Sivut kuvina
PDF
ePub

W

at the lord's will, or to hold them against their own: et ideo," says Bracton,“ dicuntur liberi.Britton, also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describesu to be “lands and tenements which are not held by knight service, nor by grand sergeantry, nor by petit, but by simple services, being, as it were, lands enfranchised by the king, or his predecessors, from their ancient demesne.” And the same name is also given them in Fleta. Hence Fitzherbert observes,w that no lands are ancient demesne but lands holden in socage; that is, not in free and common socage, but in this amphibious subordinate class of villein socage. And it is possible that, as this species of

. socage tenure is plainly founded upon predial services, or services of the plow, it may have given cause to imagine that all socage tenures arose from the same original, for want of distinguishing, with Bracton, between free socage or soc- !

! age of frank tenure, and villein socage or socage of ancient demesne.

Lands holden by this tenure are, therefore, a species of copyhold, 33 and, as such, preserved and exempted from the operation of the statute of Charles II. Yet they differ from common copyholds, principally in the privileges before mentioned; as, also, they differ from freeholders by one especial mark and tincture of villenage, noted by Bracton, and remaining to this day, viz., that they can not be conveyed from man to man by the general common law conveyance of feoffment and the rest, but must pass by surrender to the lord or his

steward, in the manner of common copyholds; yet with this [ 101 ] distinction, that, in the surrender of these lands in ancient de

mesne, it is not used to say to hold at the will of the lord,in their copies, but only, to hold according to the custom of the manor,

w N. B., 13. L. 1, c. 8.

1 Kitchen on Courts, 194.

х

934

u C. 66

Tenant right.

(33) This is erroneous; see the next the freeholders of the manor who are note.

truly tenants in ancient demesne, and

their lands pass by common law con(34) Besides the ancient demesne veyances; they form the court of ancient lands held freely by the grant of the demesne, which is analogous to the court king, and those called customary free- baron. The copyholders form the cusholds held of a manor which is ancient tomary court. (See Third Real Propdemesne, but not at the will of the lord, erty Report, p. 13;

Bos. & P., 382.) there is a third class, often, as in the There are some estates held according text, but erroneously, called tenants in to the custom of a manor, but not by ancient demesne, who hold of a manor copy of court roll, nor at the will of which is ancient demesne, but hold by the lord. These customary estates, copy of court roll at the will of the lord, known by the denomination of tenant and are called copyholders of base ten- right, are peculiar to the northern parts

The neglect to keep in mind these of England, in which border services distinctions sometimes produces perplex- against Scotland were anciently perity and confusion in questions respecting formed before the union of England and the tenure in ancient demesne. (See Scotland under the same sovereign. Scriven on Copyholds, 656.) It is only And although these appear to have

ure.

Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both ancient and modern, in which we can not but remark the mutual connection and dependence that all of them have upon each other. And, upon the whole, it appears that, whatever changes and alterations these tenures have in process of time undergone, from the Saxon era to the 12 Car. II., all lay tenures are now, in effect, reduced to two species: free tenure in common socage, and base tenure by copy of court-roll.

I mentioned lay tenures only; because there is still behind Spiritual one other species of tenure, reserved by the statute of Charles tenure. II., which is of a spiritual nature, and called the tenure in frankalmoigne.

[ocr errors]
[ocr errors]

a

a

V. Tenure in frankalmoigne, in libera eleemosyna, or free Frankalalms, is that whereby a religious corporation, aggregate or

moigne. sole, holdeth lands of the donor to them and their successors forever.y35 The service which they were bound to render for these lands was not certainly defined, but only, in general, to pray for the souls of the donor and his heirs, dead or alive ; and, therefore, they did no fealty (which is incident to all other services but thisz), because this divine service was of a higher and more exalted nature. This is the tenure by which almost all the ancient monasteries and religious houses held their lands, and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this day;b the nature of the service being upon the reformation altered, and made conformable to the purer doctrines of the [102] Church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shown to religion and religious men in ancient times ; which is also the reason that tenants in frankalmoigne were disy Litt., Ø 133.

a Ibid., 135. z Ibid., 131.

b Bracton, I. 4, tr. 1, c. 28, $ 1. many qualities and incidents, which do the particular species of deed stated in not properly belong to villenage tenure, the case, viz., a bargain and sale, and either pure or privileged (and out of one which at common law could only have or other of these species of villenage all transferred the use); I say, notwithcopyhold is derived); and, also, have standing all these anomalous circumsome which savor more of military serv- stances, it seems to be now so far settled ice by escuage uncertain, which, accord- in courts of law, that these customary ing to Litt., s. 99, is knight's service; tenant-right estates are not freehold, but and although they seem to want some that they in effect fall within the same of the characteristic qualities and cir- consideration as copyholds, that the cumstances which are considered as dis- quality of their tenure in this respect tinguishing this species of tenure, viz., can not properly any longer be drawn the being holden at the will of the lord, into question.” Per Lord Ellenborough, and also the usual evidence of title by C. J. (4 East, 288; see 3 Bos. & P., copy of court roll; and are alienable, also, 378; 4 Per. & D., 579; infra, p. 148.) contrary to the usual mode by which copyholds are aliened, viz., by deed and (35) Bac. Ab., Tenure (F); 1 Cruise admittance thereon (if, indeed, they Dig., 297. could be immemorially aliened at all by

>

Tenure by

.36 in

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 neglected, the law gives no remedy by distress, or otherwise, to the lord of whom the lands are holden, but merely a complaint

to the ordinary or visitor to correct it. Wherein it materialdivine servo ly differs from what was called tenure by divine service ;*

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 dona

,
tions are, indeed, now out of use ; for since the statute of quia
emptores, 18 Edw. I.,31 none but the king can give lands to be
holden by this tenure;s 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 conclud-
ing our observations on the nature of tenures.
c Seld., Jan., 1, 42.

f Litt., § 137.
Cæsar, De Bell. Gall., 1. 6, c. 13.

8 Ibid., 140.
· Litt., $136.
(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 as be lawful to every freeman to sell at his his feoffor held before." own pleasure his lands and tenements,

116

37

[ocr errors]
[ocr errors][merged small][merged small]

estate.

of interest.

Estates are

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.al. It is called, in Latin, status ; it signifying the condition or circumstance in which the owner stands with regard to his property. And to ascertain this with proper precision and accuracy, estates Division of

. may be considered in a three-fold view: first, with regard to the the subject. 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 tenant I. Quantity 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 of years, months, or days; or, lastly, it is infinite and unlimited, being freehold, or vested in him and his representatives forever. And this occa- freehold. sions the primary division of estates into such as are freehold, ( 104 ] and such as are less than freehold.

An estate of freehold, liberum tenementum, or frank tenement, Freehold is defined by Britton to be “the possession of the soil by a freeman.” And St. Germyno 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: a Co. Litt., 345.

b 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 has 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 įsee, 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

defined.

>

a

[ocr errors]

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, 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 other 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.

Freeholds are of inheritance, or not.

Tenant in

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.

e Litt., § 1. (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 informed us, that “titles 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 may 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.

a

« EdellinenJatka »