8. Conditional fees, at the common law, were such as were granted to the donee, and the heirs of his body, in exclusion of collateral heirs 9. These were held to be fees, granted on condition that the donee had issue of his body; which condition being once performed by the birth of issue, the donee might immediately aliene the land: but, the statute de donis being made to prevent such alienation, thereupon, from the division of the fee (by construction of this statute) into a particular estate and reversion, the conditional fees began to be called fees-tail 10. All tenements real, or savouring of the realty, are subject to entails 11. Estates-tail may be, 1. general, or special: II. male, or female; III. giv en in frank-marriage Page 110 8. Tenancy in dower is where a woman's. husband is seised of an estate of inheritance, of which her issue might by any possibility have been heir; and the husband dies: the woman is hereupon entitled to dower, or one third part of the lands and tenements, to hold for her natural life 9. Dower is either by the common law; by special custom; ad ostium ecclesiæ; or ex assensu patris 10. Dower may be forfeited, or barred; particularly by an estate in jointure CHAPTER IX. 111, 112 113 OF ESTATES LESS THAN FREEHOLD 113-115 12. Incident to estates-tail are, I. Waste. II. Dower. III. Curtesy. IV. Barby fine, recovery, or lineal warranty with assets 13. Estates-tail are now, by many sta tutes and resolutions of the courts, almost brought back to the state of conditional fees at the common law CHAPTER VIII. OF FREEHOLDS NOT OF INHERITANCE 115 117 Page 128 1.3-3 136 140-150 140 to 150 1. Estates less than freehold are, I. Estates for years. 11. Estates at will. III. Estates at sufferance 2. An estate for years is where a man, seised of lands and tenements, letteth them to another for a certain period of time, which transfers the interest of the term; and the lessee enters thereon, which gives him possession of the term, but not legal seisin of the land 3. Incident to this estate are estovers; and also emblements, if it determines before the full end of the term 4. An estate at will is where lands are let by one man to another, to hold at the will of both parties; and the lessee enters thereon 140 144-5 1. Freeholds, not of inheritance, or for life only, are, I. Conventional, or created by the act of the parties. II. Legal, or created by operation of law 2. Conventional estates for life are created by an express grant for term of one's own life, or pur auter vie; or by a general grant, without expressing any term at all 3. Incident to this, and all other estates for life, are estovers, and emblements; and to estates pur auter vie general occupancy was also incident; as special occupancy still is, if cestuy que vie survives the tenant 120 120 122 124-128 4. Legal estates for life are, I. Tenancy in tail, after possibility of issue extinct. II. Tenancy by the curtesy of Eng. land. II. Tenancy in dower 5 Tenancy in tail, after possibility of Issue extinct, is where an estate is given in special tail, and, before issue had, a person dies from whose body the issue was to spring; whereupon the tenant (if surviving) becomes tenant in tail, after possibility of issue extinct J. This estate partakes both of the incidents to an estate-tail, and those of an estate for life 7 Tenancy by the curtesy of England is where a man's wife is seised of an estate of inheritance; and he by her has issue, born alive, which was capable of inheriting her estate in which case, he shall, upon her death, hold the tenements for his own life, as tenant by the curtesy 124 125 126 OF ESTATES UPON CONDITION 1. Estates (whether freehold or otherwise) may also be held upon condition; in which case their existence depends on the happening, or not happening, of some uncertain event 2. These estates are, 1. On condition implied. II. On condition expressed, 11. Estates in gage. IV. Estates by statute, merchant or staple. V. Estates by elegit 3 Estates on condition implied, are where a grant of an estate has, from its essence and constitution, a condition inseparably annexed to it; though none be expressed in words 4. Estates on condition expressed, are where an express qualification or provision is annexed to the grant of an 6. Estates in gage, in vadio, or in pledge, are states granted as a security for money lent; being, I. In vivo vadio, or living gage; where the profits of land are granted till a debt be paid, upon which payment the grantor's estate will revive. II. In mortuo vadio, in dead, or mortgage; where an estate is granted, on condition to be void at a day certain, if the grantor then repays the money borrowed; on failure of which, the estate