lands were liable to be pledged in a statute merchant, for a debt contracted in trade; so much more readily did the feudal restraint on alienation yield to considerations of a commercial kind, than to any others. And such continued to be the state of the law as to the elegit, until the late statute 1 & 2 Vict. c. 110, s. 11, which enables the creditor by that writ to seize the whole (instead of a moiety only, as in former times) of the debtor's lands and tenements(r).

We shall conclude our notice of the tenants by statute merchant, statute staple, and elegit, with this remark, that though they are said to hold ut liberum tenementum, until their debts be paid, yet are their estates no freeholds, but chattels, and pass to the executor (s); [which is probably owing to this: that, being a security and remedy provided for personal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in those to whom the debts, if recovered, would belong. For, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executors (t); because they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund, out of which he has directed them to be paid.]

(r) The same statute gives to decrees, rules, and orders, the effect of a judgment (sect. 18); but provides that no judgment shall affect lands as to purchasers, mortgagees, or creditors, until certain particulars of it are left with an officer of the Court of Common Pleas (sect. 19). Et vide 2

& 3 Vict. c. 11. By the latter act a similar protection is also afforded to purchasers and mortgagees as against the claims of the crown on judgments, &c. and as against a lis pendens.

(s) Co. Litt. 42 a, 43 b; 2 Inst. 322.

(4) Co. Litt. 42 a.

CHAPTER VII.

OF ESTATES IN POSSESSION, REVERSION, AND
REMAINDER.

CHITHERTO We have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view: with regard to the time of their enjoyment.] When contemplated in this light, they are either in possession or expectancy. Where a man is entitled immediately to the possession of land, by virtue of any of the estates or interests which we have been considering, his estate is said to be in possession(a); when entitled to it, not immediately, but in futuro, his estate is said to be in expectancy. Of expectancies, again, there are at the common law two sorts: one called a reversion; the other a remainder.

I. Of estates in possession not much remains to be observed. All the estates hitherto mentioned were supposed to be of this kind; for in laying down general rules we usually apply them to such estates as these. But it is material farther to remark of them, that a man may have an estate in possession in land, and may nevertheless not be in actual possession of the land; for the tenant may be disseised (b), that is, put out of the actual seisin (supposing

(a) Blackstone defines estates in possession as "those whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency;" 2 Bl. Com. 163. So it is said in 2 Cruise Dig. 258, that "estates in pos

VOL. I.

session are those where the tenant is entitled to the actual pernancy of the profits."

(b) As to disseisin, vide Co. Litt. 181 a; Taylor v. Horde, 1 Burr. 60; Williams v. Thomas, 12 East, 141; Doe v. Perkins, 3 Mau. & Sel. 275.

U

his estate to be freehold), or may be otherwise wrongfully deprived or ousted of the actual possession, in some one of the various ways which will hereafter be described when we treat of the modes of civil injury; but will still retain an estate in possession, according to the sense in which that term is above used. In such a case the true owner is also said to have the right of possession (c), as opposed to the mere naked possession of the wrong doer; and this right of possession involves also the right of entry(d), that is, the right of peaceably entering upon and taking possession of the land withheld; while on the other hand the naked possession of the wrong-doer is capable, by length of time and the neglect of the true owner to assert his right, of ripening, after a certain period (fixed, in general, at twenty years) into a lawful and indefeasible estate. Without pausing, however, upon these subjects, the farther developement of which belongs to a later portion of the treatise, we may now proceed to examine the doctrine of estates in expectancy.

II. An estate, then, in reversion (e) (to the nature of which we have already had occasion in some measure to refer) is where any estate is derived by grant or otherwise, out of a larger one, leaving in the original owner an ulterior estate immediately expectant on that which is so derived the latter interest is called the particular estate (as being only a small part or particula of the original one), and the ulterior interest, the reversion(f). Thus, upon the

(c) 2 Bl. Com. 195; 3 Bl. Com. 177; Gilb. Ten. 21.

