dial services, or services of the plough, it may have given cause to imagine that all socage tenures arose from the same origin; for want of distinguishing, with Bracton, between free socage or socage of frank-tenure, and villein-socage of socage of ancient demesne (g). From the account which we have given of the principal and fundamental points of the doctrine of tenures, both ancient and modern, it appears, that whatever changes *and alterations lay tenures have in process of time [*203] 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. We say lay tenures only; because there still remains one other species of tenure, reserved by the statute of Charles II., which is of a spiritual nature, and called the tenure in frankalmoign. Spiritual tenure. Frankalmoign. Tenure in frankalmoign, in libera eleemosyna, or free alms, is that whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them. and their successors for ever (h). 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 (i)), because this divine service was of a nobler and more exalted nature (k). 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 (1): the nature of the service being upon the reformation altered, and made conformable to the doctrines of the reformed 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 frankalmoign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions (m): just as the Druids, among the ancient Britons, had omnium rerum immunitatem (n). And, even *at present, this is [* 204] a tenure of a nature very distinct from all others; being not in the least feudal, 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 Tenure by divine holden: but merely a complaint to the ordinary or visitor to correct it (o). Wherein it materially differs from what was called tenure by divine service (p): in which the tenants were obliged to do some special and certain divine services; 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 (q). All such donations are indeed now out of use: for since the statute of quia emptores, service. 18 Edw. I. (r), none but the king can give lands to be holden by this tenure (s). So that they are here mentioned only because frankalmoign is excepted by name in the statute of Charles II., and therefore subsists in many instances at this day. *CHAPTER VII. ESTATES OF INHERITANCE. [* 205 ] WE have shown how the feudal system with all its peculiar incidents of tenure was adopted by, or rather forced upon, this country, with an universality hardly to be found elsewhere, so that the ownership of every acre of land throughout the kingdom became subject to feudal rules. The most superficial acquaintance with the principles of feudal tenure is sufficient to render intelligible the doctrine that no subject can be an absolute owner of land, a doctrine which formed the main feature of the system, and which still remains, though nearly every other important member has perished. It is impossible to understand the laws regulating the possession of landed property, unless this fundamental principle be carefully borne in mind. A subject may, in the present decrepitude of the rules of tenure, have such an interest in land and such powers of dealing with it, that, for all practical purposes, there seems none but a verbal difference between his right of ownership, and those of an absolute owner; but this interest and these powers are, in the eye of the law, only of a limited duration and extent. There must in every case be a possibility of their coming to an end, and of another and paramount title supervening. To use the terminology of the law, a subject can only be a tenant of lands, having an estate in them. The next subject for our consideration, therefore, is the nature of estates, together with their properties and incidents. *But, in order to prevent confusion in the mind, in dealing with the [* 206] present condition of things we must here premise that a modification of almost every remark is necessary when it is to be applied to lands of copyhold tenure. For as we have seen, a copyholder is in one sense a mere tenant at the will of the lord of the manor, although, this will of the lord being controlled by custom, the interest of the tenant may be as perdurable as if the lands were not held at the will of the lord of a manor but in fee simple under the seignory of the crown alone. The estate which a man has in lands, tenements, or hereditaments, denotes the whole interest which he has in them, and his power over them (a). It is called in Latin status, indicating thereby the condition of the owner with regard to his property. There may, however, be Estates. (r) This statute enacts" that it shall be law. ful to every freeman to sell at his own pleasure his lands and tenements, 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." Ante, p. 52. (8) Litt. s. 140. (a) In colloquial language the word " estate" is, by an error of a common kind, often used to indicate a particular tract of land belonging to an individual or family. powers unaccompanied by benefit to their possessor, which do not amount to what is involved in the meaning of estate. Thus an executor has in many cases a power conferred upon him to sell land for the