becomes absolutely dead to the grantor 7. Estates by statute merchant, or statute staple, are also estates conveyed to creditors, in pursuance of certain statutes, till their profits shall discharge the debt 8. Estates by elegit are where, in consequence of a judicial writ so called, lands are delivered by the sheriff to a plaintiff, till their profits shall satisfy a debt adjudged to be due by law CHAPTER XI. Page 15" 160 161 OF ESTATES IN POSSESSION, REMAIN- 2. A remainder is an estate limited to tate 163 164 165-168 4. Remainders are, I. Vested-where the estate is fixed to remain to a certain person, after the particular estate is spent. II. Contingent-where the estate is limited to take effect, either to an uncertain person, or upon an uncertain event 5. An executory devise is such a dispo sition of lands, by will, that an estate shall not vest thereby at the death of the devisor, but only upon some future contingency; and without any precedent particular estate to support it 6. A reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted; to which are incident-fealty, and rent . Where two estates, the one less, the other greater, the one in possession, the other in expectancy, meet together in one and the same person, and in one and the same right, the less is merged in the greater 168-9 172 176 1. Estates, with respect to the number and connexions of their tenants, may be held, I. In severalty. II. In jointtenancy. III. In coparcenary." IV. In common 2. An estate in severalty, is where one tenant holds it in his own sole right, without any other person being joined with him 3. An estate in joint-tenancy, is where an estate is granted to two or more persons; in which case the law construes them to be joint-tenants, unless the words of the grant expressly exclude such construction 4. Joint-tenants have an unity of interest, of title, of time, and of possession: they are seised per my et per tout: and therefore, upon the decease of one joint-tenant, the whole interest remains to the survivor 5. Joint-tenancy may be dissolved, by destroying one of its four constituent unities 6. An estate in coparcenary, is where an estate of inheritance descends from the ancestor to two or more persons; who are called parceners, and all together make but one heir 7. Parceners have an unity of interest, title, and possession; but are only seis. ed per my, and not per tout: wherefore there is no survivorship among parce ners 8. Incident to this estate is the law of hotchpot 9. Coparcenary may also be dissolved, by destroying any of its three constituent unities 10. An estate in common, is where two or more persons hold lands, possibly by distinct titles, and for distinct interests; but by unity of possession, because none knoweth his own severalty 11. Tenants in common have therefore an unity of possession (without survivorship; being seised per my, and not per tout); but no necessary unity of title, time, or interest 12. This estate may be created, I. By dissolving the constituent unities of the two former; II. By express limitation in a grant: and may be destroyed, I. By uniting the several titles in one tenant; II. By partition of the land CHAPTER XIII. 179 179 180 182 185 187 188 190 191 19 191 195 200 to 234 OF TITLE BY DESCENT 1. The title to things real may be reciprocally acquired or lost, I. By descent. II. By purchase 2. Descent is the means whereby a man, on the death of his ancestor, acquires a title to his estate, in right of representation, as his heir-at-law 3. To understand the doctrine of descents, we must form a clear notion of consanguinity; which is the connection or relation of persons descended from the same stock or common ancestor; and it is, I. Lineal, where one of the kinsmen is lineally descended from the other. II. Collateral, where they are lineally descended, not one from the other, but both from the same common ancestor 4. The rules of descent, or canons of inheritance, observed by the laws of England, are these: Inheritances shall lineally descend, to the issue of the person last actually seised, in infinitum; but shall never lineally ascend 200 201 203-4 The male issue shall be admitted before the female Where there are two or more males in equal degree, the eldest only shall inherit; but the females all together The lineal descendants, in infinitum, of any person deceased, shall represent their ancestor; that is, shall stand in, the same place as the person himself would have done, had he been living On failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to the blood of the first purchasor; subject to the three preceding rules.