land itself, and not merely of the seigniory or services (a); and the words "as of fee" importing that he is seised of an estate of inheritance in fee simple, and also (in reference to the original meaning of the term fee) that he is not the absolute or allodial owner, but holds, feudally, of a superior lord (b).

The quality of being always holden of a superior lord (the nature of which was fully explained in the Chapter on Tenures) is incident to every estate in fee simple belonging to a subject; but the tenure is no longer (as formerly) of the person from whose immediate grant the fee is derived, but of the person to whose seigniory it has of antient time belonged. This is by the effect of the statute of Quia emptores (18 Edw. I. c. 1), which was passed to put a stop to the practice of the subinfeudation of the fee simple (c). For, according to that practice (which was antiently allowed), a new relation of lord and tenant was, upon each

(a) Blackstone considers these words "in his demesne," as sig. nifying that it is "his property, as belonging to him and his heirs for ever."-2 Bl. Com. 105. But this assigns no meaning to them beyond what would belong to the other words with which they are connected. Lord Coke understands the word demesne, when used in this particular connection, to signify de main or of the hand, because it is applied only to corporeal or tangible subjects of property. Co. Litt. 17 a. But the Latin term dominicum is opposed to this derivation; for it is evidently to be traced to dominus. On the other hand, there is abundant authority for holding that dominicum properly signifies the land which the feudal lord retained to his own use for sustentation of his household, as distinguished from what he granted out on services; and that the true

sense of seisin in demesne, is that
given in the text. Thus it is laid
down in Fleta, l. 5, c. 5, s. 18-" Est
dominicum propriè terra in mensam
assignata, &c." And again, "Poterit
unus tenere in feodo quoad servitia,
sicut dominus capitalis, et non in do-
minico-alius in feodo et dominico, et
non in servitio, sicut liberè tenens alicu-
jus,” (s. 26.) And Bracton, in treat-
ing of the assisa utrum, says, “ refert
qualiter fuit seisitus, utrum scilicet in
dominico, vel servitio.”—Bract. 1. 4,
tr. 5, c. 2, s. 2. As for the exclusive
appropriation of the term to tangible
possessions, that is referable merely
to the circumstance, that what the
lord applied to the use of his house-
hold naturally consisted of property
of that description, and not of in-
corporeal and intangible subjects.
(b) 2 Bl. Com. 105.

(c) As to subinfeudation, vide sup. pp. 179, 191.

successive alienation of the fee, continually created between the alienor and alienee; and the latter consequently held of the former, and not of the chief lord under whom the alienor himself held. But this being found prejudicial to the interests of the chief lords, by exposing them to the frequent loss of their escheats, wardships, and marriages, the statute in question was passed for their tection (d); directing that upon all sales or feoffments of proland in fee simple, the feoffee shall hold the same, not of his immediate feoffor, but of the next lord paramount, of whom such feoffee himself held; and by the same services (e). Since this statute (ƒ), therefore, the vendor or grantor of land in fee simple has no longer been able to convey it to be holden of himself, but the grantee must take it to hold of the same seigniory to which the fee immediately belonged when the statute passed (g),—unless something should have since occurred to alter the tenure. Where, from the lapse of time, no badges of tenure under any subject can now be traced, the land will be considered as holden immediately of the crown (h), and by the service of mere fealty; which is the least and lowest service the law can create (i), and which being now never exacted, has become a merely nominal obligation (k). But in many instances a private lord can still be shown to be entitled to the immediate seigniory; the ultimate one, as formerly remarked, being in all cases vested in the sovereign. A fee simple is the most extensive estate of inheritance

that a man can possess in land (1); it is the entire property therein (m); and to a fee simple (as indeed to most other estates) is attached-as an inseparable incident-the right of alienation (n), at the mere pleasure of the tenant, to the full extent of the interest which is vested in the tenant himself, or for any smaller estate. If he alienes to the full extent of his interest, or, in other words, conveys away the fee simple, it follows of course that the alienee takes an estate to himself and his own heirs, answerable to that which the original tenant had to him and his heirs.

[The fee simple or inheritance of lands and tenements is generally vested and resides in some person or other, though divers inferior estates may be carved out of it. As if one grants a lease for twenty-one years, or for one or two lives, the fee simple remains vested in the grantor and his heirs; and after the determination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee. Yet sometimes the fee may be in abeyance (o),] that is, only in remembrance, intendment, and consideration of the law (p); there being no person in esse, in whom it can vest and abide; though the law considers it as always potentially existing. This may be exemplified in [the case of a parson of a church, who hath only an estate therein for the term of his life, and the in

(1) Litt. s. 11; Co. Litt. 18 a; Vaughan, 269.

(m) Butler's Fearne, p. 13 (note); Co. Litt. 18 a; 2 Saund. 388 b; Machell v. Clarke, Lord Ray. 779; 2 Inst. 336; Edward Seymour's case, 10 Rep. 97 b.

