CHAPTER III.

of freehold estates of inHERITANCE.

THE second point to be considered with regard to corporeal hereditamenrs is the nature of the estates which may be had in such of them as are of free tenure (a), reserving for subsequent consideration the subject of corporeal hereditaments held in base tenure (b). [An estate in land signifies such interest as the tenant hath therein; so that if a man grants all his estate in Dale to A. and his heirs, everything that he can possibly grant shall pass thereby (c). It is called in Latin status: it signifying the condition or circumstance in which the owner stands with regard to his property.]

And here it is material, in the first place, to remark that some kind of actual interest or ownership is implied in the term; for a bare possibility, (such, for example, as the expectation of the eldest son of succeeding, upon his father's decease, to the inheritance of his lands,) will not satisfy the legal idea of an estate (d). Nor will a mere power amount to an estate; as if a man by will orders his land to be sold by his executors: for they will in such case take neither right nor title in the land, but only a bare autho

(a) Vide sup. p. 177.

(b) Vide post, bk. II. pt. 1. c. XXII. (c) Co. Litt. 345 a.

(d) See Jones v. Roe, 3 T. R. 93; Doe v. Tomkinson, 2 Mau. & Sel. 170. There are two kinds of possibility in law-one a bare possibility, such as referred to in the

text; the other a possibility coupled with an interest. The latter may without impropriety be considered as an estate (though an estate in contingency), and may now, by the express provision of 8 & 9 Vict. c. 106, s. 6, be disposed of by deed.

rity (e). And the same may be said of a mere revocable licence or permission to make a certain use of land (ƒ). But, on the other hand, there are various descriptions of actual interest to which the term applies. The leading distinction to which estates are subject is that of legal and equitable estates; the first being properly cognizable in the courts of common law, though noticed also in the courts of equity; and the second being properly cognizable in the latter courts, and not even noticed, generally speaking, in the former (g).

It is of legal estate alone (which is the original and primary idea) that we shall have occasion at present to speak; and we purpose to consider it [in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed; and, thirdly, with regard to the number and connection of the tenants.

First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by its duration and extent.] Thus, either the ownership is to subsist in the tenant during his own life, or the life of another man; or it is vested in the tenant and his descendants after him; [or it is circumscribed within a certain number of years, months, or days; or, lastly, it is infinite and unlimited, being vested in the tenant and his representatives for ever. And this occasions the primary division of estates into such as are freehold, and such as are less than freehold.]

A freehold estate-liberum tenementum, or frank tenement, as it was formerly called-is an estate either of

(e) Co. Litt. 265 b; Co. Litt. 113a, n. (2).

(f) See R. v. Mellor, 2 East, 189; Wood v. Leadbitter, 13. Mee. & W. 838; Perry v. Fitzhowe, 8 Q. B. 757; Hewitt v. Isham, 7 Exch. 77; Roffey v. Henderson, 17 Q. B.

574; Taplin v. Florence, 10 C. B. 764.

(g) Sanders on Uses, 8; Bac. Us. 77; 2 Fonbl. 257. And see Alpass v. Watkins, 8 T. R. 516; Hardr. 469; Murley v. Sherren, 8 Ad. & El. 654.

inheritance, or for life, in lands or tenements of free tenure (h); and it is material to our proper conception of it to remark, that at the common law, and prior to certain alterations in our system to be hereafter explained, an estate of this description in hereditaments corporeal could in general be created or transferred only by the ceremony called livery of seisin, attended with proper words of donation (i); which ceremony consisted, as its name imports, of a solemn delivery of possessiou; and is in fact the feudal investiture of which we spoke in the last chapter.

This method (which is still capable of being used) is called a feoffment; and the parties between whom it takes place are called the feoffor and the feoffee. By the common law, the donation with which the livery is accompanied might be merely oral; but now, by the Statute of Frauds, (20 Car. II. c. 3,) it must be expressed by some instrument in writing, under the signature of the feoffor or of his agent by writing lawfully authorized.

