CHAPTER THE SEVENTH. OF FREEHOLD ESTATES, OF INHERITANCE. THE next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant hath therein: so that if a man grants all his estate in Dale to A and his heirs, every thing that he can possibly grant shall pass thereby a. It is called in Latin status; it signifying the condition, or circumstance, in which the owner stands with regard to his property. And to ascertain this with proper precision and accuracy, estates may be considered 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 connexions of the tenants. FIRST, with regard to the quantity of interest which the tenant has in the tenement, this is measured by it's duration and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man to determine at his own decease, or to remain to 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 him and his representatives for ever. And this occasions the primary division of estates into such as are freehold, and such as are less than [104] freehold. a Co. Litt. 345. 66 с AN estate of freehold, liberum tenementum, or franktenement, is defined by Britton b to be "the possession of the soil "by a freeman." And St. Germyn tells us, that "the possession of the land is called in the law of England the "franktenement or freehold." Such estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seisin, or in tenements of any incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton, that where a freehold shall pass, it behoveth to have livery of seisin. As, therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates were conveyed with the same solemnity, therefore no others are properly freehold estates. ESTATES of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail. I. TENANT in fee-simple (or, as he is frequently styled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever: generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in it's original sense it is [105] taken in contradistinction to allodium, which latter the writers on this subject define to be every 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 it's highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo in his own demesne. 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. And therefore sir Henry Spelman 8 defines a feud or fee to be the right which the vasal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services; the mere allodial propriety of the soil always remaining in the lord. 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 king. The king therefore only hath absolutum et directum dominium : 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 feodal clogs which were laid upon the first feudatory when it was originally granted. A subject therefore hath only the usufruct, and not the absolute property of the soil; or, as sir Edward Coke expresses it, he hath dominium utile, but not dominium directum. And hence it is, that in the most solemn acts of law we express the strongest and highest estate that any subject can have, by these words, "he is seised thereof in his demesne, as of fee." It is a man's demesne, dominicum, or property, since it belongs to him and his heirs for ever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee: that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides. 66 THIS is the primary sense and acceptation of the word fee. [ 106 ] But (as sir Martin Wright very justly observes 1) the doctrine "that all lands are holden," having been for so many ages a fixed and undeniable axiom, our English lawyers do very * of feuds, c.1. h Co. Litt. 1. dominium, cujus nullus est author nisi 'Praedium domini regis est directum * Co. Lit. 1. 1 of ten. 148. rarely (of late years especially) use the word fee in this it's 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; being the highest and most extensive interest that a man can have in a feud: and when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it, (as a fee, or a fee-simple,) it is used in contradistinction to a fee conditional at the common law, or a fee-tail by the statute: importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man TM. m TAKING therefore fee for the future, unless where otherwise explained, in this it's secondary sense, as an estate of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal ". But there is this distinction between the two species of hereditaments: that, of a corporeal inheritance a man shall be said to be seised in his demesne, as of fee; of an incorporeal one, he shall only be said to be seised as of fee, and not in his demesne. For, as incorporeal hereditaments are in their nature collateral to, and issue out of lands and houses", their owner hath no property, dominicum or demesne, in the thing itself, but hath only something derived out of it; resembling the servitutes, or services, of the civil law. The dominicum [107] or property is frequently in one man, while the appendage or service is in another. Thus Gaius may be seised as of fee of a way leading over the land, of which Titius is seised in his demesne, as of fee. (1) m Co. Litt. 1. "Feodum est quod quis tenet sibi et haeredibus suis, sive sit tenementum, sive reditus, &c. Flet. l. 5. c. 5. § 7. o Litt. § 10. P See page 20. 4 Servitus est jus, quo res mea alterius rei vel personae servit. Ff.8. 1. 1. (1) See page 20., where the author does not confine incorporeal hereditaments to things issuing out of lands and houses, but to things issuing out of any thing corporate, real or personal. But the true reason of the distinction is clearly, not that the owner of the derivative has no property in 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 him 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-simple. Yet sometimes the fee may be in abeyance, that is (as the word signifies,) in expectation, remembrance, and contemplation in law; there being no person in esse, in whom it can vest and abide: though the law considers it as always potentially existing, and ready to vest whenever a proper owner appears. Thus, in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est haeres viventis: it remains therefore in waiting or abeyance, during the life of Richard'. This is likewise always the case of a parson of a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance. 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 t. (2) r Co. Litt. 342. s Litt. § 646. Litt. § 647. in the land or house from which it is derived, but that the thing in which he has a property, the right of way for instance, is incorporeal, and incapable of being in manu, or actual possession. (2) This opinion, which may now be considered as exploded, was founded on a notion, generally speaking, true enough, that the operation of livery was immediate and entire, and therefore that the livery to John, in the case put, carried the remainder over with it at the same time out of the grantor; and if the remainder passed from the grantor, as it clearly passed for the present to nobody, this doctrine of abeyance was a necessary consequence. This conclusion, though couched in imposing terms, as abeyance, in gremio legis, and in nubibus, was by no means satisfactory; these terms of what might be called legal geography did not explain to any man's mind where the estate was in the interval. At the same time, certain opinions were held, seemingly inconsistent with it; for instance, it was laid down, that if John died in the life-time of Richard, as the heirs of Richard could never take (see post, 169.), the grantor should have the land again, the same grantor in whom, by the hypothesis, no estate remained. Mr. Fearne met the doctrine in the only way in which it could be met, by deny ing |