ration 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 circumscribed 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. Definition of li berum tenemen tum, or an es An estate of freehold (2), liberum tenementum, or franktenement, is defined by Britton (b) to be "the possession of "the soil by a freeman." And St. Germyn (c) tells us, that tate of freehold. "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 only 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 in(c) Dr. & Stud. b. 2, d. 22. (b) c. 32. (2) "Tenant in fee, tenant in tail, and tenant for life, are said to have a franktenement, so called, because it doth distinguish it from terms of years, chattels upon uncertain interests, lands in villenage, or customary or copyhold lands. And note, tenant by statutemerchant, statute-staple, or elegit, are said to hold land ut liberum tenementum, until their debt be paid; and yet in truth they have no freehold, but a chattel, which shall go to the executors. But ut is similitudinary, because they shall by the statutes have an assise, as tenants of the freehold shall have, and in that respect their estate hath a similitude of a freehold: but nul- (3) Mr. Preston's short criterion for By livery of seisin without writing, a freehold passed at common law; but, since the statute of frauds, a freehold cannot be created without writing. Of the different corporeal 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 †. Estates of freehold (thus understood) are either estates of species of free- inheritance, or estates not of inheritance. The former are hold estates. I. Fee-simplethe holding by one to him and his heirs for ever. again divided into inheritances absolute or fee-simple (4); and inheritances limited, one species of which we usually call fee-tail. I. Tenant in fee-simple (or, as he is frequently styled, tenant in fee) is he that hath lands, tenements, or heredita ments, to hold to him and his heirs for ever (e): generally, (d) S. 59. (e) Litt. s. 1. (4) Before the statute de donis conditionalibus, there was no other estate of inheritance except a fee-simple; but estates of fee-simple were of two sorts, + Mr. Christian, in his note upon this passage, observes, that "a freehold estate seems to be any estate of inheritance, or for life, in either a corporeal or incorporeal hereditament, existing in, or arising from, real property of free tenure; that is, now, of all which is not copyhold. And the learned Judge has elsewhere informed us, that ' tithes and spiritual dues are freehold estates, whether the lands out of which they issue are bond or free, being a 'separate and distinct inheritance from the lands themselves. And in this 'view they must be distinguished and 'excepted from other incorporeal he absolutely, and simply (5); without mentioning what heirs, but referring that to his own pleasure, or to the disposition (5) It would save embarrassment to the student, if he never found in books of authority any estate called a feesimple, of which the qualities did not coincide with our author's definition in the text. But, Lord Coke tells us, (1 Instit. 1 b), “of fee-simple, it is commonly holden, that there be three kinds, viz. fee-simple absolute, feesimple conditional, and fee-simple qualified, or base fee." It is true, that Lord Coke immediately adds; "but the more apt and genuine division were to divide fee (that is, inheritance) into three parts, viz. simple, or absolute; conditional; and qualified, or base. For, this word simple, properly excludeth both conditions and limitations that defeat or abridge the fee." But, the same authority very soon informs us, (in 1 Instit. 19 a), that "here" (that is, in the 13th sect. of Litt.) "feesimple is taken in its large sense, inIcluding as well estates conditional or qualified, as absolute; to distinguish them from estates in tail." And he again, more than once, alludes to a qualified fee-simple, (in 1 Instit. 27, and in 2 Instit. 333), as he does to a determinable fee-simple in Edward Seymour's case (10 Rep. 97 b). That an estate, though determinable upon a contingency, may be a fee-simple, was also held in the case of Pells v. Brown, (Cro. Jac. 590), which case was cited with approbation in Gardner v. Sheldon, (Vaugh. 273), where it is distinctly laid down that "a fee-simple determinable upon a contingent, is a fee-simple to all intents, but not so durable as absolute fee-simple. All fee-simples are unequally durable; for one may escheat sooner than another, by the failure of heirs. An estate to a man and his heirs, as long as John Stiles hath any heir, which is no absolute fee-simple, is doubtless as durable as the estate in fee which John Stiles hath to him and his heirs, which is an absolute fee-simple; and alienation is an incident to a fee-simple determinable upon a contingent, as to any more absolute or more perdurable fee-simple." Similar doctrines were laid down in the case of Idle v. Cook, (2 Ld. Raym. 1148), and in Vernon v. Gatacre, (Dyer, 252 b). To this division of fee-simple estates, Mr. Watkins adheres in his Princip. of Conv. (cap. 9); and see the last preceding note. These instances (to which it would probably be easy to add many more) deviating, so widely, from our author's more natural classification, it seemed proper to put the student upon his guard; and to caution him, that the words fee-simple are sometimes used by legal writers of great name, and judges of high authority, merely as contrasting with estates tail; and, when so used, comprehend other fees besides fees absolute. The context will generally direct a reader whether he is to understand the word feesimple in this looser sense, or according to the plainer meaning assigned to it by our author; and which is more conformable to the description of a feesimple given by Fleta (lib. 3, c. 8), who says, "Simplex donatio est, ubi nulla adjecta est conditio neque modus ; simpliciter enim datur quod nullo additamento datur." And see Bracton (lib. 2, c. 6), to the same effect, expressed in very similar words. of the law. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in its original sense, [ *105 ] it is *taken in contradistinction to allodium(ƒ); which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. And therefore Sir Henry Spelman (g) defines a feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services; the mere allodial property of the soil always remaining in the lord. This allodial property no subject in England has (h); it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king (6). The king, therefore, only hath absolutum et directum dominium (i): but all subjects' lands are in the nature of feodum or fee: whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feodal clogs which were laid upon the first feudatory when it was originally granted. A subject, therefore, hath only the usufruct, and not the absolute property of the soil; or, as Sir Edward Coke expresses it (k), he hath dominium utile, but not dominium directum. And hence it is, that, in the most (f) See p. 45, 47, [and the notes thereto]. (g) Of Feuds, e. 1. (i) Praedium domini regis est directum dominium, cujus nullus est author nisi Deus.-Ibid. (k) Co. Litt. 1. (6) See ante, note (12) to chapter 4. solemn acts of law, we express the strongest and highest estate that any subject can have by these words: "he is seised "thereof in his demesne as of fee." It is a man's demesne, dominicum, or property, since it belongs to him and his heirs for ever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee (7): that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides. *This is the primary sense and acceptation of the word fee. But (as Sir Martin Wright very justly observes (1)), the doctrine," that all lands are holden," having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this its primary original sense, in contradistinction to allodium or absolute property, with which they have no concern; but generally use it to express the continuance or quantity of estate. A fee, therefore, in general, signifies an estate of inheritance; being the highest and most extensive interest that a man can have in a feud: and when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it (as a fee, or a fee-simple), it is used in contradistinction to a fee conditional (8) 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 (m). Sense of the word fee. [ *106 ] tween corporeal and incorporeal Taking, therefore, fee for the future, unless where other- Distinction bewise explained, in this its secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind hereditaments. (1) Of Ten. 148. (7) "Ut" is similitudinary, and nullum simile est idem: see ante, note (2) to this chapter. (m) Co. Litt. 1. (8) But see ante, note (4) to this chapter, for some qualification of this statement. |