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 describes" 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," 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 socage of frank tenure, and villein socage or socage of ancient demesne. V 33 Lands holden by this tenure are, therefore, a species of copyhold, 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 demesne, 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 Tenant right. manor. 9934 X u C. 66 v L. 1, c. 8. w N. B., 13. Kitchen on Courts, 194. (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 conveyances; they form the court of ancient demesne, which is analogous to the court baron. The copyholders form the customary court. (See Third Real Property Report, p. 13; 3 Bos. & P., 382.) There are some estates held according to the custom of a manor, but not by copy of court roll, nor at the will of the lord. "These customary estates, known by the denomination of tenant right, are peculiar to the northern parts of England, in which border services against Scotland were anciently performed before the union of England and Scotland under the same sovereign. And although these appear to have 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. a moigne. V. Tenure in frankalmoigne, in libera eleemosyna, or free Frankalalms, is that whereby a religious corporation, aggregate or 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 this), 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; 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 dis y Litt., § 133. z Ibid., 131. many qualities and incidents, which do not properly belong to villenage tenure, either pure or privileged (and out of one or other of these species of villenage all copyhold is derived); and, also, have some which savor more of military service by escuage uncertain, which, according to Litt., s. 99, is knight's service; and although they seem to want some of the characteristic qualities and circumstances which are considered as distinguishing this species of tenure, viz., the being holden at the will of the lord, and also the usual evidence of title by copy of court roll; and are alienable, also, contrary to the usual mode by which copyholds are aliened, viz., by deed and admittance thereon (if, indeed, they could be immemorially aliened at all by a Ibid., 135. b Bracton, 1. 4, tr. 1, c. 28, § 1. (35) Bac. Ab., Tenure (F); 1 Cruise Tenure by divine service. charged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions; 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 materially differs from what was called tenure by divine service;36 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.,37 none but the king can give lands to be holden by this tenure; 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. (36) Bac. Ab., Tenure (G). (37) This statute enacts "that it shall be lawful to every freeman to sell at his own pleasure his lands and tenements, 116 f Litt., § 137. or part of them, so that the feoffee shall hold the same of the chief lord of the same fee by such service and customs as his feoffor held before." CHAPTER VII. OF FREEHOLD ESTATES OF INHERITANCE. estate. 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 Bale 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 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. the subject. of interest. 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, Estates are 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. less than defined. 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. Germyn 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 : (1) In 1 Preston on Estates, 20, the term is thus defined: "The interest which any one has in lands, or any other subject of property is called his estate, and to this term (at least in a conveyance by deed) some adjunct or expression should be added, when the time for which the estate is to continue, as for years, for life, in tail, or in fee, or the manner in which it is to be held, as on condition, in joint tenancy, &c., is to c Dr. & Stud., b. 2, d. 22. be described; thus, it is said, a man has Freeholds are of inheritance, or not. Tenant in 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 other are properly freehold estates.2 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 fee-simple. in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs forever: 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 "titles 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 e 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. |
