1. THE common law, regulating the enjoyment of real property, both in England and in Ireland, is founded upon and governed by the principles of the feodal system. All landed property, according to the policy of British law, is supposed to be vested in the Crown, and either to have been(a) derived from, or confirmed by, grants of the Crown on various conditions; and hence, every subject holding land is styled a tenant, whatever may be the extent or duration of his estate; and the mode by which the land is holden, a tenure.

2. Persons holding lands immediately under the Sovereign, in right of his crown, were called(b) his tenants in capite, or in chief, and their

(a) Co. Litt. 98, A.; 2 Instit. 501; 2 Bla. Comm. 59; Wright's Tenures, 58.

B

(b) Wright's Tenures, 138.

possessions were usually holden by the tenure of knight's service, and were subject to the performance of fealty, homage, military and other services; and even the king himself could not grant lands discharged from tenure; for though(c) no services were reserved, or the land was granted free from any service, the grantee, by implication of law, would have taken as tenant in capite, by knight's service. If the service reserved by the grant were not only free, but certain, as by fealty, or by rent and fealty, the tenure was said to be in free and common socage.

3. By the Irish Statute(d), 14 & 15 Charles II. c. 19, all the oppressive feodal services were abolished in Ireland, and all military and feodal tenures were converted into free and common socage(e): and the only services which can belong to, or be reserved upon socage tenures, are fealty, rent, heriots, relief, and suit of court.

Socage tenures, with respect to their duration, or to the quantity of estate, are either freehold or chattel. Freehold estates are either feesimple, fee-tail, for life, or for some other period of uncertain duration.

4. An estate in fee-simple confers on its owner an unlimited power to dispose of the property, and if not aliened or devised by him, will descend to his heirs. The word "heirs" is used as a general description for all persons who may by law succeed to the estate, and is essential(ƒ) to a grant, or conveyance, in order to carry the fee, or inheritance; for if lands be granted to a person for ever, or to him and his assigns for ever, he will only acquire an estate during his own life.

Prior to the enactment of the Statute De Donis(g), if lands were given to a person and the heirs of his body, the estate was considered to be a fee-simple conditional, which could not have been aliened, until the implied (h) condition was performed, by the birth of a child. If no such child was born, or if after the birth of such child, the estate was not aliened, the property, upon failure of the posterity of the grantee, at a period however remote, would revert to the donor and his heirs.

By the Statute De Donis(i), it was enacted, that neither the grantee, nor his issue, should have the power of alienating the inheritance, and that it should be secured to the posterity of the donee, ac

(c) Year Book, 33 Hen. VI. fol. 7, par Prisot; Anthony Lowe's case, 9 Rep. 123; The Viscount Dillon's case, in Bishop Gibson's Preface to Spelman's posthumous works.

(d) 14 & 15 Car. II. c. 19, Irish; 12 Car. II. c. 24, English.

(e) See Doe dem. Reay v. Huntington, 4 East, 271.

(f) Gilb. Tenures by Watkins, 3, and note 8; Littleton, sec. 1; 2 Bla. Comm.

cording to the terms of the deed of gift; and in order to effect that object, the fee-simple conditional was converted into an estate-tail, and the estate of the donor was held to be a reversion, where previously he had nothing more than a possibility of reverter.

A tenancy in fee-tail is created by a grant of lands, or tenements, to a person and the heirs of his body. An estate-tail is confined in its descent to the posterity of some certain individual, and will cease upon failure of the class of heirs designated by the conveyance.

An estate capable of being limited in tail must be an estate of inheritance, and therefore neither(j) estates pur autre vie, nor terms of years, can be made the subject of an entail.

A tenancy for life subsists where lands, or tenements, are granted to a person for the term of his own life. A grant of lands to one person for the life of another, is usually styled an estate or lease pur autre vie, and the person on whose life the duration of the interest depends, is designated as the cestui que vie.

5. An interest in lands for a term of years, either absolutely, or provided a specified person shall so long live, or an interest in land from year to year, or for any number of weeks or days, is a chattel real, and upon the owner's death, instead of descending to his heirs, devolves, like other personal property, on his executors or administrators. The duration of the term is immaterial, as it will be personal estate, though extended to a thousand years.

If lands be limited to J. S. and his assigns, for his life, a freehold estate is conferred on the grantee, but a lease to J. S. for thirty-one, or any other number of years(k), provided the lessee shall so long live, is only a chattel real.

A freehold interest cannot be derived out of a term of years, nor can a term for years be made transmissible to heirs, but will devolve upon the personal representatives of the termor. A rent granted out of a term(1) for years to an individual and his heirs, will go to the executors, and not to the heirs of the grantee, for the rent issuing out of a chattel must retain the quality (m) of the estate out of which it arises.

6. Formerly the mode of trying titles to land was by real action, and it was an established rule, that all real actions should be brought against the immediate tenant of the freehold ; and as the judgment was final, tenants for years, who had only a precarious possession of the

Hargrave's note 120, to Co. Litt.

20. A.
(k) Co. Litt. 45, B.
(1) Butt's case 7 Rep. 23, A.; Saffery

r. Elgood, I Ad. & Ell. 191; 3 Nev. & M. 346, S. C.