(n) Litt. s. 360; Co. Litt. 223 a; 1 Cr. Dig. 20.

(0) As to the doctrine of abeyance, see Co. Litt. 341 a, 342 b; Litt. 646, 647; Butler's Fearne, p. 360, 9th ed. 1 Prest. Est. 503; Camoys' Peerage Case, 5 Bing. N. C. 763;

VOL. I.

et vide sup. 231, n.

(p) Blackstone (vol. ii. p. 107) considers abeyance as also importing"expectation," and Co. Litt. 342 b, is to the same effect. Yet Lord Coke himself afterwards remarks that the fee simple may be in perpetual abeyance (as in the case of a parson) "without any expectation to come in esse." Co. Litt. 343 a. Littleton's exposition, therefore, which is that followed in the text, seems to be the more correct; (see Litt. s. 646.)

R

[heritance remains in abeyance (q). And not only the fee, but the freehold also, may be in abeyance; as, when a parson dies, the freehold of his glebe is in abeyance, until a successor be named, and then it vests in the successor (r).

The word "heirs" is necessary in the grant or donation, in order to make a fee or inheritance. For if the land be given to a man for ever, or to him and his assigns for ever, this vests in him but an estate for life (s). This very great nicety about the insertion of the word "heirs" in all feoffments and grants, in order to vest a fee, is plainly a relic of the feudal strictness, by which it was required that the form of the donation should be punctually pursued; or that, as Craig (t) expresses it in the words of Baldus, "donationes sint stricti juris, ne quis plus donasse præsumatur quam in donatione expresserit." And therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own person, and subsisted no longer than his life; unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs.]

But this rule has some exceptions-and particularly does not extend to devises by will; in which, as they were introduced at the time when the feudal rigour was apace wearing out, a more liberal construction has always been allowed and therefore by a devise to a man for ever, or to one and his assigns for ever, or to one in fee simple, the devisee, (even before the late Act of 7 Will. IV. & 1 Vict. c. 26,) was construed to have an estate of inheritance; for the intention of the devisor was sufficiently plain from the words of perpetuity annexed, though he had omitted the

(g) Litt. s. 646. Lord Coke, however, holds that a parson has for some purposes a fee simple qualified; Co. Litt. 341 a.

(r) Litt. s. 647; Co. Litt. 342 b. (s) Litt. s. 1; Wright v. Dowley, 2 W. Bl. 1185.

(t) L. 1, t. 9, s. 17.

legal words of inheritance (u). But if the devise were to a man and “his assigns," without annexing words of perpetuity, there the devisee was, at one time, held to take only an estate for life; for it did not appear that the devisor intended any more. A new rule of construction, however, is now provided, by a positive law, for all such cases; for by the statute just mentioned (sect. 28), it is provided, that where any real estate shall be devised without words of limitation, it shall be construed to pass the whole interest of which the testator had power to dispose, unless the contrary intention should appear by the will.

Estates in fee simple are divided into three sorts (x) :— 1, fee simple absolute (that is, free from all qualification or condition); 2, fee simple qualified or base; 3, fee simple conditional,-a division which relates, it is to be observed, to the quality, not the

(u) Thus, too, (even before the new Will Act,) a devisee of an indefinite estate, if he was charged personally with the payment of debts or legacies, was held to take the fee. Secus, if the estate devised to him was so charged. See Doe d. Sams v. Garlick, 14 Mee. & W. 698.

(x) This division of fees simple is given by Lord Coke as the common one in his time (Co. Litt. 1 b); and is followed by Mr. Justice Powell, in Idle v. Cooke, (Lord Raym. 1148,) and by the Court of King's Bench in Martin v. Strachan, (reported 5 T. R. 107, in notis.) It is to be observed, however, that the two last classes are both referred by Lord Coke to a more general head of fees simple determinable (a term still in frequent use). See Edward Seymour's case, 10 Rep. 97 b, where estates of inheritance are distributed with great clearness and precision, as follows:-First, they are either fee simple or fee tail.

quantity, of the estate; for

Estates in fee simple are either absolute (i. e. indeterminable) or determinable. Those which are determinable are either derived out of an estate in fee simple absolute, or derived out of an estate in fee tail. The first of these are created either by way of condition (as upon mortgage), or by way of limitation (as if A. enfeoffs B. of the manor of D. to hold to him and his heirs so long as C. has heirs of his body); the first sort being called fees simple conditional, the second, fees simple limited and qualified. The fee simple derived out of an estate tail, Lord Coke exemplifies by the case where tenant in tail bargains and sells to W. H. and his heirs; where W. H. takes an estate in fee simple, as long as the tenant in tail has heirs of his body, derived out of the estate tail. See also Walsingham's case, Plowd. 557; Willion v. Berkley, ibid. 241.