md. 419; 2 Nott & McC. 385,

[ocr errors]

9

[ocr errors]

estate, wherein the word "heirs" was expressed.* 3. In creations of nobility by writ, the peer so created hath an inheritance in his title, without expressing the word "heirs;" for "they are implied in the creation, unless it be otherwise specially provided: but in creations by patent, which are stricti juris, the word "heirs" must be inserted, otherwise there is no inheritance. 4. In grants of lands to sole corporations and their successors, the word "successors" supplies the place o "heirs;" for as heirs take from the ancestor, so doth the successor from the predecessor. Nay, in [109] a grant to a bishop, or other sole spiritual corporation, in frankalmoign, the word "frankalmoign" supplies the place of 5" successors (as the word " successors supplies the place of "heirs ")5 ex vi termini; and in all these cases a fee-simple vests in such sole corporation. But in a grant of lands to a corporation aggregate, the word " successors " is not necessary, though usually inserted: for, albeit such simple grant be strictly only an estate for life, yet, as that corporation never dies, such estate for life is perpetual, or equivalent to a feesimple, and therefore the law allows it to be one.† Lastly, in the case of the king, a fee-simple will vest in him, without the 5 word5 "heirs" 66 or successors" in the grant; partly from prerogative royal and partly from a reason similar to the last, because the king in judgment of law, never dies. But the general rule is, that the word "heirs" is necessary to create an estate of inheritance.‡

z Ibid. 9.

a See Vol. I. pag. 484.

b Ibid. 249.

9 Ninth edition reads "heirship is."

5 Previously, "both "heirs' and 'successors."

5 Previously, "words."

Cited as to recoveries, 29 N. J. L. 53.

+-+ Quoted, 1 Whart. 424, 30 Am. Dec. 216. Cited, Bright. N. P: 386. Cited as to corporations, 50 N. H. 319, 320; 3 Dutch, 20.

II. We are next to consider limited fees, or such estates of inheritance as are clogged and confined with conditions, or qualifications, of any sort. And these we may divide into two sorts: 1. Qualified, or base fees: and 2. Fees conditional, so called at the common law; and afterwards fees-tail, in consequence of the statute de donis.

1. *A base, or qualified, fee is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As, in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is entirely defeated.† So, when Henry VI. granted to John Talbot, lord of the manor of KingstonLisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle; here John Talbot had a base or qualified fee in that dignity; and the instant he or his heirs quitted the seignory of this manor, the dignity was at an end. This [110] estate is a fee, because by possibility it may endure forever in a man and his heirs; yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a qualified or base fee.?

2. A conditional fee at the common law, was a fee restrained to some particular heirs, exclusive of others; “donatio stricta et coarctata;a sicut certis hæredibus quibusdam a successione exclusis:" as to the heirs of a man's body, by which only his lineal descendants were ad

с Co. Litt. 27.

d Flet. l. 3. c. 3. 25.

[ocr errors]

Quoted, 5 Dill. 411; 2 Tenn. Ch. 610. Cited, 2 Hill, 147; 6 Hill, 605. *- Quoted, 94 Ill. 93, 94.

- Quoted, 5 Dill. 411; 51 Miss. 443; 60 Iowa, 446.

Cited, 3 Dutch, 20; 5 Ohio, 387; 24 Am. Dec. 298; 20 Mich. 211; 12 N. Y. 612; 10 Mo. 311; 35 N. H. 452; 1 Tex. 703.

2 BLACKST.-16.

« EdellinenJatka »