-To evidence which blood, the two following rules are established The collateral heir of the person last seised must be his next collateral kinsman, of the whole blood In collateral inheritances, the male stock shall be preferred to the female; that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female: unless where the lands have, in fact descended from a female CHAPTER XV. OF TITLE BY PURCHASE; AND, FIRST, RY ESCHEAT 208 212 214 216 220 224 234 241 to 257 1. Purchase, or perquisition, is the pos⚫session of an estate which a man hath by his own act or agreement; and not 2. Escheat is where, upon deficiency of the tenant's inheritable blood, the estate falls to the lord of the fee 3. Inheritable blood is wanting to, 1. Such as are not related to the person last seised. II. His maternal relations in paternal inheritances, and vice verså. III. His kindred of the half blood. IV. Monsters. V. Bastards. VI. Aliens, and their issue. Vli. Persons attainted of treason or felony. VIII. Papists, in respect of themselves only, by the statute law CHAPTER XVI. 244 246-257 2. Thus, at the common law, where tonant per auter vie died during the life of cestuy que vie, he who could first enter might lawfully retain the posses sion; unless by the original grant the heir was made a special occupant 3. The law of derelictions and alluvions has narrowed the title by occupancy CHAPTER XVII. OF TITLE BY PRESCRIPTION 1. Prescription (as distinguished from custom) is a personal immemorial usage of enjoying a right in some incorporeal hereditament, by a man, and either his ancestors or those whose estate of inheritance he hath of which the first is called prescribing in his ancestors, the latter, in a que estate OF TITLE BY FORFEITURE 1. Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of things real; whereby the estate is transferred to another, who is usually the party injured 267 2. Forfeitures are occasioned, I. By 3. Forfeitures for crimes, or misdemes- 267 Page 268-274 trary to the statute law. II. Those made to aliens. III. Those made by particular tenants, when larger than their estates will warrant 5. Lapse is a forfeiture of the right of presentation to a vacant church, by neglect of the patron to present within six calendar months 6. Simony is the corrupt presentation of any one to an ecclesiastical benefice, whereby that turn becomes forfeited to the crown 7. For forfeiture by non-performance of conditions, see Ch. X. 8. Waste is a spoil, or destruction, in any corporeal hereditaments, to the prejudice of him that hath the inherit ance 9. Copyhold estates may have also other peculiar causes of forfeiture, according to the custom of the manor 10. Bankruptcy is the act of becoming a bankrupt; that is, a trader who secretes himself, or does certain other acts, tending to defraud his creditors. (See Ch. XXII.) 11. By bankruptcy, all the estates of the bankrupt are transferred to the assig nees of his commissioners, to be sold for the benefit of his creditors CHAPTER XIX. 276 278 281 284 285 286 287 to 294 OF TITLE BY ALIENATION 1. Alienation, conveyance, or purchase, in its more limited sense, is a means of transferring real estates, wherein they are voluntarily resigned by one man, and accepted by another 2. This formerly could not be done by a tenant, without licence from his lord; nor by a lord, without attornment of his tenant 3. All persons are capable of purchas ing; and all, that are in possession of any estates, are capable of conveying them;-unless under peculiar disabili ties by law as being attainted, non compotes, infants, under duress, femecoverts, aliens, or papists 4. Alienations are made by common assurances; which are, I. By deed, or matter in pais. II. By matter of record. III. By special custom. IV. By devise CHAPTER XX. 287 287 288-293 293-4 295 to 342 OF ALIENATION BY DEED 1. In assurances by deed may be considered, I. Its general nature. II. Its several species 2. A deed, in general, is the solemn act of the parties: being, usually, a writ ing sealed and delivered; and it may be, I. decd indented, or indenture. II. A deed poll 3. The requisites of a deed are, I. Sufficient parties, and proper subject-matter. II. A good and sufficient consideration. II. Writing on paper, or 295 295-6 parchment, duly stamped. IV. Legal and orderly parts (which are usually, 1st, the premises; 2ndly, the habendum; 3rdly, the tenendum; 4thly, the reddendum; 5thly, the conditions; 6thly, the warranty (which is either lineal or collateral); 7thly, the covenants; 8thly, the conclusion (which includes the date). V. Reading it, if desired. VI. Sealing, and, in many cases, signing it also, VII. Delivery. VIII. Attestation 4. A deed may be avoided, I. By the want of any of the requisites before mentioned. II. By subsequent mat ter: as, 1st, rasure, or alteration; 2ndly, defacing its seal; 3rdly, cancelling it; 4thly, disagreement of those whose consent is necessary; 5thly, judgment of a court of justice 5. Of the several species of deeds, some serve to convey real property, some only to charge and discharge it 6. Deeds which serve to convey real property, or conveyances, are either by common law, or by statute. And, of conveyances by common law, some are original or primary, others derivative or secondary 7. Original conveyances are, I. Feoffments. II. Gifts. 