Freeholds are of inheritance, or not. Tenant in fee-simple. 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." Estates 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. 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 meaning of the word fee (feodum) is the same with that of feud or d § 59. (2) 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 land 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 hereditaments issuing out of land, as rents, &c., which, in general, will follow the nature of their principal, and can not be freehold, unless the stock from which they spring be freehold also." (1 Bl. Tracts, 116.)-[CHRISTIAN.] There is some confusion here of the nature of the estate with the nature of the thing in which the estate exists, to each of which the term freehold may properly be applied, but with a very different meaning. Thus, copyholds are not freehold in respect of their tenure, being but estates at will; yet a copyholder may have an estate for life, or in fee, in them, and such estate is called @ Litt., § 1. an estate of freehold, and has most of the properties of an estate of freehold in freehold lands; while, in another sense, the freehold of the copyhold lands themselves is properly said to reside in the lord of the manor. So one speaks of a freehold estate in a mere personal rent. The notion of a freehold estate not of inheritance is derived from the common instance of an estate for life. In the eye of the law (so far as the technical doctrines of real property are concerned), a life may be of indefinite duration-no number of years can be assigned beyond which the law will presume it possible that a life may not endure. Hence, an essential characteristic of a freehold estate is, that it is of uncertain and indefinite duration. If the estate is limited to determine at the end of a fixed number of years, however large, it is not a freehold, but a mere chattel. Therefore, an estate to A. for 10,000 years, if he shall live so long, is not a freehold, although an estate to A. for his life, if Saint Paul's shall so long stand, is a freehold. It is not, therefore, uncertainty merely, but also indefiniteness of duration which is essential to 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. use and meaning. This is the primary sense and acceptation of the word fee. [106] But (as Sir Martin Wright very justly observes1) the doctrine, "Fee," its "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 prima Fees corporeal and in ry, original sense, in contradistinction to allodium or absolute 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 incorporeal hereditaments are in their nature collateral to, and issue out of lands and houses,p 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, Ga m Co. Litt., 1. "Feodum est quod quis tenet sibi et hæredibus suis, sive sit tenementum, sive reditus, &c.-(Flet., 1. 5, c. 5, § 7.) 。 Litt., § 10. P See page 20. 4 Servitus est jus, quo res mea alterius 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, § 1, 2, 3, 4, 5, 6.) ius may be seized as of fee of a way leading over the land, of which Titius is seized in his demesne as of fee. ple general. ly vested, in abeyance. The fee-simple or inheritance of lands and tenements is gen- The fee-simerally vested and resides in some person or other; though divers inferior estates may be carved out of it. As, if one grants a lease for twenty-one years, or for one or two lives, the feesimple remains vested in him and his heirs; and after the determination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet sometimes the fee may be in abeyance, that is (as the word signifies), but may be in expectation, remembrance, and contemplation in law; there being no person in esse in whom it can vest and abide; though the law considers it as always potentially existing, and ready to vest whenever a proper owner appears. Thus, in a grant to John for life, and afterward to the heirs of Richard, the inheritance is plainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est hæres viventis: it remains, therefore, in waiting or abeyance during the life of Richard. This is likewise always the case of a parson of a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance." And not only the fee, but the freehold also, may be in abeyance; as, when a parson dies, the freehold of his glebe is in abeyance until a successor be named, and then it vests in the successor.t (5) See the previous page, n. (3). If the word "demesne" be used to distinguish the lord's lands, which he has absolutely and fully, from the tenants', over which he has a seigniory only, there is an obvious reason why it should be inapplicable to an incorporeal hereditament, of which there can be no seigniory, and which can not be held in fee by way of sub-tenancy. (6) The inheritance or remainder in such a case has been said to be in abeyance, or in nubibus, or in gremio legis; but Mr. Fearne, with great ability and learning, has exposed the futility of these expressions, and the erroneous ideas which have been conveyed by them. Mr. Fearne produces authori ties, which prove beyond controversy "that, where a remainder of inheritance is limited in contingency by way of use, or by devise, the inheritance in the mean time, if not otherwise disposed of, remains in the grantor and his heirs, or in the heirs of the testator, until the contingency happens to take it out of them." (Fearne, Cont. Rem., 513, 4th edit.) Litt., § 647. But although, as Mr. Fearne observes, "different opinions have prevailed in respect to the admission of this doctrine in conveyances at common law" (Id., 526), yet he adduces arguments and authorities which render the doctrine as unquestionable in this case as in the two former of uses and devises. If, therefore, in the instance put by the learned judge, John should determine his estate either by his death, or by a feoffment in fee, which amounts to a forfeiture, in the lifetime of Richard, under which circumstances the remainder never could vest in the heirs of Richard; in that case, the grantor or his heir may enter and resume the estate.-[CHRISTIAN.] (7) Mr. Fearne having attacked with so much success the doctrine of abeyance, the editor may venture to observe, with respect to the last two instances, though they are collected from the text of Littleton, that there hardly seems any necessity to resort to abeyance, or to the clouds, to explain the residence of the inheritance, or of the freehold. In the first case, the whole fee-simple is con The word "heirs" necessary in The word "heirs" is necessary in the grant or donation, in order to make a fee or inheritance. For, if land be given to a grant of fee- man forever, or to him and his assigns forever, this vests in simple; him but an estate for life.us This very great nicety about the insertion of the word "heirs" in all feoffments and grants, in order to vest a fee, is plainly a relic of the feodal strictness; by [108] which, we may remember,w it was required that the form of the donation should be punctually pursued; or that, as Crag expresses it in the words of Baldus, “donationes sint stricti juris, ne quis plus donâsse præsumatur quam in donatione expresserit." And, therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own person, and subsisted no longer than his life; unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs. But this rule is now softened by many exceptions.y* but not in devise by will, For, 1. It does not extend to devises by will;' in which, as Litt., § 1. [2 W. Bl., 1185.] * See page 56. veyed to a sole corporation, the parson (8) Mr. Preston observes, that the word "heirs," or, in the case of a corporation, "successors," needs not be in the identical deed or grant; and therefore, where one to whom lands had been granted in fee does, after reciting the grant, or without any recital, grant the lands to another, "as fully as they were granted to him," the fee-simple will pass without any limitation to the heirs in express terms. (2 Prest. on Est., 2; Shep. Touchs., 101; Com. Dig., Estate, A. 2.) It is the practice at this day, in convey * L. 1, t. 9, § 17. y Co. Litt., 9, 10. ing an estate in fee, to limit the proper. ty to the grantee, his heirs and assigns forever, but these latter words are unnecessary and immaterial. (2 Preston on Est., 2.)-[CHITTY.] (9) In wills a fee might have passed, without any words of limitation to the heirs, as often as it could by any means be clearly collected that it was the intention of the testator to give an interest of this extent. In the construction of wills, the testator is supposed to have wanted that professional assistance of which a party to a deed may always avail himself. The law, therefore, regarded the intention, more than the precise legal import of the words in which the testator had expressed his meaning (per Lord Mansfield, Cowp., 352); and, as often as it could be collected from any circumstance in a will, or be reasonably inferred, from the whole will taken to gether and applied to the subject-matter, that the testator intended to pass all his estate in his property, that estate would have passed though the property were not limited to the heirs of the person to whom the devise was made. This was rather a rule of construction on the in * In New York, the term heirs, or other words of inheritance, are no longer requisite to create or convey an estate in fee; it being enacted that every grant or devise of real estate, or any interest therein, to be executed after the revision of 1830, should pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest should appear by express terms, or be neces sarily implied in the terms of the grant.-(1 R. S., 748, § 1.) |