(m) 2 Prest. Abstr. 2.

property, were not entrusted with the defence of the estate of the freeholder. Hence it became essential that the first or immediate estate of freehold should not be in abeyance(n), in order that a person claiming by title paramount, might know against whom an action should be brought for recovery of the land. It was, therefore, a legal maxim, that the first estate of freehold in lands could not, by any common law conveyance, be made to commence in futuro, because it was requisite there should be some person(o) to answer the præcipes of strangers in real actions, and to render to the lord the services due to him.

7. The civil law did not make any difference between the regulation of freehold estates and chattels real; but the jurisprudence of the middle ages, being chiefly occupied with the government of freehold property, gave rise to the distinction between the seisin of the freeholder, and the mere possession enjoyed by the tenant for years, which still continues to form an important part of our legal system, as affecting titles to land, the mode of their transfer, and the relation of landlord and tenant.

The expression "freehold, or frank-tenement," in feodal times, was considered to mean that the freeholder had the seisin or feodal possession of the soil. It also implied that the freeholder had the fee and inheritance of his land, subject to the incidents of tenure, though the word "freehold" is now usually restricted in its acceptation to an estate or tenancy for a life or lives.

Until the reign of Henry VIII., leases for years were generally made for short periods, and were esteemed of trivial value, as it was in the power of the tenant of the freehold to defeat such interests by suffering a common or fictitious recovery. A tenancy for years was treated merely as a hiring of the use of the soil for farming purposes, and the occupier, as the bailiff of the freeholder. It conferred no seisin, and did not affect or prejudice the title or seisin of the freeholder. By the Irish Statute, 33 Hen. VIII. sess. 1, c. 11(p), a tenant for years was enabled to falsify a common recovery; and by such means, a lease for years was rendered a secure and permanent estate, but the possession of the termor is in law deemed to be the possession of his landlord, to whom the freehold belongs.

8. Even after the enactment of this Statute, leases for years could

(n) Geary v. Bearcroft, Carter's Rep. 57-65, where Bridgman, C. J., is reported to have said, "It is in law as it is in nature, abhorret vacuum;" Bridgm. Rep. by Bannister, 484; Lord Sheffield v.

Ratcliffe, Hobart, 334-338.

(0) Freeman dem. Vernon v. West, 2 Wils. 165.

(p) 33 Hen. VIII. sess. 1, c. 11, Irish; 21 Hen. VIII. c. 15, English.

not have been made a safe or satisfactory provision for a family, because an estate for life was esteemed in law an interest of higher degree than any estate for a term of years; and, therefore, if a lease for years were limited to a person for life, the tenant for life had the whole term vested in him, and no remainder was capable of being limited over. Hence, if a lease for years were granted to J. S. for his life, with remainder(q) to another for so many years of the term as should be unexpired at the death of the tenant for life, the remainder being a mere(r) possibility was considered void, and the whole interest was vested absolutely in the first taker. And if a term of years were bequeathed to a person for his life, with remainder over, the tenant for life might alien the ininterest(s) and destroy the remainder. During the reign of Queen Elizabeth, it became a common(t) proceeding in Chancery to compel the devisee for life of a chattel interest to give security not to bar the remainder; but it was at length settled(u) that the remainder was valid at common law, by way of executory devise, and that it could not be defeated or barred by the tenant for life.

Upon the devise of a term for ninety-nine years to several persons successively for their respective lives, it was held, that all the remainders were valid(v), and that each devisee for life, while in possession, had the whole term vested in him, and the successive devisees had a possibility of remainder, and that the testator's executors had a possibility of reverter, if all the tenants for life should die during the term.

It was not established, however, until the year 1757, that a lease for years might be effectually (w) limited by deed to a person for so many years of the term as he should live, and after his decease, with remainder over for the residue of the interest.

9. Very few of the leading doctrines of the common law can be traced to a much earlier period than the reign of Edward I. ; and such of them as can be discovered (a) are

(9) Theobalds v. Duffoy, 9 Mod. 102; Green v. Edwards, Cro. Eliz. 216; Cecil's case, 3 Dyer, 253, pl. 102; Wind v. Jekyl, 1 P. Wms. 572.

(r) Eyres v. Faulkland, 1 Salk. 231, 1 Ld. Raym. 325; Douse v. Earle, 3 Lev. 264; Butt's case, 7 Kep. 23, 1st Resoln.; In re Tudor, 2 Cr. & Dix, C. C. 457.

(s) 1 Dyer, 74, pl. 18.

(t) Cole v. Moore, Moore, 806. Two of the questions in this case were, first, whether Richard Cole was entitled in law or equity to the possibility of the term for years, which should remain at

found to be remnants of the civil

the death of the devisee for life; and, secondly, whether the possibility was destroyed in law or equity by the grant of the term by the devisee for life. And see Pinker v. Litcott, Bridgm. by Bann. 377.

(u) Matthew Manning's case, 8 Rep. 94; B. Lampet's case, 10 Rep. 46.

(v) Eyres v. Falkland, 1 Ld. Raym. 325; 1 Šalk. 231; 1 Freem. 272, S. C. (w) Wright dem. Plowden v. Cartwright, 1 Burr. 282.

(r) Spence's Inquiry, 555; 2 Hallam's Middle Ages, 465.