(d) The right of entry also involves that of proceeding against the wrong. doer by ejectment, which is the form of action for recovering land wrongfully withheld. The ancient forms of proceeding called real actions, by which land might also formerly be recovered, are now (with some very

few exceptions) abolished by 3 & 4 Wm. 4, c. 27, s. 36.

(e) Lord Coke treats of remainders before reversions, and is followed in this by Blackstone. But the order chosen in the text, would seem to be the more natural and convenient.

(f) Lord Coke says, "A reversion "is where the residue of the estate "always doth continue in him that

creation by the owner of the fee, of any estate in tail, for life, or for years, the residue undisposed of is described as the reversion expectant upon the particular estate in tail, for life, or years so created. As soon as the particular estate is thus carved out of the original one (no farther disposition being made), the expectant interest or reversion is vested in him who was before the owner of the whole, ipso facto and without any special reservation for the purpose(g). For where a smaller estate is merely taken out of a larger, the residue remains as of course, in the original proprietor. This reversion is an actual interest or estate (h); but it is an estate in expectancy only, and not in possession, because the reversioner has no right to the possession until the particular estate is determined.

The tenant of a particular estate in tail, for life, or years holds (as we have elsewhere shown (i)) of the reversioner, by fealty and by such services as are reserved between them. Hence the usual incidents (k) to reversions are said to be fealty and rent; rent being the usual description of service. When no rent is reserved on the particular estate, fealty however results of course, as an incident quite inseparable.] [Where rent is reserved, it is also incident, though not inseparably so, to the reversion. The rent may be granted away, reserving the reversion;

"made the particular estate, or where
"the particular estate is derived out
"of his estate, as in the case tenant in
"fee simple maketh gift in tail, &c.
"If a man extend lands by force of a
"statute merchant, staple, recogni-
'zance, or elegit, he leaveth a rever-
"sion in the conusor." Co. Litt. 22 b.
He elsewhere speaks of a reversion as
a returning of the land to the grantor
or his heirs after the grant is over (Co.
Litt. 142 b); but this is a wider and
less usual sense of the term, and would
include a possibility of reverter (vide
sup. p. 229), and an escheat (vide sup.

[and the reversion may be granted away, reserving the rent by special words; but by a general grant of the reversion, the rent will pass with it as incident thereunto, though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not è converso; for the maxim of law is accessorium non ducit sed sequitur suum principale (1).]

Where a freehold reversion (that is, a reversion in fee, in tail, or for life) is expectant on a particular estate of freehold, the reversioner is said to be seised of the reversion as of fee (or if his estate be for life, as of freehold only), and not to be seised of the land in his demesne as of fee (or freehold), as in the case of an estate in possession; but if a freehold reversion be expectant on a particular estate for years, it is in that case correct to describe the reversioner as seised of the land in his demesne as of fee; for his estate is considered (owing to the small regard once paid to chattel interests) as amounting for many purposes to a freehold estate in possession, and the possession of the termor constitutes the seisin of the freeholder (m). Of a reversion expectant on a particular estate of freehold, no dower or curtesy can be claimed; but it is otherwise of a reversion expectant on a term of years (n).

By the principles of the common law, if the tenant of the particular estate for life or years makes a conveyance by feoffment, for an estate not warranted by the nature of his own interest, as where tenant for life makes a feoffment in fee, or tenant for years, a feoffment even for life, it destroys the particular estate, by converting it into a new and wrongful one, and by consequence it displaces or divests the reversion in expectancy thereon. But, on the other hand, it also operates as a forfeiture to the person in reversion, and gives him an immediate right to enter

(1) Vide sup. 151 b, 152 a.

(m) Wrotesley v. Adams, Plowd. 191; Butler, Co. Litt. 330 b, n. (1); Co. Litt. 17 a; 16 East, 350; Doe v. Finch, 4 B. & Adol. 305.

(n) Co. Litt. 29 b, 32 a; 2 Bl. Com. 127; Stoughton v. Leigh, 1 Taunt. 410.