transaction to all the king's subjects in general, by virtue of the statute 23 Hen. VIII. c. 6.9* V. Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an [161] estate by elegit. What an elegit is, and why so called, will be explained in the third part of these commentaries. At present I need only mention, that it is the name of a writ, founded on the statute of Westm. 2. by which, after a plaintiff has obtained judgment for his debt of law, the sheriff gives him possession of one half of the defendant's lands and tenements, to be held, occupied, and enjoyed, until his debt and damages are fully paid: and, during the time he so holds them, he is called tenant by elegit. It is easy to observe, that this is also a mere conditional estate, defeasible as soon as the debt is levied. But it is remarkable, that the feodal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia emptores, it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them the statute therefore of Westm. 2. permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatoribus (passed in the same years) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in e 13 Edw. I c. 18. f 18 Edw. I. g 13 Edw. I. 9 Ninth edition inserts, "is extended." 9 Ninth edition adds, "Amended by 8 Geo. I. c. 25, which direct such recognizance to be enrolled and certified into chancery. But these, by the statute of frauds, 29 Car. II. c. 3, are only binding upon the lands in the hands of bona fide purchasers from the day of their enrolment, which is ordered to be marked on the record." *Cited, 42 N. H. 538; 6 Johns. 459. trade; though only half of them was liable to be taken in execution for any other debt of the owner.* h I shall conclude what I had to remark of these estates. by statute merchant, statute staple, and elegit, with the observation of sir Edward Coke, "These tenants have uncertain interests in lands and tenements, and yet they have but chattels and no frecholds" (which makes them an exception to the general rule); “because though they may hold an estate of inheritance, or for life, ut libcrum tenementum, until their debt be paid; yet it shall go to their executors: for ut is similitudinary; and though, to recover their estates, they shall have the same remedy (by assise) as a tenant of the freehold shall have, yet it is but the similitude [162) of a freehold, and nullum simile est idem." This indeed only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold : but it does not assign the reason why these estates, in contradistinction to other uncertain interests, shall vest in the executors of the tenant and not the heir; which is probably owing to this: that, being a security and remedy provided for personal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession: as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in 9them, to whom the debts if recovered would belong.† "And, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged, this interest in the h 1 Inst. 42, 43. 9 Ninth edition adds note: "The words of the statute de mercatoribus are, puisse porter bref de novele disseisine, auxi sicum de franktenement."" 8 Previously, "owing." 9 Ninth edition reads "those." 9 Ninth edition reads "For." *Cited, 118 Mass. 266; 16 N. J. Eq. 304. t-t Quoted, 2 Conn, 574, lands shall be a chattel interest, and on the death of such executor shall go to his executors:1 because they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund, out of which he has directed them to be paid. i Co. Litt. 42. 1 1 CHAPTER THE ELEVENTH. OF ESTATES IN POSSESSION, REMAINDER, AND RE VERSION. Hitherto we have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view; with regard to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages arising therefrom) begins. Estates therefore, with respect to this consideration, may either be in possession, or in expectancy: and of expectancies there are two sorts; one created by act of the parties, called a remainder; the other by act of law, and called a reversion. I. Of estates in possession (which are sometimes called estates executed, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory), there is little or nothing peculiar to be observed. All the estates we have hitherto spoken of are of this kind; for, in laying down general rules, we usually apply them to such estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will therefore require a minute discussion, and demand some degree of attention. [164] II. An estate then in remainder may be defined to be an estate limited to take effect and be enjoyed after another estate is determined. As if a man seised in fee-simple granteth lands to A for twenty years, and, after the determination of the said term, then to B and his heirs forever: here A is tenant for years, remainder to B in fee. In the first place an estate for years is cre ated or carved out of the fee, and given to A; and the residue or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee. They are indeed different parts, but they constitute only one whole:* they are carved out of one and the same inheritance: they are both created, and may both subsist, together; the one in possession, the other in expectancy. So if land be granted to A for twenty years, and after the determination of the said term to B for life; and after the determination of B's estate for life, it be limited to C and his heirs forever: this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the estate of inheritance undergoes a division into three portions: there is first A's estate for years carved out of it; and after that B's estate for life; and then the whole that remains is limited to C and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance and if there were a hundred remainders, it would still be the same thing; upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, that † no remainder can be limited after the grant of an estate in fee-simple : because a fee-simple is the highest and largest estate, that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder therefore, which is only a portion, or residuary part, of the estate, cannot be reserved after the whole is disposed of.† A particular estate, with all a Co. Litt. 143. b Plowd. 29. 2 Vaugh. 269.2 t-t Quoted, 50 Ind. 459. Cited, 75 Mo. 258; 59 Ind. 529. |