It appears by our definition, that estates of freehold may be classed as being [either estates of inheritance, or estates not of inheritance (k)]; and these two kinds will each be considered in their order.

after

An estate of inheritance is where the tenant is not only entitled to enjoy the land for his own life, but where, his death without having disposed of it, it is cast by the

(h) The tenure itself, we may recollect, is expressed by the same term of freehold; (vide sup. p. 214, n.) As to the definition here given of freehold estate, it is according to Co. Litt. 43 b, where it is laid down that "tenant in fee, tenant in tail, and "tenant for life, are said to have a "frank tenement, a freehold, so "called, because it doth distinguish "it from terms of years, chattels upon uncertain interests, lands in "villenage, or customary or copy"hold lands." Blackstone's defini

law upon the persons who successively represent him in perpetuum in right of blood (1) according to a certain established order of descent, which we shall have occasion hereafter to explain (m). These persons are called his heirs, and himself their ancestor.

An estate of inheritance is otherwise called a fee (n).

[The true meaning of the word fee, feodum, is the same with that of feud or fief, and in its original sense it is taken in contradistinction to allodium (o); which, as we have seen, is a man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree, and the owner thereof hath absolutum et directum dominium. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior, the ultimate property of the land resides. This allodial property no subject in England has, it being a received and now undeniable principle in the law, that all the lands in England are holden mediately or immediately of the crown. The sovereign therefore, only, hath absolutum et directum dominium (p); but all subjects' lands are in the nature of feodum or fee, whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feudal clogs which were laid upon the first feudatory when it was originally granted.

This is the primary sense and acceptation of the word fee. But, as Sir Martin Wright very justly observes (q), the doctrine" that all lands are holden" having been for

(1) Co. Litt. 237 b.

(m) As to the law of descent, vide post, bk. 11. pt. 1. c. XI.

(n) "Fee simple" and "inheritance" are used as convertible terms, Litt. s. 9; Litt. s. 1; Flet. 1. 5, c. 5, s. 27.

(0) As to allodial property, vide sup. p. 178.

(p) "Prædium domini regis est directum dominium, cujus nullus est author nisi Deus."-Co. Litt. 1 b. (q) Of Ten. 148.

[so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this its primary original sense, in contradistinction to allodium or absolute property, with which they have no concern; but generally use it to express the continuance or quantity of estate. A fee, therefore, in general, signifies an estate of inheritance (r), being the highest and most extensive interest that a man can have in a feud. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man (s).]

Estates of inheritance are either estates in fee simple or estates in fee tail (t).

I. An estate in fee simple (u) is that which a man hath to hold to him and his heirs general (x), that is, his heirs both lineal and collateral, male and female; and this is often called 66 an estate in fee," without the addition of the word "simple" (y); though, as already explained, a “fee” more properly signifies any estate of inheritance. Where a man claims an estate in fee simple in possession in a corporeal hereditament (z), the precise technical expression is as follows: that he is "seised in his demesne as of fee," (in dominico suo ut de feodo); the words in dominico, or “in his demesne," signifying that he is seised as owner of the (r) Litt. s. 1; Flet. 1. 5, c. 5, s. 27. (s) Co. Litt. 1 b.

(t) "An estate of inheritance is either fee simple or fee tail."-Edward Seymour's case, 10 Rep. 97 b. Et vide Litt. s. 13; Co. Litt. 1 b, 19 a, 27 b; Vaughan, 273. Blackstone divides inheritances into such as are absolute (which he considers as equivalent to fees simple) and such as are limited, of which he considers fees tail as forming a species. (2 Bl. Com. 104.) But the authorities in favour of the division in the text (which is the more usual one) greatly preponderate.

(u) As to this estate, see Co. Litt. 1 a-18 b.

(x) Wright's Tenures, 147; Co. Litt. 1 b. It is to be observed that we are treating at present of natural persons only. Artificial persons, or corporations, of whom we shall have occasion to speak hereafter, hold estates in fee simple, to them and their successors. Co. Litt. 8 b.

(y) Litt. s. 293.

(2) Where the subject is incorporeal, or the estate expectant on a precedent freehold, the words "in his demesne" are omitted. Com. Dig. Pleader (C. 35).