purposes of winding up his testator's affairs; this is no estate, the executors taking nothing without an exercise of the power, and upon that exercise, it is the vendee, and not the executor who takes the beneficial interest in the estate. Such powers are perhaps therefore, better described as powers over some estates in the land, rather than powers over the land itself. The mode in which they operate is highly technical (b). To this we shall hereafter revert. Estates may be considered in three different views: first, as regards the duration and extent of the estate; secondly, as regards the time when the estate is to commence in beneficial enjoyment of the property; and taken of them. thirdly, as regards the number and connection of the tenants or possessors. Three views tion. First as regards the duration and extent of the interest* which a [* 207] tenant has in the tenement: -The law recognises various periods during which an estate may exist. Thus it may subsist for a period of a defiFirst their dura- nite number of years, months, or days, or it may be made to last during the tenant's life, or that of any other man, terminating at his death; or again it may continue after the tenant's death, so long as any descendants from him shall live. The greatest estate, and that which most nearly approaches to absolute dominion is one which may last not only during the tenant's life, but so long as there shall continue any heir to him, without any restriction upon the title of his heirs. It is an estate limited to a man and his heirs generally. These are the most usual estates, but others may be created partaking more or less of a mixed character; for instance, an estate may be limited to exist for 100 years if J. S. should live so long, but to terminate upon the death of J. S. This is not an estate during the life of J. S. because by supposition of law J. S. may live more than 100 years, neither is it an estate for years, for it probably will not continue till the expiration of the 100 years. We will treat the various estates in their order. In ancient times the practice of granting leases for terms of years, i.e. of creating estates for years, was rare, it being considered that the smallest interest which was worthy of the acceptance of a freeman was one which must endure during his life. In feudal times, therefore, when the possession of land, otherwise than at the arbitrary will of some lord, was only given to freemen, the form of investiture only applied to this or a greater estate. Whence it arose that estates for the life or for any longer duration than the life of the tenant, were called freehold estates. Liberum tenementum, frank tenement, or freehold is defined by Britton as being "the possession of the soil by a freeman” (c). The feudal ceremony of investiture became afterwards the common [* 208 ] law ceremony of livery of seisin, and this, therefore, explains what is said by Littleton (d), "that, where a freehold shall pass, it behoveth to have livery of seisin." In the case of incorporeal hereditaments, however, such as a rent, although livery of seisin, or the actual physical delivery is not applicable, (b) See Sug. Powers, chs. 1 & 2. (c) C. 32. See also Doctor and Studt. b. 2, 3. 22, where St. Aubyn Jermyn tells us that "the possession of the land is called in the * law of England the frank tenement, or free still by analogy to the case of land, estates of inheritance, or for life are called freehold. Estates limited to a certain number of years, are, in the eye of the law, less than freehold; livery of seisin, therefore, never applied to them, and they are looked upon as less enduring, because although an estate for a 1000 years will undoubtedly outlast the lives of any number of living persons; yet inasmuch as the law does not take account of the duration of human life, it considers that the uncertainty of the latter period includes a possibility that it may extend beyond any given limit. The laws applicable to the two classes of estates, those of freehold and those less than freehold, were formerly widely different. They have been so far assimulated by modern legislation suited to the requirements of modern times, that there is, for most purposes, little difference material to the interests of the community other than that arising from the essential character of the estates themselves. The most important difference between the laws concerning a tenancy for years and one in fee simple, consists in the different destination of the property when the tenant dies intestate. We proceed to consider in detail the different estates, taking in order first, those which are freehold, and next those of inferior degree. We will begin with the greatest estate a man can have, an estate in fee simple as it is usually called. Estate in fee simple. Tenant in fee simple (or, as he is frequently styled, tenant in fee) is he that has lands, tenements or hereditaments, (whether corporeal or incorporeal), to hold to him and his heirs for ever (e), generally, absolutely, and *simply, not restricted to any particular kind of heir. [* 209] The word tenant (in Latin tenans) indicates that the land or hereditament is holden. By the theory of English law, as we have seen, all lands are holden mediately or immediately of the king (f). The king, therefore, alone has absolutum et directum dominium (g). A fee simple (feudum or feodum simplex (h) ), is, therefore, the utmost interest in land which a subject may possess; under it the tenant enjoys dominium utile (i), or, the full perception of every profit which may be derived from the soil; and hence it is that, in the most solemn acts of law, a man having this estate in land is said to be "seised in his demesne as of fee," to have the demesne or dominium, i.e. property, not absolute however, but qualified, or feudal "as of fee;" that is, it is held of a superior lord, and either directly or remotely of the king, in whom the ultimate property resides. The word fee or feodum then, as we have already seen, indicates this quality of tenure, and thus is distinguished from allodium, or absolute property in land, wholly irrespective of any superior lord, and without any duty of rendering rent or service (k). This primary sense, however, in early times ceased to be the common acceptation of the word, for (as sir Martin Wright justly observes (1) the doctrine that "all lands are holden " having been for so many (e) Litt. s. 1. (f) Wright, Ten. 148; Co. Litt. 1 a; Case of Stannaries, 12 Rep. 9; Bract. lib. x. cap. 3. Omnis quidem sub eo (rege) et ipse sub nullo nisi tantum sub Deo. (g) Prædium domini regis est directum dominium cujus nullus author est nisi Deus. Co. Litt. 1 a. VOL. I.-69 (h) In Domesday its is called feudum. (k) As to allodial lands, and the meaning of ages a fixed and undeniable axiom, our English lawyers became accustomed to use the word fee, to express the continuance or quantity of estate. Thus Littleton says, "feodum is the same as inheritance" (m), and thus *fee, [* 210] "in our legal understanding, signifieth that the land belongs to us and our heirs, in respect whereof the owner is said to be seised in fee, and in this sense the king is said to be seised in fee" (n): that is to say, the king may have an estate of inheritance, but he can be the feudatory of no man. It is in this sense, also, that a man may have an estate in fee in incorporeal hereditaments (o). There is this difference, however, in the technical legal description of the estates in the two species of hereditaments, that, of a corporeal hereditament of which manual occupation can be enjoyed, a man is said to be seised in his demesne as of fee, the word demesne denoting beneficial personal enjoyment; thus the lands - part of a manor which the lord of the manor himself occupies are called the demesne lands. But of an incorporeal hereditament, such as an advowson, a man is said merely to be seised as of fee (p). The fee simple, or inheritance of lands and tenements, comprises the whole interest which a subject may possess in land; and this doctrine has been held so completely at common law, that, although the estate may determine through failure of heirs, yet it was considered that when a fee simple has been conveyed to any person, no interest could by any possibility be given to any other person in the same lands: for example, if there were limitation to A. and his heirs, with a further limitation, that in case there should be a general failure of A.'s heirs then to C. in fee, this further limitation was absolutely void, for the first limitation carrying the whole fee there could be nothing left in the grantor which can be limited over. The same principle was extended to all cases where it was attempted to limit a fee after the determination of a fee, even to cases less obviously contradictory to the nature of a fee simple. Thus, if [*211] there were a limitation to A. and his heirs so long as B. should have issue, and upon failure of B.'s heirs then to C. in fee; or so long as they paid annually to the dean and chapter of St. Paul's fourteen marks, and if they failed in payment, then that their estate should cease, and that the said dean and chapter and their successors should have the land, this latter limitation was considered to be wholly void (q). This general doctrine that an estate cannot be limited to take effect after the natural determination of a fee simple, still remains in force; but, as we shall hereafter see, the law has allowed it to be practically evaded and means to be adopted for causing an abrupt determination of a fee simple to take place, and then that another fee simple in some other person should take the place of the one so cut short. It is a principle of law, derived from feudal notions respecting the possession of land, that the freeholder or feudal seisin must never be without an owner, and further, though this was not so strictly insisted upon, that the inheritance in fee always resides in some person or other. In general there is little difficulty in seeing how the estates, as vested in particular cases, accord with this principle, as to which something more will appear hereafter, when treating of (m) S. 1. (n) Co. Litt. 1. (p) Litt. s. 10. (g) 1 Eq. Abr. 186, pl. 3; Fearne, Cont. (0) Feodum est quod quis tenet sibi et Rem. 373. hæredibus suis sive sit tenementum sive reditus. (Flet. 1. 5, c. 5, s. 7.) |