The law was 207 a. he has not an estate of freehold. precisely the same in this respect when Bracton wrote -Et sciendum quod liberum tenementum est id quod Bracton, quis tenet sibi et hæredibus suis. Item ut liberum tenementum, sicut ad vitam tantum, vel eodem modo ad tempus indeterminatum, absque alia certa temporis præfinitione : sc. Donec quid fiat, vel non fiat; ut si dicitur, Do tali donec ei providero. Liberum autem tenementum non potest dici alicujus, quod quis tenet ad certum numerum annorum, mensium, vel dierum; licet ad terminum centum annorum, quæ excedit vitas hominum. c. 2. holders, 233. 16. It has been shewn that, upon the introduction Dissert. of the feudal law, all lands became holden, either by a free, or a base tenure. The tenant who held by a free tenure had always a right to the enjoyment of the land, for his life at least; and could not be dis- Black. Cons. possessed even for the non-payment of his rent or the on Copynon-performance of his services; whereas the tenant. 4to edit. who held in villenage might be turned out at the pleasure of his lord; and his possession, being perfectly precarious, was considered to be the possession of his lord; to whom he was, in a great degree, a mere slave. 17. The person thus holding lands by a free tenure was therefore called a freeholder, because he might maintain his possession against his lord: and for this reason liberum tenementum, or freehold, was opposed to villenage. Thus Bracton says-Item dicitur liberum 207 a. tenementum, ad differentiam ejus quod est villenagium; quia tenementorum aliud liberum, aliud villenagium. And an estate of freehold, once created, could not 1 Inst.218 a. cease without entry or claim. 18. The acquisition of an estate of freehold was attended with several valuable rights and privileges. The freeholder became a member of the county court, one of the pares curia in the court baron, or lord's court; was entitled to be summoned on juries in the king's court; and to vote at the election of a knight of the shire. 19. In subsequent times, the word freehold was, in some cases, applied to the estate or interest only of the tenant; as where a person had an estate for life in lands held in villenage, he was said to have a freehold interest. Thus Lord Coke says" A freehold is taken in a double sense: either it is named a freehold in respect of the state of the law, and so copyholders may be freeholders; for any that hath an estate for his life, or any greater estate, in any land whatsoever, may in this sense be termed a freeholder or in respect to the land, and so it is opposed to copyholders: that what land soever is not copyhold, is freehold." 20. It is however fully proved by Sir William Blackstone, in his Considerations on Copyholders, that no person can be considered as a freeholder, or entitled to the privileges of a freeholder, unless his estate consists of free land: so that although the determination of an estate be uncertain, yet if it is held by a base tenure, it is not considered in law as a freehold, nor has the tenant any of those privileges which the law gives to freeholders; for in that case he has a freehold interest only, whereas no estate is, strictly speaking, freehold, unless the possessor holds it by a free tenure; therefore all freehold estates must now be held in socage. 21. Lord Coke says, a freehold estate may at several times be moveable, sometimes in one person, and, alternis vicibus, in another, as if there be 80 acres of meadow, which have been used, time out of mind, to be divided between certain persons; and that a certain number of acres appertain to every of these persons, to be yearly assigned and allotted to them; they have freehold estates in their respective portions of the meadow. 22. It is said in Brooke's Abridgement, that an Tit. Demand, apper chamber in a house is no frank tenement, as pl. 20. it cannot continue; for if the foundation fails, the chamber is gone. But Lord Coke says, a man may 1 Inst. 48 b. have an inheritance in an upper chamber; though the lower buildings, and soil, be in another; and seeing it is an inheritance corporeal, it shall pass by livery. Dissert. c. 1. 1 Inst. 266 b. n. 1. 1 Burr, 107. 23. The possession of a feud was called seisin, Of Seisin. which denoted the completion of the investiture by which the tenant was admitted to the feud. Upon the introduction of the feudal law into England, the word seisin was only applied to the possession of an estate of freehold; in contradistinction to that precarious kind of possession by which tenants in villenage held their lands; which was considered to be 1 Inst. 200 b. Plowd. 