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

uses.

(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.

(28) Of corporeal inheritance a man shall be said to be seised in his demesne as of fee: of an incorporeal hereditament he shall only be said to be seised as of fee, and not in his demesne, page 106.

The distinction here made is more accurate than that upon page 105, where the king's dominium is opposed to the subject's dominicum or demesne. Closely as the two words are connected in origin and etymology, they have quite different meanings in English law. To say that the owner of property "hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo in his own demesne," is to confound these different meanings. Blackstone and Houard both make this mistake; bnt a glance at Bracton or Fleta should have saved them from it. These always use dominium in the Roman sense, which is appropriate to the king's ownership: but dominicum in one characteristic of the tenant rather than the lordpro repugnantia inter dominicum et dominium quæ sese non compatiuntur; homagium enim expellit dominicum quia nullus simul et semel debet esse dominus et tenens. (Fleta, v. 6, 60, fol. 305.)

The distinction of dominium and dominicum is brought out very clearly here, and also the connection of dominium and homagium. The lord has dominium over the land of which others are tenants, and takes homage from them. Such lands may fall to him by escheat, but never as heir, for the latter would suppose him to be in the same estate with his tenant- -a legal absurdity. But dominicum is the land which he occupies by himself or through base tenants who have no distinct estate cum homagium expellat dominicum et retineat servitium (Bracton, fol. 24 a); i. e., the reception of homage is a recognition of the fact that the lord has not the freehold or demesne, but only a seignory, to which service is incident. Even if he had previously held the land in dominico this would be true. The homage

accepted is equivalent to an investiture, and places it in the hands of the tenant.

The absence of investiture and the creation of tenancy by a mutual act of lord and tenant is one of the most significant points of difference between the feudal law of England and that of the continent. In some of the forms, the tenant in the very act of performing homage, informs the lord of his claim, and implies that he has received seisin already by the preceding tenant, his feoffor. This would be impossible under continental feudalism, or with an English copyhold tenant. The dominicum or demesne of our early law is a term peculiar, I believe, to English law. It denotes primarily that land which the thane or lord held in his own hands and cultivated for the support of his own household, usually by the labor of unfree tenants. It was gradually extended to embrace all land of which the freehold was in him; but never to land held by free tenants of which he only had the services. The freehold or demesne of these lands was in the free tenants themselves. Hence the limitation of the word to corporeal hereditaments, as here stated by Blackstone. Incorporeal, like easements, rents, seignories, are mere jura in re, and the denial to these of seisin in demesne is correctly explained here by Blackstone. See, also, the instructive definition in Termes de la Ley, verb. Demaines.

(29) We find strong traces of these limited conditional fees.. in our earliest Saxon laws, page 110.

...

There is no doubt much resemblance between fees tail and the "bocland" of the Saxon period, when limited to the kin of the first taker, as in the law of Alfred here cited: c. 41 of the A. S. texts, cited as c. 37 of the Latin version in note ƒ of the author.

But the resemblance must not be mistaken for identity. The "fee" of the later common law is entirely a different institution from any of the earlier forms of

2 BLACKST.-18.

hereditary land, alod, erbeigen, yrfe, hæreditas, proprium, or however it might be called, on the continent or in England. Only error and fallacies result from confusing them or supposing any genetic relation between them. See note 24, ante, page 193, as to the origin of estates, and the lack of any such conception during the Anglo-Saxon period.