11. Grants. IV. Leases. V. Exchanges. VI. Partitions.- Derivative are, VII. Releases. VIII. Confirmations. IX. Surrenders. X. Assignments. XI. Defeazances 8. A feoffinent is the transfer of any corporeal hereditament to another, perfected by livery of seisin, or delivery of bodily possession from the feoffor to the feoffee; without which no freehold estate therein can be created at common law 9. A gift is properly the conveyance of lands in tail 10. A grant is the regular method, by common law, of conveying incorporeal hereditaments 11. A lease is the demise, granting, or letting to farm of any tenement, usually for a less term than the lessor hath herein; yet sometimes possibly for a greater; according to the regu lations of the restraining and enabling statutes 12. An exchange is the mutual conveyance of equal interests, the one in consideration of the other 13. A partition is the division of an estate held in joint-tenancy, in co-parce. nary, or in common, between the respective tenants; so that each may hold his distinct part in severalty 14. A release is the discharge or conveyance of a man's right, in lands and tenements, to another that hath some former estate in possession therein 15. A confirmation is the conveyance of an estate or right in esse, whereby a voidable estate is made sure, or a particular estate is increased 16. A surrender is the yielding up of an 308 309 estate for life, or years, to him that hath the immediate remainder or reversion; wherein the particular estate may merge 17. An assignment is the transfer, or making over to another, of the whole right one has in any estate; but usu ally in a lease, for life or years 18. A defeazance is a collateral deed, inade at the same time with the original conveyance; containing some condition upon which the estate may be defeated 19. Conveyances by statute depend much on the doctrine of uses and trusts: which are a confidence reposed in the terre-tenant, or tenant of the land, that he shall permit the profits to be enjoyed, according to the directions of cesbuy que use, or cestuy que trust 20. The statute of uses, having trans ferred all uses into actual possession (or, rather, having drawn the possession to the use), has given birth to divers other species of conveyance : I. A covenant to stand seised to uses. II. A bargain and sale, enrolled. III. A lease and release. IV. A deed to lead or declare the use of other more direct conveyances. V. A revocation of uses; being the execution of a power, reserved at the creation of the use, of recalling at a future time the use or estate so creating. All which owe their present operation principally to the statute of uses Page 326 326 327 327 1 337-339 21. Deeds which do not convey, but only charge real property, and discharge it, are, 1. Obligations. II. Recognizances. III. Defeazances upon both CHAPTER XXI. Page of covenant. II. The licence to agree. III. The concord. IV. The note. V. The foot. To which the statute hath added, VI. Proclamations 350-352 6. Fines are of four kinds : 1. Sur cognizance de droit, come ceo que il ad de son done. II. Sur cognizance de droit tantum. III. Sur concessit. IV. Sur done, grant, et render; which is a double fine 7. The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizee, by barring the respective rights of parties, privies. and strangers 8. A common recovery is by an actual, or fictitious, suit or action for land, brought against the tenant of the freehold; who there ipon vouches another, who undertakes to warrant the tenant's title: but upon such vouchee's making default, the land is recovered by judgment at law against the tenant; who, in return, obtains judgment against the vouchee to recover lands of equal value in recompense 340-342 O ALIENATION BY MATTER OF RE- 1. Assurances by matter of record are, & The king's grants, contained in char- venue 4. A fine (sometimes said to be a feoffmen: of record) is an amicable composition and agreement of an actual or fictitious, suit; whereby the estate in question is acknowledged to be the right of one of the parties 1. The parts of a fine are, I. The writ VOL. I. 344 344 346 348 5 OF ALIENATION BY SPECIAL Custom 363 |