503. the possession of their lords, in whom the freehold continued. Where an Entry is necessary. 24. Where a freehold estate is conveyed to a person by feoffment, with livery of seisin; or by any of those conveyances which derive their effect from the statute of uses; he acquires a seisin in deed, and a 1 Inst. 266 b. freehold in deed. But where a freehold estate comes to a person by act of law, as by descent, he only acquires a seisin in law; that is, a right to the possession; and his estate is called a freehold in law. For he must make an actual entry on the land to acquire a seisin, and a freehold in deed. Inst. 245 b. 25. The entry must be made by the person having right, or some one authorized by him. But the mere 1 act of going on the land will not amount to a legal 6 Mod. 44. Plowd. 92, 3. 1 Inst. 15 a. 252 b. 1 Inst. 250 a. entry, sufficient to vest the actual seisin in the per. son who has the right. In order to constitute a legal entry, the person must enter with that intent, and do some act to shew such intention. 26. The entry of the heir, upon any part of the estate, will give him a seisin in deed of all the lands lying in the same county. For since the freehold in law is cast upon him by the death of his ancestor, and no person is in possession, so that no particular estate is to be defeated, a general entry into part, will be sufficient to reduce the whole into actual possession. But where the lands lie in different counties, there must be an entry in each county. 27. If the heir be deterred from entering by bodily fear, he may make claim, as near the land as he can. Such claim is however only in force for a year and a day; but if it be repeated once in the Lit. § 417,18. space of every year and day, which is called continual claim, it will have the same effect as a legal entry. 1 Inst. 15 a. 521. 7 Term R. 390. 28. The entry of the heir is only necessary where 3 Wils. Rep. the lands are in the actual occupation of the ancestor, at the time of his death. For if the lands are held under a lease for years, and the lessee has entered under the lease, the heir will be considered as having a seisin in deed, before entry or receipt of rent, because the possession of the lessee for years is his possession. Goodtitle v. 29. The possession of a guardian in socage is also 7. Newman, the possession of the ward. So that if a widow, having a son on whom her husband's estate descends, Tit. 29. c. 3. continues in possession, after her husband's death, the law will consider her as guardian in socage to her son; and will therefore admit the son to have, by that means, had a seisin in deed of the land. 30. Where lands are let on leases for lives, the 1 Inst. 15 b. freehold is in the lessees; consequently the heir has no immediate right of entry on the death of his ancestor. He is, however, entitled to the rent reserved in the lease, by the receipt of which he becomes seised of the rent, and also of the reversion expectant on the determination of the lease. 31. The seisin in law, which the heir acquires on Abatement. the death of his ancestor, may be defeated by the 1 Inst. 277 a. entry of a stranger, claiming a right to the land; which entry is called an abatement; and, in such a case, the only mode of regaining the seisin is by an entry of the legal owner, which will restore him to the possession. If the abator dies seised, the lands c. 1. Gilb. Ten, 28. descend to his heir, and such descent tolls, or takes Lit. § 385. away, the entry of the heir, who is, in that case, Vide Tit. 29. driven to his action. 32. Where a younger brother enters upon the Lit. § 396. death of the ancestor, such entry is not an abatement; for it shall be intended that the younger brother did not set up a new title, but only entered to preserve the possessions of the ancestor in the family, that no one else should abate. If the younger son dies in possession, still the elder son may enter; for as the law will not intend the entry of the younger Vide Tit. 29. son to be a wrongful act, therefore his possession becomes that of the elder. c. 1. 33. Where a person is in the actual seisin of an Disseisin. estate of freehold, he may lose that seisin by a stranger's entering on the estate, and forcibly ousting or dispossessing him of it, which is called a disseisin; and is thus defined by Littleton, § 279— "Disseisin is, properly, where a man entereth into lands or tenements where his entry is not congeable; and ousteth him which hath the freehold." Lord VOL. I. F |