treason. 55 It has been observed that, in ancient times, estates Forfeiture for tail were not subject to forfeiture for high treason beyond the life of the tenant in tail (7). This privilege they were deprived of by an act of parliament passed in the reign of Henry VIII. (m), by which all estates of inheritance (under which general words estates tail were covertly included) were declared to be forfeited to the king upon any conviction of high treason (n). But the attainder of the ancestor does not of itself prevent the descent of an estate tail to his issue, as they claim from the original donor, per formam doni (o); and, therefore, on attainder for murder, an estate tail would still descend to the issue. By virtue of another statute of the reign Debts to the of Henry VIII. (p), estates tail are charged, in the crown. hands of the heir, with debts due from his ancestor to the crown, by judgment, recognizance, obligation, or other specialty, although the word heir shall not be comprised therein. And all arrears and debts due to the crown, by accountants to the crown, whose yearly or'total receipts exceed three hundred pounds, were, by a later statute of the reign of Elizabeth (q), placed on the same footing. But till lately, estates tail, if suffered to descend, were not subject to the debts of the deceased tenant owing to private individuals (r). By a recent act, Judgment however, debts, for the payment of which any judgment, decree, order or rule has been given or made by any court of law or equity, are binding on the lands of the debtor, as against the issue of his body, and also as against all other persons whom he might, without the other cut off and debar from any assent of any person, remainder or reversion (s). An estate tail may also be Bankruptcy. s. 75. (q) Stat. 13 Eliz. c. 4; and see debts. Husband and wife. estate tail. barred and disposed of on the bankruptcy of a trader tenant in tail, for the benefit of his creditors, to the same extent as he might have barred or disposed of it for his own benefit (t). In addition to the liabilities above mentioned are the rights which the marriage of a tenant in tail confers on the wife, if the tenant be a man, or on the husband, if the tenant be a woman; an account of which will be contained in a future chapter on the relation of husband Descent of an and wife. But, subject to these rights and liabilities, an estate tail, if not duly barred, will descend to the issue of the donee in due course of law; all of whom will be necessarily tenants in tail, and will enjoy the same powers of disposition as their ancestor, the original donee in tail. The course of descent of an estate tail is similar, so far as it goes, to that of an estate in fee simple, an explanation of which the reader will find in the fourth chapter. Quasi entail. If an estate pur autre vie should be given to a person and the heirs of his body, a quasi entail, as it is called, will be created, and the estate will descend, during its continuance, in the same manner as an ordinary estate tail. But the owner of such an estate in possession may bar his issue, and all remainders, by an ordinary deed of conveyance (u), without any inrolment under the statute for the abolition of fines and recoveries. If the estate tail be in remainder expectant on an estate for life, the concurrence of the tenant for life is necessary to enable the tenant in tail to defeat the subsequent remainders (x). CHAPTER III. OF AN ESTATE IN FEE SIMPLE. him and his AN estate in fee simple (feudum simplex) is the greatest estate or interest which the law of England allows any person to possess in landed property (a). A tenant in Tenant in fee fee simple is he that holds land or tenements to him simple holds to and his heirs (b); so that the estate is descendible, not heirs; merely to the heirs of his body, but to collateral relations, according to the rules and canons of descent. An estate in fee simple is of course an estate of freehold, and has an being a larger estate than either an estate for life, or in tail (c). estate of freehold. ation. It is not, however, the mere descent of an estate in fee Right of aliensimple to collateral heirs, that has given to this estate its present value and importance: the unfettered right of alienation, which is now inseparably incident to this estate, is by far its most valuable quality. This right has been of gradual growth: for, as we have seen (d), estates were at first inalienable by tenants, without their lord's consent; and the heir did not derive his title so much from his ancestor as from the lord, who, when he gave to the ancestor, gave also to his heirs. In process of time, however, the ancestor acquired, as we have already seen (e), the right, first, of disappointing the expectations of his heir, and then of defeating the interests of his lord. The alienations by which these results were effected were, as will be remembered, either the subinfeudation of parts of (a) Litt. s. 11. (b) Litt. s. 1. (d) Ante, pp. 17, 18. (c) Ante, pp. 22, 34. Part of any lands could not anciently be the land, to be holden of the grantor, or the conveyance of the whole, to be holden of the superior lord. It was impossible to make a grant of part of the lands to be granted to hold holden of the superior lord, without his consent; for, the of the superior lord. services reserved on any grant were considered as entire and indivisible in their nature (f). The tenant, consequently, if he wished to dispose of part of his lands, was obliged to create a tenure between his grantee and himself, by reserving to himself and his heirs such services as would remunerate him for the services, which he himself was liable to render to his superior lord. In this manner the tenant became a lord in his turn; and the method, which the tenants were thus obliged to adopt, when alienating part of their lands, was usually resorted to by choice, whenever they had occasion to part with the whole; for the immediate lord of the holder of any lands had advantages of a feudal nature (g), which did not belong to the superior lord, when any mesne lordship intervened; it was therefore desirable for every feudal lord, that the possession of the lands should always be Subinfeudation holden by his own immediate tenants. The barons at the time of Edward I. accordingly perceiving, that, by the continual subinfeudations of their tenants, their privileges as superior lords were gradually encroached on, proceeded to procure an enactment in their own favour with respect to estates in fee simple, as they had then already done with regard to estates tail (h). They did not, however, in this case attempt to restrain the practice of alienation altogether, but simply procured a prohibition of the practice of subinfeudation; and at the same time obtained, for their tenants, facility of alienation of parts of their lands, to be holden of the chief lords. disadvan tageous to the superior lords. (f) Co. Litt. 43 a. par. 2. (h) By the stat. De Donis, 13 Edw. I. c. 1, ante, p. 41. Quia emptores. The statute by which these objects were effected is The statute of known by the name of the statute of Quia emptores (i) ; so called from the words with which it commences. It enacts, that from thenceforth it shall be lawful to every freeman to sell at his own pleasure his lands and tenements or part thereof, so nevertheless that the feoffee (or purchaser) shall hold the same lands or tenements of the same chief lord of the fee, and by the same services and customs as his feoffor held them before. And it further enacts (k), that if he sell any part of such his lands or tenements to any person, the feoffee shall hold that part immediately of the chief lord, and shall be forthwith charged with so much service as pertaineth, or ought to pertain, to the said chief lord, for such part, according to the quantity of the land or tenement so sold. This statute did not extend to those who held of the king as tenants in capite, who were kept in restraint for some time longer (1). Free liberty of alienation was however subsequently acquired by them; and the right of disposing of an estate in fee simple, by act inter vivos, is now the undisputed privilege of every tenant of such an estate (m). The alienation of lands by will was not allowed in Alienation by this country, from the time the feudal system became will. completely rooted, until many years after alienation inter vivos had been sanctioned by the statute of Quia emptores. The city of London, and a few other favoured places, formed exceptions to the general restraint on the power of testamentary alienation of estates in fee simple (n); for in these places tenements might be devised by will, in virtue of a special custom. In process of time, however, a method of devising lands by will (i) Stat. 13 Edw. I. c. 1. (k) Chap. 2. (1) Wright's Tenures, 162. (m) Wright's Tenures, 172; Co. Litt. 111 b, n. 1. (n) Litt. sec. 167; Perk. secs. 528, 537. |