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OF FREEHOLD ESTATES OF INHERITANCE.
1. ESTATES in lands, tenements and hereditaments, are such interest as the tenant hath therein; to ascertain which, may be considered, I. The quantity of interest. II. The time of enjoyment. III. The number and connexions of the tenants.
Page 103-179 2. Estates, with respect to their quantity of interest, or duration, are either freehold, or less than freehold. 104
3. A freehold estate, in lands, is such as is created by livery of seisin at common law; or, in tenements of an incorporeal nature, by what is equivalent thereto.
104 4. Freehold estates are either estates of inheritance, or not of inheritance, viz. for life only: and inheritances are, I. Absolute, or fee-simple. II. Limited fees.
5. Tenant in fee-simple is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever. 104
6. Limited fees are, I. Qualified, or base, fees. II. Fees conditional at the common law. 109 7. Qualified, or base, fees are those which, having a qualification subjoined thereto, are liable to be defeated when that qualification is at an end.
8. Conditional fees, at the common law, were such as were granted to the donee, and the heirs of his body, in exclusion of collateral heirs.
9. These were held to be fees, granted on condition that the donee had issue of his body; which condition being once performed by the birth of issue, the donee might immediately aliene the land: but, the statute de donis being made to prevent such alienation, thereupon, from the division of the fee (by construction of this statute) into a particular estate and a reversion, the conditional fees began to be called fees-tail. 111, 112 10. All tenements real, or savouring of the realty, are subject to entails.
11. Estates-tail may be--I. general, or special; II. male, or female; III. given in frank-marriage. 113-115
12. Incident to estates-tail are, I. Waste. II. Dower. III. Curtesy. IV. Bar-by fine, recovery, or lineal warranty with
13. Estates-tail are now, by many statutes and resolutions of the courts, almost brought back to the state of conditional fees at the common law.
OF FREEHOLDS NOT OF INHERITANCE.
1. FREEHOLDS, not of inheritance, or for life only, are, I. Conventional, or created by the act of the parties. II. Legal, or created by operation of law. Page 120 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. 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.
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 tenant by the curtesy.
8. Tenancy in dower is where a woman's husband is seised of an estate of inheritance, of which her issue might by any possibility have been heir; and the husband dies: the woman is hereupon entitled to dower, or one third part of the lands and tenements, to hold for her natural life.
9. Dower is either by the common law; by special custom; ad ostium ecclesiæ; or, ex assensu patris. 10. Dower may be forfeited, or barred; particularly by an estate in jointure.
OF ESTATES LESS THAN FREEHOLD.
1. ESTATES less than freehold are, I. Estates for years. II. Estates at will. III. Estates at sufferance.
2. An estate for years is where a man, seised of lands and tenements, letteth them to another for a certain period of time, which transfers the interest of the term; and the lessee enters
thereon, which gives him possession of the term, but not legal seisin of the land.
Page 140 3. Incident to this estate are estovers; and also emblements, if it determines before the full end of the term.
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 lawful title, but keeps it afterwards without any title at all.
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, I. 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.
152 4. Estates on condition expressed, are where an express qualification or provision is annexed to the grant of an 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.
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. II. In mortuo vadio, 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, lands are delivered by the sheriff to a plaintiff, till their profits shall satisfy a debt adjudged to be due by law. 161
OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.
1. ESTATES, with respect to their time of enjoyment, are either in immediate 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 I. Remainders. II. Reversions. Page 163 2. A remainder is an estate limited to take effect, and be enjoyed, after another particular estate is determined.
3. Therefore, I. There must be a precedent particular estate, in order to support a remainder. II. The remainder must pass out of the grantor, at the creation of the particular estate. III. The remainder must vest in the grantee, during the continuance, or at the determination, of the particular estate.
4. Remainders are, I. Vested--where the estate is fixed to remain to a certain person, after the particular estate is spent. II. Contingent-where the estate is limited to take effect, either to an uncertain person, or upon an uncertain event.
5. An executory devise is such a disposition of lands, by will, that an estate shall not vest thereby at the death of the devisor, but only upon some future contingency; and without any precedent particular estate to support it.
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. 176
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.
OE ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY,
1. ESTATES, with respect to the number and connexions of their tenants, may be held, I. In severalty. II. In joint-tenancy. III. In coparcenary. IV. In common.
2. An estate in severalty, is where one tenant holds it in his own sole right, without any other person being joined with him.
3. An estate in joint-tenancy, is where an estate is granted to two or more persons; in which case the law construes them to be joint-tenants, unless the words of the grant expressly exclude such construction.
4. Joint-tenants have an unity of interest, of title, of time, and
of possession: they are seised per my et per tout: and therefore, upon the decease of one joint-tenant, the whole interest remains to the survivor.
5. Joint-tenancy may be dissolved, by destroying one of its four constituent unities.
185 6. An estate in coparcenary, is where an estate of inheritance descends from the ancestor to two or more persons; who are called parceners, and all together make but one heir.
7. Parceners have an unity of interest, title, and possession; but are only seised per my, and not per tout: wherefore there is no survivorship among parceners.
8. Incident to this estate is the law of hotchpot
9. Coparcenary may also be dissolved, by destroying any of its three constituent unities.
10. An estate in common, is where two or more persons hold lands, possibly by distinct titles, and for distinct interests; but by unity of possession, because none knoweth his own severalty.
11. Tenants in common have therefore an unity of possession (without survivorship; being seised per my, and not per tout); but no necessary unity of title, time, or interest.
12. This estate may be created, I. By dissolving the constituent unities of the two former; II. By express limitation in a grant and may be destroyed, I. By uniting the several titles in one tenant; II. By partition of the land.
OF THE TITLE TO THINGS REAL, IN GENERAL.
1. A TITLE to things real, is the means whereby a man cometh to the just possession of his property.
2. Herein may be considered, I. A mere or naked possession. II. The right of possession; which is, 1st, an apparent, 2ndly, an actual, right. III. The mere right of property. IV. The conjunction of actual possession with both these rights; which constitutes a perfect title. 195-199
OF TITLE BY DESCENT.
1. THE title to things real may be reciprocally acquired 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 his estate, in right of representation, as his heir-at-law.