Sivut kuvina

divine service.

charged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions ;c just as the Druids, among the ancient Britons, had omnium rerum immunitatem.d. And even at present, this is a tenure of a nature very distinct from all others ; being not in the least feodal, but merely spiritual ; for, if the service be neg. lected, the law gives no remedy by distress, or otherwise, to

the lord of whom the lands are holden, but merely a complaint Tenure by to the ordinary or visitor to correct it.e Wherein it material

ly differs from what was called tenure by divine service ;59 in which the tenants were obliged to do some special divine services in certain ; as, to sing so many masses, to distribute such a sum in alms, and the like ; which, being expressly defined and prescribed, could with no kind of propriety be called free alms, especially as for this, if unperformed, the lord might distrain, without any complaint to the visitor. All such donations are, indeed, now out of use ; for, since the statute of quia emptores, 18 Edw. I.," none but the king can give lands to be holden by this tenure ;8 so that I only mention them because frankalmoigne is excepted by name in the statute of Charles II., and, therefore, subsists in many instances at this day. Which is all that shall be remarked concerning it ; herewith concluding our observations on the nature of tenures.

c Seld., Jan., 1, 42.
d Cæsar, De Bell. Gall., 1. 6, c. 13.

Litt., Ø 136.

[ Litt., 137.
& Ibid., 140.

(36) Bac. Ab., Tenure (G).

or part of them, so that the feoffee shall

hold the same of the chief lord of the (37) This statute enacts “ that it shall same fee by such service and customs a. be lawful to every freeman to sell at his his feoffor held before." own pleasure his lands and tenements,


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The next objects of our disquisitions are the nature and prop- What is an erties of estates. An estate in lands, tenements, and hereditaments signifies such interest as the tenant hath therein: so that, if a man grants all his estate in Dale to A. and his heirs, every thing that he can possibly grant shall pass thereby.a' It is called, in Latin, status ; it signifying the condition or circumstance in which the owner stands with regard to his property. And to Division of

the subject ascertain this with proper precision and accuracy, estates may be considered in a three-fold view: first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed ; and, thirdly, with regard to the number and connections of the tenants. First, with regard to the quantity of interest which the ten- I. Quantity

of interest. ant has in the tenement, this is measured by its duration 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 Estates are of years, months, or days; or, lastly, it is infinite and unlimit- freehold, or ed, being vested in him and his representatives forever. And freehold. this occasions the primary division of estates into such as are [104] freehold, and such as are less than freehold.

An estate of freehold, liberum tenementum, or frank tenement, Freehold is defined by Brittonb to be “the possession of the soil by a freeman.” And St. Germync tells us, that “the possession of the land is called in the law of England the frank tenement, or freehold.” Such an estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold : & Co. Litt., 345.

o C. 32.

c Dr. & Stud., b. 2, d. 22.


(1) In 1 Preston on Estates, 20, the be described ; thus, it is said, a man has term is thus defined: “ The interest an estate in fee, in tail, for life, for years, which any one has in lands, or any oth- on condition," &c. Sometimes the term er subject of property, is called his es- estate" is used merely as a local detate, and to this term (at least in a con- scription, as all my estate at Ashton;" veyance by deed) some adjunct or ex- but the word “estate," when so used in pression should be added, when the time a will, always carried the fee to the devfor which the estate is to continue, as isee, unless restrained by other words, for years, for life, in tail, or in fee, or though it is otherwise in a conveyance the manner in which it is to be held, as by deed. (Infra, p. 108.)-[Chitty.] on condition, in joint tenancy, &c., is to

which actual possession can, by the course of the common law, be only given by the ceremony called livery of seizin, 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 seizin; or, in tenements of an incorporeal nature, by what is equivalent thereto. And, accordingly, it is laid down by Littleton,d that, where a freehold shall pass, it behooveth to have livery of seizin. As, therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seizin, these are properly estates of freehold; and as no other estates were conveyed with the same solemnity, therefore no others are properly freehold estates.'

Éstates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail.

Freeholds are of inheritance, or not.

Tenant in fee-simple.

I. Tenant in fee-simple (or, as he is frequently styled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs forever :e generally absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true mean. ing of the word fee (feodum) is the same with that of feud or d 0 59.

e Litt., 01.

(2) A freehold estate seems to be any an estate of freehold, and has most of estate of inheritance, or for life, in either the properties of an estate of freehold in a corporeal or incorporeal hereditament, freehold lands; while, in another sense, existing in, or arising from real property the freehold of the copyhold lands themof free tenure; that is, now, of all which selves is properly said to reside in the is not copyhold. And the learned judge lord of the manor. So one speaks of a has elsewhere intormed us, that “tithes freehold estate in a mere personal rent. and spiritual dues are freehold estates, The notion of a freehold estate not of whether the land out of which they issue inheritance is derived from the comare bond or free, being a separate and mon instance of an estate for life. In distinct inheritance from the lands them- the eye of the law (so far as the technicselves. And in this view they must be al doctrines of real property are condistinguished and excepted from other cerned), a life may be of indefinite duincorporeal hereditaments issuing out of ration--no number of years can be asland, as rents, &c., which, in general, signed beyond which the law will prewill follow the nature of their principal, sume it possible that a life may not enand can not be freehold, unless the stock dure. Hence, an essential characteristic from which they spring be freehold of a freehold estate is, that it is of unalso." (1 Bl. Tracts, 116.)-[Christ. certain and indefinite duration. If the IAN.]

estate is limited to determine at the end There is some confusion here of the of a fixed number of years, however nature of the estate with the nature of large, it is not a freehold, but a mere the thing in which the estate exists, to chattel. Therefore, an estate to A. for each of which the term freehold may 10,000 years, if he shall live so long, is properly be applied, but with a very not a freehold, although an estate to A. different meaning. Thus, copyholds are for his life, if Saint Paul's shall so long not freehold in respect of their tenure, stand, is a freehold. It is not, therefore, being but estates at will; yet a copy- uncertainty merely, but also indefiniteholder


have an estate for life, or in ness of duration which is essential to fee, in them, and such estate is called this kind of estate.

fief, and, in its original sense, it is taken in contradistinction to [105] allodium ;f 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 seized thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is still held of some superior on condition of rendering him service; in which superior the ultimate property of the land resides. And, therefore, Sir Henry Spelmang 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 propriety 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. 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 can not 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, he hath dominium utile, but not dominium directum. And hence it is that, in the most solemn acts of law, we express the strongest and highest estate that any subject can have by these words: “he is seized thereof in his demesne as of fee. It is a man's demesne, dominicum, or property, since it belongs to him and his heirs forever :' yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee; 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. [106] But (as Sir Martin Wright very justly observes!) the doctrine, "Fee," its " that all lands are holden,” having been for so many ages a

meaning. fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this its prima

use and

f See p. 45, 47.
& Of Feuds, c. 1.
h Co. Litt., 1.
i Prædium domini regis est directum

dominium, cujus nullus est author nisi

* Co. Litt., 1.
1 Of Ten., 148.

(3) When a man is said to be seized iory or right to services. This is the in his demesne, it seems rather to be in. well-known meaning of the term when tended to express that he has the actual the demesne lands of a manor are spoken beneficial property, and not a mere seign- of. (Ante, p. 90.)

ry, 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 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 seized in fee, he be

ing the feudatory of no man.m* Fees corpo

Taking, therefore, fee for the future, unless where otherwise corporeal." explained, in this its 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 seized in his demesne as of fee : of an incorporeal one, he shall

only be said to be seized as of fee, and not in his demesne. For as incor. poreal 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 [107] civil law. The dominicum, or property, is frequently in one

man, while the appendage or service is in another. Thus, Gam Co. Litt., 1.

• Litt., Ø 10. n Feodum est quod quis tenet sibi et p See page 20. heredibus suis, sive sit tenementum, sive 4 Servitus est jus, quo res mea alterireditus, fc.--(Flet., 1. 5, c. 5, Ø 7.) us rei vel persona servit.-Ff., 8, 1, 1.

(4) The words are by no means universally used in this sense. (See infra, p. 109, n. (12).)

* In New York, estates are thus enumerated : 1. Estates in lands are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance. 2. Every estate of inheritance, notwithstanding the abolition of tenures (see ante, p. 60, note *), is still termed a fee-simple, or fee; and every such estate, when not defeasible or conditional, is termed a fee-simple absolute, or an absolute fee. 3. All estates tail are abolished, and every estate which would be adjudged a fee-tail according to the law prevailing in the state previous to the 12th of July, 1782, is adjudged a fee-simple; and if no valid remainder be limited thereon, it is esteemed a fee-simple absolute. 4. If a remainder be limited upon such estate, such remainder, it is declared, shall be valid as a contingent limitation upon a fee, and shall vest in possession, on the death of the first taker, with. out issue living at the time of such death. 5. Estates of inheritance and for life continue to be denominated estates of freehold; estates for years, to be considered chattels real; and estates at will or by sufferance, to be deemed chattel interests, but not to be liable as such to sale on execution. 6. An estate during the life of a third person, whether limited to heirs or otherwise, is to be deemed a freehold only during the life of the grantee or devisee, but after his death is to be deemed a chattel real.-(1 R, S., 722, Ø 1, 2, 3, 4, 5